The Spirit of American Government
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Title: The Spirit of American Government
Author: J. Allen Smith
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Language: English
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The Spirit of American Government
_A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION
TO DEMOCRACY_
BY
J. ALLEN SMITH, LL.B., PH.D.
PROFESSOR OF POLITICAL SCIENCE
UNIVERSITY OF WASHINGTON
[Illustration]
The Chautauqua Press
CHAUTAUQUA, NEW YORK
MCMXI
COPYRIGHT, 1907,
BY THE MACMILLAN COMPANY
Set up and electrotyped. Printed April, 1907. Reprinted March, 1911.
Norwood Press:
Berwick & Smith Co., Norwood, Mass., U.S.A.
PREFACE
It is the purpose of this volume to trace the influence of our
constitutional system upon the political conditions which exist in this
country to-day. This phase of our political problems has not received
adequate recognition at the hands of writers on American politics. Very
often indeed it has been entirely ignored, although in the short period
which has elapsed since our Constitution was framed and adopted, the
Western world has passed through a political as well as an industrial
revolution.
In the eighteenth century the majority was outside of the pale of
political rights. Government as a matter of course was the expression of
the will of a minority. Even in the United States, where hereditary rule
was overthrown by the Revolution, an effective and recognized minority
control still survived through the property qualifications for the
suffrage and for office-holding, which excluded a large proportion of
the people from participation in political affairs. Under such
conditions there could be but little of what is now known as democracy.
Moreover, slavery continued to exist upon a large scale for nearly
three-quarters of a century after the Constitution was adopted, and was
finally abolished only within the memory of many now living.
It could hardly be expected that a political system set up for a
community containing a large slave population and in which the suffrage
was restricted, even among the free whites, should in any large measure
embody the aims and ideas of present day democracy. In fact the American
Constitution did not recognize the now more or less generally accepted
principle of majority rule even as applying to the qualified voters.
Moreover, it was not until several decades after the Constitution was
adopted that the removal of property qualifications for voting allowed
the people generally to have a voice in political affairs.
The extension of the suffrage was a concession to the growing belief in
democracy, but it failed to give the masses an effective control over
the general government, owing to the checks in the Constitution on
majority rule. It had one important consequence, however, which should
not be overlooked. Possession of the suffrage by the people generally
led the undiscriminating to think that it made the opinion of the
majority a controlling factor in national politics.
Our political writers have for the most part passed lightly over the
undemocratic features of the Constitution and left the uncritical reader
with the impression that universal suffrage under our system of
government ensures the rule of the majority. It is this conservative
approval of the Constitution under the guise of sympathy with majority
rule, which has perhaps more than any thing else misled the people as to
the real spirit and purpose of that instrument. It was by constantly
representing it as the indispensable means of attaining the ends of
democracy, that it came to be so generally regarded as the source of all
that is democratic in our system of government. It is to call attention
to the spirit of the Constitution, its inherent opposition to democracy,
the obstacles which it has placed in the way of majority rule, that this
volume has been written.
The general recognition of the true character of the Constitution is
necessary before we can fully understand the nature and origin of our
political evils. It would also do much to strengthen and advance the
cause of popular government by bringing us to a realization of the fact
that the so-called evils of democracy are very largely the natural
results of those constitutional checks on popular rule which we have
inherited from the political system of the eighteenth century.
The author acknowledges his indebtedness to his colleague, Professor
William Savery, and to Professor Edward A. Ross of the University of
Wisconsin, for many pertinent criticisms and suggestions which he has
borne in mind while revising the manuscript of this work for
publication. He is also under obligation to Mr. Edward McMahon for
suggestions and for some illustrative material which he has made use of
in this volume.
J. ALLEN SMITH.
Seattle, Washington,
January, 1907.
CONTENTS
CHAPTER I
THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY
PAGE
Struggle between the many and the few 3
The Great Charter 4
Development of a bicameral parliament 6
Limited and irresponsible government 8
Class influence as seen in statute and common law 10
CHAPTER II
THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD
Conditions favoring growth of democratic ideas 12
The Declaration of Independence 13
Numerical strength and character of the conservatives 14
Democracy in the early state constitutions 16
Supremacy of the legislature 20
The Articles of Confederation 22
CHAPTER III
THE CONSTITUTION A REACTIONARY DOCUMENT
Causes of political reaction 27
The Constitution a product of eighteenth-century
thought 28
The framers' fear of democracy 29
Effort to limit the power of the majority 35
CHAPTER IV
THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE
CONSTITUTION
Amendment of democratic and undemocratic constitutions 40
Reasons for making amendment difficult 41
Patrick Henry's objection to the amendment feature
of the Constitution 44
The amendments to the Constitution 52
Amendment of the Articles of Confederation 57
Amendment of the early state constitutions 58
Amendment in other countries 62
CHAPTER V
THE FEDERAL JUDICIARY
Relation of the judicial to the other checks 65
The constitutional status of judges in England 67
The American was not a copy of the English judicial
system 68
Hamilton's defense of the Federal judiciary 73
His desire to limit the power of the people 82
Relation of the judicial to the executive veto 85
Revival of the judicial veto in the state governments 87
The judicial veto was not mentioned in the Constitution 90
The Federalist appointments to the Supreme Bench 94
Significance of the veto power of the Supreme Court 97
A monarchical survival 103
Political and judicial powers 107
Power to veto laws not judicial 108
Character of the laws vetoed by the Supreme Court 111
Decline of the belief in judicial infallibility 113
Government by injunction 116
The judicial veto in relation to treaties 119
The disadvantages of a deferred veto 123
CHAPTER VI
THE CHECKS AND BALANCES OF THE CONSTITUTION
A cure for the evils of democracy 125
Evolutionary classification of governments 128
Substitutes for king and aristocracy 130
Relation of the theory of checks and balances to
_laissez faire_ and anarchism 131
Purpose of indirect election 134
Subordination of the House of Representatives 137
Impeachment made difficult 142
Significance of the President's oath of office 146
The House of Representatives in relation to the
budget 148
Lack of adequate provision for publicity 150
Attitude of the framers toward criticism of public
officials 152
Federal versus national government 160
Relation of the general to the state governments not
clearly defined 162
Effort to lay the foundation of a national government 164
Origin and development of the doctrine of nullification 168
Calhoun's theory of the Constitution 174
The judiciary act of 1789 182
CHAPTER VII
UNDEMOCRATIC DEVELOPMENT
The influence of checks upon the development of
our political institutions 186
The House of Representatives an irresponsible body
during the second regular session 189
Congress has power to remedy the evil 191
The committee system a check on the majority 193
The speaker's power to thwart legislation 199
The system encourages log-rolling 200
CHAPTER VIII
THE PARTY SYSTEM
Conservative opposition to party government in the
eighteenth century 203
The effort of the framers to guard against the possibility
of responsible party government 205
Difference between the English and the American
party system 208
Influence of the Constitution upon the party system
not generally recognized 210
The evils of our party system attributed by conservative
writers to majority rule 212
Character of our party platforms 218
True party government impossible under our constitutional
system 226
CHAPTER IX
CHANGES IN THE STATE CONSTITUTIONS AFTER 1787
Development of the judicial veto 230
Limitation of the power to impeach 231
Extension of the term of office of governor and members
of the legislature 232
Amendment of the constitution made more difficult 235
Influence of democracy upon the state constitutions 239
Division of authority in the state government 243
Lack of effective responsibility 245
CHAPTER X
MUNICIPAL GOVERNMENT
Municipal government at the time of the Revolution 249
Changes in municipal government after the adoption
of the Constitution 250
The municipality a creature of the state legislature 252
Hostility of the courts to municipal self-government 254
The attitude of the courts made state interference
necessary 255
Abuses of legislative interference 256
Constitutional provisions limiting the power of the
legislature to interfere 261
Effort to establish municipal self-government 265
Limitation of the power of the majority in constitutions
granting municipal self-government 266
The object of home rule provisions largely defeated
by judicial interpretation 268
Limitation of the taxing and borrowing power of
home rule cities 272
Origin of the constitutional limitations of municipal
indebtedness 273
Fear of municipal democracy 277
Municipal ownership as a means of taxing the propertyless
class 280
Why our state governments have not been favorable
to municipal democracy 285
Limitation of the power of the majority the main
cause of municipal corruption 288
CHAPTER XI
INDIVIDUAL LIBERTY AND THE CONSTITUTION
The eighteenth-century conception of liberty negative 291
Influence of the Revolution upon the conception of
liberty 293
Why present-day conservatives advocate the eighteenth
century view of liberty 295
Liberty to the framers meant the limitation of the
power of the majority 297
The doctrine of vested rights 299
Survival of the old view of liberty in our legal
literature 301
CHAPTER XII
INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM
The economic conditions under which the old view
of liberty originated 304
Influence of the industrial revolution upon the liberty
of the worker 306
The _laissez faire_ policy 308
Protection has been maintained as a class policy 312
The need of protection to labor 316
Limitation of governmental powers in the interest
of the capitalist 318
The policy of the Supreme Court a factor in corrupting
the state governments 325
CHAPTER XIII
THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION
Modification of the system as originally set up 331
The extension of the suffrage 333
Defect in the method of electing the President 333
Three reforms needed in the case of the Senate 338
Possibility of controlling the Supreme Court 341
Power of two-thirds of the states to call a constitutional
convention 346
Effort to secure the responsibility of public officials 349
Direct versus representative democracy 351
Reliance of the conservative classes on the courts 355
Election of United States senators by the legislature
incompatible with its other functions 357
CHAPTER XIV
EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY
RULE UPON MORALITY
Higher standards of morality 361
The growth of publicity in relation to immorality 363
Decline in the efficacy of old restraints 364
The conflict between two opposing political systems 367
The need of more publicity 372
Corporate control of the organs of public opinion 375
Lack of respect for law 377
CHAPTER XV
DEMOCRACY OF THE FUTURE
The progress of democratic thought 379
Influence of printing upon the growth of democracy 380
The immediate aim of democracy political 383
Relation of scientific and industrial progress to democracy 384
Democracy would make government a science 386
Dependence of man's industrial activities on the social
environment 388
Necessity for equality of opportunity ignored by conservative
writers 390
The scientific justification of democracy's hostility
to privilege 394
Democracy's attitude toward the doctrine of _laissez
faire_ 397
THE SPIRIT OF AMERICAN GOVERNMENT
CHAPTER I
THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY
Constitutional government is not necessarily democratic. Usually it is a
compromise in which monarchical and aristocratic features are retained.
