^Un)v*«iry o» California 
 
 JRVJNE 
 
 WdUr Bachrmch
 
 UNPOPULAR GOVERNMENT 
 IN THE UNITED STATES
 
 THE UNIVERSITY OF CHICAGO PRESS 
 CHICAGO, ILLINOIS 
 
 Agrnta 
 THE CAMBRIDGE UNIVERSITY PRESS 
 
 LONDON AND EDINBURGH 
 
 THE MARUZEN-KABUSHIKI-KAISHA 
 
 TOKYO, OSAKA, KYOTO 
 
 KARL W. HIERSEMANN 
 
 LEIPZIG 
 
 THE BAKER & TAYLOR COMPANY 
 
 NEW YOEK
 
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 Unpopular Government 
 in the United States 
 
 ALBERT M. KALES 
 
 Professor of Laiv in Nortkiuestern Uni'versity 
 
 THE UNIVERSITY OF CHICAGO PRESS 
 CHICAGO, ILLINOIS
 
 
 Copyright igi4 By 
 The University op Chicago 
 
 All Rights Reserved 
 
 Published February 1914 
 
 Composed and Printed By 
 
 The University of Chicago Press 
 
 Chicago, Illinois, U.S.A.
 
 TABLE OF CONTENTS 
 
 PAGE 
 
 Introduction . i 
 
 PART I 
 
 The Rise of the Politocrats 
 CHAPTER I 
 
 Unpopular Government — Defined — How For- 
 merly IMaintained — Precautions Taken to 
 Avoid It 7 
 
 CHAPTER II 
 
 Unpopular Government — How Established in 
 THE United States in Spite of the Precautions 
 TO Prevent It 21 
 
 Sec. I. Introductory 21 
 
 Sec. 2. The Burden upon the Electorate — The 
 Inverted Pyramid of Governmental and 
 Electoral Districts — The Offices to Be 
 Filled and the Number of Electors in 
 Each District 26 
 
 Sec. 3. The Resulting Political Ignorance of the 
 Voter and His Consequent Disfranchise- 
 ment 39 
 
 Sec. 4. The Power of the Electorate Passes to 
 Those Who Take Advantage of Its 
 Ignorance to Direct It How to Vote . 48 
 
 V
 
 Table of Contents 
 
 PAGE 
 
 Sec. 5. The Power of Government Passes into the 
 Hands of Those Who Are Able to Direct 
 the Majority of the Politically Ignorant 
 How to Vote. They Constitute an 
 Extra-legal but None the Less Real 
 Government 61 
 
 Sec. 6. The Extra-legal Government Uses Its 
 Power Selfishly to Maintain Itself and to 
 Benefit Those Who Have Organized and 
 Supported It 67 
 
 Sec. 7. The Extra-legal Government Is Able to 
 Maintain Itself in the Face of Popular 
 Disapproval 73 
 
 PART II 
 
 The War on Politocracy 
 
 CHAPTER III 
 
 Dissipation of Political Ignorance by Self- 
 taught Political Education 91 
 
 CHAPTER IV 
 The Australian Ballot and Civil-Service Acts 95 
 
 CHAPTER V 
 
 Altruistic Efforts to Enlighten the Voter . 99 
 
 CHAPTER VI 
 
 Abolition of the Party Circle and Party Column 104 
 
 CHAPTER VII 
 The Primaries 107
 
 Table of Contents 
 CHAPTER VIII 
 
 PAGE 
 
 The Initiative and the Referendum. . , . nS 
 
 CHAPTER IX 
 The Recall 122 
 
 CHAPTER X 
 
 Independent Movements and the New Party . 128 
 
 CHAPTER XI 
 
 The Security of Extra-legal Unpopular Govern- 
 ment BY PoLITOCRATS IN THE UNITED StATES . 133 
 
 CHAPTER XII 
 
 The Menace to Unpopular Government of the 
 Commission Form of Government for Smaller 
 Cities 139 
 
 CHAPTER XIII 
 
 The Principles of the Commission Form op Gov- 
 ernment Applied to the Larger Cities . . 162 
 
 CHAPTER XIV 
 
 The Principles of the Commission Form of Gov- 
 ernment Applied to the State 166 
 
 CHAPTER XV 
 
 Contemporary Plans Looking toward the Union 
 OF the Executive and Legislative Powers of 
 State Governments 181 
 
 CHAPTER XVI 
 
 The Second-Chamber Problem ig3 
 
 vii
 
 Table of Contents 
 
 CHAPTER XVII 
 
 PAGE 
 
 Methods of Selecting and Retiring Judges . 225 
 
 CHAPTER XVIII 
 
 Changes in the Plan of the Federal Government 252 
 
 CHAPTER XIX 
 Conclusion 262
 
 INTRODUCTION 
 
 The plan for state and municipal govern- 
 ments generally accepted in the United States 
 in the middle period of the nineteenth centiu-y 
 gave great satisfaction in the provincial and 
 frontier communities where it was adopted and 
 which then composed the principal part of the 
 United States. In many nooks and corners of 
 the country today we have reHcs of this pro- 
 vincial and frontier society. In such districts 
 this plan for state and municipal governments 
 is entirely satisfactory in practice. To depart 
 from it would be unwise, for the reason that 
 in matters of government that which is and 
 which is not positively objectionable should 
 be let alone. Frequently men of talent and 
 power, whose youth was spent in the provin- 
 cial and frontier era of our social and poHtical 
 development, still find conditions about them 
 not so much changed. To them the mid- 
 nineteenth-century plan and its practice are en- 
 tirely satisfactory. Any criticism of it would
 
 Unpopular Government in the United States 
 
 at once meet with a vigorous and, no doubt, 
 from the point of view of provincial and fron- 
 tier conditions, a complete defense. To the 
 inhabitants of those parts of the United States 
 where such provincial and frontier conditions 
 still exist the following essay is not addressed. 
 So long as the more simple and primitive 
 conditions of society which obtained in the first 
 half of the nineteenth century were all but 
 universal in the United States, any criticism 
 of the plan of state and municipal government 
 which prevailed was a purely academic exercise. 
 Even when, in some districts, conditions had 
 changed and great cities had arisen with enor- 
 mous wealth and population, to which the mid- 
 nineteenth-century plan of government did not 
 seem to fit in practice, the majority were still 
 so far satisfied as to make any criticism of that 
 plan of merely speculative value. But in the 
 second decade of the twentieth century the 
 provincial and frontier type of society will be 
 found to embrace a distinct minority of the 
 population of the country. The social condi- 
 tions presented by a large population in a small
 
 Introduction 
 
 area, with a highly organized and differentiated 
 social structure, have become common to a 
 large portion of the population of the entire 
 country. Whether the application of a mid- 
 nineteenth-century plan of government to these 
 conditions is satisfactory is, therefore, no longer 
 an academic or speculative question. Its due 
 consideration has perhaps rather become to the 
 last degree vital to the life of the nation. To 
 those who are face to face with, this problem 
 the following essay is addressed.
 
 PART I 
 THE RISE OF THE POLITOCRATS
 
 CHAPTER I 
 
 UNPOPULAR GOVERNMENT— DEFINED— 
 HOW FORMERLY MAINTAINED— PRE- 
 CAUTIONS TAKEN TO AVOID IT 
 
 Unpopular government is, and indeed always 
 has been, a government of the few, by the few, 
 and for the few, at the expense and against the 
 wish of the many. 
 
 In a former era unpopular government was 
 achieved and maintained with simple direct- 
 ness. All governmental power was, by a 
 monarchical or oligarchical plan, openly placed 
 in the hands of the few. Human characteristics 
 insured the selfish use of that power. The 
 maintenance of such selfish use of governmental 
 power against the wish of the majority was 
 accompHshed by denying any legal opportunity 
 to the majority to express itself, and by the 
 perpetuation of power in the hands of the few 
 by inheritance or appointment. 
 
 The makers of our mid-nineteenth-century 
 state and municipal governments undertook to 
 
 7
 
 Unpopular Government in the United States 
 
 free this land from unpopular government. If 
 all governments must be tyrannical from the 
 point of view of some, they preferred the tyranny 
 of the majority to the tyranny of the minority. 
 Their aim was to establish and maintain a 
 government "of the people, by the people, and 
 for the people," as distinguished from a govern- 
 ment of the few, by the few, and for the few, 
 at the expense of the many and against their 
 wish. They could not, however, change human 
 characteristics. The tendency, therefore, to 
 use power selfishly continued. They did en- 
 deavor to prevent the concentration of power 
 in the hands of the few by splitting the power 
 of government up among many separate and 
 distinct offices and limiting the power which 
 any one officeholder might exercise. They 
 sought to make impossible the retention of 
 power in the face of popular disapproval by 
 requiring all offices of importance in the govern- 
 ment to be filled by popular election and the 
 elections to be held frequently. For the greater 
 part of a century these ways and means of 
 heading off unpopular government have been
 
 Unpopular Government — Defined 
 
 constantly employed in the development of 
 our state and municipal governments. The 
 beHef of the people in popular government has 
 become a belief in these two means of obtain- 
 ing it. In popular estimation the means have 
 become the end. Inevitably these expedients 
 for securing immunity from unpopular govern- 
 ment have been pressed to great extremes. 
 
 The application of the principle that govern- 
 mental power must be kept out of the hands 
 of the few is responsible for that fundamental 
 characteristic of American constitutions known 
 as the separation of powers among the three 
 departments of government. The entire power 
 of the government is exercised by the executive, 
 the legislative, and the judicial departments. 
 None is allowed to perform any of the functions 
 which belong to either of the others. If it 
 does so, its action is unconstitutional and void. 
 Each department is, therefore, supreme and 
 independent in its own field. This is the be- 
 ginning of decentralization. In the distribu- 
 tion of powers, each department is designed to 
 be a check upon the others. The legislature, 
 
 9
 
 Unpopular Government in the United States 
 
 being the most powerful by reason of its con- 
 trol over the making of the laws and appro- 
 priations, is naturally a substantial check upon 
 the executive and judicial departments. Our 
 constitution-makers have, therefore, been par- 
 ticular to devise checks upon the legislature by 
 the other two departments. The executive is 
 given a wide veto power upon all legislation, 
 although the veto may be overridden by a 
 two-thirds vote of the legislature. The courts 
 in their power to declare laws unconstitutional 
 are given, potentially at least, an effective veto 
 power upon legislation. The scope of it is 
 narrower than the executive veto, but on the 
 other hand the veto of the courts cannot be 
 overridden by any action of the legislature. 
 The actual operation of these checks and bal- 
 ances, coupled with the complete separation of 
 powers, has resulted in irritation and bicker- 
 ing between the departments. The trouble 
 between the executive and the legislative 
 departments especially is frequent and acute. 
 The executive is the most conspicuous single 
 official. He is elected upon a platform of
 
 Unpopular Government — Defined 
 
 pledges for legislation. He seeks to redeem 
 those pledges by promoting the introduction 
 of bills and pushing them through the legisla- 
 ture. The legislature feels hostile toward the 
 executive for attempting to coerce its action. 
 The executive loses patience with the legisla- 
 ture for not redeeming the pledges of the ex- 
 ecutive to the electorate. The legislature is 
 frequently hostile toward the Supreme Court 
 for declaring laws unconstitutional. The execu- 
 tive also comes in conflict with the judiciary 
 by reason of the fact that the latter upsets 
 legislation which the executive has sometimes 
 been able to secure only by trading for votes 
 important appointments which cannot be re- 
 called. The executive and legislative depart- 
 ments are likely to feel that the Supreme Court 
 has gone beyond its judicial power in declaring 
 laws unconstitutional. The result is that each 
 of the departments of government fails to work 
 in harmony with the others. Each tends to re- 
 tire to its own constitutional sphere and there 
 spend considerable time in doing what it 
 pleases, regardless of the other departments,
 
 Unpopular Government in the United States 
 
 and from time to time blocking and hampering 
 them. In this way the least progress is made 
 with the important business of legislation and 
 the functioning of the executive and the judicial 
 departments. 
 
 Our constitution-makers, however, went even 
 farther in preventing the concentration of the 
 powers of government. They split up and dis- 
 sipated the powers of each department among 
 as many different oflSces as possible. They 
 spUt up the legislative power between two 
 chambers, each operating as a check upon the 
 other. In Illinois they went a step farther 
 and spUt up the power of the lower house by 
 providing a method whereby every third mem- 
 ber might be the representative of a minority 
 party. A general check upon the power of 
 the legislature is frequently found in the pro- 
 vision that it can meet for general legislative 
 business only every two years, or that it can 
 remain in session for such general legislative 
 purposes only a specified number of days. 
 The result is that the legislative power is not 
 only hampered from without by executive and
 
 Unpopular Government — Defined 
 
 judicial vetoes and the limited time in which 
 to act, but it is divided within among bodies 
 which are more or less antagonistic to each 
 other. The executive power of the state, if 
 lodged wholly in the governor, acting through 
 his appointees, might still have been a very 
 extensive power, but it would have been too 
 much power in one man to meet the approval of 
 our constitution-makers. Hence the executive 
 power has been spUt up among several inde- 
 pendently elected executive officers, viz., the 
 governor, the attorney-general, the secretary 
 of state, the state treasurer, the state auditor, 
 the state superintendent of public instruction, 
 and the trustees of the state university. Each 
 one of these ofi&cers is independent in the dis- 
 charge of his statutory or constitutional duties. 
 So far as they divide executive power among 
 them, they take power from the chief execu- 
 tive. In the judicial department we find the 
 same pains to give out the minimum amount 
 of power to any single judge or group of judges. 
 We find usually several courts of original juris- 
 diction, each with power to handle Hmited and 
 
 13
 
 Unpopular Government in the United States 
 
 defined classes of cases. There are justices of 
 the peace, municipal courts, probate courts, 
 juvenile courts, criminal courts, and circuit 
 courts, the last having the most general juris- 
 diction. Then follow a succession of appellate 
 tribunals, each with a Hmited jurisdiction to 
 hear appeals. The trial judges have had their 
 power restricted by being forbidden to exercise 
 any control over juries by oral instructions 
 upon the law. They have no power to give 
 any instructions upon the evidence. They have 
 been reduced in jury trials to the position of 
 umpires for forensic duels between lawyers. In 
 the appellate tribunals they are usually forbid- 
 den to review questions of fact. Their function 
 is confined very narrowly to the aflfirming of 
 the decision below, or reversing it without re- 
 manding it, or reversing and remanding it for 
 a new hearing. They are denied any power of 
 hearing further evidence or making a proper 
 order so as to settle the litigation if possible in 
 the appellate tribunal. The work of appellate 
 courts consists to so large an extent of opinion 
 wTiting and closet work that the office is incon- 
 
 14
 
 Unpopular Government — Defined 
 
 spicuous and not very attractive. In most 
 states the judges are elected. Each one is 
 independent in the exercise of the duties of his 
 statutory jurisdiction. Even the clerks of the 
 various separate courts are in many instances 
 elected. They are absolutely independent of 
 the judiciary or of any other officer of the legal 
 government in the exercise of their statutory 
 duties. There is no administrative head of 
 the court with large powers over the direction 
 of the work of other judges and the clerical 
 force and a corresponding responsibihty for the 
 conduct of judicial business. In the everyday 
 work of his ofhce the judge, under the present 
 plan of government, is amenable to no authority 
 except his own conscience and a fear of unfavor- 
 able public comment upon his actions. 
 
 In our municipal governments the legisla- 
 tive power is usually exercised by a single 
 chamber, though there are instances of double 
 chambers in the city council. In the less im- 
 portant municipal governments, such as coun- 
 ties, villages, and special commissions, we 
 frequently find a part of the executive power 
 
 IS
 
 Unpopular Government in the United States 
 
 vested in the municipal legislative body or in 
 some member of it. Thus, in county govern- 
 ments we frequently find the chief executive 
 the presiding and most influential member of 
 the board of commissioners. In the cities, 
 however, there is usually a complete separation 
 of the legislative and executive functions, the 
 legislative power being committed to a council 
 and the executive functions to a mayor and 
 other subordinate officers. There is a general 
 tendency toward the splitting-up of the execu- 
 tive power among different executive officers 
 who are elected and are independent of any 
 superior authority in the performance of their 
 statutory duties. A city government will 
 usually distribute the executive power among 
 a mayor, a treasurer, a comptroller, and a 
 clerk. The executive power of a county gov- 
 ernment will be split up among a president of 
 the county board, a county clerk, a sheriff, a 
 county treasurer, a county superintendent of 
 schools, members of the board of assessors, and 
 the board of review. A great deal of unob- 
 served spHtting-up of executive and legislative 
 
 i6
 
 Unpopular Government — Defined 
 
 functions in municipal governments has been 
 accomplished by the creating of several munici- 
 pal corporations with special functions operat- 
 ing in the same territory. For instance, where 
 a city and county government cover the same 
 territory we have two municipal legislatures 
 operating in the same territory, and also two 
 sets of executive officers. Thus is the legisla- 
 tive and executive power necessary for a given 
 district split in half. If a drainage district, a 
 park district, a school district, a public Hbrary 
 district, each controlled by commissioners or 
 trustees with executive and legislative power, 
 be added, all operating in the same territory 
 with a city government and a county govern- 
 ment, we have still further split up the mu- 
 nicipal executive and legislative power. Such 
 situations are common enough. 
 
 The principle of decentralization has even 
 been applied so as to prevent the assistance to 
 the government which might be derived from 
 experts in various Hnes. The place where the 
 largest number and variety of experts in the 
 most departments of learning can be found is 
 
 17
 
 Unpopular Government in the United States 
 
 the largest city of the state. If that city 
 happens to be one of the great cities of the 
 country and of the world, it will also be an 
 important center of intellectual activity of 
 all sorts. It will very likely have in or near 
 it one or more great universities. Yet in such 
 states we are likely to find that an ancient fear 
 of mob influence over legislation has placed 
 the state capital at some distant geographical 
 center which is not even a transportation center. 
 Not infrequently the state university wiU be 
 found at some point more or less inaccessible 
 to both the largest city of the state and the 
 capital. These are arrangements which tend 
 directly to the separation of the government 
 from the aid of expert knowledge and the best 
 intelligence of the state.' 
 
 Members of the state and municipal legis- 
 latures are, of course, elective. Moreover, the 
 judges and state, county, and city administra- 
 tive officers are also elective. In addition to 
 preventing any officer from holding his place 
 
 ' Compare Godkin, Essays on Problems of Modern Democracy, 
 pp. 305-6. 
 
 18
 
 Unpopular Government — Defined 
 
 and his power against the will of the majority, 
 the wide application of the elective principle 
 aids in the decentrahzation of the executive 
 power. It tends to make every elective officer 
 independent of every other officer in the dis- 
 charge of his statutory duties. By subjecting 
 to an election at a given time a part only of 
 the total number of officers elected, a further 
 check upon the concentration of power is se- 
 cured. The officers who do not come up for 
 election at a particular time may be of a 
 different poHtical faith from those who are 
 elected. In the same administration, there- 
 fore, some officeholders may stand as a check 
 upon the actions of the others. In obedience 
 to the principle of frequent elections all officers 
 hold for brief terms of one, two, four, or six 
 years — usually for two or four years. 
 
 Those who devised this plan of government 
 for use in the United States no doubt thought 
 that the citadel of popular government as thus 
 guarded was absolutely impregnable. How 
 could the power of government fall into the 
 hands of the few when it had been so carefully 
 
 19
 
 Unpopular Government in the United States 
 
 split up among so many who could not possibly 
 work together in harmony? How could the 
 power of government be retained in the face of 
 popular disapproval when those who exercised 
 it were subject to such frequent elections? 
 Nevertheless, the impossible has again hap- 
 pened. The impregnable citadel has been 
 taken. The manner of its assault and capture 
 is even now one of the unexpected and, to many 
 who appreciate only in a general way what has 
 occurred, one of the incomprehensible events 
 of history.
 
 CHAPTER II 
 
 UNPOPULAR GOVERNMENT— HOW ESTAB- 
 LISHED IN THE UNITED STATES IN SPITE 
 OF THE PRECAUTIONS TO PREVENT IT 
 
 Section i 
 Introductory 
 In brief outline this is what has occurred: 
 As the population of the country has grown and 
 communities and states have passed more and 
 more beyond the frontier stage of development, 
 the decentralization of governmental power has 
 constantly increased and the elective principle 
 has been more and more extensively applied. 
 As a consequence the burden placed upon the 
 electorate has become more and more onerous. 
 The voter has been called upon to vote more 
 often and for an increasing number of officers. 
 He must theoretically examine into the qualifi- 
 cations of a large number of candidates at 
 frequent intervals. This has placed upon intel- 
 ligent voting an enormous educational qualifica- 
 tion. The task of the voter to obtain sufficient
 
 Unpopular Government in the United States 
 
 information about candidates long ago passed 
 beyond what even the very intelligent citizen 
 could fulfil and still maintain his place in com- 
 petitive industry. The result is that the voter, 
 though extremely intelligent in general, comes 
 to the polls in utter ignorance of candidates 
 and their qualifications for office. Neverthe- 
 less, he insists, in spite of his political igno- 
 rance, upon voting for someone. He takes his 
 voting seriously and endeavors to make a show 
 of voting intelligently. This attitude necessarily 
 requires him to secure advice from someone as 
 to whom to vote for. At once there is created 
 the opportunity for the adviser to the voter. 
 He first appears naturally as a local leader 
 whom the electorate trusts. Soon, however, 
 there arises the man who makes advising the 
 politically ignorant voter his profession. Then 
 this professional adviser becomes more of a 
 director to the politically ignorant voter. This 
 process goes on in every electoral district where 
 the voter is politically ignorant enough to need 
 some advice. It is not long before there is 
 developed a hierarchy of professional advisers
 
 Unpopular Government — How Established 
 
 and directors to the politically ignorant voter. 
 Sometimes there are competing hierarchies of 
 such advisers and directors. One or the other, 
 however, is the more generally successful, or 
 both by agreement divide the privilege of ad- 
 vising the politically ignorant voter how to 
 vote — each helping the other in its exclusive 
 territory. Those who direct the politically 
 ignorant majority how to vote have filled the 
 state and municipal offices with those who are 
 loyal to them first and to the governed after- 
 ward. The leaders of the successful organiza- 
 tion of advisers and directors to the politically 
 ignorant electorate have become an extra-legal 
 but none the less real government. A decen- 
 tralized legal government has been replaced by 
 a centrahzed extra-legal government. Thus 
 the power of government has again drifted into 
 the hands of the few. These, pursuant to well- 
 known human characteristics, use that power 
 selfishly. The decentrahzed character of the 
 legal governmental power, the fact that only 
 part of the offices are filled at any time, and 
 
 the enormous advantage which comes from 
 
 23
 
 Unpopular Government in the United States 
 
 having a standing army of advisers and 
 directors to guide the mass of politically 
 ignorant voters, make it difficult to replace 
 at the polls with real representatives of the 
 electorate the appointees of this extra-legal 
 government. We have, therefore, come finally 
 to a well-defined extra-legal but none the less 
 real government of the few, by the few, and 
 for the few, at the expense and against the 
 wish of the many. We have, in a word, 
 achieved the estabhshment of a substantial 
 unpopular government. 
 
 In form the pohtically ignorant voter is 
 aided by the altruistic advice of those who know 
 who should be elected. In form the voter can 
 take the advice or not as he pleases. In reality, 
 however, and in actual practice, the power of 
 the electorate to fill the state and municipal 
 ofiices has been confided by the politically igno- 
 rant majority to the leaders in the successful 
 hierarchy of professional advisers and directors 
 to the politically ignorant voter. The elector, 
 by being required to vote too much, has been 
 compelled to surrender to a large extent his 
 
 24
 
 Unpopular Government — How Established 
 
 right to vote at all, and to permit others to 
 cast his ballot as they see fit. Formerly people 
 were disfranchised when they were given no 
 opportunity to vote. Today they are dis- 
 franchised by being required to vote too 
 much. Formerly the legal rulers of the dis- 
 franchised masses were selected for them by 
 the few without equivocation. Today our 
 legal rulers are selected for us by the few 
 through the subterfuge of the masses casting 
 their ballots according to the directions of the 
 few. In other forms of unpopular government 
 the central figure has been the monarch, the 
 autocrat, the oHgarch, or the aristocrat. In 
 ours it is the poHtocrat. We have avoided 
 monarchy, autocracy, oligarchy, and aristoc- 
 racy, only to find ourselves tightly in the 
 grasp of a poUtocracy. 
 
 So startling a conclusion with respect to our 
 governmental condition invites a detailed con- 
 sideration of each step upon which that con- 
 clusion is founded. 
 
 as
 
 Unpopular Government in the United States 
 
 Section 2 
 
 The Burden upon the Electorate — The Inverted Pyramid 
 of Governmental and Electoral Districts — The Offices 
 to Be FUled and the Number of Electors in Each 
 District 
 
 No doubt the average American voter in 
 most districts will readily concede the great 
 burden of his political duties. But unless he 
 has analyzed his particular situation he will 
 hardly realize how great is that burden. Of 
 course, the condition of voters in different 
 places will differ in detail, but the important 
 features are much the same everywhere. For 
 the sake of example I will analyze my own 
 situation as a voter of the Village of Winnetka, 
 Township of New Trier, County of Cook, and 
 State of Illinois.^ 
 
 I am one of about 600 voters in a village 
 which elects each spring, on one day, about 
 one-haK of the following officers: a president, 
 6 trustees, a clerk, a treasurer, a marshal and 
 collector, 2 police magistrates, and 6 library 
 trustees; and on another day, shortly after- 
 ward, a common-school trustee. 
 
 ' See frontispiece. 
 
 26
 
 Unpopular Government — How Established 
 
 I am one of about 2,000 voters in a town- 
 ship which elects, on the same day that the 
 principal village officers are elected, but at a 
 different polling place, about one-half of the 
 following officers: a supervisor, a clerk, an 
 assessor, a collector, a commissioner of high- 
 ways, 5 justices of the peace, 5 constables, and 
 a poundmaster; and at a later day (but on 
 the same day that the trustee for common 
 schools is elected), 2 high-school trustees. 
 
 I am one of about 18,000 voters to elect one 
 member of the state Senate every four years 
 and 3 members of the House of Representa- 
 tives of the state legislature every two years 
 at the regular November election. 
 
 I am one of about 28,000 voters who elect 
 5 county commissioners at the regular Novem- 
 ber election every other year. 
 
 I am one of about 42,000 voters who elect 
 one member of Congress at the regular Novem- 
 ber election and one member of the State 
 Board of Equalization every two years. 
 
 I am one of about 322,000 voters who elect 
 
 3 sanitary trustees every two years at the 
 
 27
 
 Unpopular Government in the United States 
 
 regular November election and a president of 
 the Sanitary District every five years. 
 
 I am one of about 350,000 voters who elect 
 the following county ofiicers every other year 
 at the November election: 2 of the 5 members 
 of the Board of Assessors, i of the 3 members 
 of the Board of Review, 6 of the 18 judges of 
 the Superior Court of Cook County; also about 
 one-haK of the following officers: president of 
 the Board of County Commissioners, judge of 
 the Probate Court, judge of the County Court, 
 state's attorney, recorder of deeds, clerk of the 
 Circuit Court, clerk of the Superior Court, 
 clerk of the Criminal Court, clerk of the 
 Appellate Court, clerk of the Probate Court, 
 coroner, sheriff, county clerk, county super- 
 intendent of schools, and coimty surveyor. 
 I am one of about 350,000 voters to elect, 
 every other June at a special election, about 5 
 of the 15 judges of the Circuit Court of Cook 
 County. 
 
 I am one of about 380,000 voters to elect i 
 of the 7 justices of the Supreme Court of the 
 state every nine years. 
 
 2S
 
 NovBmber 5, 1912 
 
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 " 'mm 'mm' hiSh i.' Joisoii
 
 Unpopular Government — How Established 
 
 I am one of about 1,100,000 to elect at the 
 regular November election every two years 
 about one-half of the followmg state officers: 
 a governor, a lieutenant-governor, a secretary 
 of state, an auditor, a treasurer, a state superin- 
 tendent of public instruction, 6 trustees of the 
 state university, clerk of the state Supreme 
 Court, and 2 congressmen at large. 
 
 I am one of about 15,000,000 voters who 
 elect a president and vice-president of the 
 United States every four years at the regular 
 November election. 
 
 When I entered the voting booth at the 
 regular November election in 191 2, the ballot 
 given me to mark was 22X28 inches in size. 
 It called upon the voter to do his part in filling, 
 exclusive of presidential electors, 34 offices. 
 It presented for his consideration, exclusive 
 of presidential electors, 181 names from which 
 to make selections :* 
 
 ' The ballot which the voter in Chicago faced at the same elec- 
 tion was even larger. It was 19X31 inches and presented 
 elections to 53 ofl&ces, exclusive of the presidential electors, and 
 267 names, exclusive of the presidential electors, to be voted upon. 
 At the fall election in Cook County in igio the ballot was 17X20 
 inches. It presented 52 offices to be filled and 190 candidates for 
 the voter to investigate. 
 
 29
 
 Unpopular Government in the United States 
 
 An enumeration of the offices to be filled 
 by election merely emphasizes the number of 
 candidates whom the voter should inform 
 himself about. The extent of the burden upon 
 the voter is not fully appreciated until it is 
 perceived how difficult actual conditions make 
 it for him to obtain information regarding can- 
 didates for office. The least important and 
 most inconspicuous state and local offices, as 
 well as the most important and conspicuous, 
 must engage the attention of the electorate of 
 the entire governmental district. But the can- 
 didates for inconspicuous and unimportant 
 offices must usually be men who are incon- 
 spicuous or unimportant in the community. 
 Furthermore, the importance and conspicuous- 
 ness of subordinate offices do not increase in 
 proportion to the increase of population. The 
 clerk of a court or a county surveyor is not a 
 more conspicuous officer because he holds his 
 office in a county having over two million in- 
 habitants. He is, therefore, proportionately less 
 conspicuous and important as the population 
 increases. The voter is, therefore, constantly 
 
 30
 
 Unpopular Government — How Established 
 
 presented with candidates whose reputations 
 are in inverse ratio to the size and population 
 of the electoral district. The more electors 
 there are in the district the smaller in propor- 
 tion is the reputation of the candidate. The 
 more the character and quahfications of the 
 candidates are hidden, the more difficult it is 
 for the voter to obtain the information which 
 he should have in order to vote intelligently. 
 For instance, the 600 voters in the village where 
 the writer resides are called upon to select a 
 clerk, a treasmrer, a marshal and collector, 2 po- 
 lice magistrates, and library and school trustees. 
 In so small a community the voter may with 
 some effort actually know who the candidates 
 for these places are. As a matter of fact, how- 
 ever, that effort is considerably more than the 
 large majority of voters will push themselves 
 to perform. The 2,000 voters in the township 
 where the writer resides are called upon to 
 elect a supervisor, a clerk, an assessor, a col- 
 lector, a commissioner of highways, 5 justices 
 of the peace, 4 constables, a poundmaster, and 
 high-school trustees. These offices are not in- 
 
 31
 
 Unpopular Government in the United States 
 
 trinsically more conspicuous or more important 
 than the village offices just enumerated. Hence 
 the enlargement from 600 to 2,000 voters causes 
 the candidates for office to be proportionately 
 less conspicuous in the community. To the 
 same extent the difficulty to the voter of ob- 
 taining information as to the character and 
 attainments of the candidates has been in- 
 creased. The members of the state Senate and 
 House of Representatives are important officers 
 because they exercise the legislative power of 
 the state. The conspicuousness and impor- 
 tance of each of these offices is, however, weak- 
 ened by the existence of the other, for between 
 the representatives and senators the legislative 
 power is divided and each is a check upon the 
 other. The members of the House of Repre- 
 sentatives in the state legislature are hidden to 
 some extent from the voters because 3 are 
 elected at large from a senatorial district con- 
 taining 18,000 voters. It is more difficult for 
 the voter to find out about a legislator when he 
 is one of 18,000 than when he is one of 6,000 
 voters. Twenty-eight thousand electors of the 
 
 32
 
 Unpopular Government — How Established 
 
 County of Cook outside of the city of Chicago 
 are called upon to vote for 5 of the 15 county 
 commissioners. The office is not likely to be 
 held by men whom it is easy for the average 
 voter of the district to pick up direct informa- 
 tion about. To elect one member of the state 
 Board of Equalization 42,000 voters are called 
 upon. Again, the size of the electorate makes 
 it difficult to know who the candidates for the 
 place may be. Three hundred and twenty-two 
 thousand voters are called upon to elect 7 
 sanitary trustees. Here the darkness of the 
 average voter becomes Egyptian, and he is 
 practically excluded from any means of a 
 personal knowledge of who the candidates for 
 the sanitary trustees are. The same is equally 
 true of the members of the Board of Review, 
 members of the Board of Assessors, the 30 
 judges of Cook County, the president of the 
 Board of County Commissioners, the judge 
 of the Probate Court, the judge of the County 
 Court, the state's attorney, the recorder, the 
 5 clerks of the different courts, the sheriff, the 
 county clerk, the county superintendent of 
 
 33
 
 Unpopular Government in the United States 
 
 public instruction, and the county surveyor. 
 There are 350,000 voters who regularly cast 
 their ballots for these officers. Among a pop- 
 ulation containing so many voters it is prac- 
 tically impossible, even for the voter who 
 makes an unusual effort, to acquire any per- 
 sonal knowledge of who the candidates for these 
 offices are. Take the most prominent officials 
 in the Hst — the judges and state's attorney. 
 The intelligent man who is a voter has very 
 little chance to acquire any personal knowledge 
 of the fitness of the candidates for these offices. 
 A particular judge or a particular candidate 
 for state's attorney may become to some extent 
 known to the voter and have the confidence 
 of the voter. But these are exceptional cases. 
 The average candidate for these offices is be- 
 yond the reach of any thoroughgoing knowledge 
 on the part of the voter. The difficulty of 
 obtaining information about one inconspicu- 
 ous member of so large a population is too 
 great. In Illinois, to select a secretary of state, 
 an auditor, a treasurer, a state superintendent 
 of schools, 6 trustees of the state university, a 
 
 34
 
 Unpopular Government — How Established 
 
 clerk of the state Supreme Court, and 2 con- 
 gressmen at large, 1,100,000 voters are called 
 upon. Here again the inconspicuousness of 
 the offices compared with the size of the 
 electorate is such that the obstacle to the voter 
 informing himself about candidates is practi- 
 cally insuperable. 
 
