CHAPTER XVITHE SECOND-CHAMBER PROBLEM[21]

The institution of private property is still with us and likely to remain for some time. The acquisition and holding of private property is still the main object of our existence and doubtless will continue to be so. It is privately held property which pays taxes and supports the state. In any government property is entitled to fair consideration and protection. Special differentiated classes of property, such as railroads and other public-service plants, manufacturing interests, mines, and landlords’ and farmers’ holdings are entitled to fair consideration and protection. Indeed, the state that permitted indiscriminate assaults upon private property or upon differentiatedclasses of private property could not long endure. Certainly its prosperity would be short-lived. These premises have not been questioned in the past. Not many in this day would be found to controvert them.

What sort of demand, then, was there, when our state governments were first organized, for governmental arrangements suitable to protect property interests? How was that demand answered in our mid-nineteenth-century plans of government? What is the character of that same demand today and how do our present governmental arrangements answer it? These are important inquiries preliminary to our ultimate question: How are property interests to be protected when the principles of the commission form of government are applied to the state?

It is the object of this chapter to attempt to answer in outline these questions.

Our federal government was established in a territory which was mostly a wilderness, with a fringe of frontier and colonial communities on the Atlantic seaboard. Whenever a stategovernment has been first established, the territory of which it has been composed has been either wholly or very largely of a frontier character. In such communities opportunity was abundant and pretty much equal to all. Men started with not much advantage except that with which nature had endowed them. The differences in wealth were not such as to be beyond the hope of most men to bridge in a lifetime. The population was controlled by a community of feeling and a certain similarity of occupation. In such a society any attack upon property interests was bound to come home to too many to make such an attack possible. The practical danger was that states would permit the resident debtor class to repudiate its obligations to a non-resident creditor class. This was headed off by the very practical provision of the federal constitution that no state should pass any law impairing the obligation of contracts. Apart from this the governmental devices adopted to protect property interests were largely theoretical and academic. They were for the most part directed to preventing allsudden legislative action. Legislation must in every case be the result of “sober second thought.” No distinction was made between legislation which affected property interests and any other sort. The safeguards for securing the “sober second thought” of the electorate or legislature were as applicable to the most trivial legislative matters as to the most important. Thus we have the separation of the legislature into two houses. The members of both are elected. The only difference is that the number of the upper house is smaller and the term a little longer. We have also the limited veto power of the governor. Although not in terms provided for in our constitution, it has become a part of our scheme of government that the courts shall exercise the power of declaring void acts of the legislature which are forbidden by the written constitution. As these written constitutions have contained almost universally the provision that “no person shall be deprived of life, liberty, or property without due process of law,” the courts have had the power to declare void acts of thelegislature which they deemed to be a taking of the “liberty” or “property” of any person “without due process of law.” When exercised this power has amounted in effect to a judicial veto. If the court deem the act in question to have been forbidden by the constitution the act is invalid until such time as the constitution shall have been changed and the general prohibition eliminated, at least so far as the offending act in question is concerned. It was, however, only the taking “without due process of law” which was forbidden. But legislation was itself “due process of law” unless it was arbitrary and irrational in its operation.[22]Thus an act which forbade the consumption of liquor by red-haired persons and which imposed a fine for the offense would be arbitrary and irrational in its application, and the imposition of a fine pursuant to the act would be a taking of the property of the individual without due process of law. But more than this, the arbitrary character of the legislative act must be clear beyond all reasonabledoubt.[23]It must be so clear that two rational men could not differ about the matter.[24]These were the limits of the power of the court as originally laid down. It is apparent that with these limitations conscientiously observed the veto power of the court over legislation was of largely theoretical and academic value in protecting property interests. The fact is that this power of the courts to declare laws unconstitutional because they took some person’s life, liberty, or property without due process of law remained practically unused during the first half of the nineteenth century. Perhaps there was no call for the protection of property interests from the legislature. Perhaps the limitations upon the exercise of the power of the court were too faithfully observed. It is not unlikely that both reasons contributed to the results.

Before 1860 the Atlantic seaboard states ceased to be provincial or frontier communities. Since 1860 an enormous area in the Mississippi Valley has ceased to be a frontier community. Great cities have arisen. Whole states have been brought under cultivation. Manufacturing has constantly gone forward. Facility in transportation has diminished the size of the country twenty-fold in many areas. The increase in the value and quantity of private property has been fabulous. So enormous an increase in so short a time has necessarily resulted in the concentration of immense fortunes in the hands of a considerable number of individuals. Even more marked has been the concentration of collective property holdings in corporations. The financial difference between persons of some property and those with vast fortunes is so great that the bridging of the gap by even the exceptional individual in his lifetime is out of the question. The financial difference between the position of persons possessing some property and the collective wealth of great corporations isbeyond the actual comprehension of the human intelligence. Opportunity is no longer anywhere near equal and many start the race in life with a lead which puts them out of sight of all but a very few. The result is that a constantly increasing number of people think not in terms of property and the interests of property, but as individuals, and in many instances as one of a collection of individuals. They have begun to consider whether the state is so run and legislation so framed that they as individuals, or as one of a collective organization of individuals similarly situated, are enabled to live satisfactorily. They are readily inclined to believe that specially organized property interests are attempting to make the laws, or to block the making of laws in the interests of property and against the interests of the individual, either singly or in organized groups. Such specially organized property interests have become liable to persistent and sometimes vicious and retaliatory attacks by a majority of the electorate. The fact that this majority is composed of persons who are, tosome extent, holders of property does not prevent them from thinking in terms of their position as individuals. Thus spectacular onslaughts by the electorate have been made upon such organized property interests as railroads, public-service corporations, and mine-owners. Legislation to promote social justice and in the actual or pretended exercise of the police power may be in effect an attack upon some legitimate business. Yet the general object of such acts will receive an overwhelming popular approval.