The proportion in which the old and the new are blended depends, of
course, upon the progress the democratic movement has made. Every step
toward democracy has been stubbornly opposed by the few, who have
yielded to the popular demand, from time to time, only what necessity
required. The constitution of the present day is the outcome of this
long-continued and incessant struggle. It reflects in its form and
character the existing distribution of political power within the state.
If we go back far enough we find government nearly everywhere in the
hands of a King and privileged class. In its earlier stages the
constitutional struggle was between monarchy and aristocracy, the King
seeking to make his authority supreme and the nobility seeking to limit
and circumscribe it. Accordingly, government oscillated between monarchy
and aristocracy, a strong and ambitious King getting the reins of
government largely in his own hands, while the aristocracy encroached
upon the power and prerogatives of a weak and incompetent one. Thus
democracy played no part in the earlier constitutional struggles. The
all-important question was whether the King or the nobility should
control the state. Civil wars were waged to decide it, and government
gravitated toward monarchy or aristocracy according as the monarchical
or aristocratic party prevailed.
Under William the Conqueror and his immediate successors the government
of England was practically an absolute monarchy. Only the highest class
was consulted in the Great Council and the advice of these the King was
not obliged to follow. Later, as a result of the memorable controversy
between King John and his feudal barons, the Great Council regained the
power which it had lost. Against the King were arrayed the nobility, the
church as represented by its official hierarchy, and the freemen of the
realm, all together constituting but a small minority of the English
people. The Great Charter extorted from the King on this occasion,
though frequently referred to as the foundation of English liberty, was
in reality a matter of but little immediate importance to the common
people. The benefit of its provisions, while not limited to the
nobility, extended, however, only to those classes without whose aid and
support the tyrannical power of the King could not be successfully
opposed. The church, by reason of the great wealth which it controlled
and the powerful influence which it exerted in a superstitious age over
the minds of the people, was a factor that could not be ignored. The
freemen also played an important part in the constitutional struggles,
since they carried the sword and formed the rank and file of the
fighting class. The important provisions of the Great Charter relate
exclusively to the rights of the church, the nobility and the freemen.
The serfs, while not included within the benefit of its provisions, were
an overwhelming majority of the English people. This conclusion is
irresistible in view of the fact that the Domesday Survey shows that
about four-fifths of the adult male population in the year 1085 were
below the rank of freemen.[1]
The Great Charter was, it is true, an important step in the direction of
constitutional government, but it contained no element of democracy. It
merely converted the government from one in which monarchy was the
predominant feature, to one in which the aristocratic element was
equally important. The classes represented in the Great Council became a
constitutional check on the power of the King, inasmuch as he could not
levy taxes without their consent. The important constitutional position
which this charter assigned to the nobility was not maintained,
however, without repeated struggles under succeeding Kings; but it laid
the foundation for the subsequent development which limited and finally
abolished the power of the monarch.
In the course of time the Great Council split up into two separate
bodies, the House of Lords, composed of the greater nobility and the
higher dignitaries of the church, and the House of Commons, representing
all other classes who enjoyed political rights. When the House of
Commons thus assumed a definite and permanent form as a separate body, a
new check upon the power of the King appeared. The consent of two
separate bodies was now necessary before taxes could be imposed. The
development of these checks was hastened by the fact that the King found
it easier and safer to get the assent of these bodies to measures which
involved an exercise of the taxing power, than to attempt the collection
of taxes without their support. In this way the right of assenting to
all measures of taxation came in time to be recognized as belonging to
the two houses of Parliament. But this was a right not easily
established. It was claimed and fought for a long time before it finally
became a firmly established principle of the English Constitution.
Around the question of taxation centered all the earlier constitutional
struggles. The power to tax was the one royal prerogative which was
first limited. In time Parliament extended its powers and succeeded in
making its assent necessary to all governmental acts which vitally
affected the welfare of the nation, whether they involved an exercise of
the taxing power or not. The law-making power, however, as we understand
it now was seldom employed, the idea of social readjustment through
general legislation being a recent growth. But as revenues were
necessary, the taxing power was the one legislative function that was
constantly exercised. It is not strange then that the earlier
constitutional development should have turned mainly upon the relation
of the various political classes to the exercise of this power.
That English constitutional development resulted in a parliament
composed of two houses may be regarded as accidental. Instead of this
double check upon the King there might conceivably have been more than
two, or there might, as originally was the case, have been only one. Two
distinct elements, the secular nobility and the dignitaries of the
church, combined to form the House of Lords. The House of Commons was
also made up of two distinct constituencies, one urban and the other
rural. If each of these classes had deliberated apart and acquired the
right to assent to legislation as a separate body, a four-chambered
parliament, such as existed in Sweden up to 1866 and still survives in
Finland, would have been the result.[2]
The essential fact, everywhere to be observed in the development of
constitutional government, is the rise to political power of classes
which compete with the King and with each other for the control of the
state. The monopoly of political power enjoyed by the King was broken
down in England when the nobility compelled the signing of Magna Charta.
This change in the English Constitution involved the placing of a check
upon the King in the interest of the aristocracy. Later, with the
development of the House of Commons as a separate institution, the power
of the King was still further limited, this time in the interest of what
we may call the commercial and industrial aristocracy.
At this stage of its development the English government contained a
system of checks and balances. The King still retained legislative
power, but could not use it without the consent of both Lords and
Commons. Each branch of the government possessed the means of defending
itself, since it had what was in effect an absolute veto on legislation.
This is a stage in political evolution through which governments
naturally pass. It is a form of political organization intermediate
between monarchy and democracy, and results from the effort to check and
restrain, without destroying, the power of the King. When this system
of checks was fully developed the King, Lords and Commons were three
coordinate branches of the English government. As the concurrence of all
three was necessary to enact laws, each of these could defeat
legislation desired by the other two.
The development of this system of checks limited the irresponsible power
of the King only on its positive side. The negative power of absolute
veto the King still retained. While he could not enact laws without the
consent of the other two coordinate branches of the government, he still
had the power to prevent legislation. The same was true of the Lords and
Commons. As each branch of government had the power to block reform, the
system was one which made legislation difficult.
The system of checks and balances must not be confused with democracy;
it is opposed to and can not be reconciled with the theory of popular
government. While involving a denial of the right of the King or of any
class to a free hand in political matters, it at the same time denies
the right of the masses to direct the policy of the state This would be
the case even if one branch of the government had the broadest possible
basis. If the House of Commons had been a truly popular body in the
eighteenth century, that fact would not of itself have made the English
government as a whole popular in form. While it would have constituted a
popular check on the King and the House of Lords, it would have been
powerless to express the popular will in legislation.
The House of Commons was not, however, a popular body in the eighteenth
century. In theory, of course, as a part of Parliament it represented
the whole English people. But this was a mere political fiction, since
by reason of the narrowly limited suffrage, a large part of the English
people had no voice in parliamentary elections. Probably not one-fifth
of the adult male population was entitled to vote for members of
Parliament. As the right to vote was an incident of land ownership, the
House of Commons was largely representative of the same interests that
controlled the House of Lords.
That the House of Commons was not democratic in spirit is clearly seen
in the character of parliamentary legislation. The laws enacted during
this period were distinctly undemocratic. While the interests of the
land-holding aristocracy were carefully guarded, the well-being of the
laboring population received scant consideration. The poor laws, the
enclosure acts and the corn laws, which had in view the prosperity of
the landlord, and the laws against combination, which sought to advance
the interests of the capitalist at the expense of the laborer, show the
spirit of the English government prior to the parliamentary reform of
1832. The landlord and capitalist classes controlled the government and,
as Professor Rogers observes, their aim was to increase rents and
profits by grinding the English workman down to the lowest pittance. "I
contend," he says, "that from 1563 to 1824, a conspiracy, concocted by
the law and carried out by parties interested in its success, was
entered into, to cheat the English workman of his wages, to tie him to
the soil, to deprive him of hope, and to degrade him into irremediable
poverty."[3]
But it is not in statute law alone that this tendency is seen. English
common law shows the same bias in favor of the classes which then
controlled the state. There is no mistaking the influences which left
their impress upon the development of English law at the hands of the
courts. The effect of wealth and political privilege is seen here as
well as in statutory enactment. Granting all that can justly be said in
behalf of the wisdom and reasonableness of the common law, the fact
nevertheless remains, that its development by the courts has been
influenced by an evident disposition to favor the possessing as against
the non-possessing classes. Both the common and the statute law of
England reflected in the eighteenth century the political supremacy of
the well-to-do minority.
CHAPTER II
THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD
The American colonists inherited the common law and the political
institutions of the mother country. The British form of government, with
its King, Lords and Commons and its checks upon the people, they
accepted as a matter of course. In their political thinking they were
not consciously more democratic than their kinsmen across the Atlantic.