 One would think that the voter had diffi- 
 culty enough in finding out about candidates 
 as a result of the simple process of requiring 
 comparatively inconspicuous and unimportant 
 offices to be filled by a very niunerous electo- 
 rate. But his difficulty has been enormously 
 increased by the process of requiring the voter 
 to do the larger part of his investigating for 
 the purpose of voting at a single election. For 
 instance, the writer is called upon at a single 
 election in November to investigate the quaH- 
 fications for office of a president and vice- 
 president of the United States, a congressman 
 for his district, 2 congressmen at large, about 
 one-half of the state officers, and about one- 
 half of the county officers. To be exact, he 
 must look up candidates for 34 different offices 
 
 35
 
 Unpopular Government in the United States 
 
 (not including the presidential electors) pre- 
 sented upon the long ballot given supra 
 (opposite p. 29), to the number of 181. As- 
 suming that information about some of the 
 candidates for the more important offices, such 
 as members of Congress and members of the 
 state legislature, could be looked up and reUable 
 information obtained, the chances are that this 
 will not be done because other more important 
 offices, like that of president of the United 
 States and governor of the state, are to be filled. 
 This process of preventing the voter from in- 
 vestigating candidates for even important and 
 conspicuous offices by putting so much investi- 
 gating upon him at a single election that he 
 cannot do it has operated to produce pohtical 
 ignorance on the part of the electorate as to 
 candidates for Congress and the state legisla- 
 ture. These are important and conspicuous 
 offices. The candidates come from compara- 
 tively small districts. If selected at an election 
 where they were the only offices to be filled, a 
 very considerable amount of intelligence might 
 be displayed by the electorate. But these 
 
 36
 
 Unpopular Government — How Established 
 
 offices are hidden among half a hundred other 
 offices for which several hundred other candi- 
 dates are running. In the mass the voter is 
 distracted and fails to a considerable extent to 
 distinguish the important from the unimpor- 
 tant. The extraordinary amount of investigat- 
 ing to be done overwhelms and discourages 
 him, and he goes to the polls too frequently 
 utterly ignorant of the qualifications of candi- 
 dates for members of Congress and the state 
 legislature. 
 
 That the decentralization of governmental 
 power and the increased application of the 
 elective principle has necessarily cast upon the 
 electorate an enormous burden in order that it 
 may vote intelligently is clear enough from the 
 everyday experience of the voter at the polls. 
 At least one political scientist has directed 
 an experiment to emphasize it. President 
 Judson, a few years ago, gave to a graduate 
 class at the University of Chicago, four weeks 
 before the regular fall election in Cook County, 
 a list of all the candidates for office on a ballot 
 substantially similar to that which appears 
 
 37
 
 Unpopular Government in the United States 
 
 supra (p. 29), and required them to report at 
 the time of the election such facts as they could 
 ascertain about the candidates and their quali- 
 fications. With diligent work on the part of 
 the really mature men in Dr. Judson's class a 
 satisfactory report was turned in with regard 
 to only a small percentage of the entire list. 
 This, Dr. Judson thought, fairly indicated 
 what the average voter could do on his own 
 responsibility in the way of securing informa- 
 tion respecting candidates if he had spent the 
 same amount of time with that object in view. 
 Not only is it obvious that the voter is under 
 a great burden with respect to seeking and 
 securing information about the candidates for 
 ofl&ce he is called upon to vote for, but it is 
 clear that the task is so great as to be impossible 
 of fulfilment by the large mass of the electorate 
 who have their place in competitive industry 
 to maintain. A small handful of intelligent 
 men of commanding position in the community, 
 after many years of experience, may be able 
 with comparatively Uttle expenditure of time 
 to inform themselves accurately concerning a 
 
 38
 
 Unpopular Government — How Established 
 
 large number of the candidates of the two or 
 three principal parties on the ballot. But the 
 average man whose position in the community 
 and experience with affairs is more Hmited 
 could not obtain the proper amount of infor- 
 mation without an actual neglect of his busi- 
 ness or profession — a neglect which he dare not 
 permit. The voter who occupies a salaried 
 position which demands a full day of work for 
 his employer throughout the year has no time, 
 inclination, nor opportunity for prolonged in- 
 vestigation into the qualifications of candidates 
 for pubHc office. The residuary mass of the 
 electorate have neither the time, the experi- 
 ence, nor the interest to investigate in advance 
 and inform themselves of the qualifications of 
 candidates to be presented for a large number 
 of offices. 
 
 Section 3 
 
 The Resulting Political Ignorance of the Voter and His 
 Consequent Disfranchisement 
 
 Of course, there is some political ignorance 
 due to illiteracy and general lack of intelligence. 
 With this, however, we are not now principally 
 
 39
 
 Unpopular Government in the United States 
 
 concerned. It is here assumed that except in 
 small and exceptional districts the great ma- 
 jority of voters are neither illiterate nor unin- 
 telligent, but are of a fair average inteUigence 
 and capable of reaching and following sound 
 moral and political judgments. The fact which 
 is now to be emphasized is that the burden 
 upon the voter is such that the vote of the most 
 intelligent man is made quite as politically 
 ignorant as that of the least intelligent. The 
 percentage of politically ignorant voting has 
 become very high, not because the voter is 
 unintelligent, but in spite of the fact that he 
 may be extremely intelligent. An electorate 
 that is capable of casting an 85 per cent 
 intelligent vote on a given matter of im- 
 portance has, by the simple process of 
 requiring the voter to vote too much, been 
 reduced to the voting effectiveness of a FiH- 
 pino who is not yet ready for popular insti- 
 tutions. To the extent that our intelligent 
 voter has thus artificially been made ignorant 
 in the discharge of his pohtical duties he 
 
 has been disfranchised. Too much of what 
 
 40
 
 Unpopular Government — How Established 
 
 popularly passes for democracy has resulted 
 in too little real democracy. 
 
 When the voter faces in the voting booth 
 such a ballot as that already exhibited supra 
 (opposite p. 29), or even a much simpler one, 
 he has no time to analyze his condition of 
 knowledge or ignorance. He must vote quickly 
 and be about his business. If we could secure a 
 revelation from the voter of the state of his 
 mind as he faces the ballot, would not his 
 condition of ignorance be appalling? He 
 would, of course, admit that he knew nothing 
 of the duties of a large number of the offices 
 to be filled. He would admit that he knew 
 nothing of the qualifications of a large number 
 of the men who were seeking office. Indeed, 
 many of them he would never have heard of. 
 The average voter would no doubt have pre- 
 pared himself, by reading, by following events, 
 and by discussing the matter with other voters, 
 to vote for a particular candidate for president 
 of the United States. From the same sources 
 he might acquire a personal preference among 
 the candidates for governor of the state. He 
 41
 
 Unpopular Government in the United States 
 
 might have a personal preference founded 
 upon some actual knowledge or current rumor 
 as to the proper candidate for congressman or 
 member of the state legislature or president of 
 the county board. He might be satisfied that 
 some one of the several candidates running for 
 several vacancies on the bench ought to be 
 elected. It is hardly probable, however, that 
 he will have any personal preference founded 
 upon any actual knowledge as to the candidates 
 for all these places at once. Outside the can- 
 didates for three or four places he will be utterly 
 and entirely devoid of any personal knowledge 
 upon which to base an intelligent vote. 
 
 To make this position more concrete I will 
 describe my own state of mind as to the 
 ballot illustrated supra (facing p. 29). I never 
 heard the names of any of the candidates on 
 the Socialist Labor, the SociaHst, or Prohibi- 
 tion tickets except those of Debs and Chafin, 
 and of these I had an impression about the 
 qualifications for office only with respect to 
 Mr. Debs. On the Democratic ticket I think 
 
 I was intelligent with respect to Mr. Wilson's 
 
 42
 
 Unpopular Government — How Established 
 
 candidacy for president and Mr. Dunne's for 
 governor. I had some personal knowledge 
 regarding one candidate for a trustee of the 
 state university, the candidates for state's 
 attorney and for president of the Board of 
 County Commissioners. The other names on 
 the Democratic ticket meant nothing to me. 
 On the Repubhcan ticket I regarded myself 
 as informed sufficiently to vote intelligently on 
 Mr. Taft's candidacy for president, and Mr. 
 Deneen's for governor. I had some personal 
 knowledge regarding one candidate for repre- 
 sentative at large in Congress, the candidates 
 for representative in Congress from the con- 
 gressional district, and for president of the 
 Board of County Commissioners. Of the re- 
 maining thirty-nine names on the Repubhcan 
 ticket I recognized one as that of the son of 
 a war governor, one as a former attorney- 
 general, one as a former county judge, three 
 seeking clerkships and the office of coroner, 
 as the incumbents of the offices for which 
 they were running, and one as a lawyer with 
 whom I had some personal acquaintance. The 
 
 43
 
 Unpopular Government in the United States 
 
 names of the other candidates at the time 
 I voted meant absolutely nothing to me. On 
 the Progressive ticket I was intelligent with 
 respect to Mr. Roosevelt's candidacy for presi- 
 dent and Mr. Johnson's for vice-president; also 
 to the candidacy of those seeking the offices of 
 attorney-general and representative to the state 
 legislature. I had some acquaintance with 
 one of the candidates for trustee of the Univer- 
 sity of Illinois, and one of the five candidates 
 for county commissioner. The rest of the 
 names meant nothing whatever to me. 
 
 If the offices which the voter was called 
 upon to fill while poHticaUy ignorant were few 
 in number and altogether insignificant in the 
 extent of the governmental power which they 
 controlled, not much harm would be done. But 
 little by Httle, as population has increased and 
 social and governmental organization has be- 
 come more complex and the political duties of 
 the voter have grown heavier, the poUtical 
 ignorance of the voter has extended to a con- 
 stantly increasing number of candidates for 
 office, until the sum total of the governmental 
 
 44
 
 Unpopular Government — How Established 
 
 power of all the offices for which the voter casts 
 his ballot in poHtical ignorance constitutes the 
 principal part of the entire local and state gov- 
 ernmental power. The great sources of govern- 
 mental power are the Congress of the United 
 States, the legislatures of the state and local 
 governments. When the tide of pohtical igno- 
 rance on the part of the intelligent voter rises 
 so high that it embraces the candidates for the 
 local, state, and federal legislative bodies, the 
 situation is serious. When it includes the local 
 judiciary and all but the president of the United 
 States, the highest executive officer of the state 
 and of the principal local government, the sit- 
 uation has become desperate. 
 
 So far as the electorate is too ignorant to 
 vote inteUigently it has been in efifect dis- 
 franchised. It does not really vote at all. If 
 the voter were required to vote bhndfolded, 
 or if the ballot were made up in cipher, he 
 would know that he was disfranchised. Sup- 
 pose, however, that the voter is blindfolded 
 or the ballot done in cipher only in those 
 instances where the voter is called upon to 
 
 45
 
 Unpopular Government in the United States 
 
 vote without any political information neces- 
 sary to enable him to vote intelligently. Would 
 he be any worse off because of the cipher or the 
 bandage on his eyes? Does not the political 
 ignorance of the voter as clearly deprive him 
 of his power to vote as the use of a cipher or 
 blindfolding? In both cases he goes through 
 the mechanical act of voting, but he records 
 nothing at all by so doing. 
 
 The ignorance of the voter and his conse- 
 quent disfranchisement follow necessarily from 
 our present plan of government. They result 
 immediately from the burdens placed upon the 
 electorate. Those in turn arise from the 
 application of the two principles of govern- 
 ment which we have constantly heretofore 
 applauded and proclaimed — the decentraHza- 
 tion of governmental power and the principle 
 that all offices of any consequence should be 
 elective. These principles of government are 
 still regarded by the mass of the people as the 
 true and only sources of democracy and the 
 necessary protection of the people from aU forms 
 
 of unpopular government. The appHcation 
 
 46
 
 Unpopular Government — How Established 
 
 of these principles is in varying degrees pro- 
 tected by state constitutions which provide 
 for the separation of the powers of govern- 
 ment, both state and local, among departments 
 and officers, and require local as well as state 
 subordinate officers to be elected at frequent 
 intervals/ Thus do the letter and the spirit of 
 our governmental theory and practice neces- 
 sarily induce the wholesale ignorance and con- 
 sequent disfranchisement of the large majority 
 of the electorate in regard to candidates for 
 offices, which, when filled, wdeld a very large, 
 
 'In Illinois, for instance, the following state and local ofl&ces are 
 provided for in the state constitution, protected by the state con- 
 stitution, and required by the constitution to be filled by election: 
 governor, lieutenant-governor, secretary of state, auditor of public 
 accounts, state treasurer, superintendent of public instruction, 
 attorney-general, judge of the Supreme Court, clerk of the 
 Supreme Court; in counties outside of Cook County: the county 
 judge, state's attorney, sheriff, county clerk, treasurer, recorder, 
 coroner, clerk of the Circuit Court, county superintendent of 
 schools, judge of the Probate Court, judge of the Circuit Court; 
 in Cook County: 15 county commissioners, judge of the County 
 Court, 14 judges of the Circuit Court, 18 judges of the Superior 
 Court, state's attorney, recorder, coroner, sheriff, county treas- 
 urer, county clerk, clerk of the Circuit Court, clerk of the Superior 
 Court, and county superintendent of schools. This includes all 
 the state and local offices named in the long ballot printed 
 opposite p. 29, except 3 trustees for the state university, 3 repre- 
 sentatives in Congress, i member of the State Board of Equali- 
 zation, 2 members of the Board of Assessors, i member of the 
 Board of Review, the county surveyor, and 3 trustees of the 
 Sanitary District. 
 
 47
 
 Unpopular Government in the United States 
 
 if not the larger, part of the state and local 
 governmental power. 
 
 Formerly unpopular government was founded 
 upon the absence of any voting. Today the 
 electorate, while voting furiously, has never- 
 theless been deprived to a large extent of the 
 ballot because a burden of knowledge — an 
 educational qualification, in effect — has been 
 placed upon it which, under present conditions, 
 it does not and cannot fulfil. Thus, by the 
 simple process of too much so-called popular 
 democracy — that is, too much decentrahza- 
 tion of governmental power and too much 
 voting — we have arrived at the essential con- 
 dition which invites the estabhshment of 
 unpopular government — namely, the disfran- 
 chisement of the electorate. 
 
 Section 4 
 
 The Power of the Electorate Passes to Those Who Take 
 Advantage of Its Political Ignorance to Direct It How 
 to Vote 
 
 The severe educational qualification which 
 has been imposed upon the electorate today 
 has done more than merely deprive the voter 
 
 48
 
 Unpopular Government — How Established 
 
 of the power to vote. It has presented to 
 others the opportunity to direct the voter how 
 to vote and thus in effect to cast his ballot for 
 him. That opportunity has at once been taken 
 advantage of by men who have been quick to 
 perceive the vast political power which the 
 privilege of casting the voter's ballot for him 
 confers. This combination of opportunity and 
 selfish motive is the complete cause of the pass- 
 ing of a considerable part of the political power 
 of the electorate at large to the few who direct 
 it how to vote. It is important that the way in 
 which the effect follows from the causal con- 
 ditions be set forth in as detailed and precise 
 a manner as possible. 
 
 The voting for a large number of the most 
 important offices in the state and municipal 
 government is done during a few hours on 
 election day. In these few hours great masses 
 of voters come face to face with such a ballot 
 as appears opposite p. 29. They have no 
 opinion as to any of the candidates except a 
 very few, for the most part at the head of the 
 ticket. They do not, however, because of 
 
 49
 
 Unpopular Government in the United States 
 
 their ignorance refrain from voting. Neither 
 do they pitch a coin to decide for whom they 
 shall vote. They insist on voting, and they 
 take their voting seriously. It follows that 
 when they are politically ignorant they vote the 
 way they are told to vote by somebody. The 
 important questions are: Who tells them how 
 to vote? and By what means are they told? 
 The small minority, including many of the 
 most intelligent, vote the way they are directed 
 by some newspaper. At one time a prominent 
 newspaper in Chicago was credited with the 
 abihty to direct about one-tenth of the voters 
 in a county or city election how to cast their 
 ballots. But this was possible only when the 
 newspaper concentrated its entire influence on 
 the filhng of one or two offices. The news- 
 paper gives very little advice to the voter with 
 respect to the filling of a considerable majority 
 of ofiices for which elections are held. Even as 
 to the few offices with regard to the candidates 
 for which the newspaper makes a great effort 
 to advise voters, its influence is limited. A 
 large proportion of the electorate vote the 
 
 so
 
 Unpopular Government — How Established 
 
 party circle. Some are moved by sentiment 
 or strong prejudices; others by the fact that 
 men of whom they know something personally 
 are responsible for the nominations or appear 
 as candidates in a prominent place on a par- 
 ticular ticket. In every case a vote in the 
 party circle, which is a blanket vote for a great 
 number of party candidates of whom the voter 
 has no knowledge, is a vote according to the 
 direction of those who promoted or directed 
 the nomination of the men who appear as 
 candidates in that party column. It is be- 
 lieved, however, that a very large body of 
 voters — especially in districts where large num- 
 bers are generally ignorant or iUiterate — need, 
 and indeed must have, advice as to how to 
 vote from some individual whom they either 
 look up to and trust, or fear. These voters do 
 not ask for political leadership. They do not 
 desire information upon which to found poHtical 
 opinions. All they ask for is advice as to how 
 to mark their ballots. In congested centers of 
 population this advice is sought within a few 
 hours in a single day by tens and even hundreds 
 
 5J
 
 Unpopular Government in the United States 
 
 of thousands of voters. The voter wants infor- 
 mation as he approaches the booth. Even 
 those who allow a newspaper to direct them how 
 to vote need advice in voting for offices which 
 the newspaper ignores. So the practice of in- 
 dependent voting and splitting tickets causes 
 the voter to seek advice from those who make 
 it their business to know something about the 
 candidates. If these masses do not obtain in- 
 struction and advice as to whom to vote for 
 they must refrain from voting, or pitch a coin, 
 or fall back upon the party circle. They do 
 the last as the most rational, and thus take the 
 directions of those who are able to place the 
 names of candidates under the party circle. 
 In brief, the entire situation is something like 
 this: As to four-fifths of the candidates for 
 office the voters are poHtically ignorant; yet 
 they insist upon voting and in taking seriously 
 their duty as a citizen to vote. They will not 
 pitch a coin. Hence they must vote the way 
 they are told. Nine- tenths of the voters who 
 cast ballots for four-fifths of the offices are 
 directed to vote by those who have placed the 
 
 52
 
 Unpopular Government — How Established 
 
 names upon the ballot or by someone who 
 makes a special appeal to the voter at the 
 polls or by a special canvass before election. 
 Not only, however, does the pohtical igno- 
 rance of the voter present an obvious opportu- 
 nity to someone to direct him how to vote and 
 thus cast his ballot for him, but an overwhelm- 
 ing self-interest on the part of individuals in- 
 vokes at once the strongest motive to use the 
 opportunity. The man that can control the 
 power of the electorate will secure the power to 
 appoint to of&ce. He who can regularly place 
 the candidate in office wiU soon control the 
 holder of the office and exercise the govern- 
 mental power which the officeholder wields. 
 The securing of such governmental power has 
 always been an object in itself to a proportion 
 of the individuals in every community. When 
 seen as a source of personal profit and advance- 
 ment, the numbers who will strive for it and 
 the efforts which they wiU make are greatly 
 increased. Indeed, the prize which the success- 
 ful secure is such as to produce the keenest 
 competition and the most exhaustive effort. 
 
 S3
 
 Unpopular Government in the United States 
 
 It is important to notice that the necessities 
 of candidates quickly reveal the extent of the 
 poHtical ignorance of the voter and the oppor- 
 tunity which this affords for someone to direct 
 him how to vote. The candidate, of whom 
 the vast majority of voters are poHtically 
 ignorant because his ofhce is obscure and 
 inconspicuous, finds that his election is not 
 a matter of his policies and efficiency, but of 
 the efforts of workers at the polls and the 
 canvassing of voters before election. Such 
 a candidate needs the support of successful 
 advisers to the politically ignorant voter. He 
 needs the support of that man or combination 
 of men in the community that can cast the 
 largest number of votes of the politically 
 ignorant. A little experience in fulfiUing this 
 apparently innocent and legitimate demand for 
 a campaign manager will reveal to the manager 
 the character of the voter's political ignorance 
 and the fact that someone must always direct 
 him how to vote, and that this is the means 
 by which pohtical power is to be secured. A 
 slight actual experience is all that is necessary 
 
 54
 
 Unpopular Government — How Established 
 
 to point the real path to the exercise by the 
 few of governmental power. 
 
 Such conditions of opportunity revealed and 
 ever-present selfish motives must inevitably 
 produce men who aspire to be successful ad- 
 visers to the electorate. Active competition 
 for these places naturally ensues. Success, 
 then, means the survival of the fittest. That 
 means that among the professionals those win 
 who take their profession seriously, under- 
 stand it thoroughly, and practice it assiduously 
 and with judgment, tact, and craft. Here, 
 then, we have the local political boss or pro- 
 fessional politician. He is merely the success- 
 ful local adviser and director to the politically 
 ignorant voter. He is the man who can, more 
 than anyone else, in a local district, direct the 
 largest number of the politically ignorant how 
 to vote. He advises and directs the voter 
 how to vote principally by personal canvasses 
 of the voters and solicitations at the polls and 
 by controlling the machinery of nominations 
 so as to determine who shaU appear as a candi- 
 date under a given party name. The political 
 
 ss
 
 Unpopular Government in the United States 
 
 ignorance of the voter is one of the necessary 
 conditions to his existence. The fact that most 
 voters cannot make a show of voting intelli- 
 gently without someone to help them provides 
 the opportunity which calls him into being. 
 The power of the successful adviser and director 
 to the voter is in direct ratio to the political 
 ignorance of the electorate. It makes no dif- 
 ference whether that ignorance be the result of 
 general lack of intelligence or be artificially pro- 
 duced by placing a special educational quali- 
 fication upon the voter which he cannot or 
 will not fulfil. To the extent that the adviser 
 and director of the politically ignorant voter 
 can direct and advise the voter how to vote, 
 he can fill the offices of the state and local 
 governments with those who are loyal to him, 
 and thus control some part of the power of 
 government. 
 
 Since the business of directing the politically 
 ignorant voter how to vote has fallen into 
 the hands of a professional class and since the 
 prize to be won is the control of governmental 
 power, it is not to be wondered at that the 
 
 56
 
 Unpopular Government — How Established 
 
 profession has become highly organized for the 
 purpose of achieving its object; that men of 
 extraordinary power and ability have arisen 
 as its leaders, and that to a very great 
 extent the object of the organization has been 
 achieved. 
 
 The political boss or adviser to the politically 
 ignorant voter first appears in the smaller 
 election districts. His advent is coincident 
 with a certain degree of political ignorance on 
 the part of the electorate. At first that ig- 
 norance was the result of the actual illiteracy 
 which appeared in the majority of the voters 
 of a particular district, usually in a large city. 
 Thus we first hear of the ward boss in our 
 larger cities. His ward usually contains a 
 large foreign population Hving in the densest 
 political ignorance, easily terrified, easily ca- 
 joled, and easily corrupted. The steady in- 
 crease in the length of ballots and the burden 
 placed upon the electorate soon, however, 
 began to produce artificially a state of political 
 ignorance on the part of the most intelligent 
 electorate. This at once produced the politi- 
 
 S7
 
 Unpopular Government in the United States 
 
 cal boss for districts where the electorate was 
 possessed of a high average of character and 
 intelligence. This boss was of a different type 
 from a river-ward boss. It took longer to 
 make him. He was of a somewhat finer grain. 
 He had some inkling of the fact that he really 
 bore a fiduciary relation to the pohtically 
 ignorant electorate whom he advised and di- 
 rected and whose vote he cast. He had to 
 possess himself of the confidence and the trust 
 of his constituents. His success was obtained 
 only by close attention to his profession and by 
 qualities of tact and leadership. His suprem- 
 acy was retained only by care and subtlety. 
 The moment each one of any considerable 
 number of local election districts developed 
 such a professional political boss it was in- 
 evitable that they should begin to act together 
 to direct and advise the pohtically ignorant 
 voters of the larger districts how to vote when 
 it came to the filling of a more important office 
 in a larger election district. Thus the bosses 
 of the city wards and the country districts 
 combined to agree on who should be presented 
 
 s8
 
 Unpopular Government — How Established 
 
 to the voter for election and to direct the 
 voter how to vote. Naturally out of the com- 
 bination some men emerged capable of leading 
 the combination of bosses. Thus arose the city 
 or county machine. In extraordinary instances 
 a single man became a city or county boss for 
 a particular party organization. In the same 
 way, when the districts of a state were well 
 provided with permanent political bosses, there 
 was a movement among the leaders to combine 
 into a state machine. Again, in extraordinary 
 cases a single man was great enough to be the 
 supreme political leader of a political party 
 organization in a state and to lead it regularly 
 to victory at the polls. 
 
 Thus almost imperceptibly, but with as- 
 tonishing rapidity, there have been developed 
 state-wide feudal organizations for the pur- 
 pose — in form at least — of advising the politi- 
 cally ignorant voter how to vote, but in reaUty 
 for the purpose of casting his vote for him, and 
 thus securing the pohtical power of the electo- 
 rate. In each smallest election precinct there 
 is a regular band of workers under a precinct 
 
 59
 
 Unpopular Government in the United States 
 
 captain. In each collection of precincts which 
 make the smallest electoral district, like a ward 
 in a city or a township in the country, there 
 must be a mesne lord whom the captains obey. 
 In larger election districts, such as a city or a 
 county, or a combination of counties, there 
 must be tenants in chief over the mesne lords. 
 Finally, there is the great lord paramount for 
 the whole state. No precinct captain is per- 
 mitted to have any idea of principles or poUcies. 
 It is his duty, with his aids, to produce dele- 
 gates for conventions who will vote as the 
 organization chiefs direct, canvass the precinct 
 before election and buy, command, instruct, 
 persuade, or coerce, as the exigencies of the 
 case may require, votes for the candidates 
 named by the organization chiefs. When the 
 precinct captain and his workers fail to perform 
 these services successfully, out they must go, 
 and others, waiting eagerly for promotion, will 
 take their places. When they show abihty 
 they will make progress in the organization. 
 The district boss must equally keep his cap- 
 tains in obedience and effectiveness. For him 
 
 60
 
 Unpopular Government — How Established 
 
 also there is promotion or reduction to the ranks 
 in prospect. It is the law of life and the source 
 of the organization's power that its officers ren- 
 der impHcit obedience to their immediate chiefs 
 and that a mighty personality direct the whole. 
 Thus does the power of the electorate pass 
 to those who take advantage of the political 
 ignorance of the electorate to direct it how to 
 vote. 
 
 Section 5 
 
 The Power of Government Passes into the Hands of Those 
 Who Are Able to Direct the Majority of the Politically- 
 Ignorant How to Vote. They Constitute an Extra- 
 legal but None the Less Real Government 
 
 The professional adviser and director to the 
 politically ignorant voter aims to secure con- 
 trol of as much of the power of government as 
 possible. His means to that end consist in be- 
 coming the most important single factor in the 
 fiUing of the offices of the legal government. 
 Success in advising and directing a majority 
 of the poUtically ignorant voters how to vote 
 places in his hands the power to fill by appoint- 
 ment all offices for which candidates are pre- 
 
 61
 
 Unpopular Government in the United States 
 
 sented who are unknown to the electorate 
 generally. Our political boss naturally tends 
 to appoint men who are loyal to him and to 
 his power, and by this means he naturally 
 secures a certain control over part of the 
 local governmental power. In the same way, 
 the prize of a combination of successful local 
 bosses is the power to appoint the majority 
 of the officeholders of some more extensive 
 and important local municipal government and 
 thus obtain control of a part of its governmental 
 power. When the state-wide organization of 
 the feudal army of directors and advisers to 
 the politically ignorant voter has been thor- 
 oughly perfected, with a man of great abihty 
 at its head, the prize to be obtained is the 
 principal part of the entire governmental power, 
 whether state or local. More and more such 
 an organization will fill with men loyal to its 
 leaders the local and state legislative bodies, 
 the local and state executive offices, and even 
 places upon the bench. Such an organization, 
 when continuously successful for any length of 
 time, will have actually filled all of the less 
 
 63
 
 Unpopular Government — How Established 
 
 conspicuous and less important offices in the 
 executive, legislative, and judicial departments 
 of the state and local governments. 
 
 But the influence of such an organization 
 will go farther than this. Being in existence 
 and efficient, it will often be a determining 
 factor in nominating and electing a candidate 
 for an office so important, and, viewed by 
 itself, so conspicuous, that in a special elec- 
 tion to fill that one office the intelligence of the 
 electorate would be displayed at its maximum. 
 For instance, if we look at the federal govern- 
 ment alone, we find that the voter casts his 
 ballot only for president, vice-president, and 
 usually only one congressman. The congress- 
 man is selected for the most part from a fairly 
 small district. Taking the federal government 
 by itself, the voter's function in selecting a 
 congressman is so simple and direct that no 
 professional advice or direction is needed ex- 
 cept in the unusual case where the district is 
 filled with an actual illiterate vote. But the 
 moment the vote-directing organization is 
 called into being in the congressional district 
 
 63
 
 Unpopular Government in the United States 
 
 because of the artificially produced political 
 ignorance of the voter in respect to candidates 
 for various local municipal offices and state 
 offices, such an organization at once exercises 
 an important control over the nomination and 
 election of the congressman. In the same way 
 the organization will gain a very considerable 
 influence over the nomination and election of 
 candidates for local municipal offices where 
 they consist only of the mayor and an alder- 
 man from each ward, who are elected at a 
 special election. Such an organization will 
 have at all times a vast influence in the nomi- 
 nation and election of judges, even when they 
 are chosen at a special election. There is no 
 doubt that the nomination for governor of the 
 state and president of the United States may 
 from time to time be greatly influenced by 
 poUtocrats whose power is based upon the 
 poUtical ignorance of the voter in respect to 
 candidates for aU manner of obscure offices in 
 the state and local governments. Speaking 
 generally, if the voter is habitually so ignorant 
 poHticaUy that the politocrats have secured, 
 
 64
 
 Unpopular Government — How Established 
 
 to a considerable extent, the power to direct 
 him how to vote, then the poHtocrats will 
 exercise a great deal of influence in determin- 
 ing who shall be elected to offices so con- 
 spicuous and important that if they were the 
 only ones filled by election the voter would 
 exercise a high degree of independence and 
 intelligence in making his selection and the 
 services of the same politocrats would be 
 wholly dispensed with. 
 
