Image provided by: University of Nebraska-Lincoln Libraries, Lincoln, NE
About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Nov. 24, 1911)
fMi 6 ! W- I, If I?: w Bit iC Jr ' II A, v (U. S. 8. at Large, Ch. 310, June 20, 1910) pro Tided Sec. 20 "The constitution shall be republi can in form and make no distinction In civil or political rights or account of race or color and eho-U not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence." Congress provided for definite limitations pon the future powers of constitutional amendment, "by an ordinance irrevocable with out the consent of the United States and the people of said states" touching religiouc free dom, polygamous marriages, sale of liquor to Indians, disclaimers to public lands, equality of taxation, taxing Indian lands, assumption of territorial debts, public schools, right of suffrage, Ac. which shall be made part of such constitu tion in terms to preclude later amendment wlthout the consent of congress." It was open to congress to make like reserva tion with respect to amendmont striking out direct legislation, but it was not done. By these reservations it appears also that this constitutional contract with the U. S. was to be made with congress, showing that the politi cal power is recognized in the execution of such agreements. The same act , Sec. 21 (Ch. 310, 1910) provides for submis sion of the constitution proposed by the state convention to the people. .Sec. 22. "And If congress and the president approve said constitution the president shall certify said facts to the governor," &c. Sec. 23. On election of state officers the president shall "Issue his proclamation" and thereupon "the proposed state of Arizona shall be deemed admitted by congress into the union by virtue of this act on an equal footing with the other states." The debates in congress show that congres sional opposition to direct legislation had prac tically ceased. It is public knowledge that "the veto of the president was confined to the "recall" provisions of the constitution and following this veto con gress amended the terms of admission by act approved Aug. 21st, 1911 so that "Arizona is admitted as a state upon amending the proposed constitution (Art. VIII, Sec. 1) adopted by the electors at the election held Feb. 9, 1911 o as to except members of the judiciary from the re call provision. C. THE REAPPORTIONMENT ACT But an act of congress of even greater signi ficance has recognized the legal status of those state constitutions, which contain provisions for direct action by the people undeT the initiative and referendum. House Report No. 2983, 1911, provided for the redistricting of states for representation in congress by customary legislative acts. This bill was amended in the senate. Aug. 3d, 1911, .and became a law in the following form (Acts Aug. 8th, 1911.) "Sec. 34. That in case of an increase in the number of representatives In any state under ' this apportionment such additional representa tive or representatives shall be elected by the state at large and -the other representatives by the districts now prescribed by law until such state shall be redistricted In the manner pro Tided by the laws thereof, &c." This amendment was expressly Intended to - leave the redistricting subject to the Initiative and referendum in states where they have been adopted. Thus provisions for direct legislation have be come a part of the political system of the United States, and the legality of future con gresses may be dependent upon a like recognl ' tlon by this court. 8. Opinions of the Courts This court has in a sweeping statement con firmed the title of the people of Oregon to shape its government to their own free will: "The powers of the states depend upon their own constitutions: and the people of every state had the right to modify and restrain them, ac cording to their own views of policy or prin ciple." Martin v. Hunter's Lessee, 1 Wheat. 305. The supreme courts of Oklahoma and Oregon have affirmed the validity of direct legislation lm ex parte Wagner, 21 Ok. 35, and Kadderly v. Portland, 44 Oregon 118. In the latter case Justice King for the court erected an impregnable standard for the re . publican form: - . "each republic may. differ in Its. political " system; or rtn "the -political -machinery by irtiich v .- it .ioys,nbnt. so Ion if-a .the ultimate, control .ot itfioia1jm4udWmormateiremains in its The Commoner. citizens it will In the eye of all republics, be recognized as a government of that class." Kiernan v. Portland, 111 Pac. Rep. 379. So the Minnesota supreme court holds "The test of republican or democratic govern ment is the will of the people, expressed in mar Jorities under the proper forms of law." See also Hopkins v. Duluth, 81 Minn. 189. See also In re Pfahler, 150 Cal. 77. Much reliance has been placed by opponents of direct legislation on the case of Rice v. Foster, 4 Harr. 479, which contains language unworthy of an Ameri can court and has very properly come under severe criticism. Mr. JuBtice Holmes, In the opinions of the justices, 160 Mass. 587, refers to the theory of Hobbes that the surrender of sovereignty by the people was final, and calls attention to the fact that the notion of Hobbes was urged in the interest of the absolute power of King Charles I., and thus disposes of the case of Rice v. Foster: "I notice that the case from which most of the reasoning against the power of the legisla ture has been taken by later decisions states that theory from language which almost is bor rowed from the Leviathan." 