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 No. 87 
 
 SOME DEFECTS IN THE CONSTITUTION 
 OF THE UNITED STATES 
 
 ADDRESS 
 
 BY 
 
 HON. WALTER CLARK 
 
 Chief Justice of North Carolina 
 
 TO THE 
 
 LAW DEPARTMENT OF THE UNIVERSITY 
 OF PENNSYLVANIA, ON APRIL 27, 1906 
 
 PRESENTED BY MR. OWEN 
 July 31, 1911.— Ordered to be printed 
 
 WASHINGTON 
 1^1 1 
 

 I 
 

 SOME DEFECTS IN THE CONSTITUTION OF THE 
 UNITED STATES. 
 
 M ADDRESS TO THE LAW DEPARTMENT OF THE UNIVERSITY OF PENNSYLVANIA, APRIL 27, 1906. 
 
 By Walter Clark, chief justice of North Carolina. 
 
 Philadelphia is one of the great cities of the world. To the student 
 of history who remembers that Nineveh and Palmyra, Carthage 
 and Thebes, and many another, have been great, populous, and 
 wealthy, and then have passed entirely away from the thoLights 
 and lips of men, Philadelphia has yet a glory that shall live always, 
 Mohammedanism has its Mecca, the cradle and the acme of its hopes. 
 Jew and Christian alike turn to Jerusalem. But to the utmost verge 
 of earth, and to the last syllable of recorded time, in whatever lan- 
 guage liberty and freedom shall be honored among men, in whatever 
 accents government ''of the people, by the people, and for the peo- 
 ple" shall be asserted, there Philadelphia shall be remembered as the 
 cradle of its birth. Her streets at some far distant day may be 
 overgrown with grass and her ruined and tottering buildings may 
 become the home of bats and birds of night; but around her name 
 will linger a luster that shall never depart. 
 
 Here, on July 4, 1776, was proclaimed " Liberty throughout all the 
 land and to all the inhabitants thereof." And here, too, 11 years 
 later, was another notable event, when on September 17, 1787, was 
 issued to the world the Constitution of these United States. It is 
 of the latter — "its defects and the necessity for its revision" — that 
 I shall speak to you to-night. 
 
 Just here it is well to call to mind the radical difference between 
 these two conventions. That which met in 1776 was frankly demo- 
 cratic. Success in its great and perilous undertaking was only pos- 
 sible with the support of the people. The great Declaration was an 
 appeal to the masses. It declared that all men were created equal 
 and endowed with certain inalienable rights — among them life, lib- 
 erty, and the pursuit of happiness — to secure which rights govern- 
 ments are instituted, deriving their just powers from the consent of 
 the governed; and that when government becomes destructive of 
 these ends it is the right of the people to alter or abolish it and insti- 
 tute a new government in such form as shall seem most likely to 
 effect their safety and happiness. Never was the right of revolution 
 more clearly asserted or that government existed for the sole bene- 
 fit of the people, who were declared to be equal and endowed with 
 
4 DEFECTS IN CONSTITUTION OF UNITED STATES. 
 
 the right to change their government at will when it did not subserve 
 their welfare or obey their wishes. Not a word about property. 
 Everything was about the people. The man was more than the dol- 
 lar then. And the convention was in earnest. Every member 
 signed the Declaration which was unanimously voted. As Dr. 
 Franklin pertinently observed, it behooved them ''to hang together, 
 or they would hang separately." 
 
 The convention Avliich met in 1787 was as reactionary as the other 
 had been revolutionary and democratic. It had its beginning in com- 
 mercial negotiations between the States. Wearied with a long war, 
 enthusiasm for libert}^ somewhat relaxed by the pressing need to 
 earn the comforts and necessities of life whose stores had been 
 diminished and o})pressed by the ban upon prosperity caused by the 
 uncertainties and impotence of the existing government of the Con- 
 federacy, the convention of 17S7 came together. Ignoring the maxim 
 that government shovdd exist only by the consent of the governed 
 it sat with closed doors that no breath of the popular will should 
 alfect their decisions. To free the members from all responsibility, 
 members were prohibited to make copies of any resolution or to cor- 
 respond with constituents or others about matters jjending before 
 the convention. Any record of yeas and nays was forbidden, but 
 one was kept without the knowledge of the convention. The journal 
 was kept secret, a vote to destroy it fortunately failed, and Mr. 
 Madison's copy was published only after the lapse of 49 years, when 
 every member had passed beyond human accountability. Only 12 
 States were ever represented and one of these withdrew before the 
 final result was reached. Of its 65 members, only 55 ever attended, 
 and so far from being unanimous, only 39 signed the Constitution, 
 and some actively op])osed its ratification by their own States. 
 
 That the Constitution thu? framed was reactionary was a matter 
 of course. There was, as we know, some talk of a royal government, 
 with Frederick, Duke of York, second son of George the Third, as 
 King. Hamilton, whose subsequent great services as Secretary of 
 the Treasury have crowned him with a halo, and whose tragic death 
 has obliterated the memory of his faults, declared himself in favor 
 of the English form of government, with its hereditary Executive 
 and its House of Lords, which he denominated "a most noble insti- 
 tution." Failing in that, he advocated an Executive elected by 
 Congress for life. Senators and judges for life, and governors of States 
 to be appointed by the President. Of these he secured, as it has 
 proved, the most important from his standpoint, the creation of 
 judges for life. The convention was aware that a Constitution on 
 Hamilton's lines could not secure ratification by the several States. 
 But the Constitution adopted was made as undemocratic as possible, 
 and was very far from responding to the condition, laid down in the 
 Declaration of 1776, that all governments derive their just powers 
 from the consent of the governed. Hamilton, in a speech to the 
 convention, stated that the members were agreed that "we need to 
 be rescued from the democracy." They were rescued. Thomas 
 Jefferson unfortunately was absent as our minister to France and 
 took no part in the convention, though we owe largely to him the 
 compromise by which the first 10 amendments were agreed to be 
 adopted in exchange for ratification by several States which other- 
 wise would have been withheld. 
 