 A vote-directing organization which is stead- 
 ily successful in a given state or local govern- 
 ment for eight years will reach a point where it 
 actually places in practically all the state and 
 local offices that are filled by election, and also 
 in the House of Representatives, in Congress, 
 and in the United States Senate, men who are 
 loyal to the organization and its leaders before 
 everything else. The leader of such an organiza- 
 tion may even have obtained a controlling in- 
 fluence with the governor of the state and the 
 president of the United States, so far as their 
 power extends to local appointments and affairs. 
 When this occurs, the leaders of the state and 
 
 6s
 
 Unpopular Government in the United States 
 
 local vote-directing organization have become 
 the real though extra-legal government. The 
 real power of government, both state and local, 
 and an important influence in the power of the 
 federal government are in their hands. Local 
 and state executive officers and local and state 
 legislators will take orders from these leaders. 
 Judges in a more subtle way will take account 
 of their wishes. 
 
 Thus we have, however imperceptibly, none 
 the less effectively changed the character of our 
 government. The very excess of our pre- 
 cautions to prevent the power of government 
 from coming into the hands of the few has de- 
 livered the power of government into the hands 
 of the few. So obviously and completely 
 has the elaborate effort of our constitution- 
 makers failed to keep governmental power 
 out of the hands of the few that we might as 
 well accept it as axiomatic that governmental 
 authority in any highly organized society can- 
 not be prevented from becoming concentrated 
 in the hands of the few. Our form of govern- 
 ment has indeed changed from the decentraUzed 
 
 66
 
 Unpopular Government — How Established 
 
 democracy of the frontier to the centralized 
 pohtocracy of a highly organized civilization. 
 We have turned our back upon the autocrat 
 and the aristocrat only to find ourselves in the 
 hands of the poHtocrat. 
 
 Section 6 
 
 The Extra-legal Government Uses Its Power Selfishly to 
 Maintain Itself and to Benefit Those Who Have 
 Organized and Supported It 
 
 Our extra-legal government is not one of 
 altruists. It may be reHed upon to act selfishly 
 in two respects: First, it will use all of its in- 
 fluence and power to maintain itseK. Then as 
 its tenure of power becomes more secure it will 
 use that power to reward the leaders who have 
 organized and supported it. 
 
 The clear perception of what is necessary 
 for the maintenance of the extra-legal govern- 
 ment will provide the wise poHtocrat with a 
 deep-rooted political philosophy. His creed, 
 if uttered, would sound something like this: 
 " I beheve in the disfranchisement of the voter 
 by keeping him too ignorant poUtically to vote 
 inteUigently. I believe that all voters, no 
 matter how intelligent in general, can be made 
 
 67
 
 Unpopular Government in the United States 
 
 politically ignorant in voting by placing upon 
 them a burden of investigating candidates and 
 attending elections which they can conceivably, 
 but will not in fact, perform. I believe that 
 such a burden upon the voter can be produced 
 most readily by the decentralization of govern- 
 mental power in every possible way, and the 
 constant application of the elective principle. 
 I therefore believe in fostering the popular 
 fear of kings, the popular prejudice against 
 the centrahzation of power and the fiUing of 
 ofl&ces by appointment. Above all I believe 
 in more democracy (i.e., more applications 
 of the elective principle) as the cure for the 
 ills of democracy." 
 
 With these deep-seated convictions, the 
 course of action of the wise politocrat in many 
 respects is not difficult to predict and not 
 difficult to understand when it is observed. 
 The chief executive of the state or of the 
 United States who, in response to any popular 
 demand, attempts to influence or coerce the 
 legislature must be publicly rebuked. It must 
 be pointed out that he is overstepping the 
 
 68
 
 Unpopular Government — How Established 
 
 bounds of his constitutional power. He must 
 confine himself to the limited constitutional 
 sphere of the executive. When a man becomes 
 governor or president he must cease to be a 
 citizen. The promotion of decentralization of 
 governmental power through the creation of 
 several new municipal corporations operating 
 in the same district is a step which should 
 always receive the favorable attention of the 
 politocrats. The constant application of the 
 elective principle to each newly created office 
 must be maintained. The election district 
 furthermore should always be kept as large as 
 possible and always larger than the personal 
 reputation of anyone who would be likely to 
 seek a given office which the voters of the 
 district select. Methods of redistricting can 
 be devised and carried out so as to yield the 
 maximum amount of power for the extra-legal 
 government for the time being in power. 
 Election laws must be so shaped and adminis- 
 trative acts so directed as to enable the organiza- 
 tion to marshal its votes in the most effective 
 way. New parties and independent movements 
 
 69
 
 Unpopular Government in the United States 
 
 must be discouraged. One of the neatest de- 
 vices to effect such discouragement is to retain 
 the party circle and at the same time provide 
 that no candidate shall appear on more than 
 one ticket on the ballot. That will force all 
 candidates who can secure the extra-legal 
 government's party nomination to take it as 
 against an independent nomination. The fact 
 that the extra-legal government puts up some 
 men w^ho are satisfactory and who cannot also 
 be placed upon an independent ticket will dis- 
 courage the putting in the field of any inde- 
 pendent ticket. No harm will be done to the 
 extra-legal government by pohtocrats if the 
 network of governmental bodies becomes very 
 complex, or if the details of carrying out pro- 
 visions of election laws become so difficult to 
 understand that the whole machinery of elec- 
 tions must be directed by a few experts. 
 
 But the chief care of the wise politocrat will 
 not be to acquire a selfish political philosophy 
 or a selfish program for governmental legisla- 
 tion. Of paramount importance is the organiz- 
 ing, recruiting, training, feeding, and caring for 
 
 70
 
 Unpopular Government — How Established 
 
 the feudal army of directors and advisers to 
 the poUtically ignorant voter and the reward- 
 ing of the officers and lesser leaders of that 
 army according to their position. So far as 
 possible, of course, the district and precinct 
 workers will be given places upon the pubhc 
 pay-rolls and so fed and clothed from the public 
 treasury. In return for what they receive from 
 the pubhc they will do the minimum amoimt of 
 work for the public and the maximum amount 
 for the organization. Places on the pay-rolls 
 of private corporations may also be at the dis- 
 posal of the leaders among the politocrats. In 
 a city of any size much small graft connected 
 with the issuing of Hcenses of all sorts, the sell- 
 ing of hquor, the business of vice, and the 
 activities of the underworld may be picked up 
 by the privates and captains in the organiza- 
 tion. The lesser poUtocrats will take the higher 
 salaried positions and fee offices. It will not 
 interfere with their obtaining these places that 
 they must submit to an election. The work 
 of the office will be done by a chief deputy 
 paid out of the pubUc treasury. The holder 
 
 71
 
 Unpopular Government in the United States 
 
 of the office will, therefore, be enabled to spend 
 his entire time conducting the business of 
 advising and directing the poHtically ignorant 
 voter whom to vote for. The larger graft 
 connected with the protection of the busi- 
 ness of vice and the activities of the under- 
 world will go to those who are still higher up 
 among the politocrats. This, however, is a 
 dirty and risky mode of reward and the pro- 
 tection which can be given has its limits. 
 Many politocrats, and among them the most 
 powerful, will not touch it personally. In 
 certain districts men of excellent social stand- 
 ing and mental attainments can be used to 
 advantage by the extra-legal government. In 
 most instances material of this sort can be 
 drawn from among lawyers. The reward for 
 those who are constant and effective in their 
 service wiU be a place in the corporation coun- 
 sel's office or the state's attorney's office, and 
 finally a place upon the bench. The larger 
 graft of pubHc contracts is reserved for the 
 overlords of the feudal organization. But even 
 
 this the great leaders will not touch. 
 
 72
 
 Unpopular Government — How Established 
 
 The great prize which is reserved for the 
 lord paramount and his tenants in chief is the 
 privilege of entering into an alliance, offensive 
 and defensive, with special business and prop- 
 erty interests which need the aid of the local 
 or state governmental power to exploit to the 
 best advantage the many, or the protection 
 from governmental interference at the demand 
 of the many who are being exploited. Indeed, 
 so close may the relations become between the 
 great captains of such special business and prop- 
 erty interests and the extra-legal government by 
 poHtocrats, that the real power of government 
 may to some extent actually reside in the 
 former rather than the latter. It will indeed be 
 difficult in many instances to tell which group 
 commands and which obeys. Where the leaders 
 of both are equally able there will be a complete 
 partnership. 
 
 Section 7 
 
 The Extra-legal Government Is Able to Maintain Itself in 
 the Face of Popular Disapproval 
 
 The conditions under which extra-legal gov- 
 ernment exercises its power and the manner of 
 
 73
 
 Unpopular Government in the United States 
 
 that exercise furnish it with certain consider- 
 able advantages in its very natural effort to 
 maintain itseh in the face of popular disap- 
 proval. 
 
 The extra-legal government has the advan- 
 tage of being hidden from the electorate. The 
 mass of voters can tell who only a few con- 
 spicuous officeholders in the legal government 
 at any one time are. Of the existence of a 
 thoroughly organized extra-legal government 
 they have no real knowledge whatever. If 
 they have some idea of machines and bosses 
 it is vague and imperfect. They see only a 
 Httle at a time and have no idea who it is that 
 casts their ballots for them. The voter who 
 masters such secrets is rare indeed. Even the 
 very intelligent man who is a voter cannot tell 
 anything in his own district about the extra- 
 legal government. He only knows that there 
 are bosses whom he never seems to have a 
 chance to vote against. This secrecy on the 
 part of the extra-legal government is an in- 
 valuable asset in enabling it to retain power. 
 So long as extra-legal government remains 
 
 74
 
 Unpopular Government — How Established 
 
 hidden, there is Httle chance of the voter 
 causing it any serious damage. 
 
 The extra-legal government has a great ad- 
 vantage also in the fact that while it is the real 
 government, the electorate is constantly vot- 
 ing for the legal but dummy government of 
 oflSceholders. Of course, if the voter knew the 
 connection between each officeholder and the 
 extra-legal government he might vote intelli- 
 gently, but that is information of the most 
 secret kind. In many instances it is impossible 
 for anyone to obtain it. Certainly it cannot be 
 expected that a voter who is in ignorance of 
 the quahfications and personality of most of 
 the candidates for office will ever know what 
 connection any of them have with a more or 
 less secret extra-legal government. 
 
 The wise politocrat appreciates the advantage 
 which his extra-legal government has in hiding 
 behind the legal government and in the fact 
 that his power is not subject directly to the 
 approval or disapproval of the electorate. He 
 knows, however, that from time to time some 
 loyal adherent of the extra-legal government 
 
 75
 
 Unpopular Government in the United States 
 
 will demand and must be given the nomination 
 for an office so prominent that his record will 
 be fully investigated and his relation to the 
 extra-legal government become wddely known. 
 Then the existence of extra-legal government 
 will, in the contest for that office, become an 
 issue, especially if there be an independent 
 anti-politocratic candidate. But experience 
 will make it clear that such an issue must be 
 avoided. The extra-legal government must 
 drop as a candidate for an office of any promi- 
 nence a man known by the electorate to be 
 loyal to the politocracy. In his place may be 
 put a fresh dummy or a real independent, as 
 the exigencies of the case require. The former 
 step is, of course, from the point of view of the 
 politocrat, to be preferred. When, however, 
 the outlook is dark and forbidding for the extra- 
 legal government in power, its leaders will 
 assent with a show of enthusiasm to the nomi- 
 nation of a Hughes or a Wilson. They know 
 that the naming of an independent and popular 
 man who is likely to be successful at the polls 
 
 will enable their extra-legal government to 
 
 76
 
 Unpopular Government— How Established 
 
 appoint to office the subordinate elective 
 officeholders in the legal government. They 
 know that a governor surrounded by inde- 
 pendent subordinate officers and opposed by 
 legislators selected by and loyal to the extra- 
 legal government can do that government no 
 permanent damage. They know that most 
 men can, during their term of office, when 
 placed in close contact with such opposition, 
 be worn down and disheartened, so that they 
 are glad to quit when the opportunity for pro- 
 motion to a place where they need no longer 
 war upon extra-legal government is tendered 
 them. Thus, a popular governor may be in- 
 duced to accept the position of vice-president 
 or a place upon the Supreme Court of the 
 United States. 
 
 The failure to observe this principle of action 
 at the Republican National Convention of 191 2 
 has started the most widespread and serious 
 movement against extra-legal government that 
 we have yet had. According to all the rules 
 of astute politocratic management, the repre- 
 sentatives of extra-legal government in that 
 
 77
 
 Unpopular Government in the United States 
 
 convention should have acquiesced in the selec- 
 tion of the most popular and prominent leader 
 available, in spite of the fact of his independ- 
 ence. They should have driven into power 
 with him as many of their adherents as pos- 
 sible, or let him go down to defeat. Which- 
 ever happened, extra-legal government, as 
 conducted by means of the control of an 
 extra-legal oligarchy over successful candidates 
 for office, would not have been disrupted and a 
 general movement inimical to the whole basis 
 of extra-legal government would have been 
 averted. The revelation of the existence of a 
 power in a few hands which could legally over- 
 ride popular desires in the selection of a candi- 
 date for the president of the United States, and 
 the exhibition of what, to a large number of 
 people, must have seemed to be the actual 
 exercise of such a power, and the defeat of the 
 popular will clearly expressed could have only 
 the result of launching one of the greatest 
 independent political movements of half a 
 century, with its principal attack upon extra- 
 legal government as it has grown up in the 
 
 78
 
 Unpopular Government — How Established 
 
 United States. This is the same sort of mis- 
 take that the advocates of slavery made when 
 they underestimated the unexpressed determi- 
 nation of the North to preserve the Union. 
 
 There are, of course, as many rival vote- 
 directing organizations as there are political 
 parties which have become established and 
 have a name with any good-will attached. If 
 two of these organizations are at all well 
 matched and occupy practically the entire 
 field, their leaders frequently make secret 
 agreements according to which the govern- 
 mental power is divided. One takes the city 
 and the other the county, or one a great 
 metropolitan district and the other the state. 
 Such arrangements are preferred to a life- 
 and-death struggle for supremacy. They result 
 in a combination which it is exceedingly diffi- 
 cult for the politically ignorant majority of the 
 electorate to overcome. 
 
 After all, however, do not the people rule? 
 Does not the power of such extra-legal govern- 
 ment continue by their choice? Can they 
 not smash it if they choose? Theoretically, 
 
 79
 
 Unpopular Government in the United States 
 
 yes; practically, no! The extreme decen- 
 tralization of the legal government — the success 
 of the constitution and laws in preventing the 
 concentration of power at any one point in 
 any one office in a legal government — is the 
 very foundation upon which the existence of 
 the extra-legal government rests. It is also 
 the chief reason for its continuance in power. 
 The paramount power of the electorate as a 
 whole is broken into infinitesimal fragments 
 by the constitution and laws providing for a 
 multitude of independent offices to be filled by 
 election. To turn out an extra-legal govern- 
 ment which has filled practically all of the 
 offices in the legal government the electorate 
 must be vigilant, active, and successful, not 
 in filling one office or a few offices at a single 
 election, but in the filling of a hundred offices 
 voted for at all the elections occurring during 
 a period of from four to eight years. The 
 extra-legal government stands as a solid, well- 
 organized, single-headed army against a large 
 but disorganized mass. The latter may tri- 
 umph at points or on occasions, but it will 
 
 80
 
 Unpopular Government — How Established 
 
 exhaust its strength in comparatively small 
 and unimportant victories. Coming to the 
 voting booth constantly handicapped by the 
 densest political ignorance, without organiza- 
 tion and without leaders, it falls again and 
 again before the trained and permanent feudal 
 army of vote-directors. There will be no 
 serious danger to our extra-legal government 
 from the electorate as a whole while the officers 
 of the legal government are shorn of power 
 or the opportunity by combination to secure 
 power and compelled to face constantly an 
 electorate ignorant of their personalities and 
 their qualifications for office. It is one of the 
 maxims of modern warfare that the important 
 thing is to destroy or disrupt the opposing 
 army — not merely to occupy a particular place 
 or a particular territory. In the same way, 
 in a war upon unpopular government, it is 
 important to destroy or disrupt it, not merely 
 to fill a few offices, or even many offices, with 
 good men who are opposed to an extra-legal 
 government which still continues in existence, 
 ready again to seize the power of government 
 
 8i
 
 Unpopular Government in the United States 
 
 when occasion offers. So long as the real 
 government is in an extra-legal oligarchy at the 
 head of a feudal organization of vote-directors 
 which remains unimpaired, while the popular 
 army occupies for the time being a few offices 
 denuded of power, the campaign has accom- 
 pUshed next to nothing. In a few more elec- 
 tions the extra-legal government will again have 
 secured as complete control as before. 
 
 Even when monarchy was absolute and a 
 popular uprising overthrew it by means of a 
 successful revolution, the ultimate result was 
 merely to substitute a new absolute monarchy 
 for the old one. So with us today, when one 
 extra-legal government by politocrats is over- 
 thrown by the extraordinary and prolonged 
 efforts of the electorate, nothing happens ul- 
 timately but the substitution of a new extra- 
 legal government for the old. The fact is that 
 so long as we know of no other form of govern- 
 ment except an absolute monarchy, or insist 
 upon a plan of government which necessarily 
 results in a decentraUzed legal government 
 
 being controlled by a centraUzed extra-legal 
 
 82
 
 Unpopular Government — How Established 
 
 government of politocrats, we shall never have 
 any other form of government except a mon- 
 archy or an extra-legal pohtocracy. The tend- 
 ency of the mass of the people to acquiesce 
 in any governmental arrangement that they 
 seem not to be able to escape from is a great 
 asset to the maintenance of power by the extra- 
 legal government. If it takes a supreme effort 
 for a number of years successively to oust a 
 present extra-legal government, and when the 
 result of so doing is merely to substitute another 
 extra-legal government of the same sort, what 
 is the use of the extraordinary effort made? 
 Why not advise the voter to concentrate his 
 efforts from time to time in getting good men 
 in the more important offices and letting the 
 rest go ? This attitude of mind becomes more 
 and more common, especially among inteUi- 
 gent men who see the actual situation. It is 
 substantially a surrender of all the offices 
 to the control of the extra-legal government. 
 Such are the circumstances which a priori 
 make the continuance of our extra-legal govern- 
 ment, in the face of popular disapproval, prob- 
 
 83
 
 Unpopular Government in the United States 
 
 able. The fact that it has and does now so 
 contmue is becoming every day more apparent. 
 Suppose, for instance, at any time in the last 
 ten years the direct issue could have been 
 presented to the electorate whether they pre- 
 ferred government by an extra-legal ohgarchy 
 of poHtocrats, subject only indirectly and very 
 slightly at any single election to the electorate, 
 or a legal government, subject directly to the 
 will of the electorate. Can there be any doubt 
 that the great majority would vote the extra- 
 legal government out of power and aboUsh 
 politocracy as they would abolish absolute 
 monarchy or a self-perpetuating oligarchy? 
 If any demonstration of the temper of the 
 electorate on such an issue be needed, we have 
 it in the steady popularity of all measures 
 which have been put forward aimed at the 
 so-called political bosses and government by 
 them. Twenty-five years ago it was apparent 
 to the electorate that the ward boss in some 
 districts of our larger cities maintained himself 
 in part a^ least upon corrupt voting. Hence 
 the Australian ballot. Then it was observed 
 
 84
 
 Unpopular Government — How Established 
 
 that poKtical machines supported their workers 
 by salaries from the public pay-rolls. Hence 
 the civil service acts. Then the extra-legal 
 government's control over nominations seemed 
 to be the true source of its power. Hence the 
 direct primary. It was also observed that the 
 extra-legal government had a grip on the state 
 and municipal legislatures and the state and 
 local executive offices and the judges. Hence 
 the initiative, the referendum, and the recall. 
 It was observed that the origin of the extra- 
 legal government and the great source of its 
 power came from the complexity of our munici- 
 pal governments, their cumbersome adminis- 
 trative machinery, and the number of offices 
 submitted to the electorate. Hence the move- 
 ment for the consolidation of municipal gov- 
 ernments and their control by a commission. 
 It has been observed that the governor often 
 expressed in a satisfactory manner the desires 
 of a majority of the electorate, but that he had 
 no power to initiate legislation. Hence the 
 two recent proposals that the governor's bills 
 be given the right of way upon the legislative 
 
 8s
 
 Unpopular Governmeni in the United States 
 
 calendar so that they could be brought to a 
 vote and not quietly strangled by the crowding 
 of the legislative docket and the action of com- 
 mittees; and that the governor be allowed to 
 submit for approval by the electorate generally 
 any bill presented to the legislature and not 
 passed by it.^ The judges, especially those 
 of the Supreme Court, were observed to be 
 declaring laws, in favor of which there was 
 great popular sentiment, unconstitutional. The 
 courts were then at once placed by the electorate 
 in the same camp with the extra-legal govern- 
 ment — quite unjustly perhaps — and the demand 
 arose for the recall of judges, or the recall of ju- 
 dicial decisions on constitutional questions, or in 
 any event the greatest possible restriction upon 
 the court's power to declare acts of the legis- 
 lature unconstitutional, or the elimination of 
 that power altogether. Finally, we have had 
 most recently a new national party, which has 
 been dedicated in general to the war on extra- 
 legal government and to a program of govern- 
 mental reform believed to be inimical to its 
 
 ' Post, chap. XV. 
 
 86
 
 Unpopular Government — How Established 
 
 existence. Every one of these movements 
 upon analysis shows the electorate conscious 
 of the deprivation of its power to express its 
 will and to enforce responsibihty to it from the 
 officers of the legal government. 
 
 We are obviously in the midst of a great 
 effort to meet an overpowering extra-legal 
 governmental force which has been depriving 
 the electorate of its power and legitimate 
 influence in the functioning of the legal govern- 
 ment. Such continued, increasingly aggressive, 
 and always popular efforts to rid ourselves of 
 extra-legal government by politocrats points 
 very clearly to the conclusion that our state 
 and municipal governments have in a greater 
 or less degree fallen into the hands of that sort 
 of government, and that it has been able for 
 a generation, and is even now able, to maintain 
 itself in the face of popular disapproval. A 
 practical, workable form of unpopular govern- 
 ment has, in spite of the precautions taken 
 to prevent it, been estabhshed in the United 
 States. 
 
 87
 
 PART II 
 THE WAR ON POLITOCRACY
 
 CHAPTER III 
 
 DISSIPATION OF POLITICAL IGNORANCE BY 
 SELF-TAUGHT POLITICAL EDUCATION 
 
 If extra-legal unpopular government by po- 
 litocrats rests upon a condition of political 
 ignorance on the part of the electorate, then 
 it will be said that the obvious cure is to dissi- 
 pate that ignorance by political education. It 
 would not, however, be suggested that this 
 political education be compulsory and at the 
 expense of the state by competent teachers. 
 That would irritate the electorate, be expensive, 
 and probably end in the establishment of a 
 state-paid boss. No! The political education 
 of the voter must be self-taught. He must be 
 aroused to more knowledge and a more con- 
 scientious performance of his political duties; 
 more investigating of the qualifications of can- 
 didates and greater efiforts to secure the proper 
 sort of candidates. He must spend the time 
 necessary to perform all his political duties 
 and to do so intelligently enough to make an 
 
 91
 
 Unpopular Government in the United States 
 
 individual choice as to every candidate for 
 every office at every election. 
 
 Many persons of intelligence will regard this 
 as the only means of successful assault and 
 permanent overthrow of extra-legal and un- 
 popular government by politocrats. They are 
 therefore content to sit still and await the 
 millennium of self-taught political education 
 which will enlighten the voter. The difficulty 
 is that dissipation of political ignorance by 
 such means will never occur. Since political 
 education is not compulsory, we have to deal, 
 not with the political knowledge which the 
 voter might conceivably obtain, but that which 
 he actually secures. The fact is the electo- 
 rate is the sole judge of how much work it will 
 do in securing political knowledge and perform- 
 ing political duties. On occasions it may be 
 aroused to an exceptional activity; on other 
 occasions it may do nothing at all. Obviously 
 then, in order to obtain the highest percentage 
 of intelligent voting on an average it is necessary 
 that the political duties of the electorate be ad- 
 justed to the amount of self-taught and self- 
 
 92
 
 Dissipation of Political Ignorance 
 
 acquired political education that the electorate 
 wiU generally and in the long run secure. If 
 the pohtical duties and education required are 
 out of all proportion to what the electorate 
 ^viU obtain for itself, then political ignorance 
 and neglect of pohtical duties follows as a mat- 
 ter of course and is a fixed and continuing con- 
 dition. It is futUe then to insist upon the 
 performance of duties which the electorate 
 will not perform or the attainment of a pohti- 
 cal education which the electorate will not se- 
 cure by its own efforts and which cannot be 
 had in any other way. The proper course is 
 to readjust the pohtical duties of the voter 
 so that what he is called upon to do he will 
 accompUsh with the minimum amount of igno- 
 rance in view of the effort which he himself 
 is hkely to develop to inform himself and make 
 an inteUigent choice. 
 
 When, therefore, we find an extra-legal un- 
 popular government by politocrats established 
 by reason of the long-continued and increasing 
 pohtical ignorance of the voters, who are on 
 the whole an educated and inteUigent class of 
 
 93
 
 Unpopular Government in the United States 
 
 citizens, the necessary inference is that the 
 poUtical duties of the voter and the require- 
 ments of self-obtained poHtical education have 
 been placed far beyond his willingness to per- 
 form, or perhaps even beyond the possibiUty of 
 fulfilment by him. To insist then upon self- 
 taught poUtical education which the voter has 
 not in the past and will not in the future and 
 perhaps actually cannot secure is to all practi- 
 cal intents and purposes to ignore utterly the 
 cause which makes the existence of extra-legal 
 unpopular government by poUtocrats perma- 
 nent. It offers no means whatever for ridding 
 ourselves of such government. 
 
 94
 
 CHAPTER IV 
 
 THE AUSTRALIAN BALLOT AND CRTL- 
 SERVICE ACTS 
 
 The evolution of the modern politocracy 
 began with the ward boss in districts of our 
 larger cities where voting was ignorant because 
 the population was largely foreign, illiterate, 
 and easily corrupted, cajoled, or frightened. 
 The boss's methods of carrying elections were 
 coarse. The business of vice and the activities 
 of the underworld were protected and the cor- 
 rupt and illegal vote increased to the utmost. 
 Indeed, to the average citizen and his leaders it 
 seemed that the power of the boss rested mainly 
 upon the corrupt and illegal vote. They saw 
 that the opportunity of securing this vote was 
 large because of the loose method of conducting 
 elections. At once advocacy of the Australian 
 ballot law became a part of the fight against the 
 boss. Voters must be registered in advance of 
 election day and opportunity given to challenge 
 all voters so registered. The ballot must be 
 
 95
 
 Unpopular Government in the United States 
 
 secret, so that the corrupter could never be sure 
 that the bribed dehvered the vote which he had 
 been paid for. The remedy proposed received 
 an overwhelming popular approval a generation 
 ago and elaborately drawn Australian ballot 
 laws are now almost everywhere in force. 
 
 No doubt the Australian ballot laws were a 
 needed and valuable reform indeed, but the 
 power of the boss did not rest ultimately upon 
 the illegal and corrupt vote. Fundamentally it 
 depended upon the political ignorance of the 
 voter. The power of the ward boss not only 
 survived the Australian ballot laws, but it 
 tended to increase with the spread of political 
 ignorance on the part of the voter. Other 
 bosses of a different type sprang up and ruled in 
 districts where the corrupt and illegal vote was 
 negligible, but where political ignorance pre- 
 vailed among an intelligent population. Then 
 a hierarchy of bosses became a machine and by 
 means of the machine secured the control of the 
 governmental power of a municipality. 
 
 In moments when the electorate turned its 
 
 attention to the matter it observed that the 
 
 96
 
 The Australian Ballot 
 
 machine and its leaders practiced spoils politics 
 on a large scale. Its workers were being cared 
 for by means of salaries from the public treas- 
 ury. Efficiency in the service of the machine 
 was a more important qualification for office or 
 employment than efficiency in the service of the 
 municipality. Naturally the enemies of the 
 extra-legal government began an agitation for 
 civil-service acts which should take the places 
 in the public ser\dce out of politics — that is, out 
 of the control of the politocrats. Government 
 employees must be appointed only from eligible 
 lists made up by a civil-service commission after 
 holding an examination designed to test the 
 efficiency of applicants. Once appointed from 
 such a list, the appointee must be protected in 
 his position from a discharge based upon politi- 
 cal reasons. The enemies of pohtocracy raUied 
 to the support of the civil-service acts and an 
 appeal to the popular disapproval of the extra- 
 legal government in general secured very widely 
 the adoption of civil-service principles. 
 
 No doubt the civil-service acts were necessary 
 and valuable legislation, but the power of the 
 
 97
 
 Unpopular Government in the United States 
 
 bosses did not rest fundamentally upon their 
 ability to place their workers on the public pay- 
 rolls any more than it had rested upon the 
 corrupt and illegal vote. The power of the 
 extra-legal government still was predicated upon 
 the political ignorance of the voter. This cause 
 not only lay undisturbed, but, with the increase 
 in the number of elective officers, and the 
 multiplication of local governments operating 
 in the same territory, each with a corps of 
 elective officers, it became more and more pro- 
 nounced and widespread. Even the most in- 
 telligent man became by an artificial process 
 politically ignorant and befogged. Local bosses 
 became more usual, less coarse in their meth- 
 ods, and more able. Combinations of bosses 
 secured more governmental power in widening 
 areas of governmental control. 
 
 98
 
 CHAPTER V 
 
 ALTRUISTIC EFFORTS TO ENLIGHTEN 
 THE VOTER 
 
 A few astute friends of the electorate have 
 perceived that the power of the extra-legal 
 politocracy rested fundamentally upon the 
 political ignorance of the voter, especially the 
 political ignorance of the voter who was an in- 
 telligent man and who could render a valuable 
 judgment if he could have the facts. This idea 
 produced the Independent Voters' League, 
 which through a small executive committee un- 
 dertakes to gather facts and give out informa- 
 tion to the voters about candidates for office. 
 The electorate, of course, should be given 
 information about all candidates in every 
 election. But such a task is too large and (if 
 indeed it be possible at all) would require more 
 money than could be raised by subscription from 
 a comparatively few people. These leagues 
 therefore, when formed, have devoted all their 
 energies to giving the voter information about 
 
 99
 
 Unpopular Government in the United States 
 
 the candidates for a single ofi&ce. Thus in 
 Chicago the Municipal Voters' League informs 
 the electorate in each ward of the city about the 
 candidates for aldermen and those alone. The 
 Illinois Legislative Voters' League gives out in- 
 formation concerning candidates for the state 
 legislature. 
 
 It has been noticeable that of the two the 
 Municipal Voters' League has been the more 
 effective. This is due in part at least to the 
 fact that at the Chicago aldermanic elections 
 the ballot is very short. In many elections the 
 candidates for the aldermanic office and those 
 alone appear upon the ballot. Thus the voter's 
 attention is concentrated upon the candidate 
 for a single office from a single district. The 
 advice of the league is, therefore, more easily 
 noted and remembered. On the other hand, 
 the Legislative Voters' League attempts to ad- 
 vise the voter at an election at which are filled 
 state, county, and judicial offices. The length 
 of the ballot and the number of offices to be filled 
 has already been indicated by the specimen 
 ballot printed, ante, opposite p. 29. Naturally
 
 Altruistic Efforts to Enlighten the Voter 
 
 the advice is lost in the babel of voices which 
 goes up concerning the candidates for the im- 
 portant local, state, and national ofl&ces to be 
 fiUed. 
 
 The bar primaries as they have been held in 
 Chicago are the weakest of all these altruistic 
 efforts to inform the voter how to vote. Such 
 primaries are merely the expression of prefer- 
 ences by the lawyers of Cook County with 
 respect to the candidates for judicial office. 
 They do not characterize any candidate or give 
 any facts concerning his record. Nor is any 
 effort made to promote the election of the men 
 approved at such bar primary. Where a large 
 number of judges are to be selected by an elec- 
 torate of several hundred thousand, the bar 
 primary is very weak indeed in its function of 
 giving information to the politically ignorant 
 voter. 
 
