Source: The New Review, November 1st, 1915. Vol. 3, No. 16.
Transcription and Markup: Bill Wright for the Marxists Internet Archive, October, 2022
The problem of revising our state constitutions has been engrossing the attention of our “statesmen” and students of our system of government for quite some time past, and has been constantly growing in importance. It is agreed on all sides that our state constitutions are, with but few exceptions, antiquated, unwieldy, and sadly in need of revision. But a constitution, like the tariff, may be “revised” in many ways: It may be revised “upwards” from the people, as well as “downwards” to the people. And as in the case of the tariff it depends entirely on who does the re-vising: the people who want to make the constitution an instrument of government for the people; or those who want to protect the special class interests by making it an instrument of government of the people. The peculiar kind of revision that befalls any state constitution therefore depends largely on the special political conditions of that state. Nevertheless, there are general tendencies discernible in the revisions which have occurred during the past decade or so. At first the tendency, originating in the west, was for a revision “downwards”. But the tide has turned, and the tendency is now markedly “upwards”. The proposed New York State Constitution, is as typical an example of the “upward” trend as the Oregon Constitution was of the earlier tendency.
Before proceeding to discuss this proposed Constitution,— the offspring of the brains of such eminent statesmen as Elihu Root, Geo. W. Wickersham, J. G. Schurman, and Morgan J. O’Brien; not to mention Messrs. Wm. Barnes and “Al” Smith,— we will do well to find out wherein the problem which confronted this aggregation of statesmen consisted,— in other words, why revision was at all necessary, why our state constitutions are by common consent unsatisfactory.
The general dissatisfaction with our State Constitution and the consequent problem of revision, is due, mainly, to a concurrence of two circumstances: the theory of the division of governmental powers which prevailed at the time when our state constitutions were originally framed and the theory of the supremacy of the Judiciary which has grown up since. The theory of the division of powers turned our constitutions into a system of “checks and balances” well suited for the government of a people who believed, with Jefferson, that the less government the better, but utterly unsuited for modern governmental purposes. As is the case with all antiquated machinery, the workings of the Jeffersonian rural democracy system of government is marked chiefly by its inefficiency and waste. It is therefore natural that in these days of economy and efficiency, scientific management, etc. there should be a hue and cry on behalf of the “business interests”, the “tax payers”, and the “government expert”, for a revision which would abolish this division of powers, or, at least, so concentrate all important powers in one department as to reduce the others to a mere shadow of their former self.
At the same time the working class as represented by the Socialist and trade-unionist, and the “small man” generally as represented by the radical reformer, have been clamoring against the old system, principally because the growth of the Judicial Power has taken out all the substance of the theory of division of powers, leaving a mere hollow form to serve as a basis for the omnipotence of the Judiciary. Besides, these social classes have come to recognize to a very large extent not only that a modern community generally needs positive and not merely negative government, action and not merely non-interference, but that their own special interests lie in the direction of the concentration of governmental power and responsibility.
But the concentration of power and responsibility that the working class and the radical “small man” want is of an entirely different character from that which the big and small “business interests” and the academic “government expert”,— the “efficiency engineer” of the shop transplanted into politics,— want. The former want to abolish the power of the courts to veto and pervert legislation,— technically known as the power of the courts to declare legislation unconstitutional,— thereby making the power of the legislature to legislate co-extensive with the growing needs of the people, while at the same time making the legislature more responsible to the people and permitting the people to share directly in the work of the legislation by means of the initiative, referendum and recall. They also want the executive and judiciary to be directly responsible to the people to insure that they will carry out and interpret the mandate of the people whether expressed directly or through their representatives, in the spirit in which it was given. They therefore want the power to recall all elective officials, including judicial officers. In short, they want concentration of governmental powers in the hands of the people, and responsible to the people.
Not so with the “substantial” elements of the community and their governmental experts. They want to remove the power as far as possible from the people, and to make the government responsible to themselves instead of the people. They therefore begin by refusing to admit the people into a direct share in the work of the legislation, or to make any part of the governmental machine directly responsible to them. So far they are merely “conserving” the past. But that is not enough for them. They are bent on some radical departures. So they want to transfer all power from the legislature, which is the branch of the government nearest to the people and most amenable to their will, to the more remote and less responsible executive and judiciary. If they could have their choice they would place all power directly in the hands of the Judiciary,— the safest and least responsible of the three “departments.” Unfortunately, this is quite impossible: the judicial machinery is so unsuited to the work of every-day government that whenever and wherever tried it has proven the most inefficient and the most costly form of government. So our “substantial elements” are compelled to strive for the next best thing: concentration of power in the hands of the executive, with a supervisory power in the courts by way of re-insurance.
