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conceded by the thoughtful critic I have quoted, and is called by him a recognition in constitutional law of a “fourth department of government”—the department of administration. All but one of these constitutions provide for amendment or the calling of a constitutional convention by a majority vote of both branches of a single Legislature, ratified by a majority of the electors. Both Dakotas established constitutional prohibition after a popular vote-in North Dakota by a majority of 1159 in a total vote of nearly 36.000, thus making a permanent restriction on the people against the will of nearly one-half, and beyond their power to change, even when a majority, except by constitutional amendment.
I have referred to these constitutions somewhat at length because of the nearly 140 constitutions which have been framed in this country, they mark the widest departure from the fundamental principles of constitutional law hitherto generally accepted and adopted. I do not question the wisdom of enacting into law many of the provisions they contain, and certainly not the public spirit and high purpose of the men who framed them. But on grounds both of principle and expediency I seriously doubt the wisdom or propriety of this. wide extension of the scope and office of constitutional law. These constitutions, in their numerous restrictions, in their avowed mistrust of representative government, in their excessive legislation placed beyond the convenient control of the people, in their violation of the principle of self-government, seem to have overlooked the fundamental idea upon which rests our constitutional law, and again to have set up the principle of government by control rather than government by compact. True, the control may be of a majority, not a king; but the vital question is not its source, but its extent. If it prevents the people from asserting their will, if it continues the reign of a departed majority, it is not in accord with the principles and institutions of our liberty-loving, self-governing people.
Certainly these constitutions depart from the wise advice given by our ablest authority on constitutional law. Said Judge Cooley to the North Dakota convention: "In your constitution making remember that times change, that men
change, that new things are invented, new devices, new schemes, new plans, new uses of corporate power. And that thing is going to go on hereafter for all time, and if that period should ever come which we speak of as the millenium, I still expect that the same thing will continue to go on there, and even in the millenium people will be studying ways whereby by means of corporate power they can circumvent their neighbors. Don't in your constitution-making legislate too much. In your constitution you are tying the hands of the people. Don't do that to any such extent as to prevent the Legislature hereafter from mecting all evils that may be within the reach of proper legislation. Leave something for them. Take care to put proper restrictions upon them, but at the same time leave what properly belongs to the field of legislation to the legislature of the future. You have got to trust somebody in the future, and it is right and proper that each department of the government should be trusted to perform its legitimate function."
The objections to this large and increasing extension of the province of constitutional law are serious and obvious. In the first place it seems to deny the existence of any fixed underlying principles which are to determine what a constitution should contain, and to make the supreme and only test the wish and will of the majority. Thus it opens the door, has opened it, to incorporating in a constitution the whole body of statute law. In doing this it necessarily removes from the immediate control of the people the power which governs them. It denies their right frequently and easily to change their laws, and so infringes the fundamental principle of selfgovernment. What right, under our theory of government, has the majority of to-day, which to-morrow may be the minority, to impose its will unalterably on the then majority, except the right which relies only on might? But have not we of Anglo-Saxon blood for centuries fought that idea, and evolved the higher, safer principle, that government rests upon the consent of the governed; to be under the control, of course, of the majority, but a majority whose life and acts are themselves under the control of the people.
OF CONSTITUTIONAL LAW.
Otherwise it is neither a government of the people nor of a majority.
This modern constitutional growth, with its excessive government and its many restrictions firmly fastened on the people, seems also to conflict with the principle of freedom from restraint, which is the very essence of Democracy, finding expression in "such terms as free institutions, civil liberty and self-government." With its more of control and less of compact, it marks an evolution backward in the progress of civilization. "The time was," says Spencer, "when the history of a people was but the history of its government. It is otherwise now. The once universal despotism was but a manifestation of the extreme necessity of restraint. Feudalism, serfdom, slavery, all tyrannical institutions, are merely the most vigorous kinds of rule, springing out of, and necessary to, a bad state of man. The progress from these is in all cases the sameless government. Constitutional form means this. freedom means this. Democracy means this."
