That the impossibility of the co-existence of law and popular will as the basis of our government is rapidly being raised as an important issue in American political campaigns, was the conclusion reached by Mr. Herbert D. Croly '90, of Windsor, Vt., in the first of the series of Godkin lectures last night. Mr. Croly maintained that the law, which has been rated far above popular discretion in the United States political system, must soon either supplant government by human will, or must in turn be supplanted.
As a step in considering whether our traditional system is complete enough to anticipate all future conditions, the speaker first outlined the origin of our plan of government. Since they had to have a supreme authority, the colonists substituted the sovereignty of the people for the British king. Up to this time, furthermore, there had always been mutual distrust between the ruler and the colonists, and the customary method of guaranteeing the rights of both parties was by drawing up a charter. The colonists liked the security of these contracts, and did not object to any accompanying subordination. Consequently, constitutions were drawn up for the new states, and thus popular law, but not popular government, was established. This plan made law superior to public reason, because amendments were made so hard to effect that any modification required unanimous popular consent.
Government in Three Branches.
The colonial distrust of power, regardless of whether it was exercised by a king or by a popular assembly, led the founders of the nation to divide their government into three branches, administrative, legislative, and judicial. Through their power of interpreting the laws, the courts have assumed the constitutional development and the other divisions of government have been unable to interfere.
The issue now confronting the country is whether our traditional system shall be permanent. Direct government, as typified by the initiative and the referendum, is revolutionary in its underlying theory, and cannot be introduced into our system of government by law, as advocated by radical politicians. Government by law, founded by practical men of affairs, has succeeded most of the time in supporting public opinion; but if the popular will changes, we must determine to what extent the living popular will can amend the dying will as expressed in the traditional system.