DEFECTS IN CONSTITUTION OF UNITED STATES. 5 
 
 In truth, the consent of the governed was not to be asked. In the 
 new government the will of the people was not to control and was 
 little to be consulted. Of the three great departments of the Govern- 
 ment — legislative, executive, and judiciary — the people were in- 
 trusted with the election only of the House of Representatives, to 
 wit, only one-sixth of the Government, even if that House had been 
 made equal in authority and power with the Senate, which was very 
 far from being the case. The Declaration of 1776 was concerned 
 with the rights of man. The Convention of 1787 entirely ignored 
 them. There was no Bill of Rights and the guaranties of the great 
 rights of freedom of speech and of the press, freedom of religion, 
 liberty of the people ta assemble, and right of petition, the right to 
 bear arms, exemption from soldiers being quartered upon the people, 
 exemption from general warrants, the right of trial by jury and a 
 grand jury, protection of the law of the land, and protection from 
 seizure of private property for other than public use, and then only 
 upon just compensation; the prohibition of excessive bail or cruel 
 and unusual punishment, and the reservation to the people and the 
 States of all rights not granted by the Constitution — all these matters 
 of the utmost importance to the rights of the people were omitted, 
 and were inserted by the first 10 amendments only because it become 
 imperatively necessary to give assurances that such amendments 
 would be adopted in order to secure the ratification of the Constitu- 
 tion by the several States. 
 
 The Constitution was so far from being deemed satisfactory, even to 
 the people and in the circumstances of the time for which it was 
 framed, that, as already stated, only 11 States voted for its adoption 
 by the convention, and only 39 members out of 55 attending signed 
 it, some members subsequently opposing its ratification. Its ratifi- 
 cation by the convention in the several States was carried with the 
 greatest difficulty, and in no State was it submitted to a vote of the 
 people themselves. Massachusetts ratified only after a close vote 
 and with a demand for amendments; South Carolina and New Hamp- 
 shire also demanded amendments, as also did Virginia and New York, 
 both of which voted ratification by the narrowest majorities and 
 reserving to themselves the right to withdraw; and two States (North 
 Carolina and Rhode Island) rejected the Constitution, and subse- 
 quently ratified only after Washington had been elected and inau- 
 gurated — matters in which they had thus no share. • 
 
 George Washington was president of the convention, it is true, but 
 as such was debarred from sharing in the debates. His services, 
 great as they were, had been military, not civil, and he left no impress 
 upon the instrument of union, so far as known. Yet it was admitted 
 tliat but for his popularity and influence the Constitution would 
 have failed of ratification by the several States, especially in Virginia. 
 Indeed, but for his great influence the convention would have 
 adjourned without putting its final hand to the Constitution, as it 
 came very near doing. Even his great influence would not have 
 availed but for the overwhelming necessity for some form of govern- 
 ment as a substitute for the rickety Articles of Confederation, which 
 were utterly inefficient and whose longer retention threatened civil 
 war. 
 
 An instrument so framed, adopted with such difficulty and ratified 
 after such efforts and by such narrow margins, could not have been 
 
6 DEFECTS IN CONSTITUTION OF UNITED STATES. 
 
 a fair and full expression of the consent of the governed. The men 
 that made it did not deem it perfect. 'Its friends agreed to sundry- 
 amendments, 10 in number, which were adopted by the first Con- 
 gress that met. The assumption by the new Supreme Court of a 
 power not contemplated, even by the framers of the Constitution, to 
 drag a State before it as defendant in an action by a citizen of another 
 State, caused the enactment of the eleventh amendment. The 
 unfortunate method prescribed for the election of President nearly- 
 caused a civil war in 1801 and forced the adoption of the twelfth 
 amendment, and three others were brought about as the result of 
 the great Civil War. The convention of 1787 recognized itself that 
 the defects innate in the Constitution, and which would be developed 
 by experience and the lapse of time, would require amendments, and 
 that instrument prescribed two different methods by which amend- 
 ments could be made. 
 
 Our Federal Constitution was adopted nearly a century and a quar- 
 ter ago. In that time every State has radically revised its constitution 
 and most of them several times. Indeed, the constitution of New 
 York requires that the question of a constitutional convention shall 
 be submitted to its people at least once every 20 years. The object 
 is that the organic law shall keep abreast of the needs and wants of 
 the people and shall represent the will and progress of to-day and 
 shall not, as is the case with the Federal Constitution, be hampered 
 by provisions deemed best by the divided counsels of a small handful 
 of men in providing for the wants of the Government considerably 
 more than 100 years ago. Had those men been gifted with divine 
 foresight and created a Constitution fit for this day and its develop- 
 ment, it would have been unsuited for the needs of the times in which 
 it was fashioned. 
 
 When the Constitution was adopted, in 1787, it was intended for 
 3,000,000 of people, scattered along the Atlantic slope from Massa- 
 chusetts to the southern boundary of Georgia. We are now trying 
 to make it do duty for very nearly 100,000,000, from Maine to Manila, 
 from Panama ancl Porto Rico to the pole. Then our population was 
 mostly rural; for three years later, at the First Census, in 1790, "w^e 
 had but five towns in the whole Union which had as many as 6,500 
 inhabitants each, and only two others had over 4,000. Now we have 
 the second largest city on the globe, with over 4,000,000 of inhabit- 
 ants, and many that have passed the half-million mark, some of 
 them of over a million population. Three years later, in 1790, we 
 had 75 post offices, with $37,000 annual post-ofHce expenditures. 
 Now we have 75,000 post offices, 35,000 rural-delivery routes, and a 
 post-office appropriation of nearly $200,000,000. 
 
