Law and the People

An address by George Sutherland, United States Senator from Utah, at the annual dinner of the Pennsylvania Society, New York, December 13, 1913KF 2© |1l* 63D CONGRESS | 2d Session \ SENATE f DOCUMENT \ No. 328 THE LAW AND THE PEOPLE AN ADDRESS DELIVERED AT THE ANNUAL DINNER OF THE PENNSYLVANIA SOCD3TY IN NEW YORK CITY ON DECEMBER 13, 1913 BY HON. GEORGE SUTHERLAND United States Senator from Utah PRESENTED BY MR. GALLINGER DECEMBER 16, 1913.-Ordered to be printed WASHINGTON 1913 THE LAW AND THE PEOPLE. AN ADDRESS BY GEORGE SUTHERLAND, UNITED STATES SENATOR FROM UTAH, AT THE ANNUAL DINNER OP THE PENNSYLVANIA SOCIETY, NEW YORE, DECEMBER 13, 1913, IN RESPONSE TO THE TOAST, " THE LAW AND THE PEOPLE." Mr. President, Members of the Pennsylvania Society, and Ladies and Gentlemen: After you have succeeded in introducing yourself to the interior of the playhouse you are at perfect liberty to pay no further attention to the ticket which enabled you to pass the doorkeeper. In the same way a toast, to which you are asked to respond, m a y be entirely ignored after it has served its temporary purpose of bringing you to your feet; and this is sometimes a real convenience, since it frequently happens that the speaker knows, or thinks he knows, better than the toastmaster what will interest his audience. On this occasion, however, I find myself entirely reconciled to the notion of confining myself to the topic assigned to me, for in these days of false teaching and popular unrest, I can imagine no subject more timely or vitally important. If orderly government is to endure, the faith of the peo­ple in the integrity of the courts and the independence of the courts themselves at all hazards must be preserved. There is abroad in the land a sentiment that the judges in passing upon constitutional ques­tions are exercising a power which does not belong to them and that it devolves upon the people themselves to undertake the essentially dispassionate and deliberative task of reviewing and affirming or overruling judicial decisions. There is much-indeed, there is very much-that calls for reform in our methods of judicial procedure. There is room, no doubt, for improvement in m a n y places upon the bench, as there is room for improvement everywhere else, even among the sovereign people themselves, w h o are as a whole always honest and sincere, but as represented by the voice of the majority frequently unwise and in the long sweep of history sometimes unjust. The frenzied story of the crusades, the black records of witchraft and slavery, to say nothing of the m a n y minor and less harmful mistakes and delusions of the past, bear melancholy witness to the fact that the earnestness and universality of an opinion is by no means a conclusive test of its truth or justice. Truth has been so often developed and error so often exposed by the patient study and sturdy insistence of the few as compared with the many that w e m a y well hesitate to adopt any plan which in the settlement of judicial questions undertakes to sub­stitute the superficial methods of the hustings for the patient and thoroughgoing processes of the bench. I a m sufficiently old-fashioned to believe that w e are seldom justi­fied in getting rid of old methods or old institutions until and unless we are reasonably sure of our ability to put better methods or better institutions in their places. Perhaps I m a y as well at once plead guilty to being a little bit conservative-a grave offense in these strenuous days. And let m e pause long enough to say that "con­servatism" is not a political policy. It is a habit of thought which induces exaspera thien gi nidniquvirdiueasl rwehspoe chtaisn gi tt etrom pirnaolp ofuacnidli tcieerst baeifno rdei shteu rjboiunrgn aenyds 4 THE LAW AND THE PEOPLE. forth to unfamiliar places, and to regard a vivid imagination as a somewhat indifferent substitute for a map. The democracies which preceded the American Revolution failed because the people undertook the impossible task of conducting the government by their o w n direct action, or because they gave to their officials the outward semblance of authority and withheld its sub­stance by hanging above their heads the perpetual menace of the recall. Men of courage and pronounced and independent views-precisely those best qualified to serve-were driven from office and the time-server, the sycophant and the demagogue took their places. Natu­rally, a society so constituted went down before the grave problems which arose in time of stress and trial, not because the body of the people was unsound, but because the organs of their government were weak from lack of responsible exercise. To insist that the people en masse can by direct action successfully make laws, execute laws, and interpret laws, is to leave the solid ground of practical common sense for the unsubstantial realms of fancy; and, in this country of exten­sive area, great population, vast undertakings, #nd complex problems, is as wild a dream as anyone can indulge, unless it be to imagine that an individual can breathe or think or see without organs appropriate for those functions. This the framers of the Constitution perfectly understood, and instead of providing for an unlimited democracy they gave us a representative -Republic, in which they established the legislative, executive, and judicial departments as the responsible organs for making, executing, and interpreting