Step by step with the development of this antagonism in the state between specially organized property interests and the individual has grown the effort of such interests to combine for protection from the electorate. Naturally they use all the means at their disposal in the governmental scheme to secure that protection. The governor’s veto, however, has proved of less and less value, for the governor is so conspicuous an officer as frequently to be a popular choice. Property interests have fallen back upon the legislative lobby, an alliance withthe extra-legal government, and the constant urging of the courts to go farther and farther in the exercise of their veto power over legislation. The lobby has gained power through the assistance and sanction of the leaders of the extra-legal government. That government has been stimulated to the highest efficiency and the greatest activity by reason of the prizes coming to its leaders as the result of their alliance and partnership with collectively organized property interests. As a last resort the courts have again and again been importuned to veto legislation inimical to specially organized property interests, and all property interests when attacked at once become specially organized at the point of attack. These importunities come in the form of arguments to the court on behalf of property interests that are unfavorably affected by the legislation in question. Frequently the act which they complain of has been badly drawn and is really vicious and unfair in some of its workings, although the main principle may be sound.This intensifies the appeal of the individual for its overthrow. Such complaints from the interests affected, together with the social and economic theories of the judges themselves, and no doubt in some cases, the direct influence of the extra-legal government, have been pressed upon the judges in an effort to cause them to abandon the academic, theoretical, and bloodless function which was conceded to them when the power of the courts to declare acts of the legislature unconstitutional originally was asserted, and to expand this power so as to present an efficient barrier to the onslaughts of the proletariat upon property interests. At times and to a very considerable extent state courts have yielded to this pressure. It is the demand of specially organized property interests for protection and fair treatment and the inclination of the courts to give it that has presented in the last thirty years so long a list in every state of legislative acts held unconstitutional because they took the liberty or property of some person without due processof law.[25]It is, no doubt, the desire of these same property interests that the clause of the fourteenth amendment of the federal constitution, which provides that “no state shall pass any law depriving any person of life, liberty, or property without due process of law,” may in the hands of the UnitedStates Supreme Court afford the same practical and effective protection to property interests which similar clauses in the state constitutions have done through the action of state supreme courts.

Such is the actual situation into which it is now proposed to project alterations in ourscheme of government which will eliminate extra-legal government by politocrats and thereby lessen, if not entirely do away with, the lobby which is backed by the extra-legal government. The same changes are to give us a single legislative chamber which shall be really representative, highly sensitive, and quickly responsive to the popular will. Verynaturally property interests, particularly those most frequently subject to legislative attack, will wish to know how they are to be protected from the onslaughts of the proletariat or from the hasty judgments of an ordinarily conservative and fair majority. Property can point to the fact that the commonwealth under Cromwell gave up the single legislative chamber and reverted to the bicameral plan;[26]that the single chamber adopted by the French Constitution of 1791 was abandoned for a bicameral arrangement in 1795, and never again, except for a brief space under the Second Republic of 1848, did France renew the experiment. It can point to the opinions of Mill,[27]Lecky,[28]Maine,[29]Bagehot,[30]and Sidgwick[31]in favor of the second-chamber plan and to the well-nigh universal practice of such a method of constituting the legislature. Furthermore, the second chambers established outside of the United States and perhaps Australia have in practice acted on the whole as the representatives of property interests and the protectors of those interests from the acts of the popular house. These experiences may contain no lesson for us and the opinions referred to may be hopelessly reactionary, but they would at least seem to justify property in humbly asking what is to be done to protect it from the actions of the single popularlegislative chamber in which is united the executive and legislative power.

There are two ways at least of meeting this question:

The first is to do nothing at all. Property is to be persuaded that it is in the long run entirely safe at the hands of a legislature which is really expressive of the will of the majority and sensitive to that will; that property has money with which to advocate its cause and can buy newspapers, circulate pamphlets, and hire speakers; that the mass of the electorate are in general entirely fair and conservative toward property; that property is protected by the courts and by constitutional provisions prohibiting the taking of property without due process of law from sudden and violent legislative action.

This attitude will, however, hardly satisfy property interests. How they will be treated by a single legislative chamber representing the popular will cannot be determined till the experiment is actually tried. All a priori views are merely speculative opinions madeup from data wholly incomplete and inconclusive. Property interests will naturally regard it as unfair that they should take the risk of a new experiment in government. Nor will property be satisfied with protection by the courts as now constituted. The fact that judges are for the most part elected by popular vote, that the recall of judges and of judicial decisions is being violently advocated, will hardly tend to reassure property in the protection from the electorate by the courts to which it believes itself fairly entitled.

The second method of meeting the demand of property for protection from the single popular legislative chamber is to give it a direct representation in the legislature and a voice in the enactment of the laws at the time they are in the process of making. The representatives of property should have power to propose legislation, to amend that which comes from the popular legislative chamber, and to enter into compromises respecting it. They should have in addition at least a limited veto on the passage of laws. The exercise of such powersshould be open and legal, but at the same time entirely subordinate to the power of the representatives of the electorate in the single popular chamber. This requires the establishment of a second legislative chamber in which the representatives of property interests shall sit.

