IMPORTANT ARTICLES IN CURRENT MAGAZINES "Liberty and Democracy." International Journal of Ethics The National Association for Constitutional Government was formed for the purpose of preserving the representative institutions established by the founders of the Republic and of maintaining the guarantees embodied in the Constitution of the United States. The specific objects of the Association are: 1. To oppose the tendency towards class legislation, the unnecessary extension of public functions, the costly and dangerous multiplication of public offices, the exploitation of private wealth by political agencies, and its distribution for class or sectional advantage. 2. To condemn the oppression of business enterprise,-the vitalizing energy without which national prosperity is impossible; the introduction into our legal system of ideas which past experience has tested and repudiated, such as the Initiative, the Compulsory Referendum, and the Recall, in place of the constitutional system; the frequent and radical alteration of the fundamental law, especially by mere majorities; and schemes of governmental change in general subversive of our republican form of political organization. 3. To assist in the dissemination of knowledge regarding theories of government and their practical effects; in extending a comprehension of the distinctive principles upon which our political institutions are founded; and in creating a higher type of American patriotism through loyalty to those principles. 4. To study the defects in the administration of law and the means by which social justice and efficiency may be more promptly and certainly realized in harmony with the distinctive principles upon which our government is based. 5. To preserve the integrity and authority of our courts; respect for and obedience to the law, as the only security for life, liberty, and property; and above all, the permanence of the principle that this Republic is "a government of laws and not of men." Representative Government By David Jayne Hill 1 Wherever in the world absolute government, in the form of despotism, has been abolished, it has been through the influence of representative government in some form, good or bad, perfect or imperfect. There is now, at this time, no country in the world which claims to have a constitution, which does not claim to have some kind of representative government. Most of the criticisms that have been passed upon it are based upon its failure to produce the results that were expected of it, but whenever they are examined in detail, in each case, I think it can be found to have failed either, first, because of the absence of some corrective device to give stability to popular representative government, as in the case of France, or in its being treated as a practically inoperative system, a sort of concession to public opinion, as in Germany, or in its being considered as a sort of automatic mechanism which can start itself and stop itself at the right time without much human supervision, as in the United States. In France, for example, it controls the whole government with such completeness, and so promptly expresses the mobile state of public opinion-and in normal times when the Gallic nature is not under the stress and strain of a great public calamity as at the present time, French sentiment is very mobile -that a few votes in the Senate and Chamber of Deputies may completely change the whole government several times in the same month. The President being practically without power and the ministry depending upon the support of the Assembly, there is repeatedly, for short periods, no government at all in France, and were it not for the tenacity of routine traditions in the administrative offices and the sound practical judgment of the French judges, the Republic, which, properly speaking, has no constitution, but rests upon a few organic laws, would be plunged into the utmost confusion. But it may be said that with all this mobility of feeling in France, which acts so suddenly and destroys the government so quickly, there is in the Gallic mind, a logical quality, a devotion to great ideas represented in the courts of France, that give it a great steadying quality. In the German Empire, the exactly opposite condition prevails. There every good and perfect gift is believed to come down from above. The Reichstag, though elected by universal suffrage and secret ballot, is in effect little more than a debating society, with power to obstruct new legislation, but obliged to submit all its own proposals to the Bundesrath, a non-elective body representing the sovereigns, before it can act upon them. This is just what Bismarck, who hated parliamentary government, intended it to be. Now, in the Netherlands, that wonderful little monarchy, with various strictly republican traditions, the peo 'From an address delivered before the Lawyers' Club of New York, January 13, 1917, and here reprinted by permission of the author. ple freely choose their representatives by practically universal suffrage, but having done so, by a unique and as it seems to me an excellent provision, they are prohibited from influencing their deliberations and decisions. They cannot influence the deliberations of their Parliament in any degree whatever. The members of the two chambers are required by the Constitution "to vote without instructions from or conference with those who elect them," which excludes absolutely the intrusion of special interests of every kind and renders impossible the institution known at Washington as "the lobby," the privileges of which are at present permitted to be enjoyed only by