THE POSITION OF THE JUDICIARY IN

THE UNITED STATES

Reprinted from The Annals of the American Academy of Political and Social Science, September, 1912. The Initiative, Referendum

A

and Recall

T the present time two circumstances are directing public attention to the position which the judiciary holds in the American political system. The initiative, the referendum and the recall are extending widely, and the prospect is that they will soon become prevalent throughout our states. It is clear that if these methods of controlling governmental action by popular vote should be carried sufficiently far, they might be used so as to extinguish the power which our courts have to treat as void any governmental action which is in excess of the powers granted by our written constitutions. At the same time that the position of our judiciary is thus endangered by the coming of these new forms of political action, its position has been seriously weakened, in the eyes of many of our best citizens, by its own action in exercising its power to hold laws unconstitutional. It is probably true that some of our courts have exercised this power in a retrogressive manner; that is, in such a way as to interfere with the people in their proper development and progress, and with the nation in its fair competition with foreign nations. Thus the position of our judiciary in our political system is at the same time endangered from without and from within. If it be true that our

courts are proving themselves unable properly to perform the high and extraordinary functions which we have laid upon them, those who advocate the extension of the initiative, the referendum and the recall are entitled to be heard with attention. If our system is sound, and is merely operating badly for the moment on account of some specific defect or ambiguity in our constitutions, or because we are passing through some temporary social or economic phase or condition, or because of the too great rigidity of the legal mind as now trained, the initiative, the referendum and the recall as remedies for the difficulty must be considered along with other possible remedies. If it be true that our system has broken down by reason of the inability of our courts to bear the burden placed on them, the next most feasible plan is that of "responsible government" under an unwritten constitution, as it exists in other countries, and to this the initiative, the referendum and recall, if applied in a wide sense, seem necessarily to lead.

It therefore becomes necessary to examine the philosophical and legal basis on which our system rests, and to make up our minds whether our system is reasonable and practicable and as good as or better than any other. If we conclude that it is, and that therefore the functions which we have given our courts are reasonable and capable of being properly performed by them under all ordinary circumstances, it will be necessary to attempt to discover the reason why some of them have happened to make the decisions which are regarded as retrogressive. If we succeed in discovering these reasons, it will particularly be necessary to consider how far the initiative, the referendum and the recall can be used, if they can be used at all, as a means of remedying any aberrations of our courts in performing their superintending and nullifying functions.

An attempt will first be made, therefore, to state the philosophical and legal basis on which our system rests. The simplest way seems to be to state the propositions of politics and law which underlie our system, beginning with the most fundamental and proceeding by successive steps to the various derivative propositions, illustrating each, so far as space will permit, by reference to historical facts.

The fundamental proposition upon which our system rests, as it would appear, is, that governments are the agents of the governed. There are, as history, experience, and philosophy show, in the last analysis, only three forms of government-the patriarchal form, the agency form, and the imperial form. In the patriarchal form governmental power is conceived of as derived from a source external to the people governed, that is, from God, and is devolved from above downward upon subordinate officers and subjects. In the agency form, governmental power is conceived of as derived from the people governed, who delegate limited powers to officers who are neither above nor below the people, but are on an equality with the people as contracting parties and agents. In the imperial form, all power is conceived of as derived from the people governed, who are assumed to have conveyed all their powers to a ruler or government, so that the ruler or government thus has a power equally absolute with that of a patriarch and devolves his or its power from above downwards upon subordinate officers and subjects.

When, therefore, it is said that our system depends upon our acceptance of the proposition that governments are the agents of the governed, it is the same as saying we have chosen to adopt the agency system of government and have not allowed ourselves to be subjected to the patriarchal system or to the imperial system.

It becomes important, therefore, to inquire what is necessarily involved in the acceptance of this fundamental proposition—that is, to inquire what are the fundamental principles of agency. About this there is no difficulty. Agency is one of the most common and necessary of human relations. The fundamental principles of agency have been settled for at least fourteen centuries. These principles were summed up in the civil law by two maxims. The first of these was, Obligatio mandati consensu contrahentium consistit; a translation of which is, "The powers of an agent are derived from the consent (or agreement) of the contracting parties." The second was, Rei turpis nullum mandatum est; a translation of which is, "There can be no agency to do an unjust (or wrongful) act." The meaning of these two maxims is, that the agent has no powers except those delegated to him by the principal and accepted by the agent in the agreement of agency made between them, and that any acts done by the agent in excess of these powers are void as to the principal; that even if the agent acts within the powers thus delegated to and accepted by him and agreed to by both parties, yet if in so acting he does an unjust or wrongful act to any one, as distinguished from an act of negligence, the wrongful act is in excess of his powers, and is void as to the principal; and that even if the principal and the agent agree that the agent shall have power to do wrong or injustice, the agreement is void as a contract of agency and operates only to make the principal a wrong-doer jointly with the agent, in case the agent does the wrong or injustice. When we say, therefore, that our political system is based on the agency theory, we mean that our governments have no powers except those which are delegated to them by the people and accepted by the governments by acceptance

of office, and which are agreed to between the peoples and the governments; that even if our governments act strictly within the letter of the powers granted, they have no power in exercising those powers to do injustice to any one; and that if the people should attempt to delegate to any of our governments a power to do injustice, the attempted delegation of power would be void, and the governments would have no power to do injustice.

The first great public document in which this theory was foreshadowed was Magna Charta. This great charter, granted by King John to the Barons in 1215, was made, however, under such circumstances and was couched in such language that it required interpretation. In subsequent confirmatory charters granted by the English kings to the people by act of parliament, these principles gradually became more clearly stated. The Reformation, by emphasizing the importance of the individual and his direct relationship to God, gave a wide extension to the idea that all institutions, including the institutions of government and church, are for the benefit of the individual; and it was a natural and necessary conclusion that all the persons concerned in the management of institutions and the institutions themselves were agents of those for whose benefit they existed. The people of Continental Europe, however, long accustomed to regard themselves as members of clans or armies, and to regard the head of their nation as invested with patriarchal or imperial power, were not able to apply this theory successfully against the opposition of those attached by conviction or interest to the patriarchal or imperial theory.

The principle that governments are the agents of the governed was recognized in the charter granted by the king in council to the Massachusetts Bay Colony in