The most direct method of constituting such a second chamber is to divide the state into as many senatorial districts as there are to be members of the second chamber—let us say one-fourth of the number of the popular house. The districts should be created on the basis of an equal amount of taxable property in each. One representative should be sent from each district. One vote should be given each taxpayer in the district who during the preceding year had paid a given amount or less in taxes. Each taxpayer should have one vote in addition for each similar amount which he paid in taxes, and should vote as a taxpayer, whether a corporation or a non-resident citizen of the United States. It might be desirable to elect the senators at large from a few districts, the voting by taxpayers to be according to theHare plan, thus allowing groups of taxpayers to send their representatives.

A less direct method would be to fill the second chamber with members holding for life and appointed by the executive council of state. The natural tendency of such a life tenure of office, coupled with appointment from among successful men, is to produce a conservative second chamber. If, however, one party is in power for a long period it also results in the packing of the second chamber by one party for its own purposes and this brings renewed party strife and legislative deadlocks.[32]Such a second chamber will, however, in the long run, it is believed, represent property interests.

It would be, of course, of vital importance that a second chamber constituted in either of the above ways be kept in strict subordination to the chamber which represents the electorate at large. The principal means for accomplishing this has already been providedfor in the plan for the union of the executive and legislative functions in the lower house. The fact that the entire executive power of the state is placed in the hands of the leaders of the legislative majority of the lower house must always make that the more powerful organ of government. But we can go farther. It may be provided that the second chamber shall never have the right to reject an appropriation bill. This will prevent its ever interfering with the conduct of the government through the collection of taxes and the expenditure of money. Then a suitable method of “steam-rollering” the second chamber with regard to the passage of legislation may be provided as follows:

After the rejection of any bill passed by the lower house in two successive sessions, the vote upon such bill shall be taken, with both branches of the legislature sitting in joint session and a majority of the votes in such joint session shall be sufficient to give the bill the effect of law.

By such devices the second chamber representing property interests as such will havebeen given only a properly limited veto power upon legislation. At the same time, as a second chamber, it will have power to approve that which passes the popular house and to enter into compromises respecting it. The second chamber can undertake a popular defense of its action. These are important privileges. They aid in the production of laws which are fair to all. On the other hand, the second chamber is equally clearly cut off from ever gaining any ascendancy over that branch of the legislature which represents and is sensitive to the popular will.

We may, however, in the establishment of a second chamber representing property interests proceed with still greater indirectness and the utmost caution along a path on which we are already started.

Our highest state judicial tribunal is already possessed of a substantial veto upon legislation in the interests of property by reason of its power to declare acts of the legislature void because they take property “without due process of law.” There are few, if any,constitutions today in the United States which do not contain other prohibitions upon the legislature under which acts may be declared unconstitutional in the interests of property. The courts have already gone beyond the mere academic function of declaring acts of the legislature void only when they are utterly irrational and arbitrary in their discriminatory operation. The courts now boldly perform the function of protecting property from hasty, ill-advised, and unjust legislation. Heretofore, at least, public opinion has sustained the courts in the exercise of this function. The placing of this power in the hands of judges has insured its exercise by men who at least are not prejudiced against property and are inclined to give it a fair hearing. Judges must be selected from among lawyers, and hence must be men of some education and intellectual attainments. Since the main business of judges is to decide litigated cases arising between individuals, there is very naturally a demand that judges be selected from among the leaders at the bar. This means that there is a constant and legitimate pressurein favor of the selection of men who will naturally give property as full protection as the power of the court will permit. Even lawyers of only fair success and ability in fifteen or twenty years of practice will acquire the property point of view. Practically all lawyers live in an atmosphere of enforcement of property interests. They cannot avoid being educated to see the unfairness of legislation which affects unfavorably property interests. It is not improbable that among those who secure seats in the highest court some will regard themselves as specially appointed to stand between property and the proletariat, and will do so with great determination, vigor, and judicial independence. Once selected, the judge in our highest courts holds for a longer term than other judges, and this fact fortifies him in a determination that property interests shall be dealt with fairly. All this has been accomplished without the electorate at large fully perceiving what has happened. The voter is still submissive to the apparently fair proposition that only lawyers of excellent standingand ability should be elected to the highest court of the state. Little does he understand that success in selecting such men has established the rudiments of a second chamber which is designed to protect property.

The present arrangement, however, is on the verge of some reorganization. It is plain that the judicial veto is too drastic. It may stop all desired legislation along a given line till the constitution is changed. The difficulties of securing the desired amendment may not be surmounted for many years. Hence has arisen the plan for “steam-rollering” the judicial veto by a constitutional provision that whenever an act of the legislature has been passed at two different sessions and sustained by the electorate upon a referendum, it shall be deemed not to infringe the “life, liberty, and property” clause of the state constitution.[33]The electorate today is also becoming increasingly alive to thefact that the courts, in holding legislation unconstitutional, have really abandoned a purely judicial function and have undertaken in a degree the political function of a second chamber in protecting property interests from the legislature. True, the action of the court is in form still judicial. It purports to apply the constitutional prohibition to the legislation involved in the particular litigated case arising between contending parties. But the court’s decision, once made, is now acquiesced in by all departments of the government and all public officers, as a complete disposition of the act held void. The compiler of the statutes omits it from the compiled laws as being no law at all. The court does in fact veto out of existence an act of the legislature for the entire state government and the inhabitants of the state. It does this also in response to a very general prohibition upon the legislature, such as that “noperson shall be deprived of property without due process of law”—a phrase so vague that it gives the court a discretion which approaches that of the legislature in considering whether a proposed act is wise and fair to property or not. The disclosure to the electorate that courts, in using their judicial veto, are really exercising a great political power has resulted in an increasing demand that judges should be elected as political officers; that their economic and social bias be known—in short, that they have a politico-judicial platform and be subject to the recall.