Thus are the lines clearly drawn between progressive radicalism and reactionary radicalism. But here a third element enters to complicate matters,— the “boss” representing the professional politician. The professional politician makes a living,— and some times a fortune,— by manipulating the “sovereign power” of the people for the benefit of our “substantial elements”, collectively or singly. In order that he may continue to thrive two things are necessary: The people must not have any direct legislative power, not to directly call an official to account,— for the greater the direct power of the people the less the goods which he can “deliver”. Whatever power the people have must be of a “representative” kind, so that he can manipulate it, and get his “legitimate” or illegitimate graft in the process. But, on the other hand, there must be some power left to the people. The day that the “people’s representatives” would cease to have any power would be the last day of the professional politician in politics,— with the disappearance of the commodity in which he trades his trade would become a matter of history. It is true that we have had many governors who were as subservient to the “machine” and the “boss” as the meanest legislative hack. But, on the other hand, our political annals are full of the ever-recurring story of the fight between the governor and the “boss”. The fact is, that even under existing circumstances, the governorship is,— for reasons which cannot be gone into here,— the weakest point in the “boss” system. The professional politician is, therefore, the true conservative: he is in favor of the status quo. He is opposed alike to the extension of power of the people and to the removal of this power further “up” to the governor. He is also the sworn enemy of efficiency and economy, because that means depriving him of his bread and butter.
Such was the problem; and such the forces that met to grapple with its solution during the summer months of this year of grace 1915 at the Capitol in Albany. Or, rather, to be exact, only two of the three forces which I have described really “met”,— the “substantial elements” and the professional politician. The third force, the working class and the other radical elements, were not represented in the “meeting”, so it could only petition. The petition,— and it should be noted here that it was the petition of the working class only, for the other “radical elements” did not have enough life in them even to get up a petition,— contained 25 prayers. They were all turned down, except two which got into the petition by mistake. And not only were all the demands of the working class turned down, but they were not even provided with a decent burial. They were just laughed out of court, like the demands of some irresponsible crank. Which is not at all surprising: a class that cannot muster the strength or the intelligence to get even a representation in the “meetin’ ”, and must therefore present its demands by petition, cannot expect to be taken seriously.
With the working class eliminated from its deliberations, the “labors” of the Constitutional Convention resolved themselves into a contest between the “substantial element” and the professional politician, both sides being encouraged and at the same time admonished by the wise words uttered by Elihu Root, the presiding genius of the Convention, at a dinner of the Academy of Political Science, held for the purpose of considering the problems before the Constitutional Convention:
“There are indications extensive and numerous of a reaction from certain extreme views, from certain enthusiasm for new devices in government. But we must remember that if reaction goes too far the pendulum will swing back the other way.”
The result of these labors is a constitution which not only utterly ignores the needs and demands of the working class, but which is considerably worse in many important particulars from the present one. But here again I must make a reservation, I should have said: “I believe it will turn out to be considerably worse.” For nobody knows what it actually contains. And this not only because of its inordinate length, its highly technical language, and the hodge-podge, thoroughly unscientific manner in which it was pieced together rather than constructed. These difficulties, great as they are, might perhaps be overcome by a sufficient number of experts who could explain its provisions to the uninitiated. But there is one difficulty in the way of finding out what this constitution contains which no amount of expert knowledge can possibly overcome,— the power of the Judiciary to say that it contains whatever pleases it to put into it. This power, which the working class wanted abolished but which this constitution seeks to perpetuate, makes it utterly impossible for us to know at the time we vote upon a constitution, either now or hereafter, what the constitution contains. So that even an advocate of the adoption of the proposed constitution is forced to admit that:
“To tell just what the new constitution provides, one would have to know the minds of the judges and foretell their opinions. Hence it would be mere guess-work to attempt any estimate of the positive value of the home-rule provision . . . The significance of this depends on the content of meaning that may be imparted to it by the courts.”
The important changes introduced into the new constitution are a substantial curtailment of the powers of the Legislature, and a corresponding increase of the powers of the Executive.[a]
At the Constitutional Convention dinner of the Academy of Political Science which I have already mentioned, Prof. F. J. Goodnow gave an account of the Chinese Constitution, framed by the revolutionists who had overthrown the Manchu dynasty and established the republic, and of its abolition by the “conservative statesman” Yuan-Shi-Kai, China’s present dictator, for the guidance and instruction of and as an object-lesson to the New York constitution makers. According to this account the Chinese Constitution was framed by “the radical and theoretical Western-educated Young China”, and its chief fault was that it attempted to give self-government to a people who were not used to it. “It was so framed”, said Prof. Goodnow, "as to lay greater emphasis on the Legislature, to which the people were quite unaccustomed, than on the executive, with which they were all familiar.”
The New York Constitution makers there present and notably Mr. Root who presided at the dinner as well as at the Constitutional Convention, evidently heard Prof. Goodnow to good purpose. Unlike “radical and theoretical western-educated Young China”, they have framed a constitution which lays greater emphasis on the Executive than on the Legislative. Not, of course, because we are unaccustomed to self government, but because they want us to become disaccustomed from it. The “new idea” in American political science evidently is not to attempt to educate people to self-government by giving it to them but to make them unfit for it by depriving them of it. It is this “new idea” that dominated the New York Constitutional Convention and its proposed Constitution.
a. "Legislative" in the original text. Corrected as an apparent error.
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