 Practical experience would seem to indicate 
 that altruistic efforts to enlighten the political 
 ignorance of the voter who is an intelligent 
 man, to be effective at all, must consist of 
 non-partisan, direct, and personal criticisms of
 
 Unpopular Government in the United States 
 
 candidates' qualifications and records. Even 
 then not much can be done unless the election 
 is for a single important office and the election 
 district is wieldy^ in size. Whenever the can- 
 didates about whom the voter is to be in- 
 formed are only four or five out of two or 
 three hundred running for fifty different offices, 
 the information and criticism lose much of their 
 force. If the altruistic effort were directed 
 toward informing the electorate about can- 
 didates for unimportant and inconspicuous 
 offices, not only would funds fail to be forth- 
 coming, but its voice would be unheeded and 
 unheard. Thus the Hmitations upon the ef- 
 fectiveness of the efforts of altruistic voters' 
 leagues are very definitely fixed. 
 
 Of course, newspapers wield a great influence 
 in elections, even when partisan in the dissemi- 
 nation of news regarding candidates and in their 
 comments upon the news. But this exhibition 
 of partisanship occurs largely with reference to 
 
 ' I.e., "one not so large but that the candidate who is willing to 
 run may be known with a fair degree of ease by the electorate and 
 be able with the least expense to make a personal canvass" (see 
 chap, xii, p. 148). 
 
 102
 
 Altruistic Efforts to Enlighten the Voter 
 
 the head of the ticket or to candidates for two 
 or three of the most important offices. The 
 influence of a newspaper in advising and 
 directing the voter how to vote when he is 
 ignorant of the quahfications of the candidates 
 and has heard no public discussion in regard to 
 them, depends upon much the same considera- 
 tions as does the influence of the altruistic 
 voters' league. To be an effective adviser to 
 the voter as to candidates for subordinate 
 offices, about whom there is no public discus- 
 sion, a newspaper must be to some extent at 
 least non-partisan. It must be direct and ex- 
 plicit in its recommendations and characteri- 
 zation of the candidates. It must concentrate 
 its efforts on some one point in the ballot and let 
 everything else go. These rules are as a matter 
 of fact regularly observed by newspapers. The 
 practice of them very much limits the actual 
 scope of a newspaper's power as an adviser and 
 director of the poHticaUy ignorant voter. 
 
 103
 
 CHAPTER VI 
 
 ABOLITION OF THE PARTY CIRCLE AND 
 PARTY COLUMN 
 
 In a rough way it has long been perceived 
 that the party circle and party column on 
 ballots are a vital part of the machinery neces- 
 sary to direct the pohtically ignorant voter how 
 to vote. If the voter is not only politically 
 ignorant but also iUiterate, the party circle is 
 about all he can use, and only by directing his 
 attention to that can he be told what to do. If 
 the pohtically ignorant voter is an intelhgent 
 man he needs the party column at least so that 
 he may take its suggestion when he attempts 
 to vote for candidates about whom he knows 
 nothing. It is not strange, therefore, that, in 
 the war on poHtocracy, the abolition of both 
 the party circle and the party column have 
 been proposed. The more remarkable fact is 
 that such a proposal has received so little 
 support. The fact is that with our long bal- 
 lots the abolition of the party circle and the 
 
 104
 
 Abolition of the Party Circle 
 
 party column would result either in a clumsy 
 restoration of the party column by the furnish- 
 ing of party Hsts to the individual voter, or 
 else in a disfranchisement of the voter so 
 starthng and complete, and a governmental 
 chaos so much more inimical to good govern- 
 ment than the extra-legal politocracy, that 
 popular support for such a movement has 
 been generally withheld. 
 
 Imagine, for instance, the party circle and 
 party column abohshed for the state and local 
 offices on the long ballot in Cook County re- 
 produced, ante, opposite p. 29. We should 
 then have a ballot with a single column to fill 
 34 offices, with 181 candidates, the Republican, 
 Democratic, Prohibitionist, Socialist, Social 
 Labor, and Progressive, all lumped together. 
 The large majority of voters could not rely 
 upon their own knowledge of the candidates 
 to make an inteUigent choice. The burden 
 upon the voter is too great. If the electorate 
 voted at random there would arise a political 
 chaos in officeholding. The voter would be 
 least likely to do this. If the voter felt he
 
 Unpopular Government in the United States 
 
 could not vote at all he would be plainly and 
 utterly disfranchised. The voter would un- 
 doubtedly enter the voting booth with a party 
 list in his hand as the most rational method of 
 securing advice as to whom to vote for. That 
 would be in effect a restoration of the party 
 column which had been abolished. No wonder 
 then that popular sentiment cannot be aroused 
 over the general abolition of the party circle 
 and the party column where the excessively 
 long ballot is placed before large numbers of 
 voters at frequent intervals. 
 
 io6
 
 CHAPTER VII 
 
 THE PRIMARIES 
 
 Upon the first appearance of the professional 
 ad\'iser and director to the pohtically ignorant 
 voter he became a power in the presentation 
 of candidates for election. It was indeed an 
 essential part of his business in advising the 
 voter how to vote that he should furnish him 
 with a candidate for whom the adviser and 
 director could vouch. At first the adviser 
 and director of the politically ignorant voter 
 named only candidates in the smallest govern- 
 mental districts. But as the power and influ- 
 ence of the vote-directing organization spread to 
 larger and more important governmental areas 
 its leaders continued to control the nomination 
 of candidates for office. At first the friends of 
 the electorate sought to meet the formidable 
 advantage which the vote-directing organization 
 possessed by reason of its power to control party 
 nominations by laws which permitted the nomi- 
 nation of independent candidates by petition. 
 107
 
 Unpopular Government in the United States 
 
 Of course, if the law provided that no candidate 
 should appear on more than one ticket, inde- 
 pendent nominations were likely to be very 
 much discouraged. But even when the election 
 laws were most liberal in permitting independ- 
 ent nominations, the vote-directing organiza- 
 tions were still able to hold the field against 
 all but the most violent and revolutionary in- 
 dependent movements. In short, unpopular 
 government by politocrats was still reasonably 
 safe. 
 
 There were two reasons for this. In the first 
 place, the vote-directing organization exists and 
 prevails because the voter is ignorant with 
 respect to the personality and qualifications of 
 candidates for office. He must be advised and 
 directed how to vote. The independent move- 
 ment simply matches the strength of a tempo- 
 rary and sporadic effort to advise and direct 
 the unorganized and inflamed but still ignorant 
 voter how to vote, against a permanent and 
 well-organized vote-directing machine. In the 
 long run the latter will prevail. Secondly, the 
 permanent organization for directing and ad- 
 
 loS
 
 The Primaries 
 
 vising the politically ignorant voter has always 
 secured possession of a revered party name. 
 This has heretofore given it an overwhelming 
 advantage. It makes every independent an 
 apostate of some party. So great has been the 
 good-will of the two principal national parties in 
 the last fifty years that independent movements 
 have been confined largely to local elections, 
 and even then it is difficult to obtain candi- 
 dates because of the fear of party irregularity. 
 Of these two reasons clearly the former is the 
 more important. The two principal national 
 parties of the last half-century might cease, 
 but if the voter remained politically ignorant 
 as before, extra-legal government would still 
 go on. On the other hand, if the voter could 
 be made poHticaUy intelligent at all elections 
 and in filling all ofi&ces from the candidates 
 presented, then extra-legal government would 
 have to go and party names would not militate 
 seriously against independent movements. 
 
 Nevertheless, when the friends of the electo- 
 rate came to appreciate the failure of independ- 
 ent movements to make headway against the 
 J09
 
 Unpopular Government in the United States 
 
 extra-legal government they did not plan to 
 attack the fundamental difficulty of enlighten- 
 ing the voter's political ignorance. Instead, 
 they did as they had done before and sought a 
 cure by attempting to eliminate the superficial 
 and obvious cause. Mr. La Follette in Wis- 
 consin thought that he could have no political 
 success unless he continued to be a member of 
 the Republican party. As matters stood, how- 
 ever, he could not obtain the nomination from 
 that party because it was controlled by men 
 who did not want him in office. Yet Mr. 
 La Follette was more popular with the electorate 
 who usually voted the Republican ticket than 
 were the gentlemen who controlled the use of 
 the party name. The obvious move for Mr. 
 La Follette was to take the control of the party 
 name from those who held it. This he did 
 by means of legislation which permitted any 
 candidate who could secure a plurality of votes 
 of the RepubUcan party voters at a primary 
 election to use the Republican party name in 
 the election for the office. This was merely 
 a legal and orderly way of depriving an extra-
 
 The Primaries 
 
 legal government of the advantage of using a 
 revered and popular party name. That is the 
 proper function of a primary election law. 
 
 The availability of the primaries might, of 
 course, have been limited to situations such as 
 Mr.LaFoUette created in the Republican party 
 in Wisconsin — namely, when an independent in 
 the party wished to wrest the control of the 
 party name from an extra-legal government 
 which had lost the confidence of the party elec- 
 torate. If so limited its use would practically 
 have been confined to the occasions when a 
 well-organized revolt was in progress against the 
 wing of a party in control of the party name. 
 Such occasions would be infrequent because 
 such revolts are infrequent. Extra-legal gov- 
 ernment having become established and having 
 obtained control of the party name, the tend- 
 ency would be to let the matter alone. Small 
 uprisings in regard to nominations for some 
 particular office might occur, but a well- 
 organized, persistent, and ably led revolt such 
 as Mr. La Follette has conducted in Wisconsin 
 is the event of a generation. Illinois, and no
 
 Unpopular Government in the United States 
 
 doubt many other states, are just as much 
 in need of the leadership of a man hke Mr. 
 LaFollette as Wisconsin. But no such leader 
 appears. None seems likely to appear. Our 
 state lines have very effectively excluded Mr. 
 La Follette's efforts from every state in the 
 Union except his own. The use of the primary 
 as a means of permanently and wholly depriv- 
 ing an extra-legal government of its power 
 to control the use of a party name must be 
 regarded as unusual and extraordinary and not 
 at all likely to occur. 
 
 The use of primaries, however, has not been 
 limited to occasions when an organized attempt 
 has been made to deprive the minority of a 
 party of the use of the party name. In- 
 stead, primaries have been made compulsory 
 and applied to the nomination of practically all 
 elective officers. They must be gone through 
 with, although there is no organized revolt 
 against the usual nominating authority. This 
 extreme application of the primaries has been 
 justified on the ground that the holding of 
 primaries would operate automatically and
 
 The Primaries 
 
 regularly on all occasions to rid the electorate of 
 control of the extra-legal government. Again, 
 we have had a popular application of the theory 
 that the cure for the ills of democracy is more 
 democracy. If the number of appeals to the 
 electorate which we had before the primaries did 
 not do any good, we must have double the num- 
 ber of appeals. The futility of this course will 
 be observed no more clearly than in the opera- 
 tion of the universal and compulsory primary. 
 Under the usual circumstances of normal con- 
 ditions, when no organized revolt is being led 
 against it, the extra-legal government will as 
 effectively control the results at primaries as it 
 does results at elections themselves. The per- 
 manent organization of advisers and directors 
 to the politically ignorant voter will, of course, 
 have a slate of candidates for nomination, just 
 as it provided a slate of nominees under the 
 convention system. There may be some in- 
 dependent candidates for nominations. Most 
 frequently, however, these are obscure individ- 
 uals who try for a nomination on the theory 
 that they are no more unknown than the slate 
 113
 
 Unpopular Government in the United States 
 
 candidates. The voter's burden has been 
 doubled. Consequently his political ignorance, 
 both at the primary election for candidates and 
 at the election itself, is probably greater than 
 it was at the election for ofhce alone. At all 
 events, the voter comes to the primaries (if he 
 comes at all) just as ignorant of the personality 
 and qualifications of candidates for nomination 
 as he formerly did of the candidates for office. 
 His ignorance may be so apparent that he does 
 not vote at all. Perhaps he votes only for a few 
 names that he happens to recognize. In either 
 case his vote is negligible. The effective voter 
 at the primaries is the one who votes for candi- 
 dates for all places. He must, however, as a 
 result of his dense political ignorance, vote 
 the way he is told. As usual the most ef- 
 fective force for telling him how to vote is the 
 permanent organization of advisers and direct- 
 ors to the politically ignorant voter. It is that 
 organization which will most often carry the 
 primary election which nominates candidates 
 for most of the offices. In short, the extra-legal 
 
 government will influence and control the results 
 
 114
 
 The Primaries 
 
 of the ordinary primary just as it has influenced 
 and controlled the results of ordinary elections. 
 It is only in the language of the stump that 
 the primaries enable the people to nominate. 
 While an extra-legal government exists the 
 people can no more nominate at primaries than 
 they can choose at elections. Such precisely 
 has been the experience in Cook County, Illi- 
 nois. There, from the time the primaries first 
 went into effect, the leaders of the two prin- 
 cipal vote-directing organizations have made 
 slates more or less secretly, secured the most 
 favorable position for the slate on the primary 
 ballot, pushed the slate at the primaries, and 
 obtained the nomination in practically every 
 case of the slate candidates. In primary elec- 
 tions we have an appeal to voters on matters 
 apparently less important and conspicuous 
 than the filling of the offices themselves. If 
 the vote-directing organization can in the long 
 run control elections to a majority of the 
 offices, it can certainly in the long run con- 
 trol the nominations for those offices at the 
 primary election. 
 
 "5
 
 Unpopular Government in the United States 
 
 We must not overlook one great advantage to 
 the extra-legal government in making nomina- 
 tions at primaries instead of at conventions. In 
 the convention the leaders of the extra-legal 
 government were so openly and publicly the 
 makers of nominations that they were in a de- 
 gree responsible. They had to consider very 
 carefully the popular temper in giving each 
 candidate a place on the ballot. Under the 
 primaries, however, the result is, in the language 
 of the stump, "the judgment of the people." 
 If, therefore, any black sheep slip into nomi- 
 nations for obscure places it is the fault of 
 the people, just as it used to be the fault of the 
 people when bad men were elected to office. 
 The popular demand, however, for primaries is 
 a confession that elections did not produce the 
 choice of the people. Before long, experience 
 with universal and compulsory primaries to 
 make nominations for long ballots will indicate 
 that they do not produce nominations by the 
 people. 
 
 Not only is the compulsory primary for all 
 elective offices entirely ineffective to break up 
 
 ii6
 
 The Primaries 
 
 the power of the extra-legal government to 
 direct the nomination of its loyal adherents, but 
 in the long run its presence exaggerates the very 
 condition which necessarily causes the existence 
 of a centrahzed extra-legal government con- 
 trolling a decentralized legal government. That 
 condition is the burden of political duties cast 
 upon the voter which he will not and very likely 
 cannot possibly carry. It is that which makes 
 him politically ignorant and forces him to fall 
 back upon the assistance of the professional 
 political adviser. When the primaries double 
 the burden on the voter they increase twofold 
 the necessity for permanent organizations for 
 directing and advising the politically ignorant 
 voter how to vote. Consequently, so far from 
 disrupting an extra-legal government, the uni- 
 versal and compulsory primary makes its con- 
 tinued existence even more certain. 
 
 117
 
 CHAPTER VIII 
 THE INITIATIVE AND THE REFERENDUM 
 
 Nicholas Longworth, when congratulated on 
 his election to Congress, is reported to have 
 said: "Election! I wasn't elected; I was 
 appointed."^ This contains a very real truth. 
 As the power of the extra-legal government has 
 increased it has gained a large and in some 
 instances predominant influence in our legis- 
 lative bodies and particularly the state legisla- 
 tures, through its power to appoint members 
 who would be loyal to it. Once obtained this 
 influence may be used to protect certain inter- 
 ests from legislation which they do not want, 
 but for which there may be a proper popular 
 demand. It may be used also to promote 
 legislation which the electorate is against or 
 would be against if it understood the situation. 
 Wlien such a condition of affairs exists and 
 becomes widely known, we have a demand for 
 
 ' George Kibbe Turner, "TheThing above theLaw," McClure's 
 Magazine, XXXVIII, 575.
 
 The Initiative and Referendum 
 
 the initiative to compel the enactment of laws 
 which the majority of the electorate wants 
 but which the legislature will not pass. We 
 have also a demand for the referendum to 
 veto acts which the legislature has passed 
 but which the majority of the electorate does 
 not want. 
 
 Of course, in extraordinary and unusual 
 situations, when the electorate is organized and 
 led against some attempted act of the extra- 
 legal government, the initiative and referendum 
 may be used to defeat and discomfort the latter. 
 But that is not a normal situation. It is the 
 extraordinary and unusual occurrence. The 
 real effect of the initiative and the referendum 
 on the extra-legal government cannot be de- 
 termined with reference to abnormal circum- 
 stances. It must be looked at in connection 
 with normal everyday events. The usual and 
 normal situation is that of political quiet. The 
 extra-legal government governs from day to 
 day and from election to election. The placing 
 on the ballot at any election of a number of 
 acts to be initiated or approved on a referendum 
 
 119
 
 Unpopular Government in the United States 
 
 adds more burdens to the already greatly over- 
 loaded voter. He must now read over the acts, 
 study their details, and understand the ultimate 
 effect or possibilities of certain clauses. The 
 legislation to be considered by the voter may be 
 of relatively small importance to the majority of 
 the voters, or the desire of the majority for the 
 general object may be so great that the means 
 are not to be considered. The ballot may con- 
 tain counter propositions and additional acts 
 upon the same subject. Some reformers might 
 present one act and the extra-legal government 
 another on the same subject. When these 
 occasions arise, one thing we may be certain of : 
 the average voter will be most densely ignorant 
 of what it is all about. Who, then, in the usual 
 case wiU have the privilege of directing him how 
 to vote ? Why, of course, the same organiza- 
 tion that directs the voter regularly how to cast 
 his ballot for candidates for office. The power 
 of the extra-legal government to advise and 
 direct the politically ignorant voter how to vote 
 will be just as effective in the normal election 
 to carry or defeat an act on an initiative or
 
 The Initiative and Referendum 
 
 referendum as it is to place men loyal to it in 
 the offices of the legal government. 
 
 The initiative and the referendum, then, 
 while they may at times give the righteous 
 a desirable advantage, will in normal condi- 
 tions place in the hands of the extra-legal gov- 
 ernment the opportunity to secure the passage 
 of undesirable laws or to defeat good ones and 
 to insist for a time at least that this is "the 
 judgment of the people"; just as for years 
 they have declared that when the system of 
 frequent elections for many offices produced 
 undesirable officeholders, it was the result of 
 the will of the people.
 
 CHAPTER IX 
 
 THE RECALL 
 
 What has been said of the initiative and the 
 referendum is almost precisely applicable to the 
 recall. 
 
 The movement for the recall began just as 
 soon as it was generally perceived that our 
 system of frequent elections to fill a large num- 
 ber of offices did not prevent the extra-legal 
 government from placing in office men loyal 
 to it. The movement for the recall is the 
 frankest admission that this system of elections 
 has been a failure. The real cause for this fail- 
 ure was the fact that too much voting had 
 overloaded the voter and his resulting political 
 ignorance had delivered him into the hands of 
 an organization which in effect cast his ballot 
 for him. Again, however, this was entirely 
 neglected, and the superficial and obvious 
 remedy was put forward of having a new elec- 
 tion whenever it was discovered that an 
 officeholder was objectionable because of his
 
 The Recall 
 
 subservience to an extra-legal government. 
 The statutes, however, do not undertake to 
 submit to the electorate the question whether 
 the officers subject to the recall elections have 
 been too subservient to the extra-legal govern- 
 ment and that alone. Instead, the voters may 
 cast their votes for the recall of an officer on 
 any ground they please. 
 
 If there is an organized and effectively led 
 revolt against extra-legal government, then 
 obviously the weapon of the recall may be of 
 great service. It will enable the attacking 
 party to sweep out of office adherents of the 
 extra-legal government who would otherwise 
 have held until the next election, when the tide 
 of popular sentiment in favor of the attack 
 might have begun to ebb. But revolts are not 
 at all frequent. There has always been an 
 opportunity at regular elections for such move- 
 ments through independent nominations by 
 petition. A revolt of any consequence would 
 have undertaken to use this method. In spite, 
 however, of the opportunity thus afforded, the 
 
 general revolt against extra-legal government in 
 123
 
 Unpopular Government in the United States 
 
 local districts is the occurrence of a decade, if 
 not of a generation. 
 
 It is the effect of the recaU under normal cir- 
 cumstances, when no revolt against extra-legal 
 government is in progress, that must principally 
 concern us. At such times the recall is more 
 valuable to the extra-legal government than it 
 is to the electorate at large. The recall is as 
 available to the extra-legal government as it is 
 to the electorate at large. In fact, the extra- 
 legal government must of necessity become 
 famiHar with its use. Every officer of the 
 dummy legal government must, therefore, at all 
 times act with the knowledge that the extra- 
 legal government may start a recall election 
 against him. Imagine what this means to the 
 host of subordinate officers that were put in 
 apparently by the electorate, but of whom the 
 electorate never had any knowledge whatever. 
 They have no popular following. They have 
 no money with which to advise and instruct the 
 voters of the character of the fight that is being 
 made against them. What possible chance 
 
 would such officeholders stand against the per- 
 
 124
 
 The Recall 
 
 manent organization of advisers and directors 
 to the ignorant voter which the extra-legal 
 government controls? The recall under nor- 
 mal, everyday conditions would place the 
 majority of officeholders even more completely 
 in the control of the extra-legal government 
 than they are now. 
 
 The recall, if applied to the judiciary, would 
 in usual and normal times operate to give the 
 extra-legal government the same power over 
 the judges that it would have over other office- 
 holders.' A judge is one of the most helpless of 
 all elective officers. He can run on no platform ; 
 he can have no pohtical program. He cannot 
 point dramatically to any achievements on be- 
 half of the people. Whether he is a good judge 
 or not is a matter of expert opinion that only 
 a comparatively few persons are competent to 
 pass upon. His reputation can be easily blasted 
 by the circulation of false statements. He may 
 even be hurt by the performance of his duty in a 
 particular case. His retention in office at elec- 
 tions is in a great number of instances purely a 
 
 » See post, chap. xvii. 
 
 125
 
 Unpopular Government in the United States 
 
 matter of accident. If he is up at a fall presi- 
 dential election, his retention in ofl&ce will 
 practically depend upon the success of the 
 national party in whose column his name 
 happens to be. It will make little difference 
 whether he has been one of the best judges 
 that the county or state has ever had, or 
 one of the worst. Elections place the judge 
 very largely at the mercy of the extra-legal 
 government. That government may not be 
 able to return him to office, but the judge knows 
 that without its support his re-election will 
 become practically impossible. To give the 
 extra-legal government the opportunity to use 
 the recall upon a judge is to hold above the 
 judge's head at all times the threat of an 
 extra election which he is in no wise prepared 
 to undergo. Nothing could more clearly in- 
 crease the power of the extra-legal government 
 over the judiciary. If the recall of judges be 
 advocated on the ground that they have 
 become subservient to the politocrats, the 
 conditions which have caused them to be- 
 come so wiU have been greatly increased by 
 226
 
 The Recall 
 
 the very device which is advocated as a means 
 of ridding us of that subserviency. 
 
 We may conclude, therefore, that there is no 
 more danger to extra-legal government in the 
 recall than there is in frequent elections and 
 independent nominations by petition. On the 
 other hand, the free use, or freely threatened 
 use, of the recall by the extra-legal government 
 will give it a power over officeholders and judges 
 greater than that which it now has. 
 
 127
 
 CHAPTER X 
 
 INDEPENDENT MOVEMENTS AND THE 
 NEW PARTY 
 
 Independent movements have been launched 
 in different locahties from time to time. These 
 have been prompted by the too open and too 
 violently selfish use of power by the extra-legal 
 government. They have often been tempo- 
 rarily successful. But they have been available 
 only upon extraordinary occasions and have 
 proved of merely temporary effect. In the 
 first place they did not develop any organization 
 of professional advisers and directors to the 
 pohtically ignorant voter. They did not con- 
 tinuously put forth the effort to estabhsh a 
 centraHzed extra-legal government which the 
 condition of decentralized legal government 
 demanded. Secondly, the independent move- 
 ment suffered under the disadvantage of op- 
 erating in opposition to the candidates of the 
 two great historical parties — the Democratic 
 
 and the Republican. This was an almost 
 128
 
 Independent Movements 
 
 insuperable obstacle when the local state and 
 national elections were held together. 
 
 One of the important independent move- 
 ments of the last fifty years is that which 
 brought into existence the Progressive party. 
 The spark which touched this off was what ap- 
 peared to a large number of voters to be the 
 refusal of those who legally controlled the Re- 
 publican National Convention to make a nom- 
 ination for president of the United States in 
 accordance with the express wishes of a major- 
 ity of the rank and file of the party. It was 
 in effect an exhibition of the arbitrary action 
 of the minority in refusing to carry out the 
 expressed will of the majority. Those legally 
 in control of the convention were supported 
 principally by the delegates who had been 
 sent as the result of the action of local politi- 
 cal organizations in the states where no pri- 
 maries had been held. Those who did not 
 legally control the convention were supported 
 by the delegates who were directed by the 
 majority of the party electorate actually voting 
 
 in the primaries, to nominate Mr. Roosevelt. 
 
 129
 
 Unpopular Government in the United States 
 
 In short, a great independent revolt had been 
 started in the RepubHcan party at the primaries. 
 In the convention the popular will was directly 
 matched against the forces, similar in appear- 
 ance, if not in fact the same, to those of the 
 usual extra-legal government. Naturally the 
 efforts of the new party have been expressly 
 dedicated to the disrupting of extra-legal gov- 
 ernment in this country. For the first time a 
 national party has begun to proclaim the fact 
 that extra-legal government does exist; that it 
 can maintain and exercise its power against the 
 will of a majority, and that it must be destroyed. 
 These utterances are of enormous value, but 
 when we look at the platform of the new party 
 for the ways and means of accomplishing the 
 result the outlook is not encouraging. We find 
 the new party approving of the primaries, the 
 initiative, the referendum, and the recall of 
 officers other than judges. These proposals, as 
 we have already analyzed them, hold out no 
 promise of permanently disrupting extra-legal 
 government. It is true the short ballot is ad- 
 vocated, but as yet there seems to be no clear 
 
 130
 
 Independent Movements 
 
 perception of the connection between the long 
 ballot, the decentralization of governmental 
 power, the poHtical ignorance of the voter even 
 when he is an intelligent man, and the rise and 
 permanent acquisition of governmental power 
 by the extra-legal government. The short bal- 
 lot seems to be included in the Progressive 
 party's platform, not because it embodies a 
 theory of government which is entirely opposed 
 to that upon which our state governments were 
 founded and have been developed, but because 
 it is one of several panaceas and because of its 
 superficial and obvious appeal. The Progres- 
 sive party does not reveal itself as yet ready to 
 assume a theory of government which lies at the 
 basis of the short ballot and which insists upon 
 the centralization of governmental power exer- 
 cised in subordination to the popular will, as 
 distinguished from the decentralization of gov- 
 ernmental power exercised in subordination to 
 the influence of an extra-legal government not 
 readily answerable to the popular will. 
 
 If our state governments remain as they are 
 with only such alterations as come from a 
 131
 
 Unpopular Government in the United States 
 
 shorter ballot, the primary, the initiative, the 
 referendum, and the recall, extra-legal govern- 
 ment will not be eliminated. The Progressive 
 party must then either cease to exist, as so 
 many other lesser independent movements have 
 done, or it must acquire an organization pre- 
 cisely such as the old parties have had. It 
 must acquire the same multitude of legal vote- 
 directing machines, the same feudal hierarchy 
 of politocrats, and by this means establish an 
 extra-legal centralized government to rtm the 
 decentraHzed legal government. Whichever 
 happens, the new party, as the champion of the 
 power of the electorate against the power of the 
 politocrats, will have failed. The new party is 
 indeed doomed to failure unless it can so change 
 our theory of government and induce the mak- 
 ing of new governmental arrangements pursu- 
 ant to that theory, that extra-legal government 
 on its present grand scale will no longer be 
 possible. 
 
 132
 
 CHAPTER XI 
 
 THE SECURITY OF EXTRA-LEGAL UNPOPU- 
 LAR GOVERNMENT BY POLITOCRATS 
 IN THE UNITED STATES 
 
 Extra-legal unpopular government rests fun- 
 damentally upon the fact that a few are able to 
 cast the ballots of the voters for them. This is 
 accomplished through the process of advising 
 and directing the voter how to vote. The op- 
 portunity to do this at all is presented when- 
 ever the voter is politically ignorant and still 
 insists upon voting with an apparent show of 
 inteUigence. The opportunity to advise and 
 direct the voter how to vote is presented on a 
 large scale when the entire electorate, no matter 
 what its average inteUigence may be, is made 
 politically ignorant concerning a majority of the 
 candidates for office. The decentralization of 
 governmental power, as manifested in the 
 multiplication of elective offices and the fre- 
 quency of elections, has placed upon the voter 
 — even when he is a most intelligent man — 
 133
 
 Unpopular Government in the United States 
 
 a burden which he does not and practically 
 cannot carry. He therefore goes to the polls 
 politically ignorant and the essential condi- 
 tion is presented upon which the rise and 
 establishment of an extra-legal unpopular gov- 
 ernment rests. It may be observed, therefore, 
 of all efforts to disrupt and destroy a system 
 of extra-legal unpopular government, that so 
 long as the assault upon it consists of a more 
 frequent appeal to the electorate on occasions 
 of ever-lessening importance, the more the as- 
 sault will in reality contribute to the condition 
 which makes the existence of some extra-legal 
 government unassailable. 
 
 The growth and security of extra-legal un- 
 popular government rests upon the increase of 
 the political burdens upon the voter. Every 
 political theory, every governmental bogey, and 
 every practical innovation which tends toward 
 the multiplication of elective offices, the fre- 
 quency of elections and the consequent decen- 
 tralization of the power of government, whether 
 state or local, must be advocated and encour- 
 aged by the politocrat. Every effort must be 
 
 134
 
 Security of Extra-legal Government 
 
 made by him to foster and maintain the 
 popular conviction that the centralization and 
 concentration of governmental power in the 
 hands of a few, even though those few hold 
 office as a whole at the mere whim and pleasure 
 of a majority of the electorate, is the real basis 
 of unpopular government and inimical to free 
 institutions. He must make every effort to 
 foster and maintain the popular conviction that 
 the only hope of popular government and free 
 institutions lies in as many appeals to the elec- 
 torate on as many occasions as possible. This 
 idea may be conveyed in convincing and epi- 
 grammatical form by repeating the wisdom that 
 the cure for the ills of democracy is more 
 democracy. The electorate should never be 
 allowed to forget that by reason of the constant 
 appeals to them they are ruhng, and that what- 
 ever happens they are responsible. 
 
 In short, the security of unpopular govern- 
 ment hes in the maintaining of the popular 
 conviction that our present constitution and 
 laws are sound. The bulwark of unpopular 
 government in the United States today is the 
 135
 
 Unpopular Government in the United States 
 
 man who believes that our institutions are 
 fundamentally satisfactory; that in the main 
 our scheme of government is the best that was 
 ever devised or can be devised; that it is the 
 fault of the electorate that bad men are in 
 office; that the electorate at the last election 
 put the machine out of business, or came near 
 it, and is going to do better the next time; that 
 if the machine is not disrupted, then the people 
 themselves are at fault and richly deserve what 
 they get; that if any improvements are needed 
 they will be found in the more frequent appeals 
 to the electorate through such devices as the 
 primaries, the initiative, the referendum, and 
 the recall. Extra-legal unpopular government 
 must encourage men of this stamp and teach 
 these fundamental principles to its supporters. 
 While such men represent the views of the 
 masses extra-legal unpopular government will 
 be safe. 
 
 Unpopular government in the United States 
 will be secure until our present popular convic- 
 tions about the science of government are 
 reversed and popular and persistent opinions 
 
 136
 
 Security oj Extra-legal Government 
 
 prevail that the ability of the electorate to vote 
 intelligently is limited; that the moment the 
 voter is called upon to fill any other than a few 
 offices which wield great power and are therefore 
 conspicuous and important, he becomes pohti- 
 cally ignorant, even though he be an unusually 
 intelligent man; that it makes no difference 
 that this may be his fault, for the fact remains 
 and will remain; that it is this artificially stim- 
 ulated poHtical ignorance of the voter that de- 
 hvers his vote to a permanent organization 
 maintained for the purpose of directing him 
 how to vote; that to prevent this artificially 
 stimulated political ignorance on the part of the 
 voter he must be called upon to exercise such a 
 limited voting power as he is able to use with 
 intelhgence. This means that the power of 
 government must be centralized and concen- 
 trated in the hands of a few officeholders of 
 the legal government who are prevented from 
 perpetuating their power and so estabhshing 
 an unpopular government by being at all times 
 subject to be ousted or kept in office at the 
 pleasure of the majority of the electorate. The 
 137
 
 Unpopular Government in the United States 
 
 moment the real government, be it legal or 
 extra-legal, can be swept out of office as a whole 
 at a popular election easily initiated, which 
 makes the existence and action of the real 
 government a direct issue, the most effective 
 means yet devised for preventing a real govern- 
 ment from becoming unpopular — i.e., maintain- 
 ing the selfish exercise of power in the face of 
 popular disapproval — has been found. When 
 these principles of government are received by 
 the masses with the same conviction that they 
 now support the theory of government that a 
 minimum amount of power should reside in any 
 one officer or department of the legal govern- 
 ment and that appeals to the electorate should 
 be upon as many matters and as often as pos- 
 sible, the doT\Tifall of extra-legal unpopular 
 government will be imminent. 
 