Many of them, it is true, had left England to escape what they regarded
as tyranny and oppression. But to the _form_ of the English government
as such they had no objection. The evils which they experienced were
attributed solely to the selfish spirit in which the government was
administered.
The conditions, however, were more favorable for the development of a
democratic spirit here than in the mother country. The immigrants to
America represented the more active, enterprising and dissatisfied
elements of the English people. Moreover, there was no hereditary
aristocratic class in the colonies and less inequality in the
distribution of wealth. This approach to industrial and social equality
prepared the mind for the ideas of political equality which needed only
the stimulus of a favorable opportunity to ensure their speedy
development.
This opportunity came with the outbreak of the American Revolution which
at the outset was merely an organized and armed protest against what the
colonies regarded as an arbitrary and unconstitutional exercise of the
taxing power. As there was no widespread or general dissatisfaction with
the _form_ of the English government, there is scarcely room for doubt
that if England had shown a more prudent and conciliatory spirit toward
the colonies, the American Revolution would have been averted. No
sooner, however, had the controversy with the mother country reached the
acute revolutionary stage, than the forces which had been silently and
unconsciously working toward democracy, found an opportunity for
political expression. The spirit of resistance to what was regarded as
unconstitutional taxation rapidly assumed the form of avowed opposition
to the English Constitution itself. The people were ready for a larger
measure of political democracy than the English Constitution of the
eighteenth century permitted. To this new and popular view of government
the Declaration of Independence gave expression. It contained an
emphatic, formal and solemn disavowal of the political theory embodied
in the English Constitution; affirmed that "all men are created equal;"
that governments derive "their just powers from the consent of the
governed;" and declared the right of the people to alter or to abolish
the form of the government "and to institute new government, laying its
foundation on such principles and organizing its powers in such form, as
to them shall seem most likely to effect their safety and happiness."
This was a complete and sweeping repudiation of the English political
system, which recognized the right of monarchy and aristocracy to thwart
the will of the people.
To what extent the Declaration of Independence voiced the general
sentiment of the colonies is largely a matter of conjecture. It is
probable, however, that its specification of grievances and its vigorous
arraignment of the colonial policy of the English government appealed to
many who had little sympathy with its express and implied advocacy of
democracy. It is doubtless true that many were carried along with the
revolutionary movement who by temperament and education were strongly
attached to English political traditions. It is safe to conclude that a
large proportion of those who desired to see American independence
established did not believe in thoroughgoing political democracy.
Besides those who desired independence without being in sympathy with
the political views expressed in the Declaration of Independence, there
were many others who were opposed to the whole Revolutionary movement.
The numerical strength of the Tories can not be accurately estimated;
but it is certain that a large proportion, probably not less than
one-third of the total population of the colonies, did not approve of
the war.[4]
"In the first place, there was, prior to 1776, the official class; that
is, the men holding various positions in the civil and military and
naval services of the government, their immediate families, and their
social connections. All such persons may be described as inclining to
the Loyalist view in consequence of official bias.
"Next were certain colonial politicians who, it may be admitted, took a
rather selfish and an unprincipled view of the whole dispute, and who,
counting on the probable, if not inevitable, success of the British arms
in such a conflict, adopted the Loyalist side, not for conscience' sake,
but for profit's sake, and in the expectation of being rewarded for
their fidelity by offices and titles, and especially by the confiscated
estates of the rebels after the rebels themselves should have been
defeated, and their leaders hanged or sent into exile.
"As composing still another class of Tories, may be mentioned probably a
vast majority of those who stood for the commercial interests, for the
capital and tangible property of the country, and who, with the
instincts natural to persons who have something considerable to lose,
disapproved of all measures for pushing the dispute to the point of
disorder, riot and civil war.
"Still another class of Loyalists was made up of people of professional
training and occupation--clergymen, physicians, lawyers, teachers--a
clear majority of whom seem to have been set against the ultimate
measures of the Revolution.
"Finally, and in general, it may be said that a majority of those who,
of whatever occupation, of whatever grade of culture or of wealth, would
now be described as conservative people, were Loyalists during the
American Revolution."[5]
These classes prior to the Revolution had largely shaped and molded
public opinion; but their opposition to the movement which they were
powerless to prevent, destroyed their influence, for the time being, in
American politics. The place which they had hitherto held in public
esteem was filled by a new class of leaders more in sympathy with the
newly born spirit of liberalism. This gave to the revolutionary movement
a distinctly democratic character.
This drift toward democracy is seen in the changes made in the state
constitutions after the outbreak of the Revolution. At the close of the
colonial period, nearly all the state governments were modeled after the
government of Great Britain. Each colony had its legislative body
elected by the qualified voters and corresponding in a general way to
the House of Commons. In all the colonies except Pennsylvania and
Georgia there was also an upper legislative house or council whose
consent was necessary before laws could be enacted. The members
composing this branch of the legislature were appointed by the governor
except in Massachusetts where they were elected by the lower branch of
the legislature, subject to a negative by the royal governor, and in
Rhode Island and Connecticut where they were chosen by the electorate.
The governor was elected by the voters only in Rhode Island and
Connecticut; in all the other colonies he was appointed by the
proprietaries or the Crown, and, though independent of the people,
exercised many important powers. He was commander-in-chief of the armed
forces of the colony; appointed the judges and all other civil and
military officers; appointed and could suspend the council, which was
usually the upper branch of the legislature; he could convene and
dissolve the legislature and had besides an unqualified veto on all
laws; he also had an unrestricted pardoning power.
The possession of these far-reaching powers gave to the irresponsible
executive branch of the colonial government a position of commanding
importance. This was not the case, however, in Connecticut and Rhode
Island. Although the governor in these two colonies was responsible to
the voters, inasmuch as he was elected by them, still he had no veto,
and the appointing power was in the hands of the legislature.
The tidal-wave of democracy, which swept over the colonies during the
Revolution, largely effaced the monarchical and aristocratic features of
the colonial governments. Connecticut and Rhode Island, which already
had democratic constitutions, were the only states which did not modify
their form of government during this period. All the rest adopted new
constitutions which show in a marked degree the influence of the
democratic movement. In these new constitutions we see a strong tendency
to subordinate the executive branch of the government and confer all
important powers on the legislature. In the four New England states and
in New York the governor was elected by the qualified voters; in all the
rest he was chosen by the legislature. In ten states during this period
his term of office was one year; in South Carolina it was two and in New
York and Delaware it was three years. In addition to this the six
Southern states restricted his re-election. Besides, there was in every
state an executive or privy council which the governor was required to
consult on all important matters. This was usually appointed by the
legislature and constituted an important check on the governor.
The power to veto legislation was abolished in all but two states. In
Massachusetts the governor, and in New York the Council of Revision
composed of the governor and the chancellor and judges of the Supreme
Court, had a qualified veto power. But a two-thirds majority in both
houses of the legislature could override the veto of the governor in
Massachusetts, or that of the Council of Revision in New York. The
pardoning power of the governor was quite generally restricted. In five
states he was allowed to exercise it only with the advice or consent of
the council.[6] In three states, where the advice or consent of a
council was not required, he could, subject to certain restrictions,
grant pardons except where "the law shall otherwise direct."[7] The
constitution of Georgia in express terms deprived the governor of all
right to exercise this power.
The appointing power of the governor was also taken away or restricted.
In four of the eleven states adopting new constitutions during this
period he was allowed to exercise it jointly with the council.[8] In six
states it was given to the legislature, or to the legislature and
council.[9] The power of the governor to dissolve the legislature or
either branch of it was everywhere abolished.
The supremacy of the legislature under these early state constitutions
is seen also in the manner of appointment, the tenure and the powers of
the judiciary. In nine states[10] the judges were elected by the state
legislature, either with or without the consent of a council. In
Maryland, Massachusetts, New Hampshire, and Pennsylvania they were
appointed by the governor with the consent of the council. But this
really amounted to indirect legislative appointment in Maryland, since
both the governor and council in that state were elected annually by the
legislature. The legislature also had a voice in the appointment of
judges in Pennsylvania, New Hampshire and Massachusetts, since it
elected the executive in the first and the council in the others. In
nine states, then, the judges were elected directly by the legislature;
in one indirectly by the legislature; in the other three the legislature
participated in their election through an executive or a council of its
own choosing.
In every state the judges could be impeached by the lower branch of the
legislature and expelled from office on conviction by the senate or
other tribunal, as the constitution prescribed. Moreover, in six
states[11] they could be removed according to the English custom by the
executive on an address from both branches of the legislature. The term
of office of the judges in eight states[12] was during good behavior. In
New Jersey and Pennsylvania they were appointed for seven years, and in
Rhode Island, Connecticut, and Georgia they were chosen annually.
The legislature under these early state constitutions was hampered
neither by the executive nor by the courts. It had all law-making power
in its own hands. In no state could the courts thwart its purpose by
declaring its acts null and void. Unchecked by either executive or
judicial veto its supremacy was undisputed.
From the foregoing synopsis of the state constitutions of this period it
is evident that their framers rejected entirely the English theory of
checks and balances. The principle of separation of powers as expounded
by Montesquieu and Blackstone, found little favor with those who
controlled American politics at this time. Instead of trying to
construct a state government composed of coordinate branches, each
acting as a check upon the others, their aim was to make the legislature
supreme. In this respect the early state constitutions anticipated much
of the later development of the English government itself.
The checks and balances, and separation of powers, which characterized
the government of England and her American colonies in the eighteenth
century, resulted from the composite character of the English
Constitution--its mixture of monarchy, aristocracy, and democracy. It is
not surprising, then, that with the temporary ascendency of the
democratic spirit, the system of checks should have been largely
discarded.