The tendency thus disclosed to treat the judges of our highest courts as political officers whose social and economic bias regarding legislation must be known in advance is, of course, ruinous to the performance of their ordinary judicial functions. The electorate will obtain what it wants, and perhaps what it may be entitled to, from the judges, but at the expense of the disruption of the whole judicial system. That would indeed be a calamity. Disorganization in the administration of justice, due to thepopular attitude toward judges and the courts, is even now beginning to be felt. It will very soon become apparent that in the rebuilding of our judicial system courts which handle the general mass of litigation must be confined strictly to judicial functions. They must administer the law as established by the legislature and always in subordination to the legislature. If, then, we are to keep our present plan of protecting property by means of a court and a constitution, a special court of last resort must be established for deciding all constitutional questions, the validity of all municipal ordinances, and all other classes of cases where the issue is drawn between the electorate acting through a popular legislative body, and property interests. In order that the veto of the court may not be too drastic in its effect, there should be given to the single chamber legislature the power to “steam-roller” its judicial veto by a second passage of the act after a suitable interval and its approval on a referendum. Thus we shall have evolved apracticable second chamber protecting property interests.

It would be only a short step to provide for the submission of all acts to such a court before they became laws, with a right on the part of litigants to bring up the question of the validity of the acts as upon a rehearing. Then it would seem most reasonable that when an act was presented to the special court of appeal before it became law and found to be unconstitutional, the court should have power to redraft the act so that it would accomplish what was desired so far as the same was permitted by the constitution. If ultimately the right of litigants to attack the validity of any act which had passed both the legislature and the court should be cut off, and if the constitutional limitations upon the legislature should entirely disappear, while at the same time the members of the body which scrutinized the acts passed by the popular chamber were appointed by the council of state and held office for a considerable period, we should have, in what started as a judicial tribunal, a real secondchamber functioning like other second chambers in furnishing an additional security against legislation which was unfair to property interests.[34]

It is not the purpose of the present writer to advocate either the second chamber representing property interests or the establishment of a unicameral legislature in which all legislative and executive powers are united and which is extremely sensitive to the popular will without any special protection to property interests other than that which their numerical strength and property holding gives them. It is enough that the difficulties of the situation be faced and the several general lines of procedure be indicated. It will be time enough to have opinions when we are brought, by constitution-making, nearer to the practical settlement of the difficulty.