 138
 
 CHAPTER XII 
 
 THE MENACE TO UNPOPULAR GOVERNMENT 
 OF THE COMMISSION FORM OF GOVERN- 
 MENT FOR SMALLER CITIES 
 
 It took a flood and a hurricane which over- 
 whelmed a prosperous city to reverse the 
 popular convictions which lie at the basis of 
 government in the United States. In 1900 
 Galveston was all but destroyed by the waters 
 of the Gulf rising during a hurricane. Con- 
 fronted with a great emergency in which quick 
 and efficient action was imperative if the city 
 was to be restored at all, the people abandoned 
 the fear of kings and of centralized govern- 
 mental power. The entire municipal power 
 of government, executive and legislative, was 
 vested in a single board of five commission- 
 ers. These were both the legislature and the 
 executive. They made the ordinances and 
 wielded the executive power through subordi- 
 nate officers appointed by them. The govern- 
 mental principle which was thus applied in the 
 139
 
 Unpopular Government in the United States 
 
 commission plan is the concentration of govern- 
 mental power by the union of the legislative and 
 executive functions of government in the hands 
 of a few^ who are controlled and prevented from 
 becoming an unpopular government because 
 they are subject to the electorate through elec- 
 tions at frequent intervals. The office of com- 
 missioner was made conspicuous and elections 
 interesting. The population of Galveston was 
 about 40,000. Hence the entire city was not so 
 large but that a candidate might be personally 
 known with a fair degree of ease by the electo- 
 rate, and with the least possible expense make 
 a personal canvass. It was, in short, a wieldy 
 
 ' The question is frequently put whether it is better to have five 
 commissioners and let them choose their own chairman as a mere 
 presiding officer, or to provide that one commissioner specially 
 elected shall be chairman, with special executive and administra- 
 tive powers. The two plans represent simply a difference in the 
 degree with which the executive and legislative powers are united. 
 If one commissioner is elected specially as a chairman or a mayor, 
 with administrative and executive duties, and the other commis- 
 sioners are merely an advisory board, you have a certain degree of 
 separation of the executive and legislative functions. The chair- 
 man or mayor must in that case be elected at large from the city. 
 His office will be so conspicuous and important as to overshadow 
 the offices of the commissioners, and there will be the probability 
 of deadlocks between the executive and the commissioners 
 exercising the legislative power. If, on the other hand, all the 
 
 140
 
 The Commission Form of Government 
 
 district. Hence the coming forward of candi- 
 dates was increased to the maximum, and the 
 need for a vote-directing machine practically 
 ehminated. The maximum amount of thought 
 and intelligence was obtained from the voter 
 because his attention was concentrated on fill- 
 ing a few important offices. Excessive and ar- 
 tificial political ignorance was thus diminished. 
 The ultimate result was a real expression of the 
 will of the electorate through the representa- 
 tives chosen and full power in those repre- 
 sentatives to enact that will into law and also 
 enforce the law thus made. In actual opera- 
 tion the results of applying this principle left 
 
 commissioners are equally possessed of the executive and legisla- 
 tive power, there is a complete union of both functions. The 
 majority of the commission then becomes entirely responsible, 
 not only for the making, but for the enforcement, of the laws and 
 administrative measures. So far as the disrupting of extra-legal 
 government in cities the size of Galveston is concerned, it is 
 beUeved not to make any material difference which plan be 
 adopted. The surer course is that of making the majority of all 
 the commissioners responsible for the exercise of the entire legis- 
 lative and executive powers. 
 
 It is entirely in accordance with the principle of the union of 
 executive and legislative powers in the commission that it hire a 
 professional municipal administrator to hold ofllice at the pleasure 
 of the commission and delegate to him such executive duties and 
 legislative power, subject always to the control of the commission, 
 
 as the commission sees fit. 
 
 141
 
 Unpopular Government in the United States 
 
 little to be desired in Galveston. Here are 
 the comments of a keen observer/ writing 
 in 1911: 
 
 To Americans accustomed to ineflficiency in public 
 ofl&ce as contrasted with private enterprise, the story of 
 the achievements of this Commission reads Hke a 
 romance. Unhampered by checks and balances and 
 legal red-tape, the Commission reorganized the city 
 government, restored the city property, planned and 
 financed and built the great sea-wall that now bars out 
 the sea, raised the ground level of the city, and, withal, 
 reduced the tax-rate and the debt! The annual run- 
 ning expenses of the city were decreased one-third. 
 The new government displayed foresight, intelligence, 
 and dispatch. It appeared sensitive to that public 
 clamor which the average politician considers so 
 needless. 
 
 There was striking change in the attitude of the 
 pubHc toward the doings at City Hall. The people 
 began to "take an interest" in their common property, 
 to discuss the doings of the Commission on street 
 corners, to have "civic pride" (since there was now at 
 last something to be proud of), to criticize or applaud 
 the work of their servants. They seemed to have 
 actually a proprietory interest in the government! 
 Amid this widespread discussion the influence of the 
 
 ' Richard S. Childs, Short-Ballot Principles, pp. 66-67. 
 142
 
 The Commission Form of Government 
 
 politicians of the town was swamped and counted for 
 only its true numerical strength. 
 
 Now every American city has its spells of good 
 government — the reactions that follow orgies of cor- 
 ruption and scandal — and the fact that the new 
 Galveston government saved money is not in itself 
 significant. The vital difference is that these good ad- 
 ministrators in Galveston, without building up personal 
 "machines" or intrenching themselves in power by 
 the usual army-like methods of political organization, 
 were able to secure re-election again and again. They 
 won favor by serving all the people well. They did 
 their work in the spot-light of public scrutiny, where 
 every citizen could see and appreciate and applaud. 
 
 Unless, however, the fundamental principles 
 at the basis of government by commission are 
 observed and appHed, there can be much appar- 
 ent commission form of government for cities 
 which will not in any way militate against extra- 
 legal unpopular government. 
 
 If, for instance, a municipal government by 
 commission is planted in a territory where 
 several other municipal governments are also 
 operating, each with a long hst of elective 
 officers, very little has been accomplished 
 143
 
 Unpopular Government in the United States 
 
 toward that centralization of governmental 
 power in a few commissioners which tends to 
 ehminate extra-legal government. Each of the 
 municipal governments operating in the same 
 territory will divide the entire local govern- 
 mental power among them. The decentrali- 
 zation of governmental power will still exist in 
 exaggerated form and the political ignorance 
 of the voter must still be such that he will 
 need to be advised and directed how to vote, 
 and the professional adviser and director to the 
 poHtically ignorant voter will still continue to 
 satisfy that need. Once the professional ad- 
 viser and director to the politically ignorant 
 voter is retained in the district where the com- 
 mission form of government operates, he will 
 begin to exercise an influence in the nomination 
 and selection of the commissioners. Extra- 
 legal government as conducted by him may even 
 capture a majority of the commissioners and use 
 the great governmental power vested in them in 
 a scandalous manner. The present situation in 
 Chicago well illustrates this danger. There the 
 
 municipal government is very highly central- 
 
 144
 
 The Commission Form of Government 
 
 ized. The voter casts his ballot only for a 
 mayor every four years, a city clerk and the 
 city treasurer every two years and two alder- 
 men from each of the 35 wards — one alderman 
 being selected from each ward every year. 
 The other administrative officers not under 
 civil service are appointed by the mayor with 
 the consent of the council. If Chicago were 
 the only local government in the territory 
 which it occupies it would be a fair type of 
 responsible city government wielding a highly 
 centrahzed governmental power. Machine poli- 
 tics would thrive only in the districts where the 
 majority of the voters were iUiterate and where 
 corrupt and illegal voting was practiced on a 
 considerable scale. But operating in the same 
 territory with the city of Chicago is the Sani- 
 tary District with 9 trustees, and Cook County 
 with 73 elective officers. It is the long ballot 
 for Cook County which causes the densest 
 pohtical ignorance on the part of the voter 
 and makes the existence of the professional 
 adviser and director of the politically ignorant 
 voter necessary and therefore the existence 
 us
 
 Unpopular Government in the United States 
 
 of extra-legal government certain and perma- 
 nent. Such an extra-legal government, when 
 once established, naturally exerts a great in- 
 fluence even in city elections. If the two 
 principal party vote-directing machines agree 
 to divide the city and county governments 
 between them and each helps the other to 
 appoint those who are to fill the legal offices 
 in that government which it is agreed each 
 shall control, the power of extra-legal govern- 
 ment in the city will be very great indeed. 
 In the same way, if a commission form of 
 government be provided for smaller cities 
 which must divide governmental power with 
 a township government, a county government, 
 and a drainage or a levee district, aU operating 
 in the same territory and aU having a con- 
 siderable list of elective ofi&cers, there is Httle 
 hope for a real trial of the effect of the con- 
 centration of governmental power in a few 
 elective offices to disrupt extra-legal govern- 
 ment. It is of the utmost importance to the 
 success of the commission form of government 
 
 for smaller cities that such government be the 
 
 146
 
 The Commission Form of Government 
 
 only local government operating in the terri- 
 tory occupied by the city. 
 
 In some cases, however, it is necessary that 
 municipal corporations with special powers and 
 functions and collecting taxes from a special 
 district for a special purpose should occupy 
 territory in which several other units of muni- 
 cipal government operate. For instance, the 
 Sanitary District in Cook County properly 
 levies taxes upon property in the city of Chi- 
 cago and in part of Cook County, and builds a 
 canal running through Cook County and Will 
 County. How is it possible to avoid having the 
 commissioners of such a sanitary district elected 
 from the district where its revenues are ob- 
 tained? The answer is very simple. Such 
 commissioners should be appointed by the dif- 
 ferent municipal units of government occup3dng 
 the territory included in the sanitary district. 
 The city of Chicago, of course, should appoint 
 the majority of the commissioners. The muni- 
 cipal governments outside the city of Chicago 
 should be combined together in groups and the 
 legislative bodies of the municipahties in each 
 147
 
 Unpopular Government in the United States 
 
 group be given a voice in the selection of com- 
 missioners for the Sanitary District. The same 
 principle of appointment may be adopted when- 
 ever a special board with special functions is to 
 occupy territory which includes several units of 
 local government. 
 
 The effectiveness of the commission form of 
 government for cities to oust extra-legal govern- 
 ment requires the election of each commissioner 
 from a wieldy district, i.e., one not so large but 
 that the candidate who is willing to run may be 
 known with a fair degree of ease by the electo- 
 rate and be able with the least expense to make 
 a personal canvass.^ The supposed advantage 
 of electing commissioners at large from an un- 
 wieldy district is that this method insures the 
 candidacy and election of men prominent in the 
 entire district and hence more fit to hold office. 
 But this is precisely what it does not do. It is 
 true such a plan demands candidates with a 
 wide general reputation in the whole district. 
 But such candidates do not come forward 
 
 ' For a further exposition of a wieldy district see Richard S. 
 
 Childs, Short-Ballot Principles, pp. 51-58. 
 
 148
 
 The Commission Form of Government 
 
 simply because the method of election suggests 
 that such candidates should appear. Men with 
 wide reputations in a large district are almost 
 certain to be occupying offices of greater im- 
 portance in the state and federal governments, 
 or else they are not available at all for the 
 holding of public office. The leading citizen 
 will not as a rule be a candidate for a position 
 in the municipal government. The available 
 candidates are almost sure in the long run to 
 be men whose reputations are confined to some 
 district of the larger community. When they 
 run for election in a district which stretches 
 beyond the zone of their personal influence and 
 reputation, some machinery for enlightening the 
 voters' ignorance as to who they are and what 
 they stand for must be devised. This means 
 that the candidate must have money and back- 
 ing. Those requirements may seriously limit 
 the number of candidates and therefore the 
 choice of the voter. Furthermore, in pro- 
 moting slates of candidates care will usually be 
 taken to select men with reference to particular 
 
 districts in the community at large, so that each 
 149
 
 Unpopular Government in the United States 
 
 district will feel that it has a representative on 
 the ticket. Thus a provision for the election of 
 commissioners at large from an unwieldy dis- 
 trict is Hkely to relapse in practice into the 
 presentation of candidates representing small 
 districts, each with a local reputation in his 
 own district. This becomes in substance an 
 election of commissioners from districts and 
 yet the range of choice by the voter resulting 
 from the coming forward of candidates wiU be 
 very much restricted because of the expense of 
 making a canvass in the unwieldy district and 
 the necessity for an organized support. Candi- 
 dates who are successful in being elected from 
 the unwieldy district are likely to be beholden 
 to an organization, whether it be temporary or 
 permanent, which has aided them in the elec- 
 tion. A system of electing commissioners at 
 large from an unwieldy district in a greater or 
 less degree produces a condition which tends to 
 keep ahve the extra-legal government. On the 
 other hand, with elections in wieldy districts 
 the number of candidates who come forward is 
 the largest possible. The choice of the voter 
 
 ISO
 
 The Commission Form of Government 
 
 is, therefore, the widest. Each candidate may 
 become most easily personally known to the 
 electorate. The sharp contest between indi- 
 viduals in a small district is always peculiarly 
 enlightening to the electorate and stimulating to 
 his interest in pohtical matters. The expense 
 of a canvass may, therefore, be reduced without 
 lessening the amount of knowledge which the 
 voter will obtain regarding issues and can- 
 didates. The services of an extensive organi- 
 zation for the purpose of directing the poHtically 
 ignorant voter who to vote for would naturally 
 give way to organizations for dispensing actual 
 knowledge concerning candidates and condi- 
 tions. The services of a highly developed and 
 permanent machine designed to direct the po- 
 Utically ignorant how to vote must become of 
 the least possible value. 
 
 The practice of the principle of selecting com- 
 missioners from wdeldy districts may take sev- 
 eral forms, depending largely upon the size of 
 the electorate. 
 
 If the whole city is not more than a wieldy 
 district in itself, then of course the election of
 
 Unpopular Government in the United States 
 
 all the commissioners at large is in accordance 
 with the sound principle announced. Such elec- 
 tion may very properly be according to any one 
 of several plans. 
 
 First: The candidates to the number of com- 
 missioners to be selected receiving the highest 
 vote at a single election may be declared 
 elected, although none receive an actual ma- 
 jority of the votes cast. This is the simplest 
 method. It is the one in use at Galveston, 
 with a population of about 40,000, and seems to 
 have given satisfaction. 
 
 Second: The commissioners elected at large 
 may be required to receive an actual majority. 
 If there are more than two candidates for each 
 place, this may be secured at a single election by 
 the voters marking their first and other choices 
 for each of the places to be filled, so that if no 
 election is had by a majority according to the 
 first choice of the voters, the second and other 
 choices may be used to indicate which ones 
 receive an actual majority. Or a second elec- 
 tion may be held at which only candidates in 
 double the number of places to be filled who 
 152
 
 The Commission Form of Government 
 
 have received the highest number of votes at the 
 first election are placed upon the final ballot. 
 The second election may be required even 
 though candidates receiving the highest votes 
 at the first election actually receive a majority. 
 This last is the plan adopted, apparently with 
 good results, in Des Moines, Iowa/ 
 
 Third: Then there is the Hare plan of pro- 
 portional representation and the single trans- 
 ferable vote.^ To insure an election a candidate 
 need only obtain a "quota" of the votes cast 
 — i.e., that number of votes which can be ob- 
 tained by the number of candidates equal to 
 the number of places to be filled, but by no more. 
 Thus if the electorate number 5,000 and there 
 are 5 places to be filled, the "quota" or number 
 of votes required for an election would be 834. 
 Five persons could receive this number of 
 votes, but the sixth candidate could not do so. 
 
 ' John J. Hamilton, Dethronement of the City Boss, pp. 15S-168. 
 
 * See Encyclopedia Brittanica, nth ed., XXIII, 115 (from 
 which the description in the text is largely taken); Richard S. 
 Childs, Short-Ballot Principles, p. 58; Ramsay Muir, Peers and 
 Bureaucrats, pp. 236-39; C. G. Hoag, "The Representative 
 Council Plan of City Government," The American City, April, 
 1913- 
 
 IS3
 
 Unpopular Government in the United States 
 
 Each voter is allowed to indicate his first, sec- 
 ond, third, and other choices, but can indicate 
 only one first choice and one second choice, 
 etc. At the first count only first choices are 
 reckoned and the candidates who have received 
 a "quota" or more according to first choices are 
 declared elected. If all the places have not 
 then been filled up, the surplus votes of those 
 candidates who have received more than the 
 "quota" are transferred according to the names 
 marked (2) on them. If these transfers do not 
 bring the requisite number of candidates up to 
 the "quota," the lowest candidate is eUminated 
 and his votes transferred according to the next 
 preference, and so on until aU the places are 
 filled. The object of this plan is to give repre- 
 sentation to minorities or to groups less than a 
 majority. 
 
 So far as the disruption of extra-legal govern- 
 ment by pohtocrats is concerned, it is doubtful 
 if it makes any difference which of the above 
 plans of election be adopted in commission- 
 governed municipahties which as a whole con- 
 stitute only a single wieldy district of, let us 
 
 154
 
 The Commission Form of Government 
 
 say, not to exceed 6,000 male voters and 
 50,000 inhabitants. 
 
 Suppose now the municipahty be larger than 
 a single wieldy district, but still small enough so 
 that it is very plainly a unit in its interests and 
 collective activities — ^let us say a city with not 
 to exceed 25,000 male voters and a population 
 of not more than 1 50,000. Here there will be 
 a distinct danger in electing commissioners at 
 large at a single election at which are chosen 
 those who obtain the highest votes, even though 
 less than a majority. If the choice is to be by 
 a plurality at a single election the municipality 
 should be divided into wards with a single com- 
 missioner elected from each, but no candidate 
 should be required to reside in the ward where 
 he stands for election. The Hare plan is en- 
 tirely available and consistent with the choice 
 of commissioners from wieldy districts. In 
 Des Moines, Iowa, with a population of about 
 86,000, the double election plan seems to have 
 been used with success. This may also be re- 
 garded as consistent in a way with the election 
 of commissioners from wieldy districts. True,
 
 Unpopular Government in the United States 
 
 a single district with a population of 80,000 
 might be regarded as unwieldy for the purpose 
 of a single election. But the double election 
 secures the same education for the electorate 
 that the voter would obtain in a single election 
 in a district one-half as large. Hence a wieldy 
 district having a double election can be con- 
 siderably larger than a wieldy district having a 
 single election. 
 
 Suppose, however, that the municipality be 
 large enough to be readily divided into as many 
 wieldy districts as there are commissioners to 
 the number of from five to nine. For instance, 
 let us assume a city of to exceed 25,000 male 
 voters and a population exceeding 150,000. 
 Here the district is too unwieldy for the elec- 
 tion at large of those candidates receiving the 
 highest votes at a single election. It may be 
 doubted whether the double election wiU pro- 
 duce satisfactory results in the way of securing 
 a really intelligent vote. We have probably 
 come to a situation where the principle of 
 electing commissioners from wieldy districts 
 requires either a division of the city into wards 
 156
 
 The Commission Form of Government 
 
 with a commissioner elected from each, or else 
 the election at large of all the commissioners 
 by the Hare plan, in which only a "quota" of 
 votes is required for a choice. The advan- 
 tage which the Hare plan has of permitting the 
 candidates for commissioner to come from any 
 part of the city can be duphcated to some 
 extent in the ward plan by not requiring any 
 residence by candidates in the ward of the city 
 where they stand for election. Under either 
 arrangement candidates will in all probabihty 
 come from particular districts and locaHties 
 where their strength Hes. 
 
 It is no part of the writer's plan to discuss 
 at length the comparative merits of the system 
 of election from wieldy geographical districts 
 and wieldy " quotas." Each has its advantages 
 and disadvantages. The wieldy geographical 
 district has the advantage of presenting an 
 issue of extreme simplicity to the voter and 
 inducing interest in it by the dramatic element 
 of personal contest. The field in which the 
 candidates contest being limited, there is more 
 concentrated work upon the education of the 
 
 157
 
 Unpopular Government in the United States 
 
 electorate and the electorate focuses its atten- 
 tion. It is not so clearly the fact that in a 
 municipal election a large minority may be 
 wholly unrepresented as it might be in elec- 
 tions to a national legislative body. The Hare 
 plan insures minority representation, or rather 
 representation of different groups throughout 
 the district. It, however, departs from a desir- 
 able simphcity in voting and vote-counting. It 
 tends to ehminate the sharpness of personal 
 contest between candidates. Under the Hare 
 plan candidates wiU go on a still hunt all over 
 the district for a "quota" and bid to various 
 classes and cUques in the municipality for first 
 and second choices. This develops what is 
 called "minority thinking" and "particularist 
 politics." The candidates do not run against 
 each other so much as they dodge in and out 
 about each other. This also tends to puzzle 
 the voter, confuse the issues, and achieve 
 results which are unexpected. The test of 
 the Hare plan in cities of over 1 50,000 inhabit- 
 ants in the United States is, it is beheved, stiU 
 
 to be made. 
 
 is8
 
 The Commission Form of Government 
 
 If the principles of the commission form of 
 government be applied faithfully and com- 
 pletely, there is no doubt that extra-legal gov- 
 ernment in its present violent form must go. 
 The voter's duty will be simple and he can per- 
 form it with the maximum amount of intelli- 
 gence. The function of the electorate in voting 
 is vital because it confers the whole power of the 
 local government upon a body which is directly 
 responsible to the electorate. What place, 
 then, is there for the professional adviser and 
 director to the pohtically ignorant voter? 
 None! There is no such poHtical ignorance as 
 calls for a director and adviser. The voter 
 needs only enhghtenment as to which of two 
 honest and fairly efficient men has a program 
 which the voter on the whole favors. The 
 voter is seeking information of a highly organ- 
 ized sort. He can obtain that only by the 
 use of his mind and a consideration of the 
 promises and programs of the candidates. The 
 candidates now must make an appeal to the 
 voter's inteUigence. What, then, is the need 
 of the present-day extra-legal government? 
 
 159
 
 Unpopular Government in the United States 
 
 Of course, parties and party organizations will 
 spring up, but they will cease to be mere 
 machines for directing the ignorant voter how 
 to cast his ballot. Instead, they will become 
 instruments for disseminating propaganda on 
 social, economic, and governmental issues. 
 
 Once the extra-legal government is eliminated 
 by the concentration of governmental power in 
 the hands of a few, each of whom is elected 
 to office from a wieldy district or by a wieldy 
 "quota," the electorate may with perfect safety 
 secure control of its representatives in a variety 
 of ways. It may insist upon the recall, the 
 initiative, and the referendum. It is the pro- 
 motion of these expedients while the ballot is 
 stiU left as long as at present and the govern- 
 mental power decentralized as it now is that 
 tends to promote the existence and security of 
 extra-legal unpopular government. With irre- 
 sponsible extra-legal government replaced by 
 a responsible legal government subject to fre- 
 quent elections, one might hazard the guess 
 that neither the recall, the initiative, nor the 
 referendum would be much used. The prima- 
 
 i6o
 
 The Commission Form of Government 
 
 ries would be utterly out of place. No party 
 names would appear on any ballot. In theory 
 every individual legally qualified for office 
 would have the privilege of running at an elec- 
 tion. Individuals should be allowed to put 
 themselves up. To discourage the running of 
 irresponsible persons who have no real chance 
 of election a sum should be forfeited by all can- 
 didates who do not receive a certain percentage 
 of the vote cast. Parties with principles and 
 programs would naturally be the only ones 
 which would have any standing. It is highly 
 improbable that any such parties would exist 
 for municipal elections. If they did, they 
 should be left free to run their affairs in their 
 own way, since their candidates must always 
 compete with individuals who wish to come 
 forward in opposition. 
 
 i6i
 
 CHAPTER XIII 
 
 THE PRINCIPLE OF THE COMMISSION FORM 
 
 OF GOVERNMENT APPLIED TO THE 
 
 LARGER CITIES 
 
 If the city be a larger one, with 100,000 male 
 voters and upward, and a population of 700,000 
 to 1,000,000 and upward, its government by a 
 small commission, each member of which is 
 elected from a wieldy district, or by a wieldy 
 "quota" under the Hare plan, becomes impos- 
 sible. When districts begin to have more than 
 6,000 male voters and a population of more than 
 50,000, or the "quotas" are over 6,000 male 
 voters, they are probably no longer wieldy. 
 Yet a commission of 16 and upward is no longer 
 a body which can exercise legislative and execu- 
 tive power in a convenient manner, like a board 
 of 5, or even 9. The problem of the appHcation 
 of the principles of the commission form of gov- 
 ernment to the larger cities is therefore this: 
 How can districts or "quotas" be kept wieldy 
 
 and the city at the same time be governed by a 
 162
 
 Commission Government in Larger Cities 
 
 small commission having both legislative and 
 executive powers? 
 
 One solution of the problem is as follows: 
 The control of the entire executive and legisla- 
 tive power of the municipality should be vested 
 in the municipal council. This should be com- 
 posed of as many members as there are wieldy 
 districts or wieldy " quotas" in the municipahty. 
 Taking 3,000 voters as making up a wieldy dis- 
 trict or "quota," this would give a city of 
 100,000 male voters a council of 33 and a city 
 of 300,000 male voters a council of 100. This 
 last might be reduced to 50 if the maximum of 
 6,000 male voters be taken as the measure of a 
 wieldy district or " quota." This council should 
 then appoint the mayor and perhaps, with the 
 mayor's approval, the heads of the depart- 
 ments, all to hold office at the pleasure of the 
 council.^ The mayor and his heads of depart- 
 ments should then form a governing commission 
 or board with such executive and legislative 
 powers as might be conferred by ordinances 
 
 ' See Richard S. Childs, "The Theory of the New Controlled- 
 Executive Plan," National Municipal Revie-w, II, 76 (January, 
 1913); C. G. Hoag, "The Representative Plan of Government," 
 The American City, April, 1913. 
 
 163
 
 Unpopular Government in the United States 
 
 passed by the council and subject at all times 
 to the control of the council. Such a scheme 
 would retain the system of electing representa- 
 tives from wieldy districts. There would rest 
 upon them full responsibility for the exercise of 
 the legislative and executive power. Yet they 
 would be left free to delegate executive power 
 and some legislative power to a commission of 
 administrators whose whole business it was to 
 serve the municipal government. Such a com- 
 mission might be composed of the leaders of the 
 majority of the council or of expert municipal 
 managers brought from any part of the world, or 
 both. The council should be left free to choose 
 what method it would adopt. 
 
 A plan of government for our larger cities 
 frequently adopted is this : Single aldermen are 
 elected from each wieldy district in the munici- 
 paUty. All the aldermen thus selected form 
 a city council which exercises the legislative 
 power. The mayor is elected at large. He 
 presides over the city council and, with the 
 heads of his executive departments who hold at 
 
 his pleasure, wields the entire executive power. 
 
 164
 
 Commission Government in Larger Cities 
 
 The new Cleveland charter gives the depart- 
 ment heads seats in the council with the right to 
 address that body. There is here a proximity 
 of the executive and legislative power, rather 
 than a real union of it. Whatever union there 
 may be is largely on the side of giving the ex- 
 ecutive a position in the dehberations of the 
 legislative body. The council has no function 
 in the actual exercise of the executive power. 
 The entire executive power is really concen- 
 trated in a single individual elected at large 
 and holding office for two and often four years. 
 This feature is in sharp contrast to the vesting 
 of the executive power in the representatives 
 of wieldy districts or "quotas," who control 
 and direct the exercise of that power by a 
 single executive who holds at their pleasure. 
 The one plan that should not be attempted 
 in our larger cities is that of providing for the 
 union of the executive and legislative functions 
 in a few commissioners elected at large, thereby 
 violating the essential principle of electing rep- 
 resentatives from wieldy geographical districts 
 or by wieldy "quotas." 
 
 i6s
 
 CHAPTER XIV 
 
 THE PRINCIPLES OF THE COMMISSION FORM 
 
 OF GOVERNMENT APPLIED 
 
 TO THE STATE 
 
 The principles at the basis of the commission 
 form of government for cities may equally weU 
 be applied to a state government. 
 
 Our first care must be to eliminate the divi- 
 sion of power which comes from having two 
 legislative chambers, each equally representing 
 the electorate. The legislative power as it 
 comes from the electorate at large must be 
 lodged in a single legislative chamber. 
 
 In the second place we must provide for the 
 election of members to this single chamber from 
 "quotas" or districts which are as wieldy as 
 possible. One member should be elected by 
 each "quota" or from each district.' The 
 
 ' The Illinois plan of minority representation in the legislature 
 provides for the election of three representatives from each district 
 and allows each voter to cast three votes as he pleases, one for 
 each candidate or three for one candidate or one and a half for 
 each of two candidates. Where extra-legal government by 
 politocrats is strong, this has for years resulted in members of the 
 i66
 
 Commission Government in the State 
 
 requirement that districts or "quotas" which 
 elect members be wieldy is so important that it 
 must determine the minimum number of mem- 
 bers in the single legislative chamber. If it be 
 determined that a district or "quota" with 
 4,000 male voters would be suitably wieldy, 
 then each district would contain a population of 
 about 25,000, and for a state Hke Illinois there 
 would be 200 districts. 
 
 Lastly, following the commission form of gov- 
 ernment for cities we must place the control 
 of the entire executive power in the hands of 
 this single legislative chamber. In short, we 
 
 legislature being appointed by the extra-legal government. The 
 electorate has been wholly and palpably disfranchised. If there 
 are two political machines in the district, one dominant and the 
 other with a fair strength, they have by agreement between them 
 arranged that the dominant machine should nominate only two 
 candidates and the other only one. Thus the voter is given no 
 choice whatever and the nominations are an appointment. If 
 there are three equally strong political machines, each by agree- 
 ment will nominate one candidate. As a matter of fact without 
 agreement the number of candidates nominated will usually be 
 as above indicated under the circimistances named. Thus the 
 electorate in very many Illinois districts has had comparatively 
 little or no real representation in the lower house of the legis- 
 lature for years. The worst elements in the house have under 
 this system been returned again and again. See editorial in 
 the Chicago Tribune for December 22, 1912, on "Minority 
 Representation." 
 
 167
 
 Unpopular Government in the United States 
 
 must apply the principle of uniting the execu- 
 tive and the legislative power in the same body. 
 How, it will be asked, can this be done ? It is 
 essential that the legislature should have two 
 hundred members so that the districts or 
 "quotas" may be wieldy. How, then, is it 
 possible to give to the legislature control of the 
 executive power ? 
 
 It is beheved that the plan of a state executive 
 selected by the single-chamber legislature and 
 holding at its pleasure, after the manner of the 
 controlled executive for the larger cities, will 
 not do. It is true the state executive may not 
 handle so large a budget as some cities, but the 
 state executive power is not for that reason less 
 important or extensive. The legislative power 
 of the state, which is greater than the legislative 
 power of any city, may build up the state 
 executive functions so that they are quite 
 beyond those of any city. The state execu- 
 tive functions are, therefore, always potentially 
 more extensive than those of the city executive. 
 Then in the state legislature composed of one 
 hundred members or more representing differ - 
 
 i68
 
 Commission Government in the State 
 
 ent political and party programs, there are far 
 greater chances of a serious deadlock than in a 
 city council. When a deadlock occurs in the 
 state legislature it may be difficult, if not 
 impossible, to determine what are the con- 
 trolling elements in the legislative assembly 
 if the power of selection is left with the legis- 
 lature itself. There is need, therefore, of an 
 independent authority outside the legislature 
 to select from it those who shall wield the 
 executive power and thus rescue the exercise 
 of that power from any deadlock among the 
 legislators. 
 