This democratic tendency is seen also in our first federal constitution,
the Articles of Confederation, which was framed under the impulse of the
Revolutionary movement. This document is interesting as an expression of
the political philosophy of the Revolution; but like the state
constitutions of that period, it has had few friendly critics among
later political writers. Much emphasis has been put upon its defects,
which were many, while but little attention has been given to the
political theory which it imperfectly embodied. That it failed to
provide a satisfactory general government may be admitted; but this
result must not be accepted as conclusive proof that the principles
underlying it were altogether false.
The chief feature of the Articles of Confederation was the entire
absence of checks and balances. All the powers conferred upon the
general government were vested in a single legislative body called the
Continental Congress, which was unchecked by a distinct executive or
judiciary. In this respect it bore a striking resemblance to the English
government of to-day with its omnipotent House of Commons. But, unlike
the English government of to-day, its powers were few and narrowly
limited. Its failure was due, perhaps, not to the fact that the powers
granted to the confederation were vested exclusively in a single
legislative body, but to the fact that the powers thus granted were not
sufficient for maintaining a strong and effective central government.
The reason for the weakness of the general government under the Articles
of Confederation is obvious to the student of American history. It was
only gradually, and as necessity compelled cooperation between the
colonies, that the sentiment in favor of political union developed. And
though some tendencies in this direction are seen more than a century
before the American Revolution, the progress toward a permanent union
was slow and only the pressure of political necessity finally brought it
about.
As early as 1643 Massachusetts, Plymouth, Connecticut and New Haven
formed a "perpetual confederation" under the name of the "United
Colonies of New England." The motive for this union was mainly offence
and defence against the Indian tribes and the Dutch, though provision
was also made for the extradition of servants and fugitives from
justice. The management of the common interests of these colonies was
vested in a board of eight commissioners--two from each colony--and, in
transacting the business of the confederacy, the consent of six of the
eight commissioners was required. Any matter which could not be thus
disposed of was to be referred to the four colonial legislatures. The
general government thus provided for could not inter-meddle "with the
government of any of the jurisdictions." No provision was made for
amending the "Articles of Confederation," and only by the unanimous
consent of these colonies could any other colony be admitted to the
confederacy. This union lasted for over forty years.[13]
Again in 1754 the pressure of impending war with the French and Indians
brought together at Albany a convention of delegates from seven colonies
north of the Potomac. A plan of union drafted by Benjamin Franklin was
recommended by this convention, but it was not regarded with favor
either by the colonies or by the English government. The former regarded
it as going too far in the direction of subordinating the separate
colonies to a central colonial authority, while for the latter it was
too democratic.[14]
The union of all the colonies under the Articles of Confederation was
finally brought about through the pressure of military necessity during
the Revolution. Nor is it surprising, in view of the history of the
American colonies, that they reluctantly yielded up any powers to a
central authority. We must bear in mind that the Revolution was in a
measure a democratic movement, and that democracy was then found only in
local government. The general governments of all countries were at that
time monarchical or aristocratic. Tyranny in the eighteenth century was
associated in the minds of the people with an undue extension or abuse
of the powers exercised by the undemocratic central government. It is
not surprising, then, that the Revolutionary federal constitution, the
Articles of Confederation, should have failed to provide a general
government sufficiently strong to satisfy the needs of the country after
the return of peace.
It must not be inferred, however, that the political changes which
immediately followed the outbreak of the Revolution were in the nature
of sweeping democratic reforms. Much that was thoroughly undemocratic
remained intact. The property qualifications for the suffrage were not
disturbed by the Revolutionary movement and were finally abolished only
after the lapse of nearly half a century. The cruel and barbarous system
of imprisonment for debt which the colonies had inherited from England,
and which often made the lot of the unfortunate debtor worse than that
of the chattel slave, continued in several of the states until long
after the Revolution. Marked as was the democratic tendency during the
first few years of our independence, it nevertheless left untouched much
that the progress of democracy has since abolished.
CHAPTER III
THE CONSTITUTION A REACTIONARY DOCUMENT
The sweeping changes made in our form of government after the
Declaration of Independence were clearly revolutionary in character. The
English system of checks and balances was discarded for the more
democratic one under which all the important powers of government were
vested in the legislature. This new scheme of government was not,
however, truly representative of the political thought of the colonies.
The conservative classes who in ordinary times are a powerful factor in
the politics of every community had, by reason of their Loyalist views,
no voice in this political reorganization; and these, as we have seen,
not only on account of their wealth and intelligence, but on the basis
of their numerical strength as well, were entitled to considerable
influence.
With the return of peace these classes which so largely represented the
wealth and culture of the colonies, regained in a measure the influence
which they had lost. This tended strongly to bring about a conservative
reaction. There was besides another large class which supported the
Revolutionary movement without being in sympathy with its democratic
tendencies. This also used its influence to undo the work of the
Revolutionary radicals. Moreover, many of those who had espoused
democratic doctrines during the Revolution became conservatives after
the war was over.[15] These classes were naturally opposed to the new
political doctrines which the Revolutionary movement had incorporated in
the American government. The "hard times" and general discontent which
followed the war also contributed to the reactionary movement; since
many were led to believe that evils which were the natural result of
other causes were due to an excess of democracy. Consequently we find
the democratic tendency which manifested itself with the outbreak of the
Revolution giving place a few years later to the political reaction
which found expression in our present Constitution.
"The United States are the offspring of a long-past age. A hundred
years, it is true, have scarcely passed since the eighteenth century
came to its end, but no hundred years in the history of the world has
ever before hurried it along so far over new paths and into unknown
fields. The French Revolution and the First Empire were the bridge
between two periods that nothing less than the remaking of European
society, the recasting of European politics, could have brought so near.
"But back to this eighteenth century must we go to learn the forces, the
national ideas, the political theories, under the domination of which
the Constitution of the United States was framed and adopted."[16]
It is the general belief, nevertheless, that the Constitution of the
United States is the very embodiment of democratic philosophy. The
people take it for granted that the framers of that document were imbued
with the spirit of political equality and sought to establish a
government by the people themselves. Widely as this view is entertained,
it is, however, at variance with the facts.
"Scarcely any of these men [the framers of the Constitution]
entertained," says Fiske, "what we should now call extreme democratic
views. Scarcely any, perhaps, had that intense faith in the ultimate
good sense of the people which was the most powerful characteristic of
Jefferson."[17]
Democracy--government by the people, or directly responsible to
them--was not the object which the framers of the American Constitution
had in view, but the very thing which they wished to avoid. In the
convention which drafted that instrument it was recognized that
democratic ideas had made sufficient progress among the masses to put an
insurmountable obstacle in the way of any plan of government which did
not confer at least the form of political power upon the people.
Accordingly the efforts of the Constitutional Convention were directed
to the task of devising a system of government which was just popular
enough not to excite general opposition and which at the same time gave
to the people as little as possible of the substance of political power.
It is somewhat strange that the American people know so little of the
fundamental nature of their system of government. Their acquaintance
with it extends only to its outward form and rarely includes a knowledge
of the political philosophy upon which it rests. The sources of
information upon which the average man relies do not furnish the data
for a correct understanding of the Constitution. The ordinary text-books
and popular works upon this subject leave the reader with an entirely
erroneous impression. Even the writings of our constitutional lawyers
deal with the outward form rather than the spirit of our government. The
vital question--the extent to which, under our constitutional
arrangements, the people were expected to, and as a matter of fact do,
control legislation and public policy, is either not referred to, or
else discussed in a superficial and unsatisfactory manner. That this
feature of our Constitution should receive more attention than it does
is evident when we reflect that a government works well in practice in
proportion as its underlying philosophy and constitutional forms are
comprehended by those who wield political power.
"It has been common," says a late Justice of the United States Supreme
Court, "to designate our form of government as a democracy, but in the
true sense in which that term is properly used, as defining a government
in which all its acts are performed by the people, it is about as far
from it as any other of which we are aware."[18]
In the United States at the present time we are trying to make an
undemocratic Constitution the vehicle of democratic rule. Our
Constitution embodies the political philosophy of the eighteenth
century, not that of to-day. It was framed for one purpose while we are
trying to use it for another. Is free government, then, being tried here
under the conditions most favorable to its success? This question we can
answer only when we have considered our Constitution as a means to the
attainment of democratic rule.
It is difficult to understand how anyone who has read the proceedings of
the Federal Convention can believe that it was the intention of that
body to establish a democratic government. The evidence is overwhelming
that the men who sat in that convention had no faith in the wisdom or
political capacity of the people. Their aim and purpose was not to
secure a larger measure of democracy, but to eliminate as far as
possible the direct influence of the people on legislation and public
policy. That body, it is true, contained many illustrious men who were
actuated by a desire to further what they conceived to be the welfare of
the country. They represented, however, the wealthy and conservative
classes, and had for the most part but little sympathy with the popular
theory of government.
"Hardly one among them but had sat in some famous assembly, had signed
some famous document, had filled some high place, or had made himself
conspicuous for learning, for scholarship, or for signal services
rendered in the cause of liberty. One had framed the Albany plan of
union; some had been members of the Stamp Act Congress of 1765; some had
signed the Declaration of Rights in 1774; the names of others appear at
the foot of the Declaration of Independence and at the foot of the
Articles of Confederation; two had been presidents of Congress; seven
had been, or were then, governors of states; twenty-eight had been
members of Congress; one had commanded the armies of the United States;
another had been Superintendent of Finance; a third had repeatedly been
sent on important missions to England, and had long been Minister to
France.