FOOTNOTES:[21]Much of the argument in this volume is in support of the Short Ballot movement. It is only fair to say, however, that the leaders of this movement in the National Short Ballot Organization dissent from the suggestions put forward in this chapter as to the need of special protection to property interests, and the methods suggested of working out such special protection are, therefore, no part of the Short Ballot doctrine.[22]Hurtadov.California, 110 U.S. 516.[23]James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7Harv.LawRev., 129, 139 ff.[24]“The validity of a law ought not, then, to be questioned, unless it is so obviously repugnant to the constitution, that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy.”—Per Chancellor Waties inAdm’rs of Byrnev.Adm’rs of Stewart, 3 Des. 466 (South Carolina, 1812).[25]The results reached by the Illinois Supreme Court, especially when contrasted with those reached by the United States Supreme Court, exhibit an extreme exercise of the power of courts to hold legislation void because it takes the property or liberty of individuals without due process of law.Since 1886 the Illinois Supreme Court has held void acts of the legislature compelling mine-owners to weigh coal mined and to pay the miners on the basis of such weight, because such acts took the mine-owner’s liberty and property without due process of law contrary to the provisions of the state constitution:Millettv.The People, 117 Ill. 294 (1896);Ramseyv.The People, 142 Ill. 380 (1892);Hardingv.The People, 160 Ill. 459 (1896). The United States Supreme Court, however, has held that a similar act from Arkansas did not violate the “life, liberty, or property” clause of the fourteenth amendment:McLeanv.Arkansas, 211 U.S. 539 (1908).Since 1892 the Illinois Supreme Court has held void state acts regulating the keeping of truck stores by owners of coal mines and factories, because they deprived such owners of liberty and property without due process of law, contrary to the state constitution:Frorerv.The People, 141 Ill. 171 (1892);Kellyville Coal Co.v.Harrier, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme Court held void an act which prohibited the payment of wages to miners in anything but money:Godcharlesv.Wigeman, 113 Pa. 431 (1886). Yet the United States Supreme Court holds that such acts are not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Knoxville Coal Co.v.Harrison, 183 U.S. 13 (1901).In 1896 the Illinois Supreme Court held void the barbers’ Sunday law, which forbade the employment of barbers on Sunday, because the act violated the “life, liberty, or property” clause of the state constitution:Edenv.The People, 161 Ill. 296 (1896). But the United States Supreme Court sustained a like act from Minnesota, declaring that it did not violate the “life, liberty, or property” clause of the federal constitution:Petitv.Minnesota, 177 U.S. 164 (1898).In 1900 the Illinois Supreme Court held void the state flag law which prohibited the use of the American flag for advertising purposes, because it deprived advertisers of liberty and property without due process of law, contrary to the provision of the state constitution:Ruhstratv.The People, 185 Ill. 133 (1900). The United States Supreme Court, however, sustained a similar act from Nebraska holding that it was not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Halterv.Nebraska, 205 U.S. 34 (1907).In 1908 the Illinois Supreme Court held void the bulk sales acts regulating sales of stocks of goods in bulk otherwise than in the usual course of trade, because it violated the “life, liberty, or property” clause of the state constitution:Off &. Co.v.Morehead, 235 Ill. 40 (1908). But the United States Supreme Court has held similar statutes from Connecticut and Michigan valid and not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Lemieuxv.Young, 211 U.S. 489 (1908);Kidd, Dater & Price Co. v.Musselman Grocer Co., 217 U.S. 461 (1910).In 1909 the Illinois Supreme Court held void the loan-shark act regulating the assignment of future wages as security for money borrowed and requiring the assignment to be recorded and signed by the wife. Again the reason was that the “life, liberty, or property” clause of the state constitution was violated:Massiev.Cessna, 239 Ill. 352 (1909). But the United States Supreme Court has sustained a similar act passed in Massachusetts on the ground that it did not infringe the “life, liberty, or property” clause of the fourteenth amendment:Mutual Loan Companyv.Martell, 222 U.S. 225 (1911).The Illinois Supreme Court has also held void, as infringing the “life, liberty, or property” clause of the state constitution, the following acts: (a) An act penalizing employers in the importation of workmen from another state by reason of deceit touching the matter of the existence of a strike or the sanitary condition of the employment:Josmav.Western Steel Car Co., 249 Ill. 508 (1911); compare, however,Williamsv.Fears, 179 U.S. 270; (b) An act providing that no public contractor shall employ alien labor on any public work:City of Chicagov.Hulbert, 205 Ill. 346 (1903). But inAtkinv.Kansas, 191 U.S. 207 (1903), the United States Supreme Court held valid an act of Kansas making it a criminal offense for a public contractor to permit or require an employee to perform labor upon public work in excess of eight hours each day; (c) The miners’ washroom act, requiring owners of mines to provide a washroom at the top of the mine for the use of the miners:Starnev.The People, 222 Ill. 189 (1906); (d) An act prohibiting more than six persons sleeping in one room in a lodging-house:Baileyv.The People, 190 Ill. 28 (1901); (e) An act prescribing an eight-hour day for women in certain occupations:Ritchiev.The People, 155 Ill. 98 (1895). This case was approved inRitchiev.Wayman, 244 Ill. 509 (1911), which, however, held a ten-hour labor law for women in certain occupations valid, following the ruling of the U.S. Supreme Court sustaining a similar act passed in Oregon:Mullerv.Oregon, 208 U.S. 412 (1908). It seems entirely probable from its opinion in the last-mentioned case that the United States Supreme Court would have held valid the act condemned by the Illinois Supreme Court inRitchiev.The People,supra.[26]“The proposal for a revived Second Chamber was, on the contrary, carried with an unexpected degree of unanimity. The Protector pressed it strongly upon the officers. ‘I tell you,’ he said, ‘that unless you have some such thing as a balance we cannot be safe. Either you will encroach upon our civil liberties by excluding such as are elected to serve in Parliament—next time for aught I know you may exclude four hundred—or they will encroach upon our religious liberty. By the proceedings of this Parliament you see they stand in need of a check or balancing power, for the case of James Naylor might happen to be your case. By the same law and reason they punished Naylor they might punish an Independent or an Anabaptist. By their judicial power they fall upon life and member, and doth the Instrument enable me to control it? This Instrument of Government will not do your work.’”—J. A. R. Marriott,Second Chambers,p.38.[27]“A majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House—easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason which induced the Romans to have two consuls, makes it desirable there should be two chambers; that neither of them may be exposed to the corrupting influence of undivided power, even for the space of a single year.”[28]“Of all the forms of government that are possible among mankind I do not know any which is likely to be worse than the government of a single omnipotent democratic chamber.”[29]“What, then, is expected from a well constituted Second Chamber isnot a rival infallibility, but an additional security. It is hardly too much to say that, in this view, almost any Second Chamber is better than none.”[30]“With a perfect Lower House it is certain that an Upper House would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. The work would be done so well that we should not want any one to look over or revise it. And whatever is unnecessary in government, is pernicious.... But though beside an ideal House of Commons the Lords would be unnecessary, and therefore pernicious, beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary.”[31]“The main end for which a Senate is constructed [is] that all legislative measures may receive a second consideration by a bodydifferent in character from the primary representative assembly, and if possible superior or supplementary in intellectual qualifications.”[32]See J. A. R. Marriott, “History of the Canadian Second Chamber” inSecond Chambers, pp. 145 ff.[33]The phrase “recall of judicial decisions” is unfortunate, since it implies that the judicial function is taken over by the electorate and the judicial decision reversed, when all that is done is to amend the constitution so that the basis for the judicial decision is taken away in all subsequent litigation. The better phrase, it is believed, is the one used in the text, namely, “steam-rollering the judicial veto.” See Albert M. Kales, “The Recall of Judicial Decisions,”Illinois State Bar Association Proceedings, 1912, pp. 203-18; Herbert Pope, “The Recall of Judicial Decisions—A Criticism,” 7Illinois Law Review,p.149.[34]Ramsay Muir, inPeers and Bureaucrats, has a suggestion for a second chamber that should not be ignored. He finds the evil of a popular chamber containing a large number of representatives from wieldy districts selected by pluralities merely to be that it makes government by party a necessity. The parties tend to form themselves into two great camps, with two great programs. The electorate has been driven to choose one program or the other, though if all shades of opinion could be examined some part of each program would not receive a majority of votes. Party discipline, however, becomes so strict that the first chamber can put through every part of the party program. The real need in the second chamber, he declares, is to secure members of independent views who can express their opinions freely without fear of the loss of their seat as a punishment for having been independent, and which will represent the different shades of opinion on the part of the electorate. He, therefore, advocates the selection of members of the second chamber by the method of proportional representation by the single transferable vote according to the Hare plan.The difficulty with this proposal is that property interests as such are not represented except according to the numerical strength of property owners. In fact,Mr.Muir expressly repudiates any idea of creating a second chamber based upon an aristocracy or the middle class of income taxpayers. His plan might also be expected to involve a contest as to which chamber really represented the electorate. The second chamber as proposed byMr.Muir would certainly be a “rival infallibility” and hopeless deadlocks might be expected. There would then be the usual American spectacle of bickering between the executive as represented by the executive council or cabinet of the first chamber, and the second chamber representing the electorate. On the whole the union of the executive and the legislative powers so much to be desired would be broken in upon.