 These considerations lead naturally to the 
 following plan: All executive acts must be 
 done as now, in the name of a single executive. 
 But the control of all executive acts must be 
 placed in the hands of a council of state, to be 
 composed of (let us say) seven members, who 
 should usually be drawn from the leaders of 
 the regularly voting majority of the legislative 
 chamber. It will be the important duty of the 
 single executive to determine who are the regu- 
 larly voting majority, and who are its leaders, 
 169
 
 Unpopular Government in the United States 
 
 to summon them to form a council of state, to 
 determine when those leaders have ceased to 
 possess a regularly voting majority and, when 
 that occurs, to dismiss them or accept their 
 resignations and replace them with a council 
 of state which has at its command a regularly 
 voting majority. Once the council of state is 
 selected, however, the actual control of the 
 executive function will reside in it. Thus the 
 real executive is the council of state, and since 
 it must usually control a majority of the legis- 
 lature, it will have possession of the legislative 
 power as well. This is the neat and feasible 
 scheme for applying the essential principle 
 of the commission form of government when 
 a large representative assembly is a necessity. 
 The method of selecting the single executive 
 whose principal duty it is to place the execu- 
 tive power of the state from time to time in 
 the control of a proper council of state, selected 
 from among the leaders of a majority of the 
 legislature, is not very important. Very likely 
 the only practicable way would be by election 
 
 at large at considerable intervals of time. 
 170
 
 Commission Government in the State 
 
 Very little alteration in our present state con- 
 stitutions is necessary in order to bring about 
 the greater part of the change in the plan of 
 government suggested. The members of the 
 lower house of the legislature are usually elected 
 from fairly wieldy districts. The union of the 
 executive and legislative functions is very 
 simply accomplished by dropping from the list 
 of elective officers the lieutenant-governor, the 
 secretary of state, the auditor of public ac- 
 counts, the treasurer, the superintendent of 
 pubhc instruction, the attorney-general, and 
 others and adding the following provisions: 
 
 There shall be an executive council to advise the 
 governor in the government of the state. The mem- 
 bers thereof shall be chosen and summoned by the 
 governor and serve as executive councilors. They 
 shall hold office during the pleasure of the governor. 
 
 The executive power vested in the governor by this 
 constitution shall, unless in this constitution otherwise 
 specified, be exercised by the governor acting with the 
 advice of the executive council. The provisions of this 
 constitution, referring to the governor in councU, shall 
 be construed as referring to the governor acting with 
 the advice of the executive council.
 
 Unpopular Government in the United States 
 
 The governor may appoint oflficers not exceeding ten 
 in number to administer such departments of the state 
 as the governor in council may establish and until such 
 establishment, to administer the departments of state, 
 public accounts, treasury, public instruction, justice, 
 and state institutions. Such officers shall hold office 
 during the pleasure of the governor. They shall be the 
 members of the executive council and after the first 
 general election of members of the general assembly, as 
 herein provided, no member of the executive council shall 
 hold office for a longer period than three months unless 
 he is or becomes a member of either house^ of the general 
 assembly. 
 
 The necessary result of such changes would be 
 that the governor could do no important act 
 without the consent of the council. The coun- 
 cil would in fact be the executive. The election 
 which put the governor in office might be 
 expected to put a majority of the same party 
 in the legislature, and the executive council 
 would naturally be selected from the leaders of 
 that majority. Even if the governor and the 
 majority of the legislature belonged to different 
 parties, yet there would be the strongest motive 
 
 ' This assumes the existence of a second chamber as suggested 
 
 in chap. xvi. 
 
 172
 
 Commission Government in the State 
 
 for the selection of an executive council from 
 the majority of the legislature, thus avoiding the 
 responsibility for a contest between the major- 
 ity in the legislature and the executive which 
 would throw the government into confusion. 
 
 The complete success of a plan which involves 
 the union of the executive and legislative power 
 in the leaders of a majority of the legislature 
 requires the presence in the legislature of some 
 at least of the leaders of the principal parties. 
 The absence from the legislature of such leaders 
 would leave the control of the most important 
 powers of government in the hands of the less 
 experienced and less able members of the party. 
 The opposition also might have a less effective 
 representation. This would be a serious matter 
 for the parties themselves. The pubHc service 
 also would suffer. It is in the interest of the 
 best administration of the affairs of state that 
 the abihty and experience of the party leaders 
 of both the majority and the minority be kept 
 in the service of the state as long as possible. 
 It is also important that the executive and legis- 
 lative powers be exercised for the benefit of 
 173
 
 Unpopular Government in the United States 
 
 the state as a whole and not for the purpose 
 of furthering the parochial interests of indi- 
 vidual legislators. This is most surely accom- 
 plished by the presence in the legislature of the 
 party leaders of the majority. There are 
 several ways of insuring the return to the legis- 
 lature of some at least of the leaders of the 
 principal parties, even when they may not be 
 able to secure a plurality of the votes cast in 
 the district where they run: First, candidates 
 for the legislature may be permitted to stand 
 for election in any district of the state, no 
 matter where they reside. That does not go 
 far, however, in the direction of returning 
 party leaders unless elections are held at dif- 
 ferent times in different districts. Second, if 
 elections are held at the same time in all dis- 
 tricts the elector might be permitted to vote 
 for a candidate running in his own or any other 
 district. This would enable the party to switch 
 some of its votes in a district where it was 
 strong to special leaders standing for election 
 in districts where their success was in doubt. 
 This is one of the proposals of the People's 
 174
 
 Commission Government in the State 
 
 Power League of Oregon. Third, a direct way 
 of accomplishing the desired result would be 
 to permit each party polling at least 25 per 
 cent of the total vote cast at an election for 
 members of the legislature to appoint as many 
 representatives as the entire party vote con- 
 tains tenths of the total vote cast. Fourth, 
 the same result might be obtained by providing 
 for the election at large of a small number of 
 legislators by "quotas," according to the Hare 
 plan/ 
 
 Now observe the effect of the application of 
 the principles of the commission form of govern- 
 ment for cities to the state government. The 
 office of legislator has been made important and 
 conspicuous because it is the only office in the 
 state government (except that of governor) for 
 which the voter casts his ballot, and because 
 the successful candidate will cast one of two 
 hundred ballots for the selection of the real 
 executive. Under such a system it is certain 
 that the voter will know in advance that a vote 
 for candidate A means a vote for B, as the real 
 
 'See ante, p. 153. 
 
 I7S
 
 Unpopular Government in the United States 
 
 executive or leader of the council of state. 
 Thus a vote for state legislator will be a vote to 
 confer the entire legislative and executive power 
 of the state upon a given group of legislators 
 and their leaders. We have indeed made the 
 voting privilege of the elector so important that 
 he will not only be sure to vote, but he may be 
 expected to do much to keep himseK fully in- 
 formed about the candidates. We have made 
 the act of voting so simple that the elector can- 
 not fail to use such inteUigence as he has and 
 to spend any extra time which he may have in 
 informing himself further. By providing for 
 the election of single legislators from wieldy 
 districts or by wieldy " quotas " we have brought 
 the voter as near the candidates as possible. 
 By stimulating the number of candidates we 
 have given the voter as wide a range of choice 
 as possible. These devices aU have a tendency 
 to eliminate the politically ignorant vote. The 
 actual inteUigence of the electorate is given the 
 fullest possible play, and even stimulated to 
 unusual efforts of comprehension. This is a 
 
 guaranty, and it is the only guaranty, against 
 
 176
 
 Commission Government in the State 
 
 that political ignorance on the part of a large 
 number of voters which provides the opportun- 
 ity for the professional pohtician to step in and, 
 in the guise of advising and directing the voter 
 how to vote, in effect to cast his ballot for him. 
 The essential condition upon which a vote- 
 directing pohtical machine is founded and 
 maintained has, therefore, been eliminated. 
 Under such circumstances a vote-directing ma- 
 chine, instead of sHpping over, in the darkness 
 and obscurity which comes from a multiplicity 
 of elections and offices to be filled, those whom 
 it can control, for ends of which the electorate 
 does not really approve, must begin to appeal 
 to the voter's intelligence with candidates of 
 character, arguments, platforms, and pledges of 
 legislation which those elected have the power 
 to keep. Such activities on the part of any 
 organization will at once change it from a mere 
 vote-directing machine into a legitimate party 
 with real principles and a real program. The 
 leaders of such an organization will necessarily 
 stand for election in the real government, which 
 
 will now be the legal govermnent. Real party 
 177
 
 Unpopular Government in the United States 
 
 leaders will appear in the legislature with real 
 party programs for legislation and real party 
 responsibihty. 
 
 We have, however, in the scheme of state 
 government presented, not only done our 
 utmost to destroy at the roots extra-legal un- 
 popular government, but we have provided a 
 government which can operate. We have cut 
 off all bickering between the legislature and ex- 
 ecutive. We have given power to an executive 
 council which will enable it to do something. 
 We have constituted a government which 
 will be inactive, not because its hands are tied, 
 but because it chooses not to do anything. 
 The leader of the successful party cannot say 
 that he has failed to keep the party pledges 
 because he had no power to act. No one, how- 
 ever, need fear that the concentration of power 
 in the hands of a few will prove in any way 
 dangerous to the liberties of the people. The 
 council of state can exercise power only so long 
 as it retains the confidence of a majority in the 
 legislature. Even out of the season of elections 
 
 the legislature will necessarily be sensitive to 
 178
 
 Commission Government in the State 
 
 public opinion, and a council of state that did 
 not consider the effect of public opinion upon a 
 majority of the members of the legislature could 
 not long hold power. By frequent elections the 
 majority may be changed and the council re- 
 called in favor of the leader of an opposition. 
 The effectiveness of voting will thus be 
 enormously increased, for the electorate will not 
 have to turn out a dozen different officers at 
 several different elections in order to change 
 control of the legal government. Voting at a 
 single election does it. Upon a poll of the dis- 
 tricts or of the "quotas" it is determined 
 whether one set of legislators or another shall 
 control the executive and legislative power cen- 
 tered in a single chamber. No government can 
 be unpopular or an executive council remain in 
 office against the will of the electorate under 
 such a scheme of government. No govern- 
 ment can remain in office and avoid the conse- 
 quences of failure and inefficiency when so 
 organized. 
 
 If such a scheme of government does not 
 
 break the malign influence of an extra-legal 
 179
 
 Unpopular Government in the United States 
 
 government founded upon a vote-directing 
 machine, then such a power cannot be broken. 
 If the scheme of government which has been 
 outlined does not give the electorate a real 
 opportunity to express its will through its rep- 
 resentatives and to make that will into law and 
 then enforce the law through those same rep- 
 resentatives, then our attempt to achieve repre- 
 sentative government will have failed and we 
 shall have been unsuccessful in securing that 
 which other nations, even though in form at 
 least still governed by kings, have been able to 
 achieve. 
 
 i8o
 
 CHAPTER XV 
 
 CONTEMPORARY PLANS LOOKING TOWARD 
 THE UNION OF THE EXECUTIVE AND 
 LEGISLATIVE POWERS OF STATE GOV- 
 ERNMENTS 
 
 Our state legislatures are now for the most 
 part composed of members elected from fairly 
 wieldy districts. Governmental changes then 
 which look toward the application of the prin- 
 ciples of commission government to the state, 
 as outlined in the preceding chapter, have to 
 do principally with the union of the executive 
 and legislative powers. Several recent proposals 
 for changes, coming from Illinois, Wisconsin, 
 Kansas, and Oregon, indicate that legislators, 
 governors, and political scientists with practical 
 experience have concluded that the executive 
 and legislative powers must be brought nearer 
 together. The interesting fact, however, is 
 that no plans have been suggested by which the 
 legislature is to absorb the control of the execu- 
 tive power by placing it in the hands of the
 
 Unpopular Government in the United States 
 
 leaders of a majority of the legislature. On the 
 contrary, the proposals for bringing the execu- 
 tive and legislature nearer together have, with 
 one exception, been along the Hne of conferring 
 upon the executive greater power to control 
 and coerce the legislature. 
 
 The Illinois House of Representatives at its 
 1 9 13 session adopted a rule for which Repre- 
 sentative Morton D. Hull was responsible. It 
 provided as follows: 
 
 When any bill or resolution is introduced for the pur- 
 pose of carrying into effect any recommendation of the 
 governor, it may by executive message addressed to the 
 speaker of the house be made an administration meas- 
 ure. An administration measure may be sent to the 
 appropriate committee, or it shaU, upon request of its 
 introducer, be sent to committee of the whole house. 
 When such a measure has been reported out of com- 
 mittee, it shall have precedence in the consideration of 
 the house over aU other measures except appropriation 
 bills. The house shall sit in committee of the whole 
 for the consideration of administration measures on 
 Tuesday morning immediately after the reading of the 
 house journal. 
 
 This rule very plainly brings the executive and 
 
 the legislature nearer together. It does so, 
 182
 
 Union of Executive and Legislative Powers 
 
 however, only by conferring upon the governor 
 an important privilege which enables him to 
 advance his legislative program. 
 
 The proposed amendment to the Wisconsin 
 constitution providing for an initiative by the 
 electorate at large for legislation' gives to the 
 governor a practical method of coercing or 
 "steam-rollering" the opposition of a hostile 
 legislature. It provides for the submission to 
 the electorate at large of any bill introduced into 
 the legislature any time within the jQrst thirty 
 days of the session. This enables the governor 
 to present all administration bills to the legis- 
 lature and if they fail of passage he may then 
 present them for enactment into law by the 
 electorate at large. This is giving the governor 
 power to promote and control legislation to a 
 very great degree. 
 
 Governor Hodges of Kansas in his message 
 to the legislature of March lo, 1913, in terms 
 advocated the adoption of the commission plan 
 of government for the state. As there outlined, 
 the details of the plan were somewhat vague. 
 
 ' Joint resolution 4A, introduced June 16, 1913. 
 183
 
 Unpopular Government in the United States 
 
 It consisted apparently of a unicameral legis- 
 lature containing one or two members from each 
 of the eight congressional districts of the state, 
 with terms of from four to six years. This 
 legislative commission was to be in session as 
 the exigencies of the public business demanded. 
 The governor was to be ex officio a member and 
 presiding officer of the commission or legislative 
 assembly. We observe here no other union of 
 the executive and legislative powers than occurs 
 in a city government like that of Chicago, where 
 the mayor is elected at large and vested with 
 the executive power and presides over a uni- 
 cameral council of comparatively few members 
 exercising the municipal legislative power. 
 Governor Hodges' suggestion would vest more 
 power in the state executive than he now has, 
 by reason of his being the presiding officer of 
 the legislative body. Apart from this, it does 
 not go farther than to propose a reduction in 
 the size of the legislature. But even that part 
 of the plan may be open to the objection that 
 it violates the fundamental principle of the 
 selection of representatives from wieldy geo-
 
 Union of Executive and Legislative Powers 
 
 graphical districts or by wieldy "quotas." On 
 the whole, Governor Hodges' plan would seem 
 to be one which, like the Hull rule in Illinois 
 and the Wisconsin provision for an initiative, 
 increased the power of the executive elected 
 at large and diminished the importance and 
 power of the representatives of the electorate. 
 
 The latest plans of the People's Power 
 League of Oregon are set out in detail in cer- 
 tain constitutional amendments which are to 
 be submitted to the people upon a referendum.^ 
 
 We notice first of all a concentration of execu- 
 tive power in the governor by reason of the fact 
 that he appoints his cabinet consisting of an 
 attorney-general, a secretary of state, a treas- 
 urer, a printer, a superintendent of public 
 instruction, a secretary of labor, a state business 
 manager, and such others as may be provided 
 by law. He appoints also all sheriffs and dis- 
 trict attorneys throughout the state. These 
 
 ' These were furnished to the author by Mr. U. S. U'Ren of 
 Oregon City, Oregon. One is in the form of a letter dated Decem- 
 ber 28, 1911, asking for criticisms on the draft of constitutional 
 changes. The other is in the form of an initiative petition for the 
 submission of particular constitutional amendments (being a part 
 of the entire plan of changes) for adoption by the electorate. 
 
 i8s
 
 Unpopular Government in the United States 
 
 local officers, however, are subject to a recall by 
 the electorate. The powers and duties of all 
 state commissions are consolidated and vested 
 in the governor and become a part of the execu- 
 tive powers and functions, excepting the rail- 
 road commission, the members of which are, 
 however, appointed by the governor. The 
 governor's power is further increased by giv- 
 ing to him and his cabinet officers seats in a 
 unicameral legislature. It is made the duty of 
 the governor to introduce all bills for appro- 
 priating money. While the legislature may 
 reduce the amount of appropriations, it cannot 
 increase them without the consent of the gover- 
 nor. The general veto power of the governor is 
 taken away, but he would still seem to have 
 power by promoting a referendum, to appeal 
 to the electorate to override the legislature.' 
 
 The single-chamber legislature is to consist of 
 60 members not less than 2 of whom are elected 
 from each district containing approximately as 
 
 ^ "The power of the governor to promote initiative and refer- 
 endum petitions is not, however, increased by the suggested 
 amendment. He has now the same rights in this as a private 
 citizen but no oflBcial powers" (comment of U. S. U'Ren). 
 186
 
 Union of Executive and Legislative Powers 
 
 many sixtieths of the population as there are 
 members to be elected from the district. The 
 voter in no case is permitted to vote for more 
 than one candidate. Hence each party would 
 be expected to put up as many candidates as 
 it estimated its strength to be in sixtieths of 
 the population. The result is bound to be a 
 minority representation, if there be any sub- 
 stantial minority. To obviate the minority 
 having as much power as the majority each 
 member elected casts as many votes in the 
 legislature as there are voters who cast their 
 ballots for him. The unsuccessful candidate 
 for governor who receives the highest number of 
 votes in his party is made a member of the 
 legislature with a voting strength equal to the 
 number of votes cast for the unsuccessful can- 
 didates of his party for places in the legislature. 
 One might hazard the guess that a legislature 
 so precisely representing the voting strength of 
 all factions and parties was peculiarly Hable 
 to legislative deadlocks which would again 
 vastly increase the opportunity of power in a 
 governor who, with his cabinet, had places in 
 187
 
 Unpopular Government in the United States 
 
 the legislative body and who possessed a vast 
 power over appropriations. 
 
 On the whole these new plans from Oregon 
 tend in the direction of magnifying a one-man- 
 executive power at the expense of the legislature 
 rather than the increasing of the power of the 
 legislature by giving to its leaders the control of 
 the executive power. 
 
 At the 1913 session of the lUinois legislature 
 there was introduced by Senator Logan Hay a 
 bill to estabHsh what is now known as the Hay 
 plan for a legislative commission. It provided 
 for a joint legislative commission to consist of 
 the governor, who was made ex officio chairman 
 of the committee, the Keutenant-governor, the 
 speaker, the chairmen of the committees on 
 appropriations and judiciary of the Senate and 
 the House, and five other senators and five other 
 representatives, selected as other committees 
 were, viz., in the senate by the resolution of 
 that body, in the House by the speaker. The 
 governor, lieutenant-governor, and speaker 
 were to serve on the committee during their 
 term of office and the other members till the
 
 Union of Executive and Legislative Powers 
 
 convening of the next General Assembly after 
 their appointment. The commission was to be 
 in session from the commencement of one regu- 
 lar session of the legislature to the commence- 
 ment of the next. It was given power to 
 prepare and bring forward a complete legis- 
 lative program, including a budget of appropri- 
 ations for the coming legislative session, and to 
 estabUsh a legislative reference bureau. It was 
 given power to investigate the administration 
 of any department of the state government 
 and the expenditure of any appropriation made 
 by the General Assembly. Such a plan was 
 admirably designed to increase the power of the 
 legislature by centrahzing in its leaders power 
 and authority to present a comprehensive and 
 matured program before the legislature con- 
 vened. At the same time it conferred no addi- 
 tional power over legislation upon the governor. 
 On the contrary, it, in a mild way, actually 
 attempted to secure additional control over the 
 executive power. The mere existence of a 
 standing legislative commission composed of 
 the leaders of the legislature, with power at any
 
 Unpopular Government in the United States 
 
 time to investigate the administration of any 
 department of the state government or the expen- 
 diture of any money appropriated, was a 
 continuing menace to the present executive 
 isolation and irresponsibihty. 
 
 The plan evidently met with determined 
 opposition from the executive, for in the House 
 it was amended so as to provide four members 
 from the Senate and House instead of five, and 
 these were to be appointed hy the governor. The 
 power of investigation by the commission was 
 restricted to such as it was called upon to make 
 by the governor, the General Assembly, or 
 either house, and the power to investigate the 
 administration of any department of the state 
 government was entirely omitted. In this form 
 the bill became one which would vastly increase 
 the governor's power by delivering into his 
 hands the authority of the commission and 
 giving him recognized administration members 
 of the legislature. A deadlock ensued between 
 the House and the Senate, and the bill as 
 finally passed contained a provision only for 
 
 establishing a legislative reference bureau. In 
 190
 
 Union of Executive and Legislative Powers 
 
 the contest over the original plan and the 
 house modifications we have a clear-cut recog- 
 nition of the necessity of bringing the governor 
 and the legislature nearer together. We also 
 have presented a sharp dispute as to whether 
 the governor shall have added to his power 
 further authority over the promotion of legis- 
 lation or whether the legislature shall increase 
 its power by organization, and at the same 
 time secure some control, if not an actual 
 domination, over the executive power. 
 
 It is rather startling that in all the above 
 proposals which look toward the closer relation 
 of the executive and legislative powers we 
 should find a strong tendency toward the in- 
 creasing of the power of the single executive by 
 giving him greater control over the legislative 
 power. Historically the effort has constantly 
 been to break down the power of the single 
 executive. True, the executive in such cases 
 was not subject to the electorate at frequent 
 intervals. But frequent elections may not pro- 
 tect the governed from a vast number of errors 
 
 of judgment and smaller tyrannies, executive 
 191
 
 Unpopular Government in the United States 
 
 oppression and bad appointments, which do 
 not become a matter of general knowledge or 
 make a considerable issue before the electorate. 
 Good executive government in the sense of one 
 which is just and fair, well balanced, seeking 
 improvements, and acting conscientiously in 
 lesser affairs, comes more certainly from a small 
 committee of experienced leaders than from a 
 single man. The exchange of views by such a 
 body and the reaction of one member upon 
 another has a value which cannot be estimated. 
 The single executive on the other hand is likely 
 to have no fixed set of responsible advisers. 
 He is too frequently swayed by the advice of the 
 last man who reaches his ear. 
 
 In making constitutions it is quite as easy to 
 unite the executive and legislative powers by 
 giving the control of the executive power to a 
 majority of the legislature as it is to hand the 
 control of the legislative power over to the single 
 executive. From the point of view of expedi- 
 ency there is much to be said of the plan which 
 places the control of the executive power in the 
 
 hands of the legislature. 
 192
 
 CHAPTER XVI 
 
 THE SECOND-CHAMBER PROBLEM^ 
 
 The institution of private property is still 
 with us and likely to remain for some time. 
 The acquisition and holding of private prop- 
 erty is still the main object of our existence 
 and doubtless will continue to be so. It is 
 privately held property which pays taxes and 
 supports the state. In any government prop- 
 erty is entitled to fair consideration and protec- 
 tion. Special differentiated classes of property, 
 such as railroads and other public-service 
 plants, manufacturing interests, mines, and 
 landlords' and farmers' holdings are entitled 
 to fair consideration and protection. Indeed, 
 the state that permitted indiscriminate assaults 
 upon private property or upon differentiated 
 
 ' Much of the argument in this volume is in support of the 
 Short Ballot movement. It is only fair to say, however, that the 
 leaders of this movement in the National Short Ballot Organiza- 
 tion dissent from the suggestions put forward in this chapter as 
 to the need of special protection to property interests, and the 
 methods suggested of working out such special protection are, 
 therefore, no part of the Short Ballot doctrine. 
 
 193
 
 Unpopular Government in the United States 
 
 classes of private property could not long 
 endure. Certainly its prosperity would be 
 short-lived. These premises have not been 
 questioned in the past. Not many in this 
 day would be found to controvert them. 
 
 What sort of demand, then, was there, when 
 our state governments were first organized, for 
 governmental arrangements suitable to protect 
 property interests ? How was that demand 
 answered in our mid-nineteenth-century plans 
 of government ? What is the character of that 
 same demand today and how do our present 
 governmental arrangements answer it ? These 
 are important inquiries preliminary to our ulti- 
 mate question: How are property interests to 
 be protected when the principles of the com- 
 mission form of government are apphed to the 
 state ? 
 
 It is the object of this chapter to attempt to 
 answer in outline these questions. 
 
 Our federal government was estabhshed in a 
 
 territory which was mostly a wilderness, with 
 
 a fringe of frontier and colonial communities 
 
 on the Atlantic seaboard. Whenever a state 
 194
 
 The Second-Chamber Problem 
 
 government has been first established, the ter- 
 ritory of which it has been composed has been 
 either wholly or very largely of a frontier char- 
 acter. In such communities opportunity was 
 abundant and pretty much equal to all. Men 
 started with not much advantage except that 
 with which nature had endowed them. The dif- 
 ferences in wealth were not such as to be beyond 
 the hope of most men to bridge in a Ufetime. 
 The population was controlled by a community 
 of feeling and a certain similarity of occupation. 
 In such a society any attack upon property 
 interests was bound to come home to too many 
 to make such an attack possible. The practical 
 danger was that states would permit the resi- 
 dent debtor class to repudiate its obligations to 
 a non-resident creditor class. This was headed 
 off by the very practical provision of the 
 federal constitution that no state should pass 
 any law impairing the obligation of contracts. 
 Apart from this the governmental devices 
 adopted to protect property interests were 
 largely theoretical and academic. They were 
 for the most part directed to preventing all 
 19s
 
 Unpopular Government in tJie United States 
 
 sudden legislative action. Legislation must in 
 every case be the result of "sober second 
 thought." No distinction was made between 
 legislation which affected property interests 
 and any other sort. The safeguards for secur- 
 ing the " sober second thought " of the electorate 
 or legislature were as appHcable to the most 
 trivial legislative matters as to the most im- 
 portant. Thus we have the separation of the 
 legislature into two houses. The members of 
 both are elected. The only difference is that 
 the number of the upper house is smaller and 
 the term a Httle longer. We have also the 
 limited veto power of the governor. Although 
 not in terms provided for in our constitution, 
 it has become a part of our scheme of govern- 
 ment that the courts shall exercise the power 
 of declaring void acts of the legislature which 
 are forbidden by the written constitution. As 
 these written constitutions have contained al- 
 most universally the provision that "no per- 
 son shall be deprived of Hfe, hberty, or property 
 without due process of law," the courts have 
 
 had the power to declare void acts of the 
 196
 
 The Second-Chamber Problem 
 
 legislature which they deemed to be a taking 
 of the "liberty" or "property" of any person 
 " without due process of law." When exercised 
 this power has amounted in effect to a 
 judicial veto. If the court deem the act in 
 question to have been forbidden by the consti- 
 tution the act is invahd until such time as the 
 constitution shall have been changed and the 
 general prohibition eliminated, at least so far 
 as the offending act in question is concerned. 
 It was, however, only the taking '^without due 
 process of law" which was forbidden. But 
 legislation was itself "due process of law" 
 unless it was arbitrary and irrational in its 
 operation.^ Thus an act which forbade the con- 
 sumption of liquor by red-haired persons and 
 which imposed a fine for the offense would be 
 arbitrary and irrational in its application, and 
 the imposition of a fine pursuant to the act 
 would be a taking of the property of the indi- 
 vidual without due process of law. But more 
 than this, the arbitrary character of the legis- 
 lative act must be clear beyond aU reasonable 
 
 ' Hurlado v. California, no U.S. 516. 
 197
 
 Unpopular Government in the United States 
 
 doubt/ It must be so clear that two rational 
 men could not differ about the matter.^ These 
 were the limits of the power of the court as origi- 
 nally laid down. It is apparent that with these 
 limitations conscientiously observed the veto 
 power of the court over legislation was of largely 
 theoretical and academic value in protecting 
 property interests. The fact is that this power 
 of the courts to declare laws unconstitutional 
 because they took some person's life, liberty, or 
 property without due process of law remained 
 practically unused during the first half of the 
 nineteenth century. Perhaps there was no call 
 for the protection of property interests from 
 the legislature. Perhaps the limitations upon 
 the exercise of the power of the court w^ere 
 too faithfully observed. It is not unlikely that 
 both reasons contributed to the results. 
 
 'James Bradley Thayer, "The Origin and Scope of the 
 American Doctrine of Constitutional Law," 7 Harv. Law Rev., 
 129, 139 ff. 
 
 2 "The validity of a law ought not, then, to be questioned, 
 unless it is so obviously repugnant to the constitution, that when 
 pointed out by the judges, all men of sense and reflection in the 
 community may perceive the repugnancy." — Per Chancellor 
 Waties in AdmWs of Byrne v. Adm'rs of Stewart, 3 Des. 466 (South 
 Carohna, 181 2). 
 
 198
 
 The Second-Chamber Problem 
 
 Before i860 the Atlantic seaboard states 
 ceased to be provincial or frontier communities. 
 Since i860 an enormous area in the Mississippi 
 Valley has ceased to be a frontier community. 
 Great cities have arisen. Whole states have 
 been brought under cultivation. Manufactur- 
 ing has constantly gone forward. Facility in 
 transportation has diminished the size of the 
 country twenty-fold in many areas. The in- 
 crease in the value and quantity of private 
 property has been fabulous. So enormous an 
 increase in so short a time has necessarily 
 resulted in the concentration of immense 
 fortunes in the hands of a considerable number 
 of individuals. Even more marked has been 
 the concentration of collective property hold- 
 ings in corporations. The financial difference 
 between persons of some property and those 
 with vast fortunes is so great that the bridg- 
 ing of the gap by even the exceptional indi- 
 vidual in his lifetime is out of the question. 
 The financial difference between the position 
 of persons possessing some property and the 
 
 collective wealth of great corporations is 
 199
 
 Unpopular Government in the United States 
 
 beyond the actual comprehension of the human 
 intelligence. Opportunity is no longer any- 
 where near equal and many start the race in 
 life with a lead which puts them out of sight 
 of all but a very few. The result is that a 
 constantly increasing number of people think 
 not in terms of property and the interests of 
 property, but as individuals, and in many 
 instances as one of a collection of individuals. 
 They have begun to consider whether the 
 state is so run and legislation so framed that 
 they as individuals, or as one of a collective 
 organization of individuals similarly situated, 
 are enabled to live satisfactorily. They are 
 readily inclined to beHeve that specially organ- 
 ized property interests are attempting to make 
 the laws, or to block the making of laws in the 
 interests of property and against the interests 
 of the individual, either singly or in organized 
 groups. Such specially organized property in- 
 terests have become Hable to persistent and 
 sometimes vicious and retaHatory attacks by a 
 majority of the electorate. The fact that this 
 majority is composed of persons who are, to
 
 The Second-Chamber Problem 
 
 some extent, holders of property does not pre- 
 vent them from thinking in terms of their 
 position as individuals. Thus spectacular 
 onslaughts by the electorate have been made 
 upon such organized property interests as rail- 
 roads, pubhc-service corporations, and mine- 
 owners. Legislation to promote social justice 
 and in the actual or pretended exercise of the 
 pohce power may be in effect an attack upon 
 some legitimate business. Yet the general ob- 
 ject of such acts will receive an overwhelming 
 popular approval. 
 
 Step by step with the development of this 
 antagonism in the state between specially 
 organized property interests and the individual 
 has grown the effort of such interests to com- 
 bine for protection from the electorate. Natu- 
 rally they use all the means at their disposal in 
 the governmental scheme to secure that pro- 
 tection. The governor's veto, however, has 
 proved of less and less value, for the governor 
 is so conspicuous an officer as frequently to be 
 a popular choice. Property interests have fallen 
 back upon the legislative lobby, an alliance wdth
 
 Unpopular Government in the United States 
 
 the extra-legal government, and the constant 
 urging of the courts to go farther and farther 
 in the exercise of their veto power over legis- 
 lation. The lobby has gained power through 
 the assistance and sanction of the leaders of 
 the extra-legal government. That government 
 has been stimulated to the highest efficiency 
 and the greatest activity by reason of the 
 prizes coming to its leaders as the result 
 of their alliance and partnership with col- 
 lectively organized property interests. As a 
 last resort the courts have again and again 
 been importuned to veto legislation inimical 
 to specially organized property interests, 
 and all property interests when attacked 
 at once become specially organized at the 
 point of attack. These importunities come 
 in the form of arguments to the court on 
 behalf of property interests that are un- 
 favorably affected by the legislation in ques- 
 tion. Frequently the act which they com- 
 plain of has been badly drawn and is really 
 vicious and unfair in some of its workings, 
 although the main principle may be sound. 
 