"Nor were the future careers of many of them to be less interesting than
their past. Washington and Madison became Presidents of the United
States; Elbridge Gerry became Vice-President; Charles Cotesworth
Pinckney and Rufus King became candidates for the Presidency, and Jared
Ingersoll, Rufus King, and John Langdon candidates for the
Vice-Presidency; Hamilton became Secretary of the Treasury; Madison,
Secretary of State; Randolph, Attorney-General and Secretary of State,
and James McHenry, a Secretary of War; Ellsworth and Rutledge became
Chief-Justices; Wilson and John Blair rose to the Supreme bench;
Gouverneur Morris, and Ellsworth, and Charles C. Pinckney, and Gerry,
and William Davie became Ministers abroad."[19]
The long list of distinguished men who took part in the deliberations of
that body is noteworthy, however, for the absence of such names as
Samuel Adams, Thomas Jefferson, Thomas Paine, Patrick Henry and other
democratic leaders of that time. The Federal Convention assembled in
Philadelphia only eleven years after the Declaration of Independence was
signed, yet only six of the fifty-six men who signed that document were
among its members.[20] Conservatism and thorough distrust of popular
government characterized throughout the proceedings of that convention.
Democracy, Elbridge Gerry thought, was the worst of all political
evils.[21] Edmund Randolph observed that in tracing the political evils
of this country to their origin, "every man [in the Convention] had
found it in the turbulence and follies of democracy."[22] These views
appear to reflect the general opinion of that body. Still they realized
that it was not the part of wisdom to give public expression to this
contempt for democracy. The doors were closed to the public and the
utmost secrecy maintained with regard to the proceedings. Members were
not allowed to communicate with any one outside of that body concerning
the matters therein discussed, nor were they permitted, except by a vote
of the Convention, to copy anything from the journals.[23]
It must be borne in mind that the Convention was called for the purpose
of proposing amendments to the Articles of Confederation. The delegates
were not authorized to frame a new constitution. Their appointment
contemplated changes which were to perfect the Articles of Confederation
without destroying the general form of government which they
established. The resolution of Congress of February 21, 1787, which
authorized the Federal Convention, limited its business to "the sole and
express purpose of revising the Articles of Confederation," and the
states of New York, Massachusetts, and Connecticut copied this in the
instructions to their delegates.[24] The aim of the Convention, however,
from the very start was not amendment, but a complete rejection of the
system itself, which was regarded as incurably defective.
This view was well expressed by James Wilson in his speech made in favor
of the ratification of the Constitution before the Pennsylvania
convention.
"The business, we are told, which was entrusted to the late Convention,"
he said, "was merely to amend the present Articles of Confederation.
This observation has been frequently made, and has often brought to my
mind a story that is related of Mr. Pope, who, it is well known, was not
a little deformed. It was customary with him to use this phrase, 'God
mend me!' when any little accident happened. One evening a link-boy was
lighting him along, and, coming to a gutter, the boy jumped nimbly over
it. Mr Pope called to him to turn, adding, 'God mend me!' The arch
rogue, turning to light him, looked at him, and repeated, 'God mend you!
He would sooner make half-a-dozen new ones.' This would apply to the
present Confederation; for it would be easier to make another than to
amend this."[25]
The popular notion that this Convention in framing the Constitution was
actuated solely by a desire to impart more vigor and efficiency to the
general government is but a part of the truth. The Convention desired to
establish not only a strong and vigorous central government, but one
which would at the same time possess great stability or freedom from
change. This last reason is seldom mentioned in our constitutional
literature, yet it had a most important bearing on the work of the
Convention. This desired stability the government under the
Confederation did not possess, since it was, in the opinion of the
members of the Convention, dangerously responsive to public opinion;
hence their desire to supplant it with an elaborate system of
constitutional checks. The adoption of this system was the triumph of a
skillfully directed reactionary movement.
Of course the spirit and intention of the Convention must be gathered
not from the statements and arguments addressed to the general public in
favor of the ratification of the Constitution, but from what occurred in
the Convention itself. The discussions which took place in that body
indicate the real motives and purposes of those who framed the
Constitution. These were carefully withheld from the people and it was
not until long afterward that they were accessible to students of the
American Constitution. The preamble began with, "We, the people," but it
was the almost unanimous sentiment of the Convention that the less the
people had to do with the government the better. Hamilton wanted to give
the rich and well born "a distinct, permanent share in the
government."[26] Madison thought the government ought "to protect the
minority of the opulent against the majority."[27] The prevalence of
such views in this Convention reminds one of Adam Smith's statement,
made a few years before in his "Wealth of Nations," that "civil
government, so far as it is instituted for the security of property, is
in reality instituted for the defence of the rich against the poor, or
of those who have some property against those who have none at all."[28]
The solicitude shown by the members of this convention for the interests
of the well-to-do certainly tends to justify Adam Smith's observation.
The framers of the Constitution realized, however, that it would not do
to carry this system of checks upon the people too far. It was necessary
that the government should retain something of the _form_ of democracy,
if it was to command the respect and confidence of the people. For this
reason Gerry thought that "the people should appoint one branch of the
government in order to inspire them with the necessary confidence."[29]
Madison also saw that the necessary sympathy between the people and
their rulers and officers must be maintained and that "the policy of
refining popular appointments by successive filtrations" might be pushed
too far.[30] These discussions, which took place behind closed doors and
under pledge of secrecy, may be taken as fairly representing what the
framers of our Constitution really thought of popular government. Their
public utterances, on the other hand, influenced as they necessarily
were, by considerations of public policy, are of little value. From all
the evidence which we have, the conclusion is irresistible that they
sought to establish a form of government which would effectually curb
and restrain democracy. They engrafted upon the Constitution just so
much of the features of popular government as was, in their opinion,
necessary to ensure its adoption.
CHAPTER IV
THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION
All democratic constitutions are flexible and easy to amend. This
follows from the fact that in a government which the people really
control, a constitution is merely the means of securing the supremacy of
public opinion and not an instrument for thwarting it. Such a
constitution can not be regarded as a check upon the people themselves.
It is a device for securing to them that necessary control over their
agents and representatives, without which popular government exists only
in name. A government is democratic just in proportion as it responds to
the will of the people; and since one way of defeating the will of the
people is to make it difficult to alter the form of government, it
necessarily follows that any constitution which is democratic in spirit
must yield readily to changes in public opinion.
Monarchical and aristocratic constitutions on the other hand are always
extremely conservative. Inasmuch as they express the opinion and
guarantee the privileges of a dominant class, they are bulwarks erected
against popular change. The privileged classes of any society regard
stability as the chief political desideratum. They resist, and if
possible prevent, those legal and political readjustments which the
general progress of society makes necessary. Their interests are
furthered in proportion as the system is one which renders change
difficult.
With this distinction in mind let us examine the Constitution of the
United States. Was it the intention of the framers of this instrument
that it should be merely a check upon the governmental machinery with
the view of establishing popular control over it, or was it expected to
constitute a check upon the people themselves? That it was not intended
that the people should be given direct and complete control over the
general policy of the government is clear from the fact that the
Constitution was made so difficult to amend; for the right to control
the political machinery, implies of necessity the right to make such
changes in it from time to time, as are needed to make this control
effective. It is evident from the views expressed in the Convention that
one object of the Constitution was to secure stability by placing the
government beyond the direct influence of public opinion.
Madison, who has been called the "father of the Constitution," thought
it "ought to secure the permanent interests of the country against
innovation."[31] Hamilton said "all communities divide themselves into
the few and the many. The first are the rich and well born, the other
the mass of the people ... [the latter] are turbulent and changing; they
seldom judge or determine right." Therefore he advocated a permanent
senate which would be able to "check the imprudence of democracy."[32]
Gouverneur Morris observed that "the first branch [of the proposed
Federal Congress], originating from the people, will ever be subject to
_precipitancy_, _changeability_, and _excess_.... This can only be
checked by _ability_ and _virtue_ in the second branch ... [which] ought
to be composed of men of great and established property--_aristocracy_;
men who, from pride, will support consistency and permanency; and to
make them completely independent, they must be chosen _for life_, or
they will be a useless body. Such an aristocratic body will keep down
the turbulence of democracy."[33]
This dread of the consequences of popular government was shared to a
greater or less extent by nearly all the members of that Convention.
Their aim was to find a cure for what they conceived to be the evils of
an excess of democracy.
"Complaints," says Madison in _The Federalist_, "are everywhere heard
from our most considerate and virtuous citizens, equally the friends of
public and private faith, and of public and personal liberty, that our
governments are too unstable, that the public good is disregarded in the
conflicts of rival parties, and that measures are too often decided, not
according to the rules of justice and the rights of the minor party, but
by the superior force of an interested and overbearing majority."[34]
This criticism of the American government of the Revolutionary period
gives us the point of view of the framers of the Constitution. We should
remember, however, that the so-called majority rule to which Madison
attributed the evils of that time had nothing in common with majority
rule as that term is now understood. Under the laws then in force the
suffrage was greatly restricted, while the high property qualifications
required for office-holding had the effect in many cases of placing the
control of legislation in the hands of the wealthier part of the
community. But undemocratic as the system was, it was not sufficiently
undemocratic to suit the framers of the Constitution. It was no part of
their plan to establish a government which the people could control. In
fact, popular control was what they were seeking to avoid. One means of
accomplishing this was to make amendment difficult, and this accordingly
was done. We need not be surprised that no provision was made for its
original adoption, or subsequent amendment by direct popular vote.[35]
The fact that the people can not directly propose, or even ratify
changes in the fundamental law, is a substantial check upon democracy.