4 Historic Democratic Forms It must be that in using the general term "republican form of government," it was in tended to Include beyond peradventure such pre ceding free forms as were known to the people of the states when they adopted the constitu tion. Snch Indeed furnished the only basis upon which the people could construe the term. . If such precedents were to be excluded the sub mission of the constitution to the people was in this regard a snare. Hume, Rousseau, Locke and Kant had then spread the doctrine of popular sovereignty through the world, and their works and theories were well known to the colonists. Paine and " Jefferson were expounders of this doctrine in America. Locke had attempted to put his theories into concrete form in the charter for Carolina. Rousseau's "Social Contract" was already imbedded In words In the Massachusetts constitution. He had definitely challenged the representative system (Ch. XV.) In the words: "Every law which the people In person have not ratified is invalid." From these writers the colonists had absorbed the extreme ideas of democracy. Democracy flowed In their Teutonic blood, was imbedded in their town and colonial governments, and was the hope and inspiration of their revolutionary struggle. "Representatives," "delegates," meant to them rulers and not servants. Their numerous democracies in the shape of towns had not in a century and a half yielded up even to the argu ment of force one jot of their purity. They exist today as lasting monuments of the truth, that the ultimate destiny of human freedom is pure democracy, the direct expression of the popular will In the exercise of sovereignty. Democracy, and not a representative system, was the ideal of the colonists. The fourth Installment of 'Mr. Williams brief will be printed In tho next Issue of The Commoner. PERKINS NATIONAL INCORPORATION PLAN Washington dispatches say that President Taft held a conference with Attorney General "Wickersham relating particularly to the likeli hood of passing a federal Incorporation act. "Everyone should inform himself with respect to the meaning of "national Incorporation." It means, In brief, the centralization of all author ity over all corporations in the hands of the federal government and It Is the trust magnates companionplece for the Standard -Oil and To bacco trust decision. While the idea of cen tralized power Is as old as the world and the idea of centralized power with respect to cor porations has been presented in one form or another ever since corporations were created In America; the particular plan advocated by Mr. Taft was formally described by George W. Per kins, the financier, in February, 1908: The story was told In one of the leading financial publications, the Wall Street Journal of Friday, Feb. 11, 1910. The story follows: Two years ago n February 7, George W Perkins read an address in the Columbia university lecture course of that winter which received less attention than It deserved. And It is a curious coincidence that exactly two years afterwards, to the very day. the administration's federal In corporation bill was introduced Into both houses of congress. What Mr. Perkins, In February. 1908 advocated and exporaded. President Taft and his administration have,' hot far as the general principle -was eoBcerned, "warmly recommended -to congress And so it Is a singular feature of this agitation by means of which there Is hrpe of relief from certain yfsatures of ktka -erman nti-truatiJaw, that ono VOLUME 11, NUMBER 45 of the great minds occupied in the construction of great combinations, like that of the International Harvester and the united States Steel corporation should now And that what he recommended two years ago is advocated by the president and his administration, and has been whipped into the for mality of legal and legislative phraseology by Attorney General Wickersham. It may be that Mr. Perkins finds some occasion for criticism of certain of the details of the federal Incorporation bill; and It Is observed that the chair man of tho board of directors of the United States Steel corporation, Judge Gary, speaks In approval of its general principle, still withholding complete commendation until there can be assurances that the bill, If it becomes a law, will furnish practicable remedies. Of course, It is recognized here and has at Washington, that If some of the master minds of the greater corporations and combinations speak In approval of the principle of the Incorporation bill, then the likelihood Is that there may be accu sation that