 203
 
 The Second-Chamber Problem 
 
 This intensifies the appeal of the individual 
 for its overthrow. Such complaints from 
 the interests affected, together with the social 
 and economic theories of the judges them- 
 selves, and no doubt in some cases, the 
 direct influence of the extra-legal govern- 
 ment, have been pressed upon the judges 
 in an effort to cause them to abandon the 
 academic, theoretical, and bloodless function 
 which was conceded to them when the power 
 of the courts to declare acts of the legislature 
 unconstitutional originally was asserted, and 
 to expand this power so as to present an 
 efficient barrier to the onslaughts of the pro- 
 letariat upon property interests. At times and 
 to a very considerable extent state courts 
 have yielded to this pressure. It is the de- 
 mand of specially organized property inter- 
 ests for protection and fair treatment and the 
 inclination of the courts to give it that has 
 presented in the last thirty years so long a 
 list in every state of legislative acts held un- 
 constitutional because they took the liberty or 
 
 property of some person mthout due process 
 203
 
 Unpopular Government in the United States 
 
 of law.^ It is, no doubt, the desire of these 
 same property interests that the clause of 
 the fourteenth amendment of the federal 
 constitution, which provides that "no state 
 shall pass any law depriving any person of 
 life, liberty, or property without due process 
 of law," may in the hands of the United 
 
 ' The results reached by the Illinois Supreme Court, especially 
 when contrasted with those reached by the United States Supreme 
 Court, exhibit an extreme exercise of the power of courts to hold 
 legislation void because it takes the property or liberty of indi- 
 viduals without due process of law. 
 
 Since 1886 the Illinois Supreme Court has held void acts of 
 the legislature compelling mine-owners to weigh coal mined and to 
 pay the miners on the basis of such weight, because such acts took 
 the mine-owner's liberty and property without due process of law 
 contrary to the provisions of the state constitution: Millett v. The 
 People, 117 111. 294 (1896); Ramsey v. The People, 142 111. 380 
 (1892); Z?arJi«g V. r/fe Peo/>/e, 160 111. 459 (1896). The United 
 States Supreme Court, however, has held that a similar act from 
 Arkansas did not violate the "life, liberty, or property" clause of 
 the fourteenth amendment: McLean v. Arkansas, 211 U.S. 539 
 (1908). 
 
 Since 1892 the Illinois Supreme Court has held void state acts 
 regulating the keeping of truck stores by owners of coal mines and 
 factories, because they deprived such owners of liberty and 
 property without due process of law, contrary to the state con- 
 stitution: Frorer v. The People, 141 111. 171 (1892); Kellyville 
 Coal Co. V. Harrier, 207 111. 624 (1904). In 1886 the Pennsylvania 
 Supreme Court held void an act which prohibited the payment of 
 wages to miners in anything but money: Godcharles v. Wigeman, 
 113 Pa. 431 (1886). Yet the United States Supreme Court holds 
 that such acts are not in violation of the "life, liberty, or prop- 
 
 204
 
 The Second-Chamber Problem 
 
 States Supreme Court afford the same prac- 
 tical and effective protection to property 
 interests which similar clauses in the state 
 constitutions have done through the action 
 of state supreme courts. 
 
 Such is the actual situation into which it 
 is now proposed to project alterations in our 
 
 erty" clause of the fourteenth amendment: Knoxville Coal Co. v. 
 Harrison, 183 U.S. 13 (1901). 
 
 In 1896 the Illinois Supreme Court held void the barbers' 
 Sunday law, which forbade the employment of barbers on Sunday, 
 because the act violated the "life, liberty, or property" clause of 
 the state constitution: Eden v. The People, 161 111. 296 (1896). 
 But the United States Supreme Court sustained a like act from 
 Minnesota, declaring that it did not violate the "life, liberty, or 
 property" clause of the federal constitution: Petit v. Minnesota, 
 177 U.S. 164 (1898). 
 
 In 1900 the Illinois Supreme Court held void the state flag law 
 which prohibited the use of the American flag for advertising pur- 
 poses, because it deprived advertisers of liberty and property 
 without due process of law, contrary to the provision of the state 
 constitution: Ruhstrat v. The People, 185 lU. 133 (1900). The 
 United States Supreme Court, however, sustained a similar act 
 from Nebraska holding that it was not in violation of the "life, 
 liberty, or property" clause of the fourteenth amendment: 
 Halter v. Nebraska, 205 U.S. 34 (1907). 
 
 In 1908 the Illinois Supreme Court held void the bulk sales acts 
 regulating sales of stocks of goods in bulk otherwise than in the 
 usual course of trade, because it violated the "Ufe, liberty, or 
 property" clause of the state constitution: Off 6° Co. v. Morehead, 
 23s 111. 40 (190S). But the United States Supreme Court has held 
 similar statutes from Connecticut and Michigan valid and not in 
 violation of the "life, liberty, or property" clause of the fourteenth 
 
 205
 
 Unpopular Government in the United States 
 
 scheme of government which will eliminate 
 extra-legal government by politocrats and 
 thereby lessen, if not entirely do away with, 
 the lobby which is backed by the extra-legal 
 government. The same changes are to give 
 us a single legislative chamber which shall 
 be really representative, highly sensitive, and 
 quickly responsive to the popular will. Very 
 
 amendment: Lemieux v. Young, 211 U.S. 489 (1908); Kidd, 
 Daier 6° Price Co. v. Musselman Grocer Co., 217 U.S. 461 (1910). 
 
 In 1909 the Illinois Supreme Court held void the loan-shark 
 act regulating the assignment of future wages as security for 
 money borrowed and requiring the assignment to be recorded and 
 signed by the wife. Again the reason was that the "life, liberty, 
 or property" clause of the state constitution was violated: 
 Massie v. Cessna, 239 111. 352 (1909). But the United States 
 Supreme Court has sustained a similar act passed in Massachu- 
 setts on the ground that it did not infringe the "life, liberty, or 
 property" clause of the fourteenth amendment: Mutual Loan 
 Company v. Marlcll, 222 U.S. 225 (1911). 
 
 The lUinois Supreme Court has also held void, as infringing the 
 "Ufe, liberty, or property" clause of the state constitution, the 
 following acts: (a) An act penalizing employers in the importa- 
 tion of workmen from another state by reason of deceit touching 
 the matter of the existence of a strike or the sanitary condition of 
 the employment: Josma v. Western Steel Car Co., 249 lU. 508 
 (1911); compare, however, Williams v. Fears, 179 U.S. 270; {b) 
 An act providing that no public contractor shall employ alien 
 labor on any public work: City of Chicago v. Hulbert, 205 lU. 346 
 (1903). But in Atkin v. Kansas, 191 U.S. 207 (1903), the United 
 States Supreme Court held vaHd an act of Kansas making it a 
 criminal offense for a public contractor to permit or require an 
 employee to perform labor upon public work in excess of eight 
 206
 
 The Second-Chamher Problem 
 
 naturally property interests, particularly those 
 most frequently subject to legislative attack, 
 will wish to know how they are to be pro- 
 tected from the onslaughts of the proletariat 
 or from the hasty judgments of an ordinarily 
 conservative and fair majority. Property can 
 point to the fact that the commonwealth 
 under Cromwell gave up the single legislative 
 chamber and reverted to the bicameral plan;' 
 
 hours each day; (c) The miners' washroom act, requiring owners 
 of mines to provide a washroom at the top of the mine for the use 
 of the miners: Starne v. The People, 222 111. 189 (1906); {d) An 
 act prohibiting more than six persons sleeping in one room in a 
 lodging-house: Bailey v. The People, 190 111. 28 (1901); (e) An 
 act prescribing an eight-hour day for women in certain occupa- 
 tions: Ritchie v. The People, 155 111. 98 (1895). This case was 
 approved in Ritchie v. Wayman, 244 111. 509 (1911), which, how- 
 ever, held a ten-hour labor law for women in certain occupations 
 vaUd, following the ruling of the U.S. Supreme Court sustaining a 
 similar act passed in Oregon: Midler v. Oregon, 208 U.S. 412 
 (1908). It seems entirely probable from its opinion in the last- 
 mentioned case that the United States Supreme Court would have 
 held vaUd the act condemned by the Illinois Supreme Court in 
 Ritchie v. The People, supra. 
 
 ^ "The proposal for a revived Second Chamber was, on the con- 
 trary, carried with an une.xpected degree of unanimity. The 
 Protector pressed it strongly upon the officers. 'I teU you,' he 
 said, ' that unless you have some such thing as a balance we can- 
 not be safe. Either you will encroach upon our civil liberties by 
 excluding such as are elected to serve in Parliament — next time 
 for aught I know you may exclude four hundred — or they wUI 
 encroach upon our religious liberty. By the proceedings of this 
 207
 
 Unpopular Government in the United States 
 
 that the single chamber adopted by the 
 French Constitution of 1791 was abandoned 
 for a bicameral arrangement in 1795, and 
 never again, except for a brief space under 
 the Second Republic of 1848, did France 
 renew the experiment. It can point to the 
 opinions of Mill/ Lecky,^ Maine,^ Bagehot,"* 
 
 Parliament you see they stand in need of a check or balancing 
 power, for the case of James Naylor might happen to be your case. 
 By the same law and reason they punished Naylor they might 
 punish an Independent or an Anabaptist. By their judicial 
 power they fall upon life and member, and doth the Instrument 
 enable me to control it? This Instrument of Government will 
 not do your work.'" — J. A. R. Marriott, Second Chambers, p. 38. 
 
 ' "A majority in a single assembly, when it has assumed a per- 
 manent character — when composed of the same persons habitually 
 acting together, and always assured of victory in their own House 
 — easily becomes despotic and overweening, if released from the 
 necessity of considering whether its acts will be concurred in by 
 another constituted authority. The same reason which induced 
 the Romans to have two consuls, makes it desirable there should 
 be two chambers; that neither of them may be exposed to the 
 corrupting influence of undivided power, even for the space of a 
 single year." 
 
 »"0f all the forms of government that are possible among 
 mankind I do not know any which is likely to be worse than the 
 government of a single omnipotent democratic chamber." 
 
 3 "What, then, is expected from a well constituted Second 
 Chamber is not a rival infallibilily, but an additional security. It 
 is hardly too much to say that, in this view, almost any Second 
 Chamber is better than none." 
 
 4 "With a perfect Lower House it is certain that an Upper 
 House would be scarcely of any value. If we had an ideal House 
 
 208
 
 The Second-Chamber Problem 
 
 and Sidgwick^ in favor of the second-chamber 
 plan and to the well-nigh universal practice of 
 such a method of constituting the legislature. 
 Furthermore, the second chambers established 
 outside of the United States and perhaps 
 Austraha have in practice acted on the whole 
 as the representatives of property interests 
 and the protectors of those interests from the 
 acts of the popular house. These experiences 
 may contain no lesson for us and the opinions 
 referred to may be hopelessly reactionary, but 
 they would at least seem to justify property 
 in humbly asking what is to be done to pro- 
 tect it from the actions of the single popular 
 
 of Commons perfectly representing the nation, always moderate, 
 never passionate, abounding in men of leisure, never omitting the 
 slow and steady forms necessary for good consideration, it is 
 certain that we should not need a higher chamber. The work 
 would be done so well that we should not want any one to look 
 over or revise it. And whatever is unnecessary in government, 
 is pernicious But though beside an ideal House of Com- 
 mons the Lords would be unnecessary, and therefore pernicious, 
 beside the actual House a revising and leisured legislature is 
 extremely useful, if not quite necessary." 
 
 ' "The main end for which a Senate is constructed [is] that all 
 legislative measures may receive a second consideration by a body 
 different in character from the primary representative assembly, and 
 if possible superior or supplementary in intellectual qualifica- 
 tions." 
 
 209
 
 Unpopular Government in the United States 
 
 legislative chamber in which is united the 
 executive and legislative power. 
 
 There are two ways at least of meeting this 
 question: 
 
 The first is to do nothing at all. Property is 
 to be persuaded that it is in the long run 
 entirely safe at the hands of a legislature which 
 is really expressive of the will of the majority 
 and sensitive to that will; that property has 
 money with which to advocate its cause and 
 can buy newspapers, circulate pamphlets, and 
 hire speakers; that the mass of the electorate 
 are in general entirely fair and conservative 
 toward property; that property is protected 
 by the courts and by constitutional provisions 
 prohibiting the taking of property without due 
 process of law from sudden and violent legis- 
 lative action. 
 
 This attitude will, however, hardly satisfy 
 property interests. How they will be treated 
 by a single legislative chamber representing 
 the popular will cannot be determined till the 
 experiment is actually tried. All a priori 
 views are merely speculative opinions made
 
 The Second-Chamber Problem 
 
 up from data wholly incomplete and incon- 
 clusive. Property interests will naturally re- 
 gard it as unfair that they should take the 
 risk of a new experiment in government. Nor 
 will property be satisfied with protection by 
 the courts as now constituted. The fact that 
 judges are for the most part elected by popu- 
 lar vote, that the recall of judges and of 
 judicial decisions is being \dolently advocated, 
 will hardly tend to reassure property in the 
 protection from the electorate by the courts 
 to which it beheves itself fairly entitled. 
 
 The second method of meeting the demand 
 of property for protection from the single 
 popular legislative chamber is to give it a direct 
 representation in the legislature and a voice in 
 the enactment of the laws at the time they are 
 in the process of making. The representatives 
 of property should have power to propose legis- 
 lation, to amend that which comes from the 
 popular legislative chamber, and to enter into 
 compromises respecting it. They should have 
 in addition at least a limited veto on the pas- 
 sage of laws. The exercise of such powers
 
 Unpopular Government in the United States 
 
 should be open and legal, but at the same time 
 enthely subordinate to the power of the rep- 
 resentatives of the electorate in the single pop- 
 ular chamber. This requires the establishment 
 of a second legislative chamber in which the 
 representatives of property interests shall sit. 
 The most direct method of constituting such 
 a second chamber is to divide the state into as 
 many senatorial districts as there are to be 
 members of the second chamber — let us say 
 one-fourth of the number of the popular house. 
 The districts should be created on the basis of 
 an equal amount of taxable property in each. 
 One representative should be sent from each 
 district. One vote should be given each tax- 
 payer in the district who during the preceding 
 year had paid a given amount or less in taxes. 
 Each taxpayer should have one vote in addi- 
 tion for each similar amount which he paid in 
 taxes, and should vote as a taxpayer, whether 
 a corporation or a non-resident citizen of the 
 United States. It might be desirable to elect 
 the senators at large from a few districts, the 
 voting by taxpayers to be according to the
 
 The Second-Chamber Problem 
 
 Hare plan, thus allowing groups of taxpayers 
 to send their representatives. 
 
 A less direct method would be to fill the 
 second chamber with members holding for life 
 and appointed by the executive council of 
 state. The natural tendency of such a Hfe 
 tenure of office, coupled with appointment from 
 among successful men, is to produce a conserva- 
 tive second chamber. If, however, one party 
 is in power for a long period it also results in 
 the packing of the second chamber by one 
 party for its own purposes and this brings 
 renewed party strife and legislative deadlocks.^ 
 Such a second chamber will, however, in the 
 long run, it is beheved, represent property 
 interests. 
 
 It would be, of course, of vital importance 
 that a second chamber constituted in either 
 of the above ways be kept in strict subordi- 
 nation to the chamber which represents the 
 electorate at large. The principal means for 
 accomplisliing this has aheady been provided 
 
 =■566 J. A. R. Marriott, "History of the Canadian Second 
 Chamber" in Second Chambers, pp. 145 ff. 
 
 213
 
 Unpopular Government in the United States 
 
 for in the plan for the union of the executive 
 and legislative functions in the lower house. 
 The fact that the entire executive power of 
 the state is placed in the hands of the leaders 
 of the legislative majority of the lower house 
 must always make that the more powerful 
 organ of government. But we can go farther. 
 It may be provided that the second chamber 
 shall never have the right to reject an appro- 
 priation bill. This will prevent its ever inter- 
 fering with the conduct of the government 
 through the collection of taxes and the expendi- 
 ture of money. Then a suitable method of 
 "steam-rollering" the second chamber with 
 regard to the passage of legislation may be 
 provided as follows: 
 
 After the rejection of any bill passed by the lower 
 house in two successive sessions, the vote upon such bill 
 shall be taken, with both branches of the legislature 
 sitting in joint session and a majority of the votes in 
 such joint session shall be sufficient to give the bill the 
 efifect of law. 
 
 By such devices the second chamber repre- 
 senting property interests as such will have 
 214
 
 The Second-Chamher Problem 
 
 been given only a properly limited veto power 
 upon legislation. At the same time, as a sec- 
 ond chamber, it will have power to approve 
 that which passes the popular house and to 
 enter into compromises respecting it. The 
 second chamber can undertake a popular de- 
 fense of its action. These are important privi- 
 leges. They aid in the production of laws 
 which are fair to all. On the other hand, the 
 second chamber is equally clearly cut off from 
 ever gaining any ascendancy over that branch 
 of the legislature which represents and is sensi- 
 tive to the popular will. 
 
 We may, however, in the establishment of a 
 second chamber representing property interests 
 proceed with still greater indirectness and the 
 utmost caution along a path on which we are 
 aheady started. 
 
 Our highest state judicial tribunal is already 
 possessed of a substantial veto upon legisla- 
 tion in the interests of property by reason of 
 its power to declare acts of the legislature 
 void because they take property "without 
 due process of law." There are few, if any, 
 
 215
 
 Unpopular Government in the United States 
 
 constitutions today in the United States which 
 do not contain other prohibitions upon the 
 legislature under which acts may be declared 
 unconstitutional in the interests of property. 
 The courts have aheady gone beyond the mere 
 academic function of declaring acts of the 
 legislature void only when they are utterly 
 irrational and arbitrary in their discriminatory 
 operation. The courts now boldly perform the 
 function of protecting property from hasty, ill- 
 advised, and unjust legislation. Heretofore, at 
 least, public opinion has sustained the courts 
 in the exercise of this function. The placing 
 of this power in the hands of judges has insured 
 its exercise by men who at least are not preju- 
 diced against property and are inchned to give 
 it a fair hearing. Judges must be selected from 
 among lawyers, and hence must be men of some 
 education and intellectual attainments. Since 
 the main business of judges is to decide litigated 
 cases arising between individuals, there is very 
 naturally a demand that judges be selected 
 from among the leaders at the bar. This means 
 that there is a constant and legitimate pressure 
 
 ?l6
 
 The Second-Chamber Problem 
 
 in favor of the selection of men who will 
 naturally give property as full protection as 
 the power of the court will permit. Even 
 lawyers of only fair success and ability in 
 fifteen or twenty years of practice will acquire 
 the property point of view. Practically all 
 lawyers live in an atmosphere of enforcement 
 of property interests. They cannot avoid 
 being educated to see the unfairness of legis- 
 lation which affects unfavorably property in- 
 terests. It is not improbable that among those 
 who secure seats in the highest court some will 
 regard themselves as specially appointed to 
 stand between property and the proletariat, 
 and will do so with great determination, vigor, 
 and judicial independence. Once selected, the 
 judge in our highest courts holds for a longer 
 term than other judges, and this fact fortifies 
 him in a determination that property interests 
 shall be dealt with fairly. All this has been 
 accompHshed without the electorate at large 
 fuUy perceiving what has happened. The voter 
 is still submissive to the apparently fair propo- 
 sition that only lawyers of excellent standing 
 217
 
 Unpopular Government in the United States 
 
 and ability should be elected to the highest 
 court of the state. Little does he understand 
 that success in selecting such men has estab- 
 lished the rudiments of a second chamber which 
 is designed to protect property. 
 
 The present arrangement, however, is on the 
 verge of some reorganization. It is plain that 
 the judicial veto is too drastic. It may stop 
 aU desired legislation along a given line till the 
 constitution is changed. The difficulties of 
 securing the desired amendment may not be 
 surmounted for many years. Hence has arisen 
 the plan for " steam-roUering " the judicial veto 
 by a constitutional provision that whenever an 
 act of the legislature has been passed at two 
 different sessions and sustained by the electorate 
 upon a referendum, it shall be deemed not to 
 infringe the "life, liberty, and property" clause 
 of the state constitution.' The electorate to- 
 day is also becoming increasingly aUve to the 
 
 ' The phrase "recall of judicial decisions" is unfortunate, since 
 it implies that the Judicial function is taken over by the electorate 
 and the judicial decision reversed, when all that is done is to 
 amend the constitution so that the basis for the judicial decision 
 is taken away in all subsequent litigation. The better phrase, it 
 
 218
 
 The Second-Chamber Problem 
 
 fact that the courts, in holding legislation un- 
 constitutional, have really abandoned a purely 
 judicial function and have undertaken in a 
 degree the poHtical function of a second cham- 
 ber in protecting property interests from the 
 legislature. True, the action of the court is 
 in form still judicial. It purports to apply the 
 constitutional prohibition to the legislation in- 
 volved in the particular Htigated case arising 
 between contending parties. But the court's 
 decision, once made, is now acquiesced in by all 
 departments of the government and all public 
 ojficers, as a complete disposition of the act 
 held void. The compiler of the statutes omits 
 it from the compiled laws as being no law at all. 
 The court does in fact veto out of existence an 
 act of the legislature for the entire state govern- 
 ment and the inhabitants of the state. It does 
 this also in response to a very general prohibi- 
 tion upon the legislature, such as that "no 
 
 is believed, is the one used in the text, namely, "steam-rollering 
 the judicial veto." See Albert M. Kales, "The Recall of Judicial 
 Decisions," lUinois State Bar Association Proceedings, 1912, pp. 
 203-18; Herbert Pope, "The Recall of Judicial Decisions — A 
 Criticism," 7 Illinois Law Review, p. 149. 
 
 219
 
 Unpopular Government in the United States 
 
 person shall be deprived of property without 
 due process of law" — a phrase so vague that 
 it gives the court a discretion which approaches 
 that of the legislature in considering whether a 
 proposed act is wise and fair to property or 
 not. The disclosure to the electorate that 
 courts, in using their judicial veto, are really 
 exercising a great poHtical power has resulted 
 in an increasing demand that judges should 
 be elected as political officers; that their eco- 
 nomic and social bias be known — in short, 
 that they have a poHtico-judicial platform and 
 be subject to the recall. 
 
 The tendency thus disclosed to treat the 
 judges of our highest courts as political officers 
 whose social and economic bias regarding legis- 
 lation must be known in advance is, of course, 
 ruinous to the performance of their ordinary 
 judicial functions. The electorate will obtain 
 what it wants, and perhaps what it may be 
 entitled to, from the judges, but at the expense 
 of the disruption of the whole judicial system. 
 That would indeed be a calamity. Disorganiza- 
 tion in the administration of justice, due to the
 
 The Second-Chamber Problem 
 
 popular attitude toward judges and the courts, 
 is even now beginning to be felt. It will very 
 soon become apparent that in the rebuilding 
 of our judicial system courts which handle 
 the general mass of litigation must be con- 
 fined strictly to judicial functions. They must 
 administer the law as established by the 
 legislature and always in subordination to 
 the legislature. If, then, we are to keep 
 our present plan of protecting property by 
 means of a court and a constitution, a special 
 court of last resort must be estabHshed for 
 deciding all constitutional questions, the va- 
 lidity of aU municipal ordinances, and all 
 other classes of cases where the issue is 
 drawn between the electorate acting tlnrough 
 a popular legislative body, and property in- 
 terests. In order that the veto of the court 
 may not be too drastic in its effect, there 
 should be given to the single chamber legis- 
 lature the power to "steam-roller" its judi- 
 cial veto by a second passage of the act after 
 a suitable interval and its approval on a 
 referendum. Thus we shall have evolved a
 
 Unpopular Government in the United States 
 
 practicable second chamber protecting prop- 
 erty interests. 
 
 It would be only a short step to provide for 
 the submission of all acts to such a court before 
 they became laws, with a right on the part of 
 htigants to bring up the question of the validity 
 of the acts as upon a rehearing. Then it would 
 seem most reasonable that when an act was 
 presented to the special court of appeal before 
 it became law and found to be unconstitu- 
 tional, the court should have power to redraft 
 the act so that it would accompHsh what was 
 desired so far as the same was permitted by 
 the constitution. If ultimately the right of 
 litigants to attack the vahdity of any act 
 which had passed both the legislature and the 
 court should be cut off, and if the constitu- 
 tional Hmitations upon the legislature should 
 entirely disappear, while at the same time the 
 members of the body which scrutinized the acts 
 passed by the popular chamber were appointed 
 by the council of state and held office for a 
 considerable period, we should have, in what 
 started as a judicial tribunal, a real second
 
 The Second-Chamber Problem 
 
 chamber functioning like other second chambers 
 in furnishing an additional security against legis- 
 lation which was unfair to property interests.^ 
 
 ' Ramsay Muir, in Peers and Bureaucrats, has a suggestion for 
 a second chamber that should not be ignored. He finds the evil 
 of a popular chamber containing a large number of representatives 
 from wieldy districts selected by pluralities merely to be that it 
 makes government by party a necessity. The parties tend to 
 form themselves into two great camps, with two great programs. 
 The electorate has been driven to choose one program or the other, 
 though if all shades of opinion could be examined some part of 
 each program would not receive a majority of votes. Party 
 discipline, however, becomes so strict that the first chamber can 
 put through every part of the party program. The real need in 
 the second chamber, he declares, is to secure members of inde- 
 pendent views who can express their opinions freely without fear 
 of the loss of their seat as a punishment for having been independ- 
 ent, and which will represent the different shades of opinion on 
 the part of the electorate. He, therefore, advocates the selection 
 of members of the second chamber by the method of proportional 
 representation by the single transferable vote according to the 
 Hare plan. 
 
 The difficulty with this proposal is that property interests 
 as such are not represented except according to the numerical 
 strength of property owners. In fact, Mr. Muir expressly repudi- 
 ates any idea of creating a second chamber based upon an aristoc- 
 racy or the middle class of income taxpayers. His plan might 
 also be expected to involve a contest as to which chamber really 
 represented the electorate. The second chamber as proposed by 
 Mr. Muir would certainly be a "rival infallibility" and hopeless 
 deadlocks might be expected. There would then be the usual 
 American spectacle of bickering between the executive as repre- 
 sented by the executive council or cabinet of the first chamber, 
 and the second chamber representing the electorate. On the 
 whole the union of the executive and the legislative powers so 
 much to be desired would be broken in upon. 
 223
 
 Unpopular Government in the United States 
 
 It is not the purpose of the present writer 
 to advocate either the second chamber repre- 
 senting property interests or the estabhshment 
 of a unicameral legislature in which all legisla- 
 tive and executive powers are united and which 
 is extremely sensitive to the popular will with- 
 out any special protection to property interests 
 other than that which their numerical strength 
 and property holding gives them. It is enough 
 that the difficulties of the situation be faced 
 and the several general lines of procedure be 
 indicated. It will be time enough to have 
 opinions when we are brought, by constitution- 
 making, nearer to the practical settlement of 
 the difficulty. 
 
 224
 
 CHAPTER XVn 
 
 METHODS OF SELECTING AND RETIRING 
 JUDGES 
 
 Justice is not administered by an executive 
 head planning how a large number of employees 
 shall do clerical work or tend machines. Its 
 ultimate source is in the operation of the mind 
 of the judge upon certain facts presented to 
 him in a judicial investigation. The power 
 of the state to preserve order and settle the 
 rights of parties is subject to be invoked in 
 one way or another, according as the judge's 
 mind reacts and operates. Clearly, therefore, 
 the way in which the minds are selected for 
 this important public duty and the way they 
 are retired is of the first importance to the due 
 administration of justice. 
 
 It may be that in some frontier or sparsely 
 settled rural districts where extra-legal govern- 
 ment does not exist, judges are in a degree 
 really elected by the people. It may be that 
 in such communities the electorate does actually 
 225
 
 Unpopular Government in the United States 
 
 pick out that one among the lawyers whom it 
 wishes to act as judge. 
 
 There may be other communities which are 
 well satisfied with the results obtained by 
 special judicial elections at which the candidates 
 are nominated by petition only and where the 
 ballot is in form non-partisan. An analysis of 
 conditions in such communities will usually 
 show that extra-legal government by politocrats 
 is very weak or non-existent, and that the 
 power of selecting and retiring judges really 
 resides in the lawyers, subject only to the 
 approval of the electorate. 
 
 In a metropolitan district, however, where 
 there is a large population and a governmental 
 plan which reduces the most intelligent in- 
 habitant to an extreme degree of pohtical 
 ignorance as a voter, and the establishment of 
 extra-legal government by politocrats is thus 
 secured and fostered and becomes the real 
 government, the judges, though the electorate 
 regularly votes to instal them in office, are not 
 in fact elected at all. They are appointed. 
 
 The appointing power is lodged with the poUto- 
 226
 
 Selecting arid Retiring Judges 
 
 crats of the extra-legal government. These 
 men appomt the nominees. They do it openly 
 and with a certain degree of responsibihty under 
 the convention system. They do it less openly 
 and with less responsibility when primaries are 
 held. 
 
 If you wish to test the soundness of these 
 conclusions inquire your way to a judgeship in 
 such a district or Usten to the experiences of 
 the men who have found their way to a judge- 
 ship or have tried to obtain the ofSce and 
 failed. In almost every case the story is one 
 of preliminary service to the organization, rec- 
 ognition by the local organization chief, and 
 through him recognition and appointment of a 
 nomination by the governing board of the party 
 organization. Those who do not go by this 
 road do not get in. The voter only selects 
 which of two or three appointing powers he 
 prefers. Whichever way he votes he merely 
 approves an appointment by politocrats. 
 
 The judges in a metropolitan district where 
 
 the extra-legal government rules and where 
 
 elections for judges are held are not subject 
 227
 
 Unpopular Government in the United States 
 
 to a recall merely. They are subject to a pro- 
 gressive series of recalls. They are subject to 
 recall by the pohtocrats who sit upon the 
 governing board of the party organization. 
 These may refuse a nomination at the time 
 of an election. If the judge secures the nomi- 
 nation he may be recalled by a wing of the 
 organization knifing him at the polls. He may 
 be, and frequently is, recalled by reason of an 
 upheaval upon national issues. In the case so 
 rare that it is difficult for one with a consider- 
 able experience at the bar in a city like Chicago 
 to remember it, a judge is actually recalled 
 because of popular dissatisfaction with him. 
 If there now be added the recaU by popular 
 vote at any time during the judge's term, we 
 shall have presented the pohtocrats with a 
 continuous hold upon the judge. Their power 
 may at any time be used to initiate recall pro- 
 ceedings against him, and the individual with- 
 out any real popular following will have but 
 little chance against the tremendous power of 
 a successful pohtical organization. The recall 
 
 of a judge by popular vote at any time will 
 228
 
 Selecting and Retiring Judges 
 
 give a like opportunity to a particular faction 
 of the political organization to attack a judge 
 it does not want. Such a recall will likewise 
 give to a party which has a chance of sweeping 
 all before it in a national election an oppor- 
 tunity to initiate a recall of some at least of 
 the judges of the opposite political party. 
 Of course, the recall election will also give the 
 electorate at large an opportunity to retire a 
 judge at once in the rare case where there is a 
 real popular uprising against him. It does not 
 take any great degree of inteUigence to estimate 
 whether such a recall by popular vote will be 
 of greater advantage to the extra-legal govern- 
 ment by politocrats or to the electorate at 
 large. 
 
 The plain truth is that in a metropolitan 
 district the selection of judges by some sort of 
 appointing power cannot by any possibihty be 
 avoided. The position of a single judge out 
 of as many as thirty and upward in a district 
 containing an electorate of a hundred thousand 
 and over is too hidden and obscure to enable 
 
 any man who is willing to occupy the place to 
 229
 
 Unpopular Government in the United States 
 
 secure a popular following. The man who has 
 a real hold upon a majority of so numerous an 
 electorate will inevitably be led to a candidacy 
 for governor of the state or senator of the 
 United States, if not indeed for president of 
 the United States. Another obstacle to the 
 actual choice of judges by so numerous an 
 electorate is that the determination of those 
 fit to hold judicial office is unusually difficult. 
 It would be a problem for a single individual 
 who had an extensive personal knowledge of 
 the candidates and had observed them closely 
 for a considerable period in the practice of their 
 profession. For all but the most exceptional 
 judge in a metropohtan district the power 
 which places him in office and retires him from 
 office will be an appointing power, although 
 there be in force the so-called popular election 
 of judges. So long as extra-legal government 
 by politocrats is the real government, that 
 appointing power will be lodged in the polito- 
 crats who wield the power of that government. 
 There are many who sincerely believe that 
 
 the ideal functioning of the electorate in a 
 230
 
 Selecting and Retiring Judges 
 
 metropolitan district where the extra-legal 
 government is strong, may be restored if judges 
 are elected only at special elections where a 
 judicial ballot is used which omits all designa- 
 tion of parties and upon which the names of 
 candidates are placed by petition only and the 
 name of each candidate is rotated upon the 
 ballot so that it will appear an equal number 
 of times in every position. The object of such 
 legislation is to restore a choice by the electo- 
 rate by depriving the extra-legal government 
 of its predominant influence in judicial elec- 
 tions. The means adopted to deprive the 
 extra-legal government of its influence is to 
 take from it the use of the party circle and the 
 party column. It may safely be predicted of 
 such legislation that it will not cause judges 
 to be the actual choice of the electorate, nor 
 will it eliminate the influence of the politocrats 
 in judicial elections. 
 