If this enlargement of the field of constitutional law is really, as suggested, the development of a fourth great department of government, that of administration, such a change, as affecting the frame of government, is within the proper scope of a constitution; yet it may be well to consider how far such department, placed by organic law beyond the control of the people, is in harmony with our institutions. It seems to bear some resemblance to the droit administratif of France, which has never taken deep root in Anglo-Saxon soil. While that law places the officers of administration largely beyond the jurisdiction of the courts, this fourth department would place administration itself beyond the jurisdiction of the people. Dicey says of the droit administratif that "it rests upon political principles at variance with the ideas which are embodied in our existing constitution," and that, “for each feature of it one may find some curious analogy either in the claims put forward or in the institutions favored by the crown lawyers of the Seventeenth century." Then commenting on the failure of the Tudors and Stuarts to establish this “strong administrative system," he declares it was “chiefly
because the whole scheme of administrative law was opposed to those habits of equality before the law which had long been essential characteristics of English institutions." May not we as truthfully say that a scheme of automatic administration, created by limitation of the powers of other departments, to be a substitute for and above legislation, is opposed to the long settled principles of Republican institutions? Is it not safer and better to make administration responsible to the people by leaving its system within their control? Then give it stability and efficiency by lifting its offices out of the spoils of politics, and making their tenure dependent only on merit and fitness.
Serious, too, are the objections on the ground of expediency to this tendency to put into organic law statute regulations which it may be wise frequently to change. One of two results must follow: cither law, if unchangeable and discredited, loses its authority and the people become demoralized, or their constitution, often changing, loses its stability and fundamental law becomes the subject of constant agitation and controversy. Against this evil every constitution, until recent days, has sought to protect itself; first, by confining its scope within the limits of well defined fundamental principles, and next by making difficult its own amendment. It was intended, as expressed by Chancellor Kent, that "time shall be given for mature deliberation upon questions arising upon the constitution, which are always momentous in their nature, and calculated to affect not the present generation alone, but their distant posterity."
An illustration of the evil to which I refer may be found in the experience of some of our states with constitutional prohibition. However wise and necessary prohibition may be, the proper place for this much controverted restriction is in statute, not constitutional law. Dependent for its enforcement upon statute law and a sustaining public sentiment, it gains little by constitutional recognition, while the constitution itself may suffer by the evasions and opposition of a discontented people unable, lawfully, to assert their will. Referring to this danger a distinguished jurist has forcibly said, “A constitu
tion is not a code, civil or penal; and whatever tends to turn it into one, endangers its ultimate stability by exposing it to every gust of popular excitement or caprice. . To put into a constitution a rule which a statute would sufficiently prescribe, and which must be supplemented by a statute to make it effective, would be simply to take advantage of the greater permanency of the organic law in the interest of a majorityfor a purpose quite foreign to the purpose of that instrument; and might well argue a distrust, on the part of that majority, of their ability to maintain their ground in the convictions of the people. If this be its significance it would exemplify that tyranny of the majority which the friends, as well as the foes, of democratic institutions concede to be their greatest inherent danger."
If I am right in my criticism, it must be that certain fundamental principles determine the true scope and office of constitutional law. I believe such principles have been evolved out of the experience and struggles of the past; and, speaking broadly, may be defined as the principle of control which establishes the frame of government, and the principle of compact which determines its form, guarantees important rights and leaves to the people, through power over legislation, full power of self-government. Upon these principles were based the typical constitutions of Massachusetts and Virginia, and upon them alone still they rest.
If it be argued that the modern expansion of constitutional duties is due to mistrust of representative government, and severe constitutional limitations are necessary for the public welfare, I can only answer that the argument is a confession of the failure of our institutions and an indictment of the integrity of our national character, against which I protest, and which will not be remedied by constitutional provisions. For let us remember in the words of the wise philosopher I have so often quoted, that "institutions are made of men ; that men are the struts, ties and bolts, out of which they are framed; and that, dovetail and brace them as we may, it is their nature which must finally determine whether the institutions can stand. Always there will be some line of least