But in addition to this, another check was provided in the extraordinary
majority necessary to amend the Constitution. That it requires a
two-thirds majority of both houses of Congress, or an application from
the legislature in two-thirds of the states to merely set the machinery
for constitutional amendment in motion, and that it requires for
ratification of amendments proposed, the assent of legislatures or
conventions in three-fourths of the states, ought to give one some idea
of the extreme difficulty of changing our Constitution.
Patrick Henry clearly saw that this lack of adequate provision for
amendment was destructive of democracy. In the Virginia convention held
to ratify the Constitution he said:
"To encourage us to adopt it, they tell us that there is a plain, easy
way of getting amendments. When I come to contemplate this part, I
suppose that I am mad, or that my countrymen are so. The way to
amendment is, in my conception, shut ..." After quoting Article V (the
amendment feature of the Constitution), he continues:
"Hence it appears that three-fourths of the states must ultimately agree
to any amendments that may be necessary. Let us consider the consequence
of this.... Let us suppose--for the case is supposable, possible and
probable--that you happen to deal those powers to unworthy hands; will
they relinquish powers already in their possession, or agree to
amendments? Two-thirds of Congress, or of the state legislatures, are
necessary even to propose amendments. If one-third of these be unworthy
men, they may prevent the application for amendments; but what is
destructive and mischievous, is, that three-fourths of the state
legislatures, or of the state conventions, must concur in the amendments
when proposed! In such numerous bodies, there must necessarily be some
designing, bad men. To suppose that so large a number as three-fourths
of the states will concur, is to suppose that they will possess genius,
intelligence, and integrity, approaching to miraculous.... For four of
the smallest states, that do not collectively contain one-tenth part of
the population of the United States, may obstruct the most salutary and
necessary amendments. Nay, in these four states, six-tenths of the
people may reject these amendments.... A bare majority in these four
small states may hinder the adoption of amendments; so that we may
fairly and justly conclude that one-twentieth part of the American
people may prevent the removal of the most grievous inconveniences and
oppression, by refusing to accede to amendments.... Is this an easy mode
of securing the public liberty? It is, sir, a most fearful situation,
when the most contemptible minority can prevent the alteration of the
most oppressive government; for it may, in many respects, prove to be
such."[36]
That such a small minority of the people should have the power under our
constitutional arrangements to prevent reform, can hardly be reconciled
with the general belief that in this country the majority rules. Yet
small as was this minority when the Constitution was adopted, it is much
smaller now than it was then. In 1900 one forty-fourth of the population
distributed so as to constitute a majority in the twelve smallest states
could defeat any proposed amendment. As a matter of fact it is
impossible to secure amendments to the Constitution, unless the
sentiment in favor of change amounts almost to a revolution. Only at
critical times in our history have constitutional amendments been
adopted. During sixty-one years from 1804 to 1865, and since 1870, no
amendments have been made. The fifteen amendments were all adopted,
either during the turbulent period of American politics which
immediately followed the ratification of the Constitution, or during
the reconstruction period after the Civil War. That it is not possible
in ordinary times to change the Constitution is evident from the fact
that of some twenty-two hundred propositions for amendment only fifteen
have been adopted, and these during the periods above mentioned.[37]
"The argument in favor of these artificial majorities," says Professor
Burgess, "is that innovation is too strong an impulse in democratic
states, and must be regulated; that the organic law should be changed
only after patience, experience and deliberation shall have demonstrated
the necessity of the change; and that too great fixedness of the law is
better than too great fluctuation. This is all true enough; but, on the
other hand, it is equally true that development is as much a law of
state life as existence. Prohibit the former, and the latter is the
existence of the body after the spirit has departed. When, in a
democratic political society, the well-matured, long and deliberately
formed will of the undoubted majority can be persistently and
successfully thwarted, in the amendment of its organic law, by the will
of the minority, there is just as much danger to the state from
revolution and violence as there is from the caprice of the majority,
where the sovereignty of the bare majority is acknowledged. The
safeguards against too radical change must not be exaggerated to the
point of dethroning the real sovereign."[38]
What Professor Burgess seems to overlook is the fact that the framers of
the Constitution deliberately intended to dethrone the numerical
majority. The restrictions which they placed upon the exercise of the
amending power were not only not inconsistent with the form of
government which they established, but as a matter of fact absolutely
necessary to ensure its preservation, since without such a limitation of
the power to amend, the majority could easily overcome all other checks
upon its authority.
This feature of the Constitution, which nominally provides for
amendment, but really makes it an impossibility, is perhaps the best
proof we could have that the Constitution as framed and adopted
represented the views of a minority who intended by this means to
perpetuate their influence. But, we are told, this can not be the case
since the states were free to accept or reject it. Let us not forget,
however, that at no stage of the proceedings was the matter referred
directly to the people. Bryce says: "Had the decision been left to what
is now called 'the voice of the people,' that is, to the mass of the
citizens all over the country, voting at the polls, the voice of the
people would probably have pronounced against the Constitution."[39]
Moreover, "the Convention met," as he observes, "at the most fortunate
moment in American History [for securing the adoption of such a
constitution].... Had it been attempted four years earlier or four years
later at both of which times the waves of democracy were running high,
it must have failed."[40] But even under these favoring conditions it
was no easy task to get the states to adopt it. The advocates of the
Constitution employed every argument and influence that could contribute
to the desired result. They appealed with telling effect to the dread of
European aggression. This induced many who had little sympathy with the
proposed plan of government, to acquiesce in its adoption, believing
that some sort of a strong government was necessary for purposes of
defence. It was also boldly charged that money was employed to overcome
opposition where other means of persuasion failed.[41]
Our natural inclination is to disbelieve anything that reflects on the
political methods employed by the founders of our government.
Nevertheless, the widespread belief that the politicians and public men
of that time were less corrupt than those of to-day is, as Professor
McMaster says, a pure delusion. "A very little study of long-forgotten
politics will suffice to show that in filibustering and gerrymandering,
in stealing governorships and legislatures, in using force at the polls,
in colonizing and in distributing patronage to whom patronage is due, in
all the frauds and tricks that go to make up the worst form of practical
politics, the men who founded our state and national governments were
always our equals, and often our masters."[42] Of one thing we may be
reasonably certain--the Constitution as adopted did not represent the
political views of a majority of the American people--probably not even
a majority of those entitled to vote. Universal suffrage, we must
remember, did not then exist, and both property and religious
qualifications limited the right to hold public office. This of itself
is evidence that those who then controlled politics did not believe in
the right of the majority to rule. And when we take account of the
further fact that this was a time of political reaction, when the
government of the country was largely in the hands of those who despised
or feared democracy, we can easily see that the natural effects of a
restricted suffrage may have been intensified by those methods of
"practical politics" which not infrequently defeat the will of the
majority even to-day under universal suffrage. That it was the intention
of the framers of the Constitution to bring about, if possible, the
adoption of a form of government of which the majority of the people did
not approve, is clearly established by the record of their proceedings.
Hamilton, referring to the plan of government which he had proposed,
said: "I confess that this plan, and that from Virginia [the one
submitted by Randolph and of which the Constitution as finally adopted
was a modification], are very remote from the idea of the people.
Perhaps the Jersey plan is nearest their expectation. But the people are
gradually ripening in their opinions of government--they begin to be
tired of an excess of democracy...."[43]
"The Federal government was not by intention a democratic government. In
plan and structure it had been meant to check the sweep and power of
popular majorities. The Senate, it was believed, would be a stronghold
of conservatism, if not of aristocracy and wealth. The President, it was
expected, would be the choice of representative men acting in the
electoral college, and not of the people. The Federal judiciary was
looked to, with its virtually permanent membership, to hold the entire
structure of national politics in nice balance against all disturbing
influences, whether of popular impulse or of official overbearance. Only
in the House of Representatives were the people to be accorded an
immediate audience and a direct means of making their will effective in
affairs. The government had, in fact, been originated and organized upon
the initiative and primarily in the interest of the mercantile and
wealthy classes. Originally conceived as an effort to accommodate
commercial disputes between the States, it had been urged to adoption by
a minority, under the concerted and aggressive leadership of able men
representing a ruling class. The Federalists not only had on their side
the power of convincing argument, but also the pressure of a strong and
intelligent class, possessed of unity and informed by a conscious
solidarity of material interests."[44]
The Constitution would certainly have been rejected, notwithstanding the
influences that were arrayed in favor of its adoption, but for the
belief that it would shortly be amended so as to remove some of its more
objectionable features. In the large and influential states of
Massachusetts, New York, and Virginia it was ratified by very small
majorities,[45] though each of these states accompanied its acceptance
of the Constitution with various recommendations for amendment. As a
result of these suggestions from the states ratifying it, the first
Congress in 1789 framed and submitted the first ten amendments. The
eleventh amendment was the outgrowth of the Supreme Court decision in
the case of Chisholm v. The State of Georgia. In this case the court
held, contrary to the interpretation given to the Constitution by
Hamilton when defending it in _The Federalist_,[46] that a private
plaintiff could sue a state in the Federal Court. This decision aroused
a storm of indignation, and Congress in 1794 proposed the Eleventh
Amendment, which counteracted the effect of this decision. The Twelfth
Amendment, proposed by Congress in 1803, merely changed the method of
electing the President to meet the requirements of the party system
which had then come into existence.