 During the first 10 years the total expenditures of the Federal 
 Government, including payments on the Revolutionary debts, and 
 including even the pensions, averaged $10,000,000 annually. Now 
 the expenditures are 75 times as much. When the Constitution 
 was adopted Virginia was easily the first State in influence, popula- 
 tion, and wealth, having one-fourth the population of the entire 
 Union. North Carolina was third, and New York, which then 
 stood fifth, now has double the population of the whole country at 
 that date, and several other States have now a population greater 
 than the original Union, whose very names were then unheard and 
 over whose soil the savage and the buffalo roamed unmolested. 
 
DEFECTS IN COOSrSTITUTIOlSr OF UNITED STATES. 7 
 
 Steamboats, railroads, gas, electricity (except as a toy in Franklin's 
 hands), coal mines, petroleum, and a thousand other things which 
 are a part of our lives to-day were undiscovered. 
 
 Corporations, which now control the country and its Government, 
 were then so few that not till four years later, in 1791, was the first 
 bank incorporated (in New York), and the charter for the second 
 bank was only obtained by the subtlety of Aaron Burr, who con- 
 cealed the banking privileges in an act incorporating a water com- 
 pany — and corporations have had an affinity for water ever since. 
 
 Had the Constitution been perfectly adapted to the needs and 
 wishes of the people of that day, we would still have outgrown it. 
 Time has revealed flaws in the original instrument, and it was, as 
 might be expected, wholly without safeguards against that enormous 
 growth of corporations, and even of individuals, in wealth and power, 
 which has subverted the control of the Government. 
 
 The glaring defect in the Constitution was that it was not demo- 
 cratic. It gave, as already pointed out, to the people — to the gov- 
 erned — the selection of only one-sixth of the Government, to wit, one- 
 half — by far the weaker half — of the legislative department. The 
 other half, the Senate, was made elective at second hand by the 
 State legislatures, and the Senators were given not only longer 
 terms but greater power, for all presidential appointments and treaties 
 were subjected to confirmation by the Senate. 
 
 The President was intended to be elected at a still further remove 
 from the people, by being chosen by electors, who, it was expected, 
 would be selected by the State legislatures. The President thus was 
 to be selected at third hand,. as it were. In fact, down till after the 
 memorable contest between Adams, Clay, Crawford, and Jackson, in 
 1824, in the majority of the States the presidential electors were 
 chosen by the State legislatures, and they were so chosen by South 
 Carolina till after the Civil War, and, in fact, by Colorado in 1876. 
 The intention was that the electors should make independent choice, 
 but public opinion forced the transfer of the choice of electors from the 
 legislatures to the ballot box, and then made of them mere figure- 
 heads, with no power but to voice the will of the people, who thus 
 captured the executive department. That department, with the 
 House of Representatives, marks to-day the extent of the share of 
 the people in this Government. 
 
 The judiciary were placed a step still further removed from the 
 popular choice. The judges were to be selected at fourth hand by a 
 President (intended to be selected at third hand) and subject to con- 
 firmation by a Senate chosen at second hand. And to make the 
 judiciary absolutely impervious to any consideration of the ''consent" 
 of the governed," they are appointed for fife. 
 
 It will be seen at a glance that a constitution so devised was intended 
 not to express, but to suppress, or at least disregard, the wishes and 
 the consent of the governed. It was admirably adapted for what 
 has come to pass — the absolute domination of the Government by 
 the "business interests," which, controlling vast amounts of capital 
 and intent on more, can secure the election of Senators by the small 
 constituencies, the legislatures which elect them, and can dictate the 
 appointment of the judges, and if they fail in that, the Senate, chosen 
 under their auspices, can defeat the nomination. Should the Presi- 
 dent favor legislation and the House of Representatives pass the bill, 
 
/ 
 
 8 DEFECTS IN CONSTITUTION OF "UNITED STATES. 
 
 the Senate, with its majority chosen by corporation influences, can 
 defeat it; and if, by any chance, it shall yield to the popular vvall and 
 pass the bill, as was the case with the income tax, there remains the 
 judiciary, who have assumed, without any warrant, express or im- 
 phed, in the Constitution, the power to declare any act unconstitu- 
 tional at their own will and witliout responsibility to anyone. 
 
 The people's part in the Government m the choice of the House of 
 Representatives, even when reenforced by the Executive, whose elec- 
 tion theyhave captured, is an absolute nullity in the face of the Senate 
 and the judiciary, in whose selection the people have no voice. This, 
 therefore, is the Government of the United States — a government by 
 Senate and judges — that is to say, frankly, by whatever power can 
 control the selection of Senators and judges. What is that power? 
 We know that it is not the American people. 
 
 Let us not be deceived by forms, but look at the substance. Gov- 
 ernment rests not upon forms, but upon a true reply to the question, 
 "Where does the governing power reside ?" The Roman legions bore 
 to the last day of the Empire upon their standards the words, "The 
 Senate and the Roman people," long centuries after the real power had 
 passed from the curia and the comitia to the barracks of the Pretorian 
 Guards, and when there was no will in Rome save that of their master. 
 There were still tribunes of the people, and consuls, and a senate, and 
 the title of a republic, but the real share of the people in the Roman 
 Government was the donation to them of "bread and circuses" by 
 their tyrants. 
 
 Years after the victor of Marengo had been crowned Emperor and 
 the sword of Austerlitz had become tlie one power in France, the 
 French coins and official documents still bore the inscription of 
 "French Republic" — "Republique Francaise." 
 