law, and it is this organic structure that marks the difference between government and anarchy. In all the avenues of industrial activity as duties multiply and increase in difficulty a division of labor comes to be more and more accepted as an obvious necessity, but the last decade of our history has witnessed the rise of a new school of politicians, whose philosophy seems to be based upon the somewhat dubious doctrine that the difficulty of solving governmental problems decreases in the inverse order with which their number and complexity increase. None of these amiable reformers apparently contends that each member of society can make Ins own shoes, teach school, compose music, construct intricate machinery, heal the sick, or design or build the superb edifices which adorn the streets of our great cities, but all of them-perfectly honest, patriotic, sincere, but slightly unstable pillars of the Republic-have succeeded in convincing themselves that anybody is sufficiently informed to make perfect laws and everybody wise enough to accurately interpret them in their appli­cation to the diverse and complicated questions that from time to time tax to the utmost the wisdom and industry of the courts. Specialization, concededly so necessary in every other domain of human endeavor, when we come to the field of government, in many respects the most difficult of all, is regarded as quite superfluous. Having evolved a complete and efficient governmental system under which we have proceeded, at least in safety, for a century and a quarter, it is now proposed, in response to an artificially induced, hysterical sentiment, to put in the place of the organic processes of gaftaluorltvu eera ritfnon glrme etatinshttetl eoat rsohdf eec ro"dlndisyist,roi erttcgrutat inigniooezndvea,del raoinnpnmdtee errnraeptsri peobotnynas st itiobohflne e t iphjseeu o cdpmolgunelmc,tee"inr ttnau endoddef, tuftihnoned as elculroby us,trt htises­o THE LAW AND THE PEOPLE. 5 the unresponsible and to a large extent uninstructed impressions of the numercial majority. The past has disclosed many mistakes which we would do well to avoid, but a thing is not necessarily bad simply because our fathers believed in it. I have an abiding faith in the inherent soundness and the enduring wisdom of the underlying principles upon which these American representative institutions of ours were established by the fathers a hundred and twenty-five years ago. I do not for one moment doubt their capacity for progressive development to meet the con­stantly changing needs of our economic, industrial, social, and political growth, but I have no patience whatsoever with the apparently growing tendency to glorify everything that appears to be on the way and to damn everything that is already here. Surely out of the infinitely varied experiences of mankind-the long, long wanderings through the night of barbarism, the slow deliv­erance from the shackles of feudalism, the passionate struggles against arbitrary power, the stern destruction of despotic governments, the bloody restoration of order out of confusion, the pathetic alternation of success and failure in the efforts at self-government-some lessons of final wisdom have been learned, some monuments of deathless truth have been lifted up against which no challenge of time or cir­cumstance can ever again prevail. If from all the painful struggles of the past, where so much that was temporary has been lost, nothing of permanence has been gained; if from all the strivings for order without oppression and justice without discrimination no fixed and immutable principles have been established, then indeed are we vain pursuers of shadows which come and go in endless and unmeaning procession. But humanity has been engaged in no such futile and barren enterprise. Some things have become finalities. From it all there has emerged at least this one basic principle, without which popular government is builded not upon the rock which endures but upon the dissolving quicksands into which all the democracies of antiquity have disappeared: That liberty to be secure must rest upon a foundation of preestablished law, administered by upright, impar­tial, and independent judges, to the end that there shall be a govern­ment of laws and not of men. The demand for the recall of judges is based upon a complete mis­conception of the nature of the relationship which subsists between the people and the judge, who is not a political agent to declare the wishes of a constituency, but a self-responsible arbitrator to decide the rights of contending parties, bound by the most solemn of cove­nants to consider nothing but the law and the facts and to obey no voice save the compelling voice of his o w n instructed conscience. The demand for the recall of judicial decisions proceeds upon a theory which completely disregards the nature of the judicial func­tion, which is not to register the changing opinions of the majority as to what the Constitution and law ought to be, but to interpret and declare the Constitution and law as they are, whether such interpre­tation satisfies the desires of many or of none at all. The claim that the courts have usurped the power which thev exercise, whenever the question arises in a case properly before theni, of tbtmaehakfe dado eberlicle mie bid ayti t snmet goroh mfmea se pt nlehtteeohg'p aislste el gia "intttstihhlveeaieltmsl is iaveCgceeolt nnv ptseto tsowci. oet