[21]Much of the argument in this volume is in support of the Short Ballot movement. It is only fair to say, however, that the leaders of this movement in the National Short Ballot Organization dissent from the suggestions put forward in this chapter as to the need of special protection to property interests, and the methods suggested of working out such special protection are, therefore, no part of the Short Ballot doctrine.

[22]Hurtadov.California, 110 U.S. 516.

[23]James Bradley Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7Harv.LawRev., 129, 139 ff.

[24]“The validity of a law ought not, then, to be questioned, unless it is so obviously repugnant to the constitution, that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy.”—Per Chancellor Waties inAdm’rs of Byrnev.Adm’rs of Stewart, 3 Des. 466 (South Carolina, 1812).

[25]The results reached by the Illinois Supreme Court, especially when contrasted with those reached by the United States Supreme Court, exhibit an extreme exercise of the power of courts to hold legislation void because it takes the property or liberty of individuals without due process of law.Since 1886 the Illinois Supreme Court has held void acts of the legislature compelling mine-owners to weigh coal mined and to pay the miners on the basis of such weight, because such acts took the mine-owner’s liberty and property without due process of law contrary to the provisions of the state constitution:Millettv.The People, 117 Ill. 294 (1896);Ramseyv.The People, 142 Ill. 380 (1892);Hardingv.The People, 160 Ill. 459 (1896). The United States Supreme Court, however, has held that a similar act from Arkansas did not violate the “life, liberty, or property” clause of the fourteenth amendment:McLeanv.Arkansas, 211 U.S. 539 (1908).Since 1892 the Illinois Supreme Court has held void state acts regulating the keeping of truck stores by owners of coal mines and factories, because they deprived such owners of liberty and property without due process of law, contrary to the state constitution:Frorerv.The People, 141 Ill. 171 (1892);Kellyville Coal Co.v.Harrier, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme Court held void an act which prohibited the payment of wages to miners in anything but money:Godcharlesv.Wigeman, 113 Pa. 431 (1886). Yet the United States Supreme Court holds that such acts are not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Knoxville Coal Co.v.Harrison, 183 U.S. 13 (1901).In 1896 the Illinois Supreme Court held void the barbers’ Sunday law, which forbade the employment of barbers on Sunday, because the act violated the “life, liberty, or property” clause of the state constitution:Edenv.The People, 161 Ill. 296 (1896). But the United States Supreme Court sustained a like act from Minnesota, declaring that it did not violate the “life, liberty, or property” clause of the federal constitution:Petitv.Minnesota, 177 U.S. 164 (1898).In 1900 the Illinois Supreme Court held void the state flag law which prohibited the use of the American flag for advertising purposes, because it deprived advertisers of liberty and property without due process of law, contrary to the provision of the state constitution:Ruhstratv.The People, 185 Ill. 133 (1900). The United States Supreme Court, however, sustained a similar act from Nebraska holding that it was not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Halterv.Nebraska, 205 U.S. 34 (1907).In 1908 the Illinois Supreme Court held void the bulk sales acts regulating sales of stocks of goods in bulk otherwise than in the usual course of trade, because it violated the “life, liberty, or property” clause of the state constitution:Off &. Co.v.Morehead, 235 Ill. 40 (1908). But the United States Supreme Court has held similar statutes from Connecticut and Michigan valid and not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Lemieuxv.Young, 211 U.S. 489 (1908);Kidd, Dater & Price Co. v.Musselman Grocer Co., 217 U.S. 461 (1910).In 1909 the Illinois Supreme Court held void the loan-shark act regulating the assignment of future wages as security for money borrowed and requiring the assignment to be recorded and signed by the wife. Again the reason was that the “life, liberty, or property” clause of the state constitution was violated:Massiev.Cessna, 239 Ill. 352 (1909). But the United States Supreme Court has sustained a similar act passed in Massachusetts on the ground that it did not infringe the “life, liberty, or property” clause of the fourteenth amendment:Mutual Loan Companyv.Martell, 222 U.S. 225 (1911).The Illinois Supreme Court has also held void, as infringing the “life, liberty, or property” clause of the state constitution, the following acts: (a) An act penalizing employers in the importation of workmen from another state by reason of deceit touching the matter of the existence of a strike or the sanitary condition of the employment:Josmav.Western Steel Car Co., 249 Ill. 508 (1911); compare, however,Williamsv.Fears, 179 U.S. 270; (b) An act providing that no public contractor shall employ alien labor on any public work:City of Chicagov.Hulbert, 205 Ill. 346 (1903). But inAtkinv.Kansas, 191 U.S. 207 (1903), the United States Supreme Court held valid an act of Kansas making it a criminal offense for a public contractor to permit or require an employee to perform labor upon public work in excess of eight hours each day; (c) The miners’ washroom act, requiring owners of mines to provide a washroom at the top of the mine for the use of the miners:Starnev.The People, 222 Ill. 189 (1906); (d) An act prohibiting more than six persons sleeping in one room in a lodging-house:Baileyv.The People, 190 Ill. 28 (1901); (e) An act prescribing an eight-hour day for women in certain occupations:Ritchiev.The People, 155 Ill. 98 (1895). This case was approved inRitchiev.Wayman, 244 Ill. 509 (1911), which, however, held a ten-hour labor law for women in certain occupations valid, following the ruling of the U.S. Supreme Court sustaining a similar act passed in Oregon:Mullerv.Oregon, 208 U.S. 412 (1908). It seems entirely probable from its opinion in the last-mentioned case that the United States Supreme Court would have held valid the act condemned by the Illinois Supreme Court inRitchiev.The People,supra.