 In England to-day there is a monarchy in form, but we know that 
 in truth the real government of England is vested in a single House of 
 Parliament, elected by the people, under a restricted suffrage; that 
 the real executive is not the King, but the prime minister and his 
 cabinet, practically elected by the House of Commons and holding 
 office at the will of the majority in that House; that the King has not 
 even the veto power, except nominally, since it has not been exercised 
 in a single instance for more than 200 years, and that the sole func- 
 tion of the House of Lords — a club of rich men representing great 
 vested interests — is in the exercise of a suspensive veto (of which the 
 King has been deprived), which is exercised only till the Commons 
 make up their mind the bill shall pass — when the House of Lords 
 always gives way, as the condition upon which their continued exist- 
 'ence rests. So in this country we retain the forms of a Republic. We 
 still choose our President and the House of Representatives by the 
 people; but the real power does not reside in them or in the people. 
 It rests with those great "interests" which select the majority of the 
 Senate and the judges. 
 
 This being the situation, the sole remedy possible is by amendment 
 of the Constitution to make it democratic and place the selection of 
 these preponderating bodies in the hands of the people. 
 /' First, the election of Senators should be given to the people. Even 
 then consolidated wealth will secure some of the Senators; but it 
 would not be able, as now, at all times to count with absolute cer- 
 tainty upon a majority of the Senate, as its creatures. Five times 
 
DEFECTS IN CONSTITUTIOlsr OF UNITED STATES. 9 
 
 has a bill proposing such amendment to the Constitution passed the 
 House of Kepresentatives by a practically unanimous vote, and each 
 time it has been lost in the Senate; but never by a direct vote. It 
 has always been disposed of by the chloroform process of referring the 
 bill to a committee, which never reports it back, and never will. It 
 is too much to expect that the great corporations which control a 
 majority of the Senate will ever voluntarily transfer to the people 
 their profitable and secure hold upon supreme power by permitting 
 the passage of an amendment to elect Senators by the people. The 
 only hope is in the alternative plan of amendment, authorized by the 
 Constitution, to wit, the call of a constitutional convention upon the 
 application of two-thirds of the States, to wit, 30 States. More than 
 that number have already instructed in favor of an amendment to 
 elect Senators by the people. 
 
 It may be recalled here that in the Convention of 1787 Pennsyl- 
 vania did vote for the election of Senators by the people. A strong 
 argument used against this was that the farming interests, being the 
 largest, would control the House and that the Senate could only be 
 given to the commercial interests by making its members elective by 
 the legislatures — which was prophetic — though the deciding influence 
 was the fear of the small States that if the Senate was elected by the 
 people its membership would be based on population. 
 
 It is high time' that we had a constitutional convention, after the 
 lapse of near a century and a score of years. The same reasons which 
 have time and again caused the individual States to amend their con- 
 stitutions imperatively require a convention to adjust the Constitu- 
 tion of the Union to the changed conditions of the times and to trans- 
 fer to the people themselves that control of the Government which is 
 now exercised for the profit and benefit of the ''interests." Those 
 interests, with all the power of their money and the large part of the 
 press which they own or control, will resist the call of such a conven- 
 tion. They will be aided, doubtless, by some of the smaller States who 
 may fear a loss of their equal representation in the Senate. But in 
 truth and justice it may be that there might be some modification now 
 in that respect without injury to the smaller States. There is no 
 longer any reason why Delaware or Nevada or Rhode Island should 
 have as many Senators as New York or Pennsylvania or Illinois. It 
 would be enough to grant to every State having 1,000,000 inhabitants 
 or less one Senator, and to allot to each State having over 1,000,000 
 inhabitants an additional Senator for every million above 1,000,000 
 and for a fractional part if over three-quarters of a million. This, 
 while not putting the Senate frankly on the basis of population, would 
 remove the dissatisfaction with the present unjust ratio and would 
 quiet the opposition to the admission of the new States whose area 
 and development entitle them to self-government, but whose popu- 
 lation does not entitle them to two Senators. 
 
 The election of President is now made by the people, who have cap- 
 tured it, though the Constitution did not intend the people should 
 have any choice in naming the Executive. The dangerous and 
 unsafe plan adopted in 1787 was changed in consequence of the 
 narrowly averted disaster in 1801. But the method in force still 
 leaves much to be desired. It readily lends itself to the choice of a 
 minority candidate. It is an anomaly that 1,100 votes in New 
 York (as in 1884) should swing 70 electoral votes (35 from one can- 
 
10 DEFECTS IjST CONSTITUTION OF UNITED STATES. 
 
 didate to the other) and thus decide the result. The consequence is 
 that while, nominally, any citizen of the Kepublic is eligible to the 
 Presidency, only citizens of two or three of the larger States, with 
 doubtful electoral votes, are in fact eligible. All others are barred. 
 For proof of this look at tJie history of our presidential elections. 
 For the first 40 years of the Union the Presidents came from two 
 States— Virginia and Massacliusetts. Then there followed a period 
 when, the growing West requiring recognition, Tennessee, Ohio, 
 and New York commanded the situation for the next 16 years. The 
 Mexican War gave us a soldier who practically represented no 
 State, and was succeeded by a New Yorker. Then for the only time 
 in our history ''off States" had a showing, and Pennsylvania and 
 New Hampshire liad their innings. Since then tlie successful candi- 
 dates have been again strictly limited to "pivotal States" — New 
 York in tlie East and Illinois, Indiana, and Ohio in the W^est. 
 
 This condition is unsatisfactory. The magnetic Blaine, from 
 Maine, was defeated, as was Bryan, from Nebraska. Had the former 
 hailed from New York and the latter from Illinois the electoral votes 
 and influence of those States might have secured their election. 
 
