Martinsburg herald. [volume] (Martinsburg, W. Va.) 1881-1920, 1912-03-23

pie and Of the stability Of popular gov
eminent is sowing the seeds Of confu-
sion and tyranny" (By this he, OF
course, means the tyranny Of the ma
jority that is, the tyranny of the
American people rs a whoIe.) He also
says that my proposal (Which, as he
rightly sees, Is merely a proposal t.
give the people a rea! instead Of only a
nominal chance to construe and amend
a state constitution with reasonable
rapidity) would make such amendment
and Interpretation depend OF the fe
verish. uncertain and unstable determi-
nation OF successive votes IN different
laws by temporary and changing ma
jorities' and that ut lays the ak at
the root Of the tree Of well ordered
freedom and subjects the guarantees Of
Nfe, liberty and property without rem
edy to the fitful impulse Of a temporary
majority Of an electorate"
This criticism Is really less a criti.
cism Of my proposal than a criticism Of
all popular government. II Is wholly
unfounded unless 1t is founded on the
belief that the people are fundamental
ly untrustworthy. II the supreme
courts definition of due process in re-
iation to the police power Is sound,
then an act of the legislature TO pro
mote the collective interests of the
community must be valid If 1t embed
les a policy held by the prevailing mo
rality or u preponderant opinion to be
necessary to the public welfare. This
Is the question that ! propose to sub
NIT to the people. How can the pre-
yailing morality or a p~reponderant
opinion be better and more exactly as
certained than by a vote Of the people?
The people must know better than the
court what their own morality and
their own opinion are.
The object | have in view could prob
ably be accomplished by an amend
ment of the state constitutions taking
away from the courts the power TO
review the legislatures determination
Of a policy Of social justice, by defining
due process of law in accordance with
the views expressed by Justice Holmes
for the supreme court. But my pro
posal seems to me more democratic
and, | may add, less radical, for un-
der the method / suggest the people
may sustain the court as against the
legislature. whereas If due process were
defined in the constitution the decision
of the legislature would be final.
Distrust of Popular Government.
! Mr.. Taft's position is the position
hat has been held from the beginning
of u government, although not al
ways so openly held, by a large num-
Der of reputable and honorable men
who down at bottom distrust popular
government and. when they must ac-
cept it, accept it with reluctance and
hedge it around with every species of
restriction and check and balance, SO
as to make the power of the people as
limited and as ineffective as possible
Mr.. Taft fairly defines the issue when
he says that government is and
should be a government of all the peo-
pie by a representative part of the peo-
pie. This is an excellent and moderate
description of an oligarchy. 1t defines
our government as a government of all
of the people by a few of the people.
Mr.. Taft in his able speech has made
what is probably the best possible
presentation of the case for those who
feel in this manner. Essentially this
view differs only in its expression from
the view markedly set forth by n of
his supporters, Congressman Campbell,
Congressman Campbell, In a public
speech in New Hampshire. in oppos-
ing the proposition TO give the people
real and effective control over all their
servants, including the judges, stated
that this was equivalent to allowing an
appeal from the umpire to the bleach
ers. Doubtless Congressman Campbell
was not himself aware of the cynical
truthfulness with which he WAS put
ting the real attitude of those for whom
he spoke. But 1t unquestionably Is
their real attitude. Mr.. Campbell's on
ception of the part the American peo-
pile should play in self government is
that they should sit on the b~leachers
and pay the price OF admission, but
should have nothing to say as to the
contest which is waged in the arena by
the professional politicians.
l am not speaking jokingly nor do
mean to be unkind. for l repeat that
many honorable and well meaning men
of high character take this view and
have taken ii from the time of the for
nation of the nation. Essentially this
view is that the constitution is a strait
jacket to be used for the control of an
unruly patient-the people. Now,
hold that this view is not only false.
but mischievous; that our constitutions
are instruments designed to secure jus
tice by securing the deliberate but eff
fective expression OF the popular will,
that the checks and balances are valu-
able as far and only so far as they ac-
complish that deliberation and that it
is a warped and unworthy and i'm
proper construction of our form Of gov
eminent to see in II only a means of
| thwartinp tho nOnular will and Of Dra-