Unpopular government in the United StatesKales, Albert Martin
History
Unpopular government in the United States
Kales, Albert Martin
United States -- Politics and government
Our federal government was established in a territory which was mostly
a wilderness, with a fringe of frontier and colonial communities
on the Atlantic seaboard. Whenever a state government has been
first established, the territory of which it has been composed has
been either wholly or very largely of a frontier character. 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 differences in wealth were not such as to be
beyond the hope of most men to bridge in a lifetime. 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 resident 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 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 securing the “sober
second thought” of the electorate or legislature were as applicable to
the most trivial legislative matters as to the most important. 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 little 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 government
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 almost universally the provision
that “no person shall be deprived of life, liberty, or property
without due process of law,” the courts have had the power to declare
void acts of the 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
constitution the act is invalid 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
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