 The supposition is that if the influence of 
 the politocrats can be eliminated the electo- 
 rate will necessarily make a real choice. But 
 
 the electorate does not fail to choose simply 
 231
 
 Unpopular Government in the United States 
 
 because the politocrat has taken that choice 
 from it. On the contrary, the pohtocrat rules 
 because the electorate regularly goes to the 
 polls too ignorant poHtically to make a choice 
 of judges. That ignorance is due to the fact 
 that the office of judge is inconspicuous and 
 the determination of who are quahfied for the 
 office is unusually difficult, even when an 
 expert in possession of all the facts makes the 
 choice. The proposed method of election does 
 not in the least promise to eliminate the funda- 
 mental difficulty of the poUtical ignorance of 
 the electorate. If, therefore, it succeeded in 
 eliminating the influence of the extra-legal 
 government the question would still remain: 
 Who would select and retire the judges? 
 There is no reason to beheve that the electorate 
 would make any real choice. Electors would 
 be just as pohtically ignorant as they were 
 before. They would be just as httle fitted for 
 making a choice as they were before. The 
 elimination of extra-legal govermnent does not 
 give to the electorate at large the knowledge 
 required to vote intelligently. Who, then, will 
 232
 
 Selecting and Retiring Judges 
 
 select and retire the judges ? The newspapers 
 might have a larger influence, but they would 
 probably be very far from exercising a control- 
 Hng influence or uniting in such a way as to 
 advise and direct the majority of the voters 
 out of an electorate of several hundred thousand 
 how to vote for a large number of judges. 
 Special cliques would each be too small to 
 control a choice and combinations would be 
 too difficult to make. The basis of choice 
 would, therefore, be utterly chaotic. There 
 could be neither responsibility nor intelligence 
 in the selection of judges. The results reached 
 would depend upon chance or upon irrespon- 
 sible and temporary combinations. With every 
 lawyer allowed to put up his name by petition 
 and chance largely governing the result, the 
 prospect is hardly encouraging. 
 
 There is no reason to believe, however, that 
 any such disorganized method of choice would 
 be tolerated. The most potent single power in 
 elections would end it. That power would be 
 the extra-legal government. Its organization 
 would be put to greater trouble in advising 
 233
 
 Unpopular Government in the United States 
 
 and directing the politically ignorant how to 
 vote, because it would have been deprived 
 of the party circle and party column. But 
 the advice and direction could and would be 
 given and followed. Each competitor for the 
 power of the successful extra-legal government 
 would have its slate of candidates. Each would 
 prepare separate printed lists of its slate to be 
 distributed at the polls and the voter would for 
 the most part, as now, take the hst of that 
 organization he was loyal to or feared the most, 
 and vote the names upon it no matter where 
 they appeared upon the ballot. Thus the ap- 
 pointment and retirement of judges by the 
 extra-legal government would, after perhaps a 
 period of chaos and readjustment, again appear. 
 Perhaps it would be even stronger as a result 
 of reaction and deliverance from the chaotic 
 conditions which it reheved. 
 
 It is impossible to escape the conclusion that 
 in a metropolitan district with one hundred 
 thousand voters and upward, the selection of 
 judges by the electorate is practically impos- 
 sible. It is equally certain that the judges in 
 234
 
 Selecting mid Retiring Judges 
 
 such a community must be selected by some 
 appointing power. The real and only ques- 
 tion is: What is the best method of appoint- 
 ment? 
 
 No method could be worse than that which 
 we now employ. Appointment by the poHto- 
 crats of the extra-legal government is so ob- 
 scure, especially when effected by primaries, 
 that they are under no responsibility whatever 
 in naming judges and they have Httle interest 
 in the due administration of justice. In- 
 deed, the situation is worse than that, for 
 they may have positive reasons for wishing a 
 type of man from whom they may expect 
 certain courses of action which wiU actually 
 be inimical to the efficient administration of 
 justice, particularly in criminal causes; or they 
 may be interested in fiUing judicial offices with 
 those who have done more in the way of faith- 
 ful service to the organization than in the way 
 of practice in the courts. 
 
 From time to time, therefore, suggestions 
 have come from members of the bar of ways 
 and means for reducing the influence of the 
 
 235
 
 Unpopular Government in the United States 
 
 appointing power of the politocrats. It has 
 been suggested that the bar association should 
 be given power to place upon the official ballot 
 a bar-association ticket upon which might 
 appear candidates who had been nominated 
 by any of the other political parties. This 
 would give the candidates approved by the 
 bar association and also by any other political 
 party considerable advantage over those ap- 
 pearing in only one party column. To that 
 extent it would throw a greater influence into 
 the hands of the lawyers. The question, 
 however, has arisen whether this would result 
 in a greater power in an unbiased bar associ- 
 ation to select good judges, or in the lining- 
 up of lawyers in groups which were controlled 
 by the leaders of the poHtocrats. The effort is 
 frequently made to provide that all judges shaU 
 be elected at a special judicial election. This 
 course may prevent the recall of judges because 
 of an upheaval on national issues. It does not, 
 however, interfere with the appointment of a 
 nomination by the politocrats in the first in- 
 stance. Even when the nominations are all 
 
 236
 
 Selecting and Retiring Judges 
 
 by petition and the party circle eliminated and 
 the names of candidates rotated upon the 
 ballot, resort must still be had to the extra- 
 legal government to escape absolute chaos and 
 selection by mere chance. 
 
 Nothing of great value can be accomphshed 
 until it is recognized that the judges in a 
 metropohtan district are certain to be appointed 
 and that the only proper appointing power is 
 one which is conspicuous, legal, subject directly 
 to the electorate, and interested in and respon- 
 sible for the due administration of justice. 
 
 This principle may be worked out in a variety 
 of ways. 
 
 When the state executive as now constituted 
 is given power to appoint directly, or to appoint 
 indirectly by designating the nominees to be 
 voted upon, the principle is worked out in one 
 way. There are, no doubt, serious objections 
 to both methods of executive appointment. 
 The governor of the state is, of course, in the 
 midst of poHtics. He is also in the midst of a 
 legislative program, and the temptation is very 
 strong to trade judicial places for the progress 
 237
 
 Unpopular Government in the United States 
 
 of administration measures in the legislature. 
 Then the governor is not particularly respon- 
 sible for the administration of justice, that 
 being a matter for the judicial department 
 rather than the executive. But this much 
 can be afi&rmed, that any mode of appoint- 
 ment by the governor, since it is conspicuous 
 and legal, and since the governor is directly 
 subject to the electorate, carries with it a 
 measure of responsibihty which is not found 
 where the appointment is secret and by the 
 politocrats of the extra-legal government. Ap- 
 pointment by the governor is better than the 
 present misnamed plan of popular election. 
 
 It might be suggested that the power of 
 appointment could be lodged in the highest 
 appellate tribunal of the state, the members 
 of which had terms of considerable length, but 
 were subject to election. This again is, no 
 doubt, open to objections. But again, it could 
 not possibly be a worse method than the one 
 now employed. Judges of such courts are more 
 easily than governors made responsible for the 
 
 due administration of justice. They would have 
 238
 
 Selecting and Retiring Judges 
 
 stronger motives than the governor for appoint- 
 ing men who could best carry on the adminis- 
 tration of justice. No body of men in the state 
 has a better opportunity for determining the 
 character and abiUty of lawyers, since they 
 examine the work of lawyers continually with 
 most minute care. 
 
 It has been suggested that vacancies in the 
 judiciary should be filled by the appointment 
 of the chief justice of the metropoHtan district. 
 He in turn should be chosen by the electorate 
 of the district at fairly frequent intervals — 
 viz., every four or six years — and in him 
 should be vested large powers to oversee and 
 direct the mode of organizing and handhng 
 the business of the court.' 
 
 I The following extract from the letter of Mr. Charles H. Harts- 
 home, of Jersey City, N.J., to the author dated November 4, 
 191 2, explains the plan of administering the chancery jurisdiction 
 in New Jersey: "The constitution of New Jersey provides that 
 'The Court of Chancery shall consist of a Chancellor.' The 
 Chancellor is appointed by the Governor with the approval of the 
 Senate, for a term of seven years. He is usually reappointed, 
 though it is an open question whether this office is an exception 
 to the custom that judicial officers of the superior courts shall be 
 reappointed, regardless of their poUtical affiUations, so long as 
 they are capable of giving efficient service. That custom has 
 resulted in our havdng upon the Bench of the higher courts, judges 
 
 239
 
 Unpopular Government in the United States 
 
 The, objection which will at once be raised 
 to this is that it presents an opportunity for the 
 poUtocrats to obtain vast power by securing 
 control of the chief justice. It is not difficult 
 to demonstrate that the lodging of the appoint- 
 ing power in the hands of a responsible and 
 conspicuous chief justice controlled by the 
 politocrats would be much less inimical to the 
 administration of justice than the appointment 
 of judges in secret and without responsibility 
 by the poHtocrats directly. The chief justice 
 would, of course, only fill vacancies occurring 
 during his short term. The guaranty to the 
 pubHc that such vacancies would be filled with 
 
 who have served for very long periods — twenty-five years and 
 upwards. 
 
 "A number of years ago, the work of the Court of Chancery 
 having become too great for one judge to dispose of, a statute 
 authorized the appointment by the Chancellor alone (without 
 confirmation by any other authority) of a Vice-Chancellor, as 
 assistant. By further statutes, the number of these was increased 
 to seven. The Court now consists of a Chancellor and seven Vice- 
 Chancellors, who sit separately in different parts of the State. 
 The Vice-Chancellors are appointed for seven-year terms. That 
 Bench is generally regarded as the strongest in the State and has 
 given entire satisfaction to the Bar and to the pubUc. 
 
 "The Vice-Chancellors hear interlocutory motions in nearly 
 all cases under a standing rule of the Court, but they conduct trials 
 and final hearings only upon an order of reference from the 
 
 240
 
 Selecting and Retiring Judges 
 
 fairly efficient men lies in the fact that enormous 
 responsibility for the due administration of 
 justice is focused upon a single man. Every 
 complaint of inefficiency and impropriety comes 
 home to him. Such a man cannot carry on 
 the work of the court without the most efficient 
 judges that he can possibly secure. This leads 
 necessarily to procuring as judges members of 
 the bar who have, in a successful practice in 
 the courts, had a proper service test. Assum- 
 ing that such a chief justice were the recog- 
 nized deputy of the pohtocrats he would be 
 driven by the necessities of the case, by the 
 conspicuousness of his position, and the force 
 
 Chancellor. After trial they write the opinion of the Court, 
 which is usually reported, and advise the decree, which is then 
 signed by the Chancellor. No appeal lies from their decree to the 
 Chancellor, but all such decrees may be appealed directly to the 
 Court of Errors and Appeals. 
 
 "Theoretically, the Vice-Chan cellors are merely referees who 
 report and advise the Chancellor, the decree being made by him 
 upon their report. In actual practice however, they are members 
 of the Court of Chancery, in fact (but not in form) making the 
 final decree of that Court. 
 
 "The system has worked very satisfactorily in respect to the 
 character and attainments of the members of that Bench, but the 
 work of the Court in populous cities is a good deal in arrear. 
 This is due to the volume of business having outgrown the nima- 
 ber of Vice-Chancellors." 
 
 241
 
 Unpopular Government in the United States 
 
 of public opinion, to do his utmost to persuade 
 the poHtocrats to permit him to appoint efficient 
 men. That would produce an appointing power 
 far better than the secret and utterly irrespon- 
 sible method of direct appointment by the 
 poHtocrats which now exists. A much more 
 desirable result than this, however, is to be 
 expected. Such a chief justice would be so 
 important and conspicuous an officer and his 
 power so great, that in his nomination and 
 election the desires of the electorate as a whole 
 would have to be much more fully considered 
 than is the case where the poHtocrats appoint 
 to a nomination and seek the election of an 
 obscure member of a bench composed of thirty 
 members and upward. 
 
 AU fear of the chief justice having too much 
 power and falHng too much under the influence 
 of the poHtocrats and extra-legal government 
 may be dissipated by making adequate pro- 
 vision for his retirement. The chief justice 
 would, of course, be subject to impeachment. 
 He might also be retired by a legislative recaU 
 
 by a vote of three-fourths of the members of 
 242 .
 
 Selecting and Retiring Judges 
 
 the legislature after an opportunity for defense 
 and for cause entered upon the journals,^ or by 
 the governor upon an address of both houses 
 of the legislature.^ The fact that the chief 
 justice held office only for a short term would 
 in fact subject him to a recall by popular vote 
 at the end of each period. To this might, with 
 perfect propriety, be added the recall of the 
 chief justice and election of his successor by 
 popular vote during the regular term. Surely 
 such safeguards are ample to protect the 
 electorate from any abuse of the appointing 
 power conferred upon the chief justice. 
 
 A chief justice who is retired at the end of 
 his term by failure to be re-elected should, 
 however, have the right, if he so chooses, to 
 remain one of the judges of the court upon the 
 same footing as an appointed judge and sub- 
 ject to assignment to duty by his successor. 
 This is proper because the election goes only 
 to the matter of his pohtical position as the 
 chief justice exercising an appointing power 
 
 ' Illinois Constitution 1870, Art. VI, sec. 30. 
 ' Massachusetts Constitution, chap, iii, Art. I; 38 and 39 Vict., 
 Ch. 77 (Jud. Act 1875), sec. 5. 
 
 243
 
 Unpopular Government in the United States 
 
 and administrative powers with respect to the 
 organization of the court and the way its 
 business is handled. The electorate has nothing 
 to do with his fitness to decide litigated causes. 
 Furthermore, the fact that a failure to be re- 
 elected will not send the chief justice back to 
 the practice of the law, which he has given up, 
 will insure greater independence on his part 
 while holding office as chief justice. It will 
 also be an act of fairness to him, since a pro- 
 fession once given up during six or eight years 
 for a place upon the bench is difficult and fre- 
 quently impossible to recover. In addition to 
 this it is best for the administration of justice 
 itseK that ex-chief justices who cannot regain 
 their position in practice and are pitiful re- 
 minders of former greatness should not be 
 left derehcts at the bar. But if a chief justice 
 upon failure to be re-elected chooses to take 
 his place as a judge in the court, he should not 
 be permitted again to be a candidate for chief 
 justice. It wiU not do to have in the court the 
 rival of the sitting chief justice with a motive 
 
 for making trouble. 
 
 244
 
 Selecting and Retiring Judges 
 
 The principal objections to the appointment 
 of judges have been that they necessarily hold 
 for life and become arbitrary and exercise 
 judicial power in a manner distasteful to the 
 lawyers, their cUents, and a majority of the 
 electorate. It will usually be found on analysis 
 that the objectionable exercise of judicial power 
 by an appointed judge is due to the fact that 
 appointment means a life tenure. Hence the 
 real objection to the appointment of judges 
 as such is that when appointed they have held 
 office for life. The entire objection, therefore, 
 to appointment may be met by Hmiting the 
 tenure of the appointed judge and by a variety 
 of provisions for his retirement. He would, of 
 course, be subject to impeachment. He might 
 very well in addition be subject to some mode 
 of legislative recall such as was proposed for 
 the chief justice. His term may be limited 
 to five years or seven years, thus requiring a 
 retirement at the end of each period unless a 
 reappointment is made. The judge appointed 
 by the chief justice may even be subject to 
 recall by popular vote according to one or the 
 
 245
 
 Unpopular Government in the United States 
 
 other, or both, of two plans. The appomt- 
 ment might be for a probationary period — say 
 three years — at the end of which time the judge 
 must submit at a popular election to a vote on 
 the question as to whether the place which he 
 holds shall be declared vacant. This is not a 
 vote which puts anyone else in the judge's 
 place, but a vote which can at most only leave 
 the place to be filled by the appointing power. 
 Such a plan must necessarily promote the 
 security of the judge's tenure if at the popu- 
 lar election his office be not declared vacant. 
 After surviving such a probationary period his 
 appointment should continue for — ^let us say — 
 six or nine years. At the end of that time 
 the question might again be submitted as to 
 whether his place should be declared vacant. 
 If thought necessary further to protect the 
 electorate from the bogey of an appointed 
 judge, he might be subject to recall at any time 
 upon the petition of a percentage of the elec- 
 torate. But this recall, like the other, should 
 present only the question of whether the 
 
 judge's place should be declared vacant, leav- 
 246
 
 Selecting and Retiring Judges 
 
 ing the vacancy, if created, to be filled by the 
 appointing power. The danger in the existence 
 of both these plans of popular recall is that 
 they may be used with more effect by any 
 extra-legal government of politocrats than by 
 the electorate at large. It is highly improbable 
 that the electorate would find it necessary or 
 advisable to use either mode of recall. The 
 presence of either mode would, therefore, 
 furnish a means whereby an influence of the 
 politocrats upon the judiciary could be con- 
 tinuously maintained. 
 
 It is, however, a grave mistake to suppose 
 that judges exercise their judicial power in a 
 distasteful and arbitrary manner merely be- 
 cause they hold for Hfe or during good behavior. 
 An arbitrary or disagreeable course of action 
 by a judge arises principally from the fact that 
 he is subject to no authority which can receive 
 complaints against him and act upon those 
 complaints by way of private or public criticism 
 and correction of the judge. The best pro- 
 tection against arbitrary and disagreeable ac- 
 tions by judges is a duly constituted body of 
 247
 
 Unpopular Government in the United States 
 
 fellow judges who hold a position of superior 
 power and authority and to whom complaints 
 as to the conduct of judges may be brought 
 and who may investigate those complaints and 
 exercise a corrective influence. When a con- 
 siderable number of judges in a metropolitan 
 district are provided with a chief justice and 
 organized for the efficient handling of a great 
 volume of business, the means of securing the 
 exercise of a corrective influence over their 
 conduct at once appears. Such a court must 
 be organized into divisions for the purpose of 
 handling specialized classes of litigation. In a 
 metropolitan district like Chicago there should 
 be an appeUate division with from six to nine 
 judges sitting in groups of three, a chancery 
 division of six judges with a corps of masters, 
 a probate and family relations division with at 
 least four judges and a corps of masters and 
 assistants, a common-law division with fifteen 
 to eighteen judges and a corps of masters, and 
 a municipal court division with thirty-three 
 judges. The chief justice should be the pre- 
 siding justice of the appeUate division and each 
 248
 
 Selecting and Retiring Judges 
 
 of the other divisions should have a presiding 
 justice with large powers over the way in which 
 the work of each division is handled. The 
 chief justice and the presiding justices of 
 divisions should form a judicial council or 
 executive committee, with considerable powers 
 over the way the court as a whole is run. 
 To such a judicial council there should be 
 committed the power to remove from office 
 any judge, other than the chief justice, and to 
 reprove, either privately or publicly, or transfer 
 any such judge to some other division of the 
 court for inefficiency, incompetency, neglect of 
 duty, lack of judicial temperament, or con- 
 duct unbecoming a gentleman and a judge, for 
 the good of the service, or to promote its effi- 
 ciency. The power of removal by the council 
 should be exercised only where written charges 
 have been filed and after an opportunity has 
 been given to the judge to be heard in his own 
 defense. 
 
 The existence of a judicial council composed 
 of the chief justice and the presiding justices 
 of the different divisions of the court, each one 
 249
 
 Unpopular Government in the United States 
 
 responsible for the way in which the work of 
 his division is handled, suggests also a prac- 
 ticable way in which to stimulate efficiency at 
 the bar, provide a service test for candidates 
 for places on the bench, and subject the appoint- 
 ing power of the chief justice to a slight but 
 reasonable control. The judicial council should 
 be given power to appoint upon an ehgible Ust 
 for each division of the court twice as many 
 members of the bar as there are judges in the 
 division. The chief justice, in appointing judges 
 to a place in any division of the court, should 
 be required to select from this ehgible list on the 
 occasion of every other appointment at least. 
 The operation of such a plan would be to place 
 in the hands of the presiding judges of divisions 
 an express authority to suggest what members 
 of the bar practicing before their divisions re- 
 spectively would make satisfactory judges for 
 each division. It would also operate to stim- 
 ulate the efforts of lawyers and promote com- 
 petition to secure places upon such ehgible Hsts 
 by specialization in practice before particular 
 
 divisions. This would develop an expertness 
 250
 
 Selecting and Retiring Judges 
 
 in the handling of litigation which does not 
 now exist on the part of any considerable 
 number of the bar. 
 
 We may then conclude that in a metropoHtan 
 district with a hundred thousand electors and 
 upward judges cannot be elected. They must 
 be appointed. If an election is attempted it is 
 a failure and appointment results. The worst 
 method of appointment is the secret and ir- 
 responsible appointment by politocrats. The 
 most promising is the conspicuous and legal 
 appointment by a chief justice elected at large 
 in the district at frequent intervals. Every 
 objection to such a plan and every prejudice 
 against it may be met by provisions for the re- 
 tirement of the chief justice and his appointees 
 by impeachment, by legislative and popular 
 recalls, and by the power of the judicial council 
 to discipline and remove any judge other than 
 the chief justice. It is even possible under 
 such a plan to promote efficiency by securing 
 an eligible Ust of men whose experience in 
 practice under the eyes of the judges insures 
 excellence in appointment. 
 251
 
 CHAPTER XVIII 
 
 CHANGES IN THE PLAN OF THE FEDERAL 
 GOVERNMENT 
 
 The federal government is already organized 
 upon a plan of centralized power. The ballot 
 which it presents to the voter is always short. 
 The voter casts his ballot for a president and 
 vice-president every four years and for one 
 congressman from his district (and perhaps 
 one or two from the state at large) every two 
 years. United States Senators hold office for 
 six years. Until the adoption of the recent 
 17 th Amendment two were elected by each 
 state legislature. Now two are elected at 
 large in each state. The judges are appointed 
 by the president with the approval of the 
 Senate. The Senate has a general veto power 
 on Executive appointments. Such in form at 
 least is the organization of the national govern- 
 ment. 
 
 Today, however, extra-legal government has 
 
 laid its hand to some extent at least upon the 
 
 252
 
 Changes in Plan of Federal Government 
 
 government at Washington. In congressional 
 districts where extra-legal government flour- 
 ishes, it has become the strongest and most 
 persistent single force in the election of con- 
 gressmen. Naturally it has its loyal supporters 
 in the House of Representatives of Congress. 
 As the power of extra-legal government grows 
 and becomes more widespread its influence in 
 that house mil grow. It is, of course, entirely 
 immaterial whether a supporter of the extra- 
 legal government is labeled Democrat or Re- 
 pubHcan. He is a Democrat when he comes 
 from a district where the vote-directing machine 
 operates successfully under that name. He is 
 a Republican when the vote-directing machine 
 operates successfully under that name. The 
 power of extra-legal government which has 
 appeared in the Senate of the United States is 
 the direct consequence of the power of extra- 
 legal government in the state legislatures. Of 
 course, extra-legal government does not often 
 control a majority of the members of both 
 houses of a state legislature. A considerable 
 minority, however, who hold together under a 
 253
 
 Unpopular Government in the United States 
 
 strong leadership can wield a large influence. 
 One of the reasons for the persistence of the 
 fight upon Mr. Lorimer and its popular support 
 throughout the country was the fact that his 
 election represented to the popular mind in a 
 striking manner the invasion of the United 
 States Senate by extra-legal government. No 
 matter how free from corruption Mr. Lorimer 
 may have been, the power so openly wielded 
 by those allied with extra-legal government to 
 place him in the United States Senate pre- 
 sented itself to the people of the country as a 
 menace to the nation. Yet a similar invasion 
 has been going on steadily in quieter ways. 
 Every gain of extra-legal government in the 
 control of state legislatures has been a step 
 farther toward a predominant influence in the 
 United States Senate. It has been for the most 
 part through senators who have supported, or 
 at least felt that they must placate the power 
 of extra-legal government in their states, that 
 that government has obtained its hold upon 
 the federal judiciary. The president's appoint- 
 ments must be approved by the Senate. 
 
 254
 
 Changes in Plan of Federal Government 
 
 Senatorial custom, sometimes called courtesy, 
 places the control of the Senate's approval in 
 the hands of the senators from the state for 
 which the judicial appointment is made. The 
 two senators from the state sometimes di- 
 vide the federal judicial districts in the state 
 between them. Thus has the president's ap- 
 pointment to the lower federal bench been 
 placed at the mercy of two, or perhaps a single 
 senator. The president on his part may have 
 a popular legislative program which he is 
 pledged and is attempting to secure action on 
 from Congress. The support of senators is 
 necessary. The tendency, therefore, on the 
 part of the president to allow senators the 
 upper hand in his appointments to the bench 
 has been very marked. Extra-legal govern- 
 ment has in the last few years become a visible 
 force in the selection of the president of the 
 United States through its power to control 
 delegates sent to the National Convention. 
 At both the Democratic and Repubhcan 
 National Conventions in 191 2 the numerical 
 strength of the delegates representing extra- 
 ass
 
 Unpopular Government in the United States 
 
 legal government in particular states or dis- 
 tricts of states was very marked. In the Re- 
 publican Convention these delegates and their 
 aUies not only controlled the situation, but 
 actually took issue with the delegates who 
 represented the electorate and beat them. 
 This was not a matter which could end when 
 one faction cast more legal votes at the con- 
 vention than the other. The contest was one 
 between the forces of extra-legal government 
 and delegates for the moment actually repre- 
 senting the popular choice. The contest be- 
 tween two such forces can be settled only 
 when one or the other has been swept from 
 the field. The triumph legally of the forces 
 of extra-legal government in the Repubhcan 
 Convention could have no other logical out- 
 come than the formation of a new party. 
 
 The recent change effected by the seventeenth 
 amendment providing for the popular election 
 of senators was made avowedly for the purpose 
 of ousting the control of extra-legal government 
 in the Senate. We may be sure, however, that 
 
 the change will not in the least tend to drive 
 
 256
 
 Changes in Plan of Federal Government 
 
 extra-legal government from the field at large. 
 It follows, therefore, that the politocrats will 
 use all their power to control nominations and 
 elections to the United States Senate. The 
 office of senator, however, is conspicuous and 
 extremely important. This fact alone will 
 force the politocrats to put forward or support 
 candidates of some independence and popular 
 strength. This will naturally result in the 
 United States Senate becoming far more 
 representative of the electorate than is the 
 House. We may, therefore, expect the Senate 
 to become less conservative than the House. If 
 this continues in a marked degree, it means the 
 entire decadence of the House as a legislative 
 body. Its power will be exercised by the lead- 
 ers of the house majority in the interests of a 
 conservative check upon the Senate. Whether 
 this condition would survive the eHmination of 
 extra-legal government in our local municipal 
 and state governments seems beyond the possi- 
 bihty of prediction. 
 
 Other proposals for changes in the plan of 
 the federal government have been made with 
 257
 
 Unpopular Government in the United States 
 
 the avowed object of eliminating extra-legal 
 government by politocrats. The influence of 
 extra-legal government in national conventions 
 is to be permanently overthrown by presiden- 
 tial primaries. If any change were to be made 
 in respect to the judiciary it would be in the 
 direction of making them elective, and perhaps 
 subject to the recall. No doubt nominations 
 through primary elections would be advocated 
 for all elective officers. Newspapers recently 
 gave space to the demand that the postmasters 
 should be elected by the voters of the post- 
 office district. Whatever temporary advan- 
 tage over the extra-legal government there may 
 be in any of these expedients, they represent 
 the application of the very principle of govern- 
 ment which in the long run produces, and must 
 always produce, the disease from which we are 
 suffering and desire to be cured. This is our 
 process of curing the ills of democracy with 
 more democracy. It is the case of more poi- 
 son for one already overcome. Have the past 
 thirty years not yet taught us that to increase 
 
 the burden upon the voter is to reduce the 
 
 258
 
 Changes in Plan of Federal Government 
 
 most intelligent member of the electorate to 
 the darkest pohtical ignorance and thus to en- 
 able the professional adviser and director to 
 the pohtically ignorant voter to cast his ballot 
 for him? Every additional appeal to the 
 electorate is a step toward that scheme of 
 government which is most favorable to the 
 growth and development of extra-legal govern- 
 ment by poUtocrats. The federal government 
 is suffering because in the village, the town- 
 ship, the city, the county, and the state, such 
 pohtical burdens have been placed upon the 
 voter that he cannot perform his pohtical 
 functions intelhgently. He is forced to dele- 
 gate them to those who make it their pro- 
 fession to carry his pohtical burdens for him. 
 To them he turns over the privilege of casting 
 his ballot for him. It would be amusing if it 
 were not tragic that the increase of the cause 
 should be selected as the cure. 
 
 The elimination of extra-legal government 
 from our villages, townships, cities, coun- 
 ties, and states has become a national prob- 
 lem. The proper functioning of the national 
 
 259
 
 Unpopular Government in the United States 
 
 government is impossible while these sources 
 contribute to the existence of extra-legal govern- 
 ment. The reduction of governmental agencies 
 to two — a local municipal government and a 
 state government — the application of the prin- 
 ciple of the commission form of government to 
 both, so that the electorate casts its ballot for 
 one officer only in each, and the consequent 
 disruption of extra-legal government, are essen- 
 tial to the restoration of the federal govern- 
 ment to poHtical health. The plan of the federal 
 government taken by itself and as an instru- 
 ment of government in its appropriate sphere 
 is still admirable. If it were the only govern- 
 mental agency in the field, extra-legal govern- 
 ment would never have had a chance to achieve 
 power in the United States. If any improve- 
 ments in the plan of the federal government 
 are ever found necessary they should be in the 
 direction, first, of uniting the executive power 
 and the legislative power, and second, the 
 eHmination of the Senate veto upon executive 
 appointments. The former may be accom- 
 
 pHshed by placing the control of the executive 
 
 260
 
 Changes in Plan of Federal Government 
 
 power in the hands of the president and his 
 cabinet or in a so-called council of state com- 
 posed of the president and his cabinet officers 
 and also requiring that each cabinet officer 
 must be a member of one of the houses 
 of Congress. This would at once place the 
 control of the executive power of the nation 
 in the hands of the leaders of the majority in 
 both branches of the legislature, or at least 
 in the leaders of that branch which more 
 effectively represented the electorate. The 
 president would cease to carry his present load 
 of responsibility for executive action and legis- 
 lative progress. His office would be impor- 
 tant, for he would be that human agency 
 necessary to place the representatives of the 
 victors at the polls in control of the execu- 
 tive power. His influence as a member of the 
 council of state would be considerable. With 
 a veto power over legislation he would stiU 
 retain an enormous one-man power. 
 
 261
 
 CHAPTER XIX 
 CONCLUSION 
 
 The conflict between extra-legal government 
 and the popular demand for a true democracy 
 is as irresistible as was the conflict between 
 the South and the North over the institution 
 of slavery. Extra-legal government, like the 
 South, represents a vast property interest 
 which, while at first seeking protection, soon 
 became aggressive in its desire to extend its 
 power and its institutions. As the North 
 sought to live with the institution of slavery 
 in the South, to compromise with it and to 
 check it here and there, so we have been try- 
 ing to hve with extra-legal government, to 
 compromise with it and to check it when we 
 saw it in an especiaUy obnoxious form. But 
 as the fight for and against slavery was never 
 settled till slavery was abolished, so the war 
 on politocracy will never cease till some great 
 national crisis has given birth to a new poHti- 
 
 cal philosophy and a sound practice under it, 
 
 262
 
 Conclusion 
 
 which will sweep extra-legal government from 
 the field. That philosophy is summed up in 
 three prosaic words: The Short Ballot. They 
 are the emancipation proclamation for our 
 government. The faithful and complete appli- 
 cation of the principles underlying the short 
 baUot in our local and state governments wiU 
 be as important and perhaps as difficult a step 
 for us to achieve as was the emancipation of 
 the slaves. 
 
 263
 
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