Page:The Green Bag (1889–1914), Volume 24.pdf/511

470 healthy publicity necessary to large corporations.

I would provide also that any corporation engaged in interstate commerce, after it has acquired a certain percentage of the country (which easily be determined by a corporation commission), should not thereafter further consolidate with its competitors without first having the consent of the corporation commission.

The government should not undertake to regulate prices of products. For the government to do this would be to introduce in to the competitive conditions of a great country all the agitations and selfishness of political parties.

Mr. Kellogg discussed the intitiative and referendum, which he favors under certain conditions, and the recall, to which, when applied to judges, he is opposed.

The address of United States Senator George Sutherland of Utah showed less sympathy with recent popular tendencies than had the remarks of previous speakers.

Senator Sutherland referred ironically to the new political progaganda whose teaching suggests that the written Constitution is binding only upon the minority and that its meaning may be ascertained more accurately by inspecting the casual contents of the ballot box than by invoking the trained and deliberate judgment of the bench. He combated the view that the Constitution is outworn or is a dead wall in the path of progress; he contended that its principles are living forces as vital now as ever. He considered that the over-shadowing and sinister menace to the American social structure is the breaking down of the organic consciousness of the people, and the lessening of the old sense of loyalty to our institutions.

Senator Sutherland called attention to the fact that the framers of the federal Constitution were deeply learned in the science and history of government, and knew both the advantages and weaknesses of democracy, and that a pure democracy was a beautiful but barren and deceptive ideal which has never survived the test of practical experience, because it attempts to carry on a social organism without appropriate organs. While the voice of the people may be the voice of God, neither God nor the people always speak through the majority. This representative republic is a self-limited democracy. He did not question the good faith of the people in seeking the radical changes which are now advocated, but their wisdom in lending ear to the professional demagogue. The speaker considered that the chief value of the Constitution is that it affords a period of sober reflection, and the Constitution rarely presents any obstruction to real progress; when it does the desired result may be reached by amendment rather than violation.

He disagreed with those who, in spite of a judicial doctrine recognized for more than a century, now assert that the courts have usurped the power of declaring legislation unconstitutional, and showed by argument that their position is untenable. In respect to the recall of judicial decisions he said that the mischievous unwisdom of such a suggestion is so apparent that its distinguished author does not seem to have pressed it with his customary vigor. He considered that the demand that the courts shall automatically accept the impressions of the multitude proceeds upon a misconception of the judicial office; he insisted that a judge has no constituents; he administers not the edicts of the people, but their laws and statutes; and he is not concerned with anybody's wishes, but with rights; and the poised and balanced scales of justice are the insignia of his office, and not the ballot box.

He recognized the liability of judges to err, but did not think this could be corrected at the ballot box, where men are counted and not measured. He thought that if judges cannot be persuaded by the general voice of reason, they will eventually be supplanted and in the long run the popular view will prevail, if founded on sound premise, otherwise it should not.

He emphasized that every provision of the Constitution has a history, and that voters could not act intelligently in ignorance of this history. He urged the need of the steadying influence of the legal profession at this time; and showed that the demand for progressive legislation must be met only upon the sound and enduring basis of private rights and distributive justice. He declared that this could be done better through representative agencies than by direct vote of the people, among whom responsibility cannot be fixed. In his opinion society advances by utilizing services, and not by doing everything itself.