These first twelve amendments were all adopted during the infancy of the
Constitution, and while it was still regarded as an experiment. But
though they had the effect of quieting public opinion and allaying the
fears of the people concerning the new form of government, they made no
important changes in the Constitution, leaving all its main features as
originally adopted. The same may be said of the last three amendments,
which were the result of the Civil War. They were proposed and ratified,
as Bryce says, "under conditions altogether abnormal, some of the lately
conquered states ratifying while actually controlled by the Northern
armies, others as the price which they were obliged to pay for the
readmission to Congress of their senators and representatives."[47]
These amendments were really carried through, not by the free choice of
three-fourths of the states, as the Constitution requires, "but under
the pressure of a majority which had triumphed in a great war,"[48] and
used military and political coercion to accomplish what otherwise could
not have been brought about. Nothing could have been farther from the
intention of the victorious Northern states at that time than any
important change in the form or character of the government which they
had waged a gigantic civil war to defend and enforce. Slavery, it is
true, was abolished to remove forever the bone of contention between the
North and the South. But the Constitution survived the Civil War,
unchanged in all its essential features, and more firmly established
than ever.
That the plan of government originally established has undergone no
important modification by constitutional amendment can not be ascribed
to the fact that important changes have not been suggested. With the
growth of more liberal views concerning government many attempts have
been made to remove the constitutional barriers erected by our
forefathers to stay the progress of democracy. Among the political
reforms contemplated by this numerous class of proposed amendments may
be mentioned a shorter term for United States senators and election by
popular vote; direct election of the President and the abolition of his
veto power; a shorter term for Federal judges and their removal by the
President on the joint address of both houses of Congress. The aim of
all these proposed amendments has been the same, viz., to make the
Constitution accord better with the democratic spirit of the time. It is
interesting to observe, however, that with the single exception of the
proposed election of United States senators by popular vote, not one of
these had the support of either house of Congress, much less the
two-thirds majority in both, or a majority in the legislatures of
two-thirds of the states, as required to authorize their submission for
ratification or rejection. Even this measure, which has passed the House
of Representatives several times by an overwhelming vote, has been
entirely ignored by the Senate.
No proposal, then, to make any important change in the Constitution has
ever obtained the preliminary two-thirds majority, to say nothing of
the majority in three-fourths of the states, necessary for its adoption.
That the majority required to propose an amendment is almost prohibitive
of change, is shown by the record of popular elections and the journals
of representative bodies. From the presidential election year of 1828,
the first for which we have a record of the popular vote, down to 1900,
the largest majority ever received by any candidate for the Presidency
was that of Andrew Jackson in 1828, when he had less than 56 per cent.
of the popular vote.[49] Nine elections since Jackson's time resulted in
the choice of a President by less than a popular majority. No candidate
in any presidential election from 1876 to 1900 inclusive has carried
two-thirds of the states.[50]
It is still more difficult for any important reform measure to secure a
two-thirds majority in a representative assembly, as the proceedings of
Congress and our state legislatures abundantly prove. This is true for
the reason that a wealthy minority can exert an influence over such
bodies out of all proportion to its numerical strength at the polls.
Hence even a bare majority can seldom be obtained for any measure which
interferes with or restricts the privileges of organized wealth. A
two-thirds majority under such circumstances is practically impossible.
And when we remember that any proposed amendment to the Constitution
must twice run the gauntlet of representative assemblies, receiving
first a two-thirds majority in both houses of Congress and later a
majority in both houses of the legislature or in conventions in
three-fourths of the states, we readily see that this provision
effectually precludes the possibility of any important amendment.
One of the principal objections to the Articles of Confederation--that
they lacked a practical amending power--applies, then, with no less
force to the Constitution itself. In one respect the Constitution is
even more rigid than were the Articles of Confederation, since the
Congress of the Confederation was the court of last resort for passing
on the constitutionality of its own legislation. This gave to Congress
under the Confederation at least a limited power of virtually amending
the Articles of Confederation by the ordinary process of law-making--a
power possessed by the legislature in all countries where the system of
checks and balances is not recognized. Under the Constitution, however,
this power to amend the fundamental law can be exercised only to a very
limited extent by Congress, since the interpretation of the Constitution
by that body for the purposes of law-making is subject to revision at
the hands of the Federal Judiciary. The Constitution, then, more
effectually prevents changes desired by the majority than did the
Articles of Confederation, since the former guards against the
possibility of amendment under the guise of ordinary legislation while
the latter did not.
Another distinction must be borne in mind. The Articles of Confederation
made amendment difficult in order to prevent the general government from
encroaching on the rights of the several states. It was not so much a
disposition to make change impossible, or even difficult, as, by keeping
the general government within established bounds, to leave the several
states free to regulate their own affairs and change their institutions
from time to time to suit themselves.
This view finds support in the character of the early state
constitutions. These were shaped by the same revolutionary movement
which produced the Declaration of Independence, and were largely
influenced in their practical working by the "self-evident" truths
proclaimed in the latter. One of the axioms of political science
embodied in the Declaration of Independence was the right of the people
to alter or abolish the existing form of government. This principle,
however, was expressly recognized in but few of the earlier state
constitutions, which, as a rule, contained no provision for future
amendment. But such provision was not really necessary, inasmuch as the
power of the legislature was limited only by its responsibility to the
electorate. A mere majority of the qualified voters might demand and
secure the enactment of laws which would virtually amend the
constitution. From this time on, however, we see a strong tendency to
specify in the constitution itself the manner in which it could be
changed; and by the time that the framers of the Federal Constitution
met in Philadelphia in 1787 a majority of the state constitutions
contained provisions of this kind.
According to the Maryland constitution of 1776 it was necessary that an
amendment should "pass the General Assembly, and be published at least
three months before a new election" and confirmed by the General
Assembly in the first session after such election.[51] The South
Carolina constitution of 1778 permitted "a majority of the members of
the senate and house of representatives" to adopt amendments after
having given ninety days' notice of such intention. The constitution of
Delaware, 1776, required that constitutional amendments should be
assented to by five-sevenths of the lower house and seven-ninths of the
upper. This check on amendment was largely inoperative, however, for the
reason above mentioned, viz., that the legislature was supreme, and
could enact by majority vote such laws as it saw fit, whether they were
in harmony with the constitution or not.
Five other state constitutions made provision for the adoption of
amendments by conventions. The Pennsylvania constitution of 1776
provided for the election every seventh year by the freemen of the state
of a "Council of Censors" to hold office during one year from the date
of their election. This body had the power "to pass public censures, to
order impeachments, and to recommend to the legislature the repealing
such laws as appear to them to have been enacted contrary to the
principles of the constitution." They also had power to call a
convention for amending the constitution. "But ... the amendments
proposed ... shall be promulgated at least six months before the day
appointed for the election of such convention, for the previous
consideration of the people, that they may have an opportunity of
instructing their delegates on the subject." This provision of the
Pennsylvania constitution of 1776 was copied in the Vermont constitution
of 1777. The constitution of Georgia, 1777, contained the following: "No
alteration shall be made in this constitution without petitions from a
majority of the counties, and the petition from each county to be signed
by a majority of the voters in each county within this state; at which
time the assembly shall order a convention to be called for that
purpose, specifying the alterations to be made, according to the
petitions preferred to the assembly by the majority of the counties as
aforesaid." The Massachusetts constitution of 1780 provided that the
question of amendment should be submitted to the qualified voters of the
state, and if two-thirds of those voting favored amendment, it was the
duty of the legislature to order the election of delegates to meet in
convention for that purpose. The New Hampshire constitution of 1784
contained a similar provision.
We see, then, that several of the early state constitutions expressly
gave, either directly to a majority of the qualified voters, or to their
representatives, the right to amend; and even in Massachusetts, New
Hampshire, and Delaware, whose constitutions expressly limited the power
of the majority, the limitation was not effective, since the majority
could push through under the guise of ordinary legislation, measures
which virtually amounted to an exercise of the amending power. Such
limitations on the power of the majority did not become effective until
a judiciary not directly responsible to the people, acquired the right
to declare acts of the legislature null and void.
An examination of these features of the various state constitutions in
force in 1787 shows clearly the reactionary character of the Federal
Constitution. It repudiated entirely the doctrine then expressly
recognized in some of the states and virtually in all, that a majority
of the qualified voters could amend the fundamental law. And not only
did it go farther than any state constitution in expressly limiting the
power of the majority, but it provided what no state constitution had
done--the means by which its limitations on the power of the majority
could be enforced.
A comparison of this feature of our Constitution with the method of
amendment in other countries is interesting and instructive. In England
no distinction is made between constitutional amendments and other
legislation. And since the Crown has lost the veto power and the House
of Commons established its right to override the opposition of the House
of Lords, the most radical changes may be made without even the checks
which impede ordinary legislation in the United States.
In France amendment of the Constitution is almost as easy as in England,
though a distinction is made between this and ordinary legislation. When
both the Senate and Chamber of Deputies decide by an absolute majority
in each that amendment is necessary, they meet in joint session as a
National Assembly for that purpose. An absolute majority of the members
composing the National Assembly is required to change the Constitution.
Amendments to the Federal Constitution of Australia may be proposed by
an absolute majority of both Houses of Parliament. Not less than two nor
more than six months after the proposed amendment has been passed by
both houses, it must be submitted to the qualified voters in each
state. But if either house by an absolute majority passes a proposed
amendment which is rejected by the other house, and passes it again by
an absolute majority after an interval of three months, the
Governor-General may submit the proposed amendment to the qualified
voters. A proposed amendment is adopted if it is approved by a majority
of all those voting and also by a majority in a majority of the states.
In Switzerland the question whether the Federal Constitution ought to be
amended must be submitted to a popular vote whenever demanded by either
house of the Federal Assembly or by fifty thousand voters (about
one-fifteenth of the voting population). A proposed amendment is adopted
if it receives a majority of all the votes cast and at the same time a
majority in a majority of the Cantons, a provision copied, as we have
seen, in the Federal Constitution of Australia.