these minds may discover in Its legalized opportunity to continue as they have con tinued, except that the eye of the federal adminis tration will be upon them. Still, It Is regarded as a reasonable answer to that doubt that the attorney general framed tho measure, that the president has studied It and has given It his approval. In all probability, the men of large affairs, who are sincerely and not with any falsehood at heart, seeking some way by which reasonable combina tion that is, combination not Injurious to public interest may be made legal, would prefer that tho supreme court should so interpret the Sherman anti-trust law as to declare It is In effect nothing more than a specific enunciation of the common law which prohibits such agreements or combina tions as tend to or actually do work Injury to the public. Were there an interpretation of that kind, there would probably be no necessity for an in corporation law. Moreover, such a measure as President Taft now approves will, If it becomes a law, be in danger of frequent testing through ap peal to the courts, whereas a judicial Interpretation by the supreme court would not. Such an Interpre tation, the great corporation managers say, and President Taft has also intimated of late to his callers, would permit the business of the United States now carried on through Incorporations not only to know where It stands exactly, but that It can maintain combinations of capital without violating the law. Mr. Perkins Intimated that one reason why federal Incorporation would be desirable, would bo the relief from the various statutory exactions of the states of the union. But he emphasized what all business men have said, that federal super vision and regulation should be placed In the hands of men who are not creatures of political favorit ism, but who have experience, judgment, ability, and a perfect senso of Impartiality. This Is also the view taken by the president of the New York Central, Mr. Brown, than whom there is no stronger supporter of governmental super visldn of public utilities corporations In the United States. Recently President Brown, speaking to a friend, said that already It has been discovered that the public utilities commissions of New York state are not only of benefit to the 'people, but of real benefit to the corporations which under the law they have the power to supervise. And In his view the brief experience we have already had with our public utilities commissions makes It clear that In due time, in case these bodies do not ."int?..tlLe hands of the politicians, they will bo of the highest services, not' only to the corpora tions, but to the people. In Mr. Perkins Columbia university address, he spoke carefully upon one subject upon which in private he has spoken enthusiastically. It seemed to him that It is not only within the power of the people, through their representatives at Washing ton to create a very competent body of railroad and corporation control, but that In that creation the people will find themselves- best served, as well as the corporation. Mr. Perkins Is of the opinion that If to such governmental bodies there Z. Drought men of expert knowledge, high char acter, free from all political or partisan Influence, then ln due time these bodies will be regarded as furnishing am apprqprjate. -highly dignified, and distinguishing claims of careers of great achieve ments Mr. Perkins thinks that if this idea be well worked out. then It would ultimately be regarded as high an honor relatively to serve for life or for ?-?ne term l yfars upon a body of thIs ldnd as lawyers regard the supreme bench as tho climax of a professional career. The fefeling here Is that there are some details LniJi , as at Present worded which jnust bo Sl?at5? or modified If the measure is to be ?a?tIablc-T.Tt,iPlcs as though tho bill Intended - ire s0UlfL be nothing In the way of holding ?,mpa,n.Ves. ut tat..t.ne sreat corporations should SEX i?,ur!l4htii DsldJary corporations and com pletely assimilate and absorb them. APPRECIATED IN CALIFORNIA C. M. Gidney, Santa Barbara, Cal: In re newing my subscription to The Commoner which I have taken from its first issuance, I desire to express my appreciation of the work you are doing through its columns. For one whose political enemies have burled so many times, you certainly have them going. It is evidently a case of "though dead he speaketh." Cali fornia has just declared for progressive policies by an immense majority and I believe an appre ciative sense of the part you have had in bring ing about this result, is beginning to stir among the people. I also believe that the American people are beginning to realize that the seat of power in our government has been gradually passing to the courts and that it behooves them to see that the courts are run In the people's interest. Hence, the movement providing for the. recall. While it would 'give me great pleasure to. -vote for -you next year, I shall cheerfully support such .candidate as. The Commoner can .-consistently indorse. N V " -41 ' '! wv