Since 1886 the Illinois Supreme Court has held void acts of the legislature compelling mine-owners to weigh coal mined and to pay the miners on the basis of such weight, because such acts took the mine-owner’s liberty and property without due process of law contrary to the provisions of the state constitution:Millettv.The People, 117 Ill. 294 (1896);Ramseyv.The People, 142 Ill. 380 (1892);Hardingv.The People, 160 Ill. 459 (1896). The United States Supreme Court, however, has held that a similar act from Arkansas did not violate the “life, liberty, or property” clause of the fourteenth amendment:McLeanv.Arkansas, 211 U.S. 539 (1908).

Since 1892 the Illinois Supreme Court has held void state acts regulating the keeping of truck stores by owners of coal mines and factories, because they deprived such owners of liberty and property without due process of law, contrary to the state constitution:Frorerv.The People, 141 Ill. 171 (1892);Kellyville Coal Co.v.Harrier, 207 Ill. 624 (1904). In 1886 the Pennsylvania Supreme Court held void an act which prohibited the payment of wages to miners in anything but money:Godcharlesv.Wigeman, 113 Pa. 431 (1886). Yet the United States Supreme Court holds that such acts are not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Knoxville Coal Co.v.Harrison, 183 U.S. 13 (1901).

In 1896 the Illinois Supreme Court held void the barbers’ Sunday law, which forbade the employment of barbers on Sunday, because the act violated the “life, liberty, or property” clause of the state constitution:Edenv.The People, 161 Ill. 296 (1896). But the United States Supreme Court sustained a like act from Minnesota, declaring that it did not violate the “life, liberty, or property” clause of the federal constitution:Petitv.Minnesota, 177 U.S. 164 (1898).

In 1900 the Illinois Supreme Court held void the state flag law which prohibited the use of the American flag for advertising purposes, because it deprived advertisers of liberty and property without due process of law, contrary to the provision of the state constitution:Ruhstratv.The People, 185 Ill. 133 (1900). The United States Supreme Court, however, sustained a similar act from Nebraska holding that it was not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Halterv.Nebraska, 205 U.S. 34 (1907).

In 1908 the Illinois Supreme Court held void the bulk sales acts regulating sales of stocks of goods in bulk otherwise than in the usual course of trade, because it violated the “life, liberty, or property” clause of the state constitution:Off &. Co.v.Morehead, 235 Ill. 40 (1908). But the United States Supreme Court has held similar statutes from Connecticut and Michigan valid and not in violation of the “life, liberty, or property” clause of the fourteenth amendment:Lemieuxv.Young, 211 U.S. 489 (1908);Kidd, Dater & Price Co. v.Musselman Grocer Co., 217 U.S. 461 (1910).

In 1909 the Illinois Supreme Court held void the loan-shark act regulating the assignment of future wages as security for money borrowed and requiring the assignment to be recorded and signed by the wife. Again the reason was that the “life, liberty, or property” clause of the state constitution was violated:Massiev.Cessna, 239 Ill. 352 (1909). But the United States Supreme Court has sustained a similar act passed in Massachusetts on the ground that it did not infringe the “life, liberty, or property” clause of the fourteenth amendment:Mutual Loan Companyv.Martell, 222 U.S. 225 (1911).