These constitutions show the general tendency at the present time to
make the majority supreme. In the countries which have been most
influenced by democratic ideas constitutional barriers against change
have largely or wholly disappeared. A constitution is in no proper sense
the embodiment of the will of the people unless it recognizes the right
of the majority to amend. Checks which prevent legal and political
readjustment are a survival from monarchy and aristocracy and are not
found in any full-fledged democracy. Constitutions which are really
democratic contain only such checks upon the people, if indeed they can
be called checks, as are calculated to insure the deliberate expression
of the popular will. Constitutional provisions designed to obstruct
amendment are not only an anomaly in popular government, but they are in
the very nature of the case inoperative. This follows from the fact that
the law-making body, whether it be the people themselves or a
representative assembly, is the final interpreter of the constitution
and may enact laws which virtually amend it. To make such provisions
really effective the constitution must vest the power to prevent
legislation in some branch of government not directly responsible to the
people. Usually this is a King or hereditary class. Our Constitution,
however, provides a substitute for these in its general system of checks
and especially in the independence of our national judiciary, which in
addition to the exercise of ordinary judicial functions is also
practically a branch of the legislature. The constitutional status of
the judiciary will be discussed in the following chapter.
CHAPTER V
THE FEDERAL JUDICIARY
No part of our Constitution has received less adverse criticism than
that which relates to the powers and tenure of the judiciary.
Constitutional writers have almost without exception given it their
unqualified approval, claiming that its wisdom is established beyond
question by the political experience of the English-speaking race. To
express a doubt as to the soundness of this view is to take issue with
what appears to be the settled and mature judgment of the American
people.
Moreover, the authority of the courts is "the most vital part of our
government, the part on which the whole system hinges."[52] This is true
for the reason that the Federal judiciary is not only the most important
of our constitutional checks on the people, but is also the means of
preserving and enforcing all the other checks. To enable the Federal
judges to exercise these important and far-reaching powers, it was
necessary to make them independent by giving them a life tenure. This
provision was in perfect harmony with the general plan and purpose of
the Constitution, a document framed, as we have seen, with a view to
placing effectual checks on the power of the majority. As a means to the
end which the framers of the Constitution had in view, the independence
of the judiciary was an admirable arrangement.
Hamilton says: "Upon the whole, there can be no room to doubt that the
Convention acted wisely in copying from the models of those
constitutions which have established _good behavior_ as the tenure of
their judicial offices, in point of duration; and that so far from being
blamable on this account, their plan would have been inexcusably
defective, if it had wanted this important feature of good government.
The experience of Great Britain affords an illustrious comment on the
excellence of the institution."[53]
This is quoted with approval by Story in his Commentaries on the
Constitution and this same line of argument has been followed by legal
and political writers generally. But with all due respect for the
eminent authorities who have placed so much stress on the political
experience of other countries, we may venture to ask if the parallel
which they have assumed really exists. Is the use made of this argument
from analogy warranted by the facts in the case? Are we sure that the
political experience of England proves the wisdom of an independent
judiciary? This can best be answered by referring to the circumstances
which gave rise to the doctrine that the judges should be independent.
In England formerly the Crown appointed the judges and could remove
them. This power of appointment and removal placed the courts under the
control of the King and made it possible for him to use them as a means
of oppressing the people. A striking example of the way in which this
power could be abused was seen in the career of the notorious Jeffreys,
the pliant judicial tool of the cruel and tyrannical James II. To guard
against a repetition of this experience it was urged that the judges be
made independent of the King.
This was done in 1701 by the Act of Settlement which provided that
judges should be removed only on an address from Parliament to the
Crown. This deprived the King of the power to remove judges on his own
initiative and virtually gave it to Parliament. The object of this
provision was to place a check in the interest of the people upon the
arbitrary power of the Crown. It made the judges independent of the
King, but at the same time established their responsibility to
Parliament by giving the latter the right to demand their removal.[54]
The statement so often made and so generally believed that the American
judicial system was modeled after that of Great Britain will not bear
investigation. English judges are not and never have been independent in
the sense in which that word is used with reference to the Federal
judiciary of the United States. In making the judges independent of the
King, Parliament had no intention of leaving them free to exercise
irresponsible powers. To have made them really independent would have
been to create a new political power of essentially the same character
and no less dangerous than the power of the King which they were seeking
to circumscribe.
"In England," says Jefferson, "where judges were named and removable at
the will of an hereditary executive, from which branch most misrule was
feared, and has flowed, it was a great point gained, by fixing them for
life, to make them independent of that executive. But in a government
founded on the public will, this principle operates in an opposite
direction, and against that will. There, too, they were still removable
on a concurrence of the executive and legislative branches. But we have
made them independent of the nation itself."[55]
There is, as a matter of fact, nothing in the political experience of
Great Britain to support the belief in an independent judiciary. The
judges there do not constitute a co-ordinate branch of the government
and can not enforce their opinion in opposition to that of Parliament.
Instead of being independent, they are strictly dependent upon
Parliament whose supreme power and authority they are compelled to
respect.
This being the case, it is hardly necessary to observe that the courts
in England do not exercise legislative functions. The power to decide
upon the wisdom or expediency of legislation is vested exclusively in
Parliament. The courts can not disregard a statute on the ground that it
is in conflict with the Constitution, but must enforce whatever
Parliament declares to be the law. As the judiciary under the English
system has no voice in the general policy of the state, the tenure of
judges during good behavior carries with it no power to thwart the
popular will.
The provision in the Constitution of the United States for the life
tenure of a non-elective judiciary serves, however, an altogether
different purpose. It was designed as a check, not upon an irresponsible
executive as was the case in England, but upon the people themselves.
Its aim was not to increase, but to diminish popular control over the
government. Hence, though professing to follow the English model, the
framers of the Constitution as a matter of fact rejected it. They not
only gave the Federal judges a life tenure, but made that tenure
unqualified and absolute, the power which Parliament had to demand the
removal of judges being carefully witheld from the American Congress.
This reversed the relation which existed between the legislative and
judicial branches of government under the English system and raised the
judiciary from a dependent and subordinate position to one that made it
in many respects supreme. The most important attribute of sovereignty,
that of interpreting the Constitution for the purposes of law-making,
which belonged to Parliament as a matter of course, was withheld from
Congress and conferred upon the Federal judiciary. Not only, then, did
the framers of the Constitution depart from the English model in making
the Federal judiciary independent of Congress, but they went much
farther than this and conferred upon the body whose independence and
irresponsibility were thus secured, powers which under the English
system were regarded as the exclusive prerogative of a responsible
Parliament. This made our Supreme judges, though indirectly appointed,
holding office for life and therefore independent of the people, the
final interpreters of the Constitution, with power to enforce their
interpretation by declaring legislation null and void. A more powerful
check upon democratic innovation it would be hard to devise.
The main reason for making the Federal judges independent and
politically irresponsible has not been generally recognized. Thus, in a
recent work Professor Channing, while expressing some disapproval of
this feature of our system, fails to offer a satisfactory explanation of
its origin. "Perhaps nothing in the Constitution of the United States is
more extraordinary," he tells us, "than the failure of that instrument
to provide any means for getting rid of the judges of the Federal courts
except by the process of impeachment. In England, in Massachusetts and
in Pennsylvania, judges could be removed by the executive upon address
by both branches of the legislative body.[56] In none of these cases was
it necessary to allege or to prove any criminal act on the part of the
judge. In colonial days the tenure of the judicial office had been of
the weakest. In the royal provinces, the judges had been appointed by
the Crown and had been removable at pleasure. In the charter colonies,
the judges had been appointed by the legislature, and their tenure of
office was generally for one year. The precariousness of the judicial
office in the royal provinces had more than once led to attempts on the
part of the colonists to secure greater permanency, because a permanent
judiciary would afford them protection against the royal authorities.
All attempts of this kind, however, had been defeated by the negative
voice of the government of England. Possibly the permanence of judicial
tenure which is found in the Constitution of the United States may be
regarded in some sort as the result of this pre-revolutionary
contest."[57]
As a matter of fact, however, there is nothing extraordinary or
difficult to explain in this permanency of judicial tenure which the
Constitution established. It was not in the charter colonies where
annual legislative appointment of judges was the rule, but in the royal
provinces that efforts were made by the people to secure greater
permanency of judicial tenure. They wished to give the judges more
independence in the latter, because it would be the means of placing a
check upon irresponsible authority, but were satisfied with a short term
of office for judges in the colonies where they were elected and
controlled by the legislature. Any explanation of the permanent tenure
of our Federal judges "as the result of this pre-revolutionary contest"
is insufficient. It was clearly a device consciously adopted by the
framers of the Constitution, not for the purpose of limiting
irresponsible authority, but for the purpose of setting up an authority
that would be in large measure politically irresponsible.
Conservative writers while giving unstinted praise to this feature of
the Constitution have not explained its real significance. They have
assumed, and expect us to take it for granted, that the Federal
judiciary was designed as a means of making the will of the people
supreme; that its independence and exalted prerogatives were necessary
to enable it to protect the people against usurpation and oppression at
the hands of the legislative branch of the government.
Hamilton tells us, "The standard of good behavior for the continuance in
office of the judicial magistracy, is certainly one of the most valuable
of the modern improvements in the practice of government. In a monarchy,
it is an excellent barrier to the despotism of the prince; in a
republic, it is a no less excellent barrier to the encroachments and
oppressions of the representative body....
"The complete independence of the courts of justice is peculiarly
essential in a limited constitution. By a limited constitution, I
understand one which contains certain specified exceptions to the
legislative authority.... Limitations of this kind can be preserved in
practice no other way than through the medium of the courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor
of the Constitution void....[58]
"Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has arisen
from an imagination that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged that the authority which
can declare the acts of another void, must necessarily be superior to
the one whose acts may be declared void....
"There is no position which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. To deny