 It would be dangerous and almost a certain provocation of civil 
 war to change the election of President to a per capita vote by the 
 whole of the Union. Then a charge of a fraudulent vote at any pre- 
 cinct or voting place, however remote, might affect the result, and as 
 frauds would most likely occur in those States where the majorities 
 are largest, as in Pennsylvania or Texas, Ohio or Georgia, a contest 
 would always be certain. Wliereas now frauds in States giving large 
 majorities, uidess of great enough magnitude to change the electoral 
 vote of the whole State, can have no effect. The remedy is, preserving 
 the electoral vote system as now and giving the smaller States, as now, 
 the advantage of electoral votes to represent their Senators, to divide 
 the electoral vote of each State according to the popular vote for 
 each candidate, giving each his pro rata of the electoral vote on that 
 basis, the odd elector being apportioned to the candidate having the 
 largest fraction. Thus, in New York Mr. Blaine would have gotten 
 17 electoral votes and Mr. Cleveland IS. Other States would have 
 also divided more or less evenly, but the result would be that the 
 choice of President would no longer be restricted to two or three 
 States, as in our past history, and is likeh^ to be always the case as 
 long as the whole electoral vote of two or three large pivotal States 
 must swing to one side or other and determine the result. This 
 change would avoid the present evil of large sums being spent to cany 
 the solid electoral vote of "pivotal" States, for there would cease to 
 be "pivotal" States. At the same time this would avoid the open 
 gulf into which a per capita ballot by the whole Union would lead us. 
 While the electoral vote of a State should be divided pro rata, accord- 
 ing to the popular vote for each candidate, it is essential that each 
 State should vote as one district, since its boundaries are unchange- 
 able. To permit the legislature of each State to divide it into elec- 
 toral districts would simplj^ open up competition in the art of gerry- 
 mandering. 
 
 By the convention of 1787 the term of the President was originally 
 fixed at seven years, and he was made ineligible for reelection. This 
 was reduced to four years by a compromise tliat he could be reelected 
 without limitation. This was done in the interest of those who 
 
DEFECTS IN CONSTITUTIOISr OF UNITED STATES. 11 
 
 favored a strong Government and a long tenure. Washington imposed 
 a limitation by his example, wliich will not always be binding. An 
 ainendment maldng the term six years and the President ineligible to 
 reelection has long been desired by a large portion of the public. 
 Indeed, when the Constitutional Convention of the Union shall 
 assemble, as it must do some day, to remodel our Constitution to fit it 
 to face the dangers and conform to the views of the people of this age, 
 with the aid of our experience in the past, it is more than probable that 
 the powers of the Executive will be more restricted. His powers are 
 now greater than those of any sovereign in Europe. The real restric- 
 tions upon executive pov^^er at present are not in constitutional provi- 
 sions, but in the Senate and judiciary, which often negative the popular 
 will, which he represents more accurately than the^^. 
 
 And now we come to the most important of the changes necessary 
 to place the Government of the Union in the hands of the people. By 
 far the most serious defect and danger in the Constitution is the 
 appointment of judges for life, subject to confirmation by the Senate. 
 It is a far more serious matter than it was when the Convention of 
 1787 framed the Constitution. A proposition was made in the con- 
 vention — as we now know from Mr. Madison's Journal — that the 
 judges should pass upon the constitutionality of acts of Congress. 
 Tliis was defeated June 5, receiving the vote of onl}' two States. It 
 was renewed no less than tliree times, i. e., on June 6, July 21, and 
 finally again for the fourth time on August 15 ; and though it had the 
 powerful support of Mr. Madison and Mr. James Wilson, at no time 
 did it receive the votes of more than three States. On this last occa- 
 sion (August 15) Mr. Mercer thus summed up the thought of the con- 
 vention: He disapproved of the doctrine that the judges, as expos- 
 itors of the Constitution, should have authority to declare a law void. 
 He thought laws ought to be well and cautious!}^ made, and then to be 
 incontrovertible. 
 
 Prior to the convention, the courts of four States — New Jersey, 
 Rhode Island, Virginia, and North Carolina — ^had expressed an. opin- 
 ion that they could hold acts of the legislature unconstitutional. 
 This was a new doctrine never held before (nor in any other country 
 since) and met with strong disapproval. In Rhode Island the move- 
 ment to remove the offending judges was stopped only on a suggestion 
 that they could be "dropped" by the legislature at the annual elec- 
 tion, which was done. The decisions of these four State courts were 
 recent and well known to the convention. Mr. Madison and Mr. 
 Wilson favored the new doctrine of the paramount judiciary, doubt- 
 less deeming it a safe check upon legislation, since is was to be oper- 
 ated only by lawyers. They attempted to get it into the Federal 
 Constitution in its least objectionable shape, the judicial veto before 
 final passage of an act, which would thus save time and besides would 
 enable the legislature to avoid the objections raised. But even in 
 this diluted form, and though four times presented by these two very 
 able and influential members, this suggestion of a judicial veto at no 
 time received the votes of more than one-fourth of the States. 
 
 The subsequent action of the Supreme Court in assuming the power 
 to declare acts of Congress unconstitutional was without a line in 
 the Constitution to authorize it, either expressly or by implication. 
 The Constitution recited carefully and fully the matters over which 
 the courts should have jurisdiction, and there is nothing, and after 
 
12 DEFECTS IN CONSTITUTION OF UNITED STATES. 
 
 the above vote four times refusing jurisdiction there could be nothing, 
 indicating any power to declare an act of Congress unconstitutional 
 and void. 
 
 Had the convention given such power to the courts, it certainly 
 would not have left its exercise final and unreviewable. It gave the 
 Congress power to override the veto of the President, though that 
 veto was expressly given, thus showing that in the last analysis the 
 will of the people, speaking through the legislative power, should 
 govern. Had the convention supposed the courts would assume such 
 power, it woidd certainly have given Congress some review over judi- 
 cial action and certainly would not have placed the judges irre- 
 trievably beyond ''the consent of the governed" and regardless of the 
 popidar will by making them appointive, and, further, clothing them 
 with the undemocratic prerogative of tenure for life. 
 
 Such power does not exist in any other country, and never has. It 
 is therefore not essential to our security. It is not conferred by the 
 Constitution; but, on the contrary, the convention, as we have seen, 
 after the fullest debate, four times, on four several days, refused by a 
 decisive vote to confer such power. The judges not only have never 
 exercised such power in England, where there is no written constitu- 
 tion, but they do not exercise it in France, Germany, Austria, Den- 
 mark, or in any other country which, like them, has a written con- 
 stitution. 
 