those who are supposed to control a considerable number of votes. In addition, the Dutch legislator is required to take a solemn oath on entering office that he has not received or given, and that he "will not accept directly or indirectly, any gift or present from any person, to do or to refrain from doing any thing in this office." The result of this is, first of all, great care in selecting members of the legislative bodies, followed by a high consideration for the welfare of the whole people, free from every form of personal interest in the parliamentary deliberations, and a dignified and statesmanlike conduct of public affairs that would do honor to any nation. In these countries which I have mentioned, as in most European forms of government, the representative system has appeared sufficient; that is to say, having legislation framed by the chosen representatives of the people, without too much popular interference while they are conducting their work, although provisions seem desirable for a more permanent central balance in France, and certainly for more popular control in Germany, which changes are desired by the best thought in those countries. In Switzerland, there is a tradition of direct legislation that has slightly. but not profoundly, modified the representative system. This tradition of direct legislation seems to be somewhat in contradiction with representative government; but in fact, representative legislation, though affected slightly, is not affected profoundly by the direct system. In this Confederation of twenty-two cantons, many of them with a very small population, the most ancient legislative customs are those of the local Landesgemeinde or "folk-meet," where, as in a town meeting, the male population was wont to meet, and in the smaller cantons like Apenzell still does meet en masse to transact public business, pass local laws, and elect administrative officers for the community. The present government of the Confederation, resting upon the Constitution of 1874, in which many of the ideas were taken from the Constitution of the United States, includes the Federal Assembly, a law-making body, the Federal Council, a directive and executive body of seven members, and a Federal Court, charged with the administration of justice in Federal matters. In the United States, an impression has been created that the Swiss Confederation is governed in the main by direct action of the people through the initiative and referendum, and that it is this system that prevails in the government of Switzerland. But this is a great mistake. It is so far from being the case with the referendum in Federal matters that the referendum was not formally introduced into the Constitution until 1874. The great The great mass of current legislation still originates in and is determined by the Federal Assembly without popular participation. Since the adoption of the Federal referendum, only 31 measures have been referred to the people for approval in 42 years, of which only 12 were adopted, while 19 were rejected. The extent to which the electors have participated in these decisions is interesting to note. From 1881 to 1887, From 1881 to 1887, 41 to 46 per cent of the electors took part in making the decisions; in 1891, 69 per cent; in 1896, when the subject was the nationalization of the Swiss railroads, 80 per cent, the largest proportion ever attained. From this it would appear that the decisions could have been made by minorities of the whole number of electors ranging from 21 to 41 per cent. of the voting popula tion. The Federal initiative is of more recent origin than the Federal referendum. In 1891, the initiative was first applied to the Federal Constitution. Of six amendments that were proposed, five were defeated. The character of these proposals should be most interesting to the American people when they are invited to open the Federal Constitution to amendment by popular initiative. In 1894, it was proposed that the Confederation guarantee adequate work of a suitable nature to every citizen. This brought out 56 per cent of the vote, but was defeated. Another proposal was for the Confederation to turn over two francs per capita to the cantons out of the Federal customs receipts. This proposal also was rejected, 71 per cent of the electors voting. It is very interesting to consider what would be the fate of similar proposals if made in the United States, and what we would be likely to get in this country if we opened the amendment of the Constitution to popular initiative. On March 6, 1906, the Federal Council present to the Federal Assembly a Assembly a project for the revision of the Constitution extending popular initiative to Federal legislation, which up to that time had not been authorized. In estimating the value of these measures of direct government as supplementary to representative government in Switzerland, we must take into account three things: First, that the Swiss Federal Constitution contains no bill of rights, which renders it desirable that the people should have a means of defense against oppressive legislation; second, that, as a Confederation, the cantons have diametrically opposite interests, which they do not desire to see overruled; and third, that the Swiss Constitution provides no veto power, except the referendum, while in the United States we have the presidential veto, which requires a two-thirds vote of both houses of Congress to over come it. The initiative has been compared by Swiss constitutional writers to a kind of "safety-valve," which should be resorted to only upon rare occasions of dire necessity, to prevent a popular ex |