The Illinois Supreme Court has also held void, as infringing the “life, liberty, or property” clause of the state constitution, the following acts: (a) An act penalizing employers in the importation of workmen from another state by reason of deceit touching the matter of the existence of a strike or the sanitary condition of the employment:Josmav.Western Steel Car Co., 249 Ill. 508 (1911); compare, however,Williamsv.Fears, 179 U.S. 270; (b) An act providing that no public contractor shall employ alien labor on any public work:City of Chicagov.Hulbert, 205 Ill. 346 (1903). But inAtkinv.Kansas, 191 U.S. 207 (1903), the United States Supreme Court held valid an act of Kansas making it a criminal offense for a public contractor to permit or require an employee to perform labor upon public work in excess of eight hours each day; (c) The miners’ washroom act, requiring owners of mines to provide a washroom at the top of the mine for the use of the miners:Starnev.The People, 222 Ill. 189 (1906); (d) An act prohibiting more than six persons sleeping in one room in a lodging-house:Baileyv.The People, 190 Ill. 28 (1901); (e) An act prescribing an eight-hour day for women in certain occupations:Ritchiev.The People, 155 Ill. 98 (1895). This case was approved inRitchiev.Wayman, 244 Ill. 509 (1911), which, however, held a ten-hour labor law for women in certain occupations valid, following the ruling of the U.S. Supreme Court sustaining a similar act passed in Oregon:Mullerv.Oregon, 208 U.S. 412 (1908). It seems entirely probable from its opinion in the last-mentioned case that the United States Supreme Court would have held valid the act condemned by the Illinois Supreme Court inRitchiev.The People,supra.

[26]“The proposal for a revived Second Chamber was, on the contrary, carried with an unexpected degree of unanimity. The Protector pressed it strongly upon the officers. ‘I tell you,’ he said, ‘that unless you have some such thing as a balance we cannot be safe. Either you will encroach upon our civil liberties by excluding such as are elected to serve in Parliament—next time for aught I know you may exclude four hundred—or they will encroach upon our religious liberty. By the proceedings of this Parliament you see they stand in need of a check or balancing power, for the case of James Naylor might happen to be your case. By the same law and reason they punished Naylor they might punish an Independent or an Anabaptist. By their judicial power they fall upon life and member, and doth the Instrument enable me to control it? This Instrument of Government will not do your work.’”—J. A. R. Marriott,Second Chambers,p.38.

[27]“A majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House—easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason which induced the Romans to have two consuls, makes it desirable there should be two chambers; that neither of them may be exposed to the corrupting influence of undivided power, even for the space of a single year.”

[28]“Of all the forms of government that are possible among mankind I do not know any which is likely to be worse than the government of a single omnipotent democratic chamber.”

[29]“What, then, is expected from a well constituted Second Chamber isnot a rival infallibility, but an additional security. It is hardly too much to say that, in this view, almost any Second Chamber is better than none.”

[30]“With a perfect Lower House it is certain that an Upper House would be scarcely of any value. If we had an ideal House of Commons perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher chamber. The work would be done so well that we should not want any one to look over or revise it. And whatever is unnecessary in government, is pernicious.... But though beside an ideal House of Commons the Lords would be unnecessary, and therefore pernicious, beside the actual House a revising and leisured legislature is extremely useful, if not quite necessary.”

[31]“The main end for which a Senate is constructed [is] that all legislative measures may receive a second consideration by a bodydifferent in character from the primary representative assembly, and if possible superior or supplementary in intellectual qualifications.”

[32]See J. A. R. Marriott, “History of the Canadian Second Chamber” inSecond Chambers, pp. 145 ff.

[33]The phrase “recall of judicial decisions” is unfortunate, since it implies that the judicial function is taken over by the electorate and the judicial decision reversed, when all that is done is to amend the constitution so that the basis for the judicial decision is taken away in all subsequent litigation. The better phrase, it is believed, is the one used in the text, namely, “steam-rollering the judicial veto.” See Albert M. Kales, “The Recall of Judicial Decisions,”Illinois State Bar Association Proceedings, 1912, pp. 203-18; Herbert Pope, “The Recall of Judicial Decisions—A Criticism,” 7Illinois Law Review,p.149.

[34]Ramsay Muir, inPeers and Bureaucrats, has a suggestion for a second chamber that should not be ignored. He finds the evil of a popular chamber containing a large number of representatives from wieldy districts selected by pluralities merely to be that it makes government by party a necessity. The parties tend to form themselves into two great camps, with two great programs. The electorate has been driven to choose one program or the other, though if all shades of opinion could be examined some part of each program would not receive a majority of votes. Party discipline, however, becomes so strict that the first chamber can put through every part of the party program. The real need in the second chamber, he declares, is to secure members of independent views who can express their opinions freely without fear of the loss of their seat as a punishment for having been independent, and which will represent the different shades of opinion on the part of the electorate. He, therefore, advocates the selection of members of the second chamber by the method of proportional representation by the single transferable vote according to the Hare plan.The difficulty with this proposal is that property interests as such are not represented except according to the numerical strength of property owners. In fact,Mr.Muir expressly repudiates any idea of creating a second chamber based upon an aristocracy or the middle class of income taxpayers. His plan might also be expected to involve a contest as to which chamber really represented the electorate. The second chamber as proposed byMr.Muir would certainly be a “rival infallibility” and hopeless deadlocks might be expected. There would then be the usual American spectacle of bickering between the executive as represented by the executive council or cabinet of the first chamber, and the second chamber representing the electorate. On the whole the union of the executive and the legislative powers so much to be desired would be broken in upon.

The difficulty with this proposal is that property interests as such are not represented except according to the numerical strength of property owners. In fact,Mr.Muir expressly repudiates any idea of creating a second chamber based upon an aristocracy or the middle class of income taxpayers. His plan might also be expected to involve a contest as to which chamber really represented the electorate. The second chamber as proposed byMr.Muir would certainly be a “rival infallibility” and hopeless deadlocks might be expected. There would then be the usual American spectacle of bickering between the executive as represented by the executive council or cabinet of the first chamber, and the second chamber representing the electorate. On the whole the union of the executive and the legislative powers so much to be desired would be broken in upon.

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