Page:The Green Bag (1889–1914), Volume 21.pdf/145

 126

The Green Bag

its spirit in many respects admirable and inspiring. To illustrate these qualities of the author we will quote a typical passage, one showing his breadth of observation, his whole-hearted enthusiasm for the cause of progress, his devo tion to what he conceives to be a national ideal. The same passage will illustrate not only characteristic qualities but characteristic defects, as will be evident from his failure to place upon the legislatures that responsi bility which they must meet if real progress is to be realized, and to interpret correctly our state constitutions, which clearly impose the direct responsibility for legislation not upon the people but upon their legislative agents:— tJSS "Democracy has done stronger work in our modernized state constitutions. A popular dislike of legislative dominance in affairs— of all caucus and log-rolling methods of gov ernment—began to appear early in these instruments; and most of the hampering constraint imposed today upon that depart ment aims to correct abuses which became manifest. State workings are watched and state constitutions remain open to speedy amendment aside from mere statute. Both legislature and administrators enter promptly upon their work after the people have chosen at the polls, and legislatures are mostly urged to hold brief and unfrequent sessions, de spatching the public business. Constraints increase of late years rather than diminish; and reform is upheld, not by new states alone, but by many of the oldest and most conservative of the Union. In short, what an eighteenth-century legislature might have chosen to do or leave undone, under its own repealable rule or enactment, the fundamental law in most states now commands peremp torily. If it be objected that all such hamper ing provisions show an increasing distrust of the people's representatives, their wisdom or honesty, we may reply that distrust is gen erated among a supervising constituency, confident of its own better understanding how free government should be conducted, and well assured of its own inherent honesty, and its capacity to give instructions. There is scarcely a change, such as I allude to, in legislative power and procedure, which is not on the whole a change for the better." P. 196. The foregoing may not only be not juridic ally sound, but imperfect as a statement of facts. Who can say that a great many of the limitations upon legislative action, if indeed they are true limitations rather than mere definitions of procedure, have not been virtually self-imposed? Professor Schouler has not attempted an essay in legal or political science, and it

might therefore not be wholly fair to apply scientific tests. Any work intended for gen eral circulation, however, is largely dependent for weight and authoritativeness upon a firm foundation of scientific principle. Because the author yields to a tendency that has dominated many writers both in the past and in the present, he misses something of correctness and perspective. The defect may not be serious, but it is sufficient to deprive the book of the great value that it might otherwise have as an analysis of American institutions, and to place it in the category of unauthoritative lay discussion. The author's apparent familiarity with more intricate phases of his subject is such as to lead one to look for a skillful handling of the problems of American institutions, but when one has read a little way one finds that he belongs not among the scientific writers but among the dogmatists. He adopts the theory of natural rights and the social contract. Many American writers on jurisprudence may have done the same thing, but in Professor Schouler's case it means that he is inclined to misinterpret democracy, as tantamount, one might almost say, to a repeal of the entire law of status. The doctrine that all men are equal ("men" including of course women and children), if carried to a logical conclusion would mean the wrongfulness of such a thing as a law of persons existing. Professor Schouler does not commit absurdi ties, but he shares an unscientific tendency. The ancient division between democrats and aristocrats—using the words to denote differences of political theory—is no longer of much practical use. Temperamentally men fall into one of two classes,—either they try to superimpose some artificial theory of their own upon society, or they are content to accept the facts of human nature as they find them. On one hand we have the political dogmatists, and they may be either demo crats or aristocrats, for extreme democracy and extreme aristocracy are alike based on unreasoning prejudice. On the other hand we have those whom we may call political moderates, because they seek to free them selves from prejudice and to view all political theories in the light of common sense. This latter class much better understands the meaning of the complex spirit of modern democracy than does the former. The former, in spite of its good intentions, succeeds only in embarrassing the wise solution of con temporary problems of constitutionality and