 A more complete denial of popular control of this Government could 
 not have been conceived than the placing of such unreviewable power 
 in the hands of men not elected by the people and holding office for 
 life. The legal-tender act, the financial policy of the Government, 
 was invalidated by one court and then validated by another, after a 
 change in its personnel. Then the income tax, which had been held 
 constitutional by the court for a hundred years, was again so held, 
 and then by a sudden change of vote by one judge it was held uncon- 
 stitutional, nullified, and set at naught, though it had passed b}^ a 
 nearly unanimous vote both Houses of Congress, containing many 
 lawyers who were the equals, if not the superiors, of the vacillating 
 judge, and had been apj^roved by the President and voiced the wdl of 
 the people. This was all negatived (without any warrant in the Con- 
 stitution for the court to set aside an act of Congress) by the vote of 
 one judge; and thus $100,000,000 and more of annual taxation was 
 transferred from those most able to bear it and placed u])on the backs 
 of those who already carried more than their fair share of the burdens 
 of government. Under an untrue assumption of authority given 
 by 39 dead men one man nullified the action of Congress and the 
 President and the will of 75,000,000 of living people, and in the 13 
 years since has taxed the property and labor of the country, by his 
 sole vote, $1,300,000,000, which Congress, in comphance with the 
 public will and relying on previous decisions of the court, had decreed 
 should be paid out of the excessive incomes of the rich. 
 
 In England one-third of the revenue is derived from the superflu- 
 ities of the very wealthy by the lev}^ of a graduated income tax and 
 a graduated inheritance tax, increasing the per cent with tlie size of 
 the income. The same system is in force in all other civilized coun- 
 tries. In not one of them would the hereditary monarch venture to 
 veto or declare null such a tax. In this country alone the people, 
 speaking through their Congress and with the approval of their 
 
DEFECTS IN CONSTITUTION OF UNITED STATES. 13 
 
 Executive, can not put in force a single measure of any nature what- 
 ever with assurance that it shall meet with the approval of the courts ; 
 and its failure to receive such approval is fatal, for, unlike the veto 
 of the Executive, the unanimous vote of Congress (and the income 
 tax came near receiving such vote) can not prevail against it. Of 
 what avail shall it be if Congress sliall conform to the popular demand 
 and enact a "rate-regulation" bill and the President shall approve 
 it if five lawyers, holding office for life and not elected by the people, 
 shall see fit to destroy it, as they did the income-tax law? Is such a 
 government a reasonable one and can it be longer tolerated after 120 
 years of experience have demonstrated the capacity of the people for 
 self-government ? If five lawyers can negative the will of 100,000,000 
 of men, then the art of government is reduced to the selection of those 
 five lawyers. 
 
 A power without limit, except in the shifting Adews of the court, 
 lies in the construction placed upon the fourteenth amendment, which 
 passed, as everyone knows, solely to prevent discrimination against 
 the colored race, has been construed by the court to confer upon it 
 jurisdiction to hold any provision of any statute whatever "not due 
 process of law." This draws the whole body of the reserA^-ed rights 
 of the States into the maelstrom of the Federal courts, subject only 
 to such forbearance as the Federal Supreme Court of the day or in 
 any particular case may see fit to exercise. The limits between State 
 and Federal jurisdiction depend upon the views of five men at any 
 given time, and we have a government of men and not a government 
 of laws, prescribed beforehand. 
 
 At first the court generously exempted from its veto the police 
 power of the several States. But since then it has proceeded to set 
 aside an act of the Legislature of New York restricting excessive 
 hours of labor, which act had been sustained by the highest court in 
 that great State. Thus labor can obtain no benefit from the growing 
 humanity of the age, expressed by the popular will in any State, if 
 such statute does not meet the views of five elderly lawyers, selected 
 by influences naturally antagonistic to the laboring classes and whose 
 training and daily associations cei'tainly can not incline them in favor 
 of restrictions upon the power of the employer. 
 
 The preservation of the autonomy of the scA^eral States and of local 
 self-goA^ernment is essential to the maintenance of our liberties, which 
 would expire in the grasp of a consolidated despotism. Nothing can 
 save us from this centripetal force but the speedy repeal of the four- 
 teenth amendment, or a recasting of its language in terms that no 
 future court can misinterpret it. 
 
 The vast political power now asserted and exercised by the court to 
 set aside public policies, after their full determination I)y Congress, 
 can not safely be left in the hands of any body of men without super- 
 vision or control by any other authority whatever. If the President 
 errs, his mandate expires in four years, and his ])arty as well as him- 
 self is accountable to the people at the ballot box for his steward- 
 ship. If Members of Congress err, they, too, must account to their 
 constituents. But the Federal judiciary hold for life, and though 
 popular sentiment should change the entire ])ersonnel of the other two 
 great departments of government, a whole generation must pass away 
 l)efore the people could get control of the judiciary, which possesses 
 .an irresponsible and unrestricted A^eto upon the action of the other 
 
14 DEFECTS IX CONSTITUTION OF UNITED STATES. 
 
 departments — irresponsible because impeachment has become impos- 
 sible, and if it were possible it could not be invoked as to erroneous 
 decisions unless cori'uption were shown. 
 
 The control of the policy of government is thus not in the hands 
 of the people, but in the power of a small body of men not chosen by 
 the people and holding for life. In many cases wliich might be 
 mentioned, had the court been elective, men not biased in favor of 
 colossal wealth would have filled more seats upon the bench, and if 
 there had been such decision as in the income-tax case, long ere this 
 under the tenure of a term of years, new incumbents would have 
 been chosen, who, returning to the former line of decisions, would 
 have upheld the right of Congress to control the financial policy of 
 the Government in accordance with the will of the people of this day 
 and age, and not according to the shifting views which the court has 
 imputed to language used by the majority of the 55 men who met in 
 Philadelphia in 1787. Such methods of controlling the policy of a 
 Government are no whit more tolera,ble than the conduct of the augurs 
 of old who gave the permission for peace or war, for battle or other 
 public movements, by declaring from the flight of birds, the inspec- 
 tion of the entrails of fowls, or other equally wise devices, that the 
 omens were lucky or unlucky — the rules of such divination being in 
 their own breasts and hence their decisions beyond remedy. 
 
 It may be that this power in the courts, however illegally grasped 
 originally, has been too long acquiesced in to be now questioned. If 
 so, the only remedy which can be applied is to make the judges elec- 
 tive and for a term of years, for no people can permit its will to be 
 denied and its destinies shaped by men it did not choose, and over 
 whose conduct it has no control, by reason of its having no power to 
 change them and select other agents at the close of a fixed term. 
 
 Every Federal judgeship below the Supreme Court can be abolished 
 by an act of Congress, since the power which creates a Federal dis- 
 trict or circuit can abolish it at will. If Congress can abolish one, it 
 can abolish all. Several districts have from time to time been abol- 
 ished, notably two in 1801 ; and we know that the 16 circuit judges 
 created by the judiciary act of 1801 were abolished 18 m-onths later. 
 
 It is true that under the stress of a great public sentiment every 
 United States district and circuit judge can be legislated out of office 
 by a simple act of Congress and a new system recreated with new 
 judges. It is also true, as has been pointed out by distinguished law- 
 yers, that while the Supreme Court can not be thus abolished, it 
 exercises its appellate functions "with such exceptions and under 
 such regulations as Congress shall make" (Const., Art. Ill, sec. 2), 
 and as Congress enacted the judiciary act of 1789, it has often amended 
 it and can repeal it. Judge Marshall recognized this in Marbury v. 
 Madison, in which case in an obiter opinion he had asserted the power 
 to declare an act of Congress unconstitutional, for he wound up by 
 refusing the logical result, the issuing of the mandamus sought, 
 because Congress hatl not conferred jurisdiction upon the Supreme 
 Court to issue it. 
 
 In 1831 the attempt was made to repeal section 25 of the judiciary 
 act of 1789, by virtue of which writs of error lay to the State supreme 
 courts in certain cases. Though the section was not repealed, the 
 repeal was supported and voted for by both Henry Clay, James K. 
 Polk, and other leaders of both of the great parties of that day. But 
 
DEFECTS IN CONSTITUTION OF UNITED STATES. 15 
 
 what is needed is not the exercise of these powers which Congress 
 undoubtedly possesses and in an emergency will exercise, but a con- 
 stitutional revision by which the Federal judges, like other public 
 servants, shall be chosen by the people for a tern of years. 
 
 It may be said that the Federal judges are now in office for life and 
 it would be unjust to dispossess them. So it was with the State judges 
 in each State when it changed from life judges to judges elected by the 
 people; but that did not stay the hand of a much needed reform. 
 
 It must be remembered that when our Federal Constitution was 
 adopted in 1787, in only one State was the governor elected by the 
 people, and the judges in none, and that in most if not all the States 
 the legislature, especially the senate branch, was chosen by a re- 
 stricted suffrage. The schoolmaster was not abroad in the land, the 
 masses were illiterate and government by the people was a new experi- 
 ment and property holders were afraid of it. The danger to property 
 rights did not come then, as now, from the other direction — from the 
 corporations and others holding vast accumulations of capital and by 
 their power crushing or threatening to crush out all those owning 
 modest estates. 
 
 In the State governments the conditions existing in 1787 have long- 
 since been changed. In all the States the governor and the members 
 of both branches of the legislature have long since been made elective 
 by manliood suffrage. In all the 45 States save 4 — Delaware, Massa- 
 chusetts, New Hampshire, and Rhode Island — the judges now hold 
 for a term of years, and in three of these they are removable, as in 
 England, upon a majority vote of the legislature, thus preserving a. 
 supervision of their conduct which is utterly lacking as to the Federal 
 judiciary. In Rhode Island the judges were thus dropped summarily 
 once when they had held an act of the legislature invalid. In 33 
 States the judges are elected by the people, in 5 States by the legisla- 
 ture, and in 7 States they are appointed by the governor, with the 
 consent of the senate. Even in England the judges hold office sub- 
 ject to removal upon the vote of a bare majority in Parliament — ■ 
 though there the judges have never asserted any power to set aside an 
 act of Parliament. There the will of the people, when expressed 
 through their representatives in Parliament, is final. The King cart 
 not veto it, and no judge has ever dreamed he had power to set it 
 aside. 
 
 There are those who believe and have asserted that corporate 
 wealth can exert such influence that even if judges are not actually 
 selected by the great corporations, no judge can take his seat upoik 
 the Federal bench if his nomination and confirmation are opposed 
 by the allied plutocracy. It has never been charged that sucK 
 judges are corruptly influenced. But the passage of a judge from 
 the bar to the bench does not necessarily destroy his prejudices or 
 his predilections. If they go upon the bench knowing that this 
 potent influence, if not used for them, at least withheld its opposition 
 to their appointment or their confirmation, and usually with a 
 natural and perhaps unconscious bias from having spent their lives 
 at the bar in advocacy of corporate claims, this will unconsciously, 
 but eftectively, be reflected in the decisions they make. Haying 
 attempted as lawyers to persuade courts to view debated questions 
 from the standpoint of aggregated wealth, they often end by believing 
 sincerely in the correctness of such views, and not unnaturally put 
 
16 DEFECTS IN CONSTITUTION OF UNITED STATES. 
 
 them in force when in turn they themselves ascend the bench. This 
 trend in Federal decisions has been pronounced. Then, too, incum- 
 bents of seats upon the Federal circuit and district bench can not be 
 oblivious to the influence which procures promotion; and how fatal 
 to confirmation by the plutocratic majority in the Senate will be 
 the expression of any judicial views not in accordance with the 
 ^'safe, sane, and sound" predominance of wealth. 
 
 As far back as 1820, Mr. Jefterson had discovered the "sapping 
 and mining," as he termed it, of the life-tenure, appointive Federal 
 judiciary, owing no gratitude to the people for their appointment 
 and fearing no inconvenience from their conduct, however arbitrary, 
 in the discharge of such office. In short, they possess the autocratic 
 power of absolute irresponsibility. "Step by step, one goes very far," 
 says the French proverb. This is true of the Federal judiciary. 
 Compare their jurisdiction in 1801, when Marshall ascended the 
 bench, and their jurisdiction in 1906. The Constitution has been 
 remade and rewritten by the judicial glosses put upon it. Had it 
 been understood in 1787 to mean what it is construed to mean 
 to-day, it is safe to say not a single State would have ratified it. 
 
 An elective judiciary is less partisan, for in many States half the 
 judges are habitually taken from each party and very often in other 
 States the same men are nominated by both parties, as notably the 
 recent selection by a Republican convention of a Democratic suc- 
 cessor to Judge Parker. The organs of plutocracy have asserted that 
 in one State the elective judges are selected by the party boss. But 
 they forget that if that is true he must in such a condition of aft'airs 
 name the governor too, and through the governor he would select the 
 appointive judges. If the people are to be trusted to select the exec- 
 utive and the legislature, they are fit to select the judges. The people 
 are wiser than the appointing power which, viewing judgeships as 
 patronage, has with scarcely an exception filled the Federal bench 
 with appointees of its own party. Public opinion, which is the cor- 
 ner stone of free government, has no place in the selection or super- 
 vision of the judicial augurs, who assume power to set aside the will 
 of the people when declared by Congress and the Executive. Wliat- 
 ever their method of divination, equally with the augurs of old, they 
 are a law to themselves and control events. 
 
 As was said by a great lawyer lately deceased. Judge Seymour D. 
 Thompson, in 1891 (25 Am. Law Review, 288): "If the proposition 
 to make the Federal judiciary elective instead of appointive is once 
 seriously discussed before the people, nothing can stay the growth of 
 that sentiment, and it is almost certain that every session of the 
 Federal Supreme Court will furnish material to stimulate that 
 growth." 
 
 Great aggregations of wealth know their own interests, and it is 
 very certain that there is no reform and no constitutional amend- 
 ment that they will oppose more bitterly than this. What, then, is 
 the interest of all others in regard to it ? 
 
 Another undemocratic feature of the Constitution is that which re- 
 quires all Federal officials to be appointed by the President or heads 
 of departments. This is a great evil. Overwhelming necessity has 
 compelled the enactment of the civil-service law, which has protected 
 many thousands of minor officials. But there has been no relief as to 
 the 75,000 postmasters. Wlien the Constitution was adopted there 
 
DEFECTS IN CONSTITUTION OF UNITED STATES. 17 
 
 were only 75 postmasters, and it was contemplated that the President 
 or Postmaster General would really appoint. But this constitutional 
 provision is a dead letter. The selection of this army of 75,000 post- 
 masters, in a large majority of cases, is made by neither, but in the 
 unconstitutional mode "of selection by Senator, Member of the House, 
 or a political boss. There is no reason why Congress should not be em- 
 powered by amendment to authorize the department to lay off the 
 territory patronizing each post office as a district in which an election 
 shall be held once in four years, at the time a Member of Congress is 
 chosen, and by the same machinery, the officer giving bond and being 
 subject to the same supervision as now. Thus the people of each lo- 
 cality will get the postmaster they prefer, irrespective of the general 
 result in the Union, relieving the department at Washington of much 
 call upon its time, which can be used for the pubhc interest in some 
 better way; and, besides, it will remove from the election of President 
 and Members of Congress considerations of public patronage. Elec- 
 tions will then more largely turn upon the great issues as to matters 
 ^f public policy. 
 iV'^Another obstruction to the effective operation of the popular will is \ 
 \the fact that, though Congressmen are elected in November, they do \ 
 xj not take their seats (unless there is a called session) for 13 months, 
 yand in the meantime the old Congress, whose policy may have been 
 Jrepudiated at the polls, sits and legislates, in any event, till March 4, j 
 Mollowing. This surely needs amendment, which fortunately can be / 
 jclone by statute. In England, France, and other countries the oldj 
 f Parliament ceases before the election, and the new Assembly meets/ 
 ' at once and puts the popular v/ill into law. 
 
 In thus discussing the defects of the Federal Constitution I have 
 but exercised the right of the humblest citizen. Few will deny that 
 defects exist. I have indicated what, in my opinion, are the reme- 
 dies. As to this, many will differ. If better can be found, let us 
 adopt them. But could the matter be more appropriately discussed 
 than on the spot where the original Constitution was debated? 
 
 For my part, I believe in popular government. The remedy for 
 the halting, halfway popular government which we have is more de- 
 mocracy. When someone observed to Mr. Gladstone that the "people 
 are not always right," he rephed, ''No; but they are rarely wrong." 
 Wiien they are wrong their intelhgence and their interests combine 
 to make them correct the wrong. But when rukrs, whether kings or 
 life judges, or great corporations, commit an error against the interests 
 of the masses, there is no such certainty of correction. 
 
 The growth of this country in population and in material wealth 
 has made it the marvel of the ages. 
 
 But what avail the plow or sail, 
 Or land or life, if freedom fail. 
 
 The government and the destinies of a great people should always 
 be kept in their own hands 
 
 o 
 
 S. Doc. 87, 62-1 2 
 
LIBRARY OF CONGRESS 
 
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