Who Makes the Law?
Baldwin, Summerfield
?? ~r\ EHOLD a republic," we were once adjured by K ^ William Jennings Bryan, "a republic in which "^"^ every citizen is a sovereign, and yet where no one cares to wear a crown." In this pungent...
...The functionings of various political parties, the whisperings of financial magnates, industrial magnates, journalists, trade-union presidents, preachers, even college professors, strike fear In the hearts of those who share the sovereign power, and move them to enact this, or to repeal that, in accordance with the desires of this or the other influential number of subjects...
...The Congress controls the President partly because the President can do nothing without money, partly (though this is of far less importance) because the President can be removed from office by impeachment proceedings and trial by the Senate...
...But over the persons who share in the sovereign power there is a considerable number of very important controls...
...Yet after all the checks and balances have coerced the sharers of sovereignty into not trying to get more than their due share of it, and after the legally authorized voters have coerced those whom they have chosen by the fear that they will not choose them again, and after fear of strikes, or fear of Wall Street, or fear of the Anti-Saloon League have all extra-legally contributed their portions of political coercion, the sovereign power acts, the law is made, and the subjects, knowing that they will disobey at their peril, are generally inclined to obey quite meekly...
...Our fundamental laws and those derived from them have wisely provided a means of allowing substantial numbers of the subjects to remove from office such sharers in the sovereign power as have displeased them, a removal which may be effected under the forms of law and without having recourse to revolution...
...Governments indeed exist to be coerced...
...The essential difference between the control exercised over human action by a command and that exercised by other considerations seems to have been overlooked...
...To those theorists who explained government in terms of a fictitious yet none the less "necessary" social contract, self-government became an ethical concept, a formula of what Bentham called deontology, of what ought to be...
...What, now, of control by the people...
...The "general will" was his will, whether he liked it or not...
...The control exercised over subjects by the sovereign power is inherent In Its commands, these commands being either general laws, particular judgments or administrative orders...
...though hardly in the teeth of the judiciary, whose ultimate verdict may upset the binding character of any law, however made...
...The political jargon of the United States, derived largely from the half-understood language of Rousseau and the "social contractors," is full of confusion...
...Some of them, so-called legislators, subscribe to general laws...
...First of all there is the purely legal control exercised by the commands, constitutional and otherwise, which regulate what share each person is to have in the sovereign power...
...Because every so often certain duly authorized electors cast ballots to decide which of two persons shall hold a given public office, it is vaguely imagined that the acts of the person so chosen derive their force from the fact of his choice...
...Congress and the President have a vague control over the Supreme Court by their power to change its composition, or withhold its salaries...
...After legalized control come all those numberless means of control for which it is impossible to find any general name...
...The holding of many important shares in that power was made dependent upon the periodic ballotings of legally constituted electors...
...The shareholders are therefore controlled by the fear, not of being thrown out of office at the point of machine guns, but of finding themselves supplanted by other persons at the next election...
...Mystagoglcal professors of civics can be heard solemnly assuring their classes that whereas In Great Britain the Crown in Parliament Is the sovereign, In the United States It Is impossible to say that anyone is sovereign except the "whole people...
...The President controls both houses so long as its members are aware that more than a third of them are In agreement with the President as to a proposed act...
...The courts, and more especially the Supreme Court, control practically every officer of government, since no act of any sort has validity if five members of the Supreme Court refuse to adjudge it legal...
...To the political realists, the Bodins, the John Austins, concerned in their hearts to find a way out of the chaos which must result when ruler and subject are one and the same, it was nevertheless always evident that, however absolute they made their sovereign, his powers could never go further than the obedience given him...
...Derived from the fundamental laws Is the so-called system of checks and balances...
...while still others, the so-called executives, issue administrative orders...
...Most of our state constitutions declare roundly that political power is derived from, or Is resident in, the "people...
...The subscriptions of an indeterminate number of them will make or unmake law in the teeth of the legislatures...
...These persons know that in the last analysis they can only hold their jobs so long as they satisfy the more powerful factions in a community...
...Over the limiting operations of such an act, once enacted, there is no control whatever...
...It would be madness to suppose, because a mild and legalized form of coercion, such as suffrage, had been devised by the framers of our fundamental laws, that other forms of coercion would be eliminated...
...The senators control the members of Congress because the latter are aware that no act of theirs, can be effective unless a majority of senators approve...
...others, the judiciary, pronounce particular judgments...
...In a few states, these legally constituted electors have even been given a minute share of sovereign power, under the provisions of law which institute what are...
...These laws excite just as much fear or just as much pleasure in the persons sharing in sovereign power as other laws excite in persons who have no share therein, except that some of these laws have no sanction attached...
...It resulted from the act of those persons themselves, and was unquestionably directed by them to someone else than themselves, though it may also have been intended to bind themselves in their private capacities...
...They probably obey no more and no less meekly because some of them suppose they have been giving commands to themselves...
...It depends first and foremost upon the fear of the possessors of the sovereign power of losing their jobs...
...The possessors of sovereign power for the time being are those who share in the utterance of these legal commands...
...In our own country, as In others, the sharers in sovereign power are very numerous...
...The "people" of the state of New York, and all other states, are supposed to be one of the parties in criminal prosecutions...
...In this pungent paradox was restated in language intelligible to the Independence Day audiences of two decades ago the sempiternal dilemma of self-government...
...On the other hand...
...The dilemma is obvious, has always been obvious, to anyone who has as much as scratched the surface of political life...
...It is of two sorts, legalized and extra-legal...
...A command controls human action either by reason of the fear of future pain which it excites, or by reason of the pleasure excited by Its inherent equity or by Its conformity to the preexistent ideas of right and justice entertained by the persons to whom it is addressed...
...In this case, too, impeachment, of course, always hovers in the background...
...The various persons who go to| make up our fortyeight state governments and our federal government have, no doubt, each of them a share of sovereign power, however minute...
...called the referendum and initiative...
...Legitimate commands of government were, in the last analysis, directed by the individual to himself...
...It did not, by the wildest reach of the imagination, result from the people in general, or even from the duly authorized voters who chose the persons to share in sovereign power for the time being...
...Revolution in our country, as inl all others, is the only surely effective method of transferring the sovereign power...
...In desperate mood, they were sometimes obliged to admit that, because of this control, exercised by subjects over the power of any government, no matter how despotic, there could be no such thing as a real sovereign found in the world...
...When, however, the legislators have subscribed, the judges pronounced, the executives ordered, each within the limits of his share in sovereign power, a sovereign and legally binding act has resulted...
Vol. 6 • July 1927 • No. 12