bnruest.I ii nduo ennTirc thaos tenthisvahotl enilyh.t a ubhvteaTie vo htnedeha ee lec C,xlso panuwrrsipeeltsrdlise tlnmiuyonet t idu olensafm twiwian anseodf­s 6 THE LAW AND THE PEOPLE. the land." The entire judicial power is vested in the courts, and this extends to all cases arising under the Constitution and laws of the United States. The courts are therefore bound to determine in any controversy properly before them what are the facts and what is the law, for it is that determination which constitutes the exercise of judicial power. Obviously an act of legislation which contra­venes a provision of the Constitution is not law at all, for if it were the Constitution to that extent would cease to be supreme. The court, therefore, in holding such a legislative act to be unconstitutional exercises an authority conferred by the people themselves, and simply declares that the supreme law of the land made by all the people is superior to the conflicting enactment of a mere agent of the people. If anyone will take the trouble to investigate the facts instead of accepting the statements of some would-be reformer, who either does not know or does not care what the facts are, he will be sur-f> rised to find how comparatively infrequent are decisions holding egislation to be unconstitutional and then if he will analyze these few cases he will again be astonished to find h o w large a proportion of them meets with his own approval and that of everybody else. The whole assault upon the courts has raged about some half dozen cases which bear to the whole body of constitutional decisions a relative proportion so small as to be utterly insignificant. But because there is dissatisfaction with these few decisions the demand has gone forth that the people shall resolve themselves into a great and tumultuous court of appeals to recall judicial decisions and thereby engraft upon the Constitution an exception or an extension or a restric­tion or an interpretation, not upon a sober dispassionate and deliberate consideration of its general and prospective application, but upon a partial and more or less excited view of some special and exceptional result which has already happened. The effect of the plebiscite will not be to enact a rule for future guidance, binding the majority as well as the minority, but will be to simply give passing expression to the fleeting opinion of the temporary majority, having no binding force upon the less instructed or the more instructed majority of another day. Like idle words written upon the sands, the con­struction of to-day will disappear to-morrow, only to reappear at a later day as the sentiment of the majority ebbs and flows. The conscious struggle of the Anglo-Saxon race has been not so much to establish a government, which the very nature of m a n would have established almost without self-conscious effort, as it has been to establish a government of laws as distinguished from a government of men. Of the vast number who have spouted this tremendous phrase, I wonder how many have realized the deep significance of these four words, "a government of laws," the very crux of which is that the rights of every m a n shall be held and determined under general standing law, administered by impartial tribunals and not under the special edicts of other men, however numerous or wise or powerful they may be. Law is a prescription for future behavior; judgment is a certifi­cate of past conduct. To make law is an act of the will; to interpret law is an effort of the reason; and any system under which the mean­ing of law is umabunpeledotn ni a tm tudhadeedes ,epm oaft otcmiorhca ii ddnsejeeyfu rsisdnyttee eip cmbee,jyn u i dwsswteh hianecinttec h,euhev pbirilou t tnt w ihhwsfeii o ilcrwnlh if l alidlsiloc bt aeetesndh .nuet on hjtpaMu rtdasa etncop,fty ea i nmncadodat ,lnft aoaeprrnmu ci prathtsrp sb oq oishurteaa rsvloa fierot yfy THE LAW AND THE PEOPLE. 7 society it must at last come to this: That justice is simply exact con­formity to preexisting and obligatory law. The personification of justice whicn has come down to us from the days of antiquity is an austere figure with bandaged eyes holding aloft a pair of scales, embodying the conception of a power which weighs the cause without seeing the parties. I a m not sure that I quite approve the bandage, for I like to think of justice as not blind, but clear-eyed, keen of vision, seeing all things, persons as well as causes, shrewdly approximating them at their true worth, beholding them in their just proportions, taking their measure as well as their weight, consciously and intelli­gently rejecting all extraneous material and considering only that which bears upon the merits of the cause. But the idea sought to be conveyed is that the court must ignore all differences of rank or station or number or power, for at the bar of justice all such distinc­tions are merged by the universal solvent of equality, and every cause must stand by its own strength in the presence of the judge. The guaranties of the Constitution are primarily for the protection of the minority. The majority can take care of itself. But if the majority assume the judicial power of interpretation, the rights of the minority are no longer guaranteed by the definite terms of the constitutional compact, but are subject to the will of the majority, for it is obvious that a vote is more likely to reflect the wishes of the voter than it is his judgment, since a judgment, unlike a desire, involves patient investigation, in which few will have time to engage, and dispassionate application of general rules to particular circumstances, which many will be in no frame of mind to make. I believe in popular government as earnestly as anyone. The notion of a ruling class is abhorrent to every just principle of liberty and equality, because so long as m a n is selfish, the few, though never so wise, can not safely be intrusted with unlimited power over the many, and because it is intolerable that any m a n should rule over his fellows without their consent. Persistent and substantial majorities, acting within the scope of their legitimate functions, are generally right, and even temporary and narrow majorities must for all practical Eurposes of political society be assumed to be right, else w e should ave anarchy instead of government. But the difference between 90 m e n and 100 m e n Ls not so great as to confer infallibility upon the preponderant number. Indeed, the opinions of a few men of high character and attainments, intelligently selected from almost any com­munity, will ordinarily be a far safer guide to follow than the opinions of many men chosen at random; and I can not avoid the reflection that it might have proven of distinct advantage to the Republic if some just and feasible method could have been devised whereby, when intellectual problems were to be solved at the polls, voters could have been measured instead of counted. Judges are selected for their learning, ability, and impartiality, but if they are to be made subject to reversal by the vote of a majority, such m e n will inevitably disappear from the bench and politicians will take their places who will very naturally endeavor to ascertain the drift of popular sentiment before deciding, and decisions instead of reflecting the intelligent and independent judgement of the judge will voice opfo Twthehre maeaxnjpdo e trrjhiuietdei yncs ciipease l col ufipl komeawlatyein orktn oisa n rbdoe f .ph ltaahsce ed dep omilonint tsihctiera anst aeamdse tthhoaa ntwd hwsah,t e innt ehlqeeu gaoilspilitanytii oivenn 8 THE LAW AND THE PEOPLE. the operation and application of the law invariably results. Under the guise of construing the law, in order to relieve special cases of real or imaginary hardship, the law is in fact altered so as to remove con­sequences which attached or impose consequences which did not at­tach under the law as it is plainly written. If the Supreme Ruler of the Universe, whenever some special hardship were threatened as the result of the uniform operation of His laws, were to create an exception to meet the special contingency we should have, instead of a universe of dependable order and sequence, a chaos of erratic and unforeseeable chance. And so it is that, The rain falls upon the just and the unjust alike," with the somewhat doleful consequence that the most virtuous of progressives acquires dampness and rheumatism in common with the most unregenerate of reactionaries, a result wholly out of harmony with modern notions of social justice. In making law, consequences are very properly considered; in construing law, the judge has nothing to do with consequences, he must enforce the law as he finds it. If then the people who make the constitution also expound it, thus combining in themselves both the power of legislators and judges, the vital distinction between the two functions will soon be lost sight of and alterations of the most profound character will be made in the fundamental law, not by an amendment which deals with the matter prospectively, generally, impersonally, but by a temporary act of interpretation made expressly to avoid some specific undesired result. This interpretation, having been made to-day will be unmade tomorrow, and the constitution will cease to be a foundation of fixed and dependable stability and become a weathercock, shifting with every breath of popular emotion. The time will probably never come when anyone will say that the wisest judge can make shoes with the skill of a shoemaker, but the day seems not far off when many will passionately insist that any cobbler who waxes a thread is the peer of any judge when it comes to the simple problem of deciding constitutional law. But I look for­ward to the future in hope and confidence nevertheless, for after all common sense is still among the happy possessions of our people and I a m sure will in the end interpose its protecting shield between the courts and the monumental folly of the recall. This magnificent judicial establishment of ours, with its hundreds of great courts, its learned and upright judges, its splendid and inspiring traditions, its noble jurisprudence, is not here as the chance windrow of some vagrant passing Dreeze, to be again dissipated and destroyed by the vagrant passing breath of the dreamer or the demagogue. It is here as the culmination of more than a hundred years of patient, constructive conservative effort on the part of wise and patriotic m e n who have striven to uprear a temple within whose sanctuary justice and not power shall measure the rights of men. Here and there some judge has been wanting in ability; now and then, more rarely, some judge has been corrupt, but the great judicial establishment itself stands to-day and will continue to stand, please God, long after its assailants have passed into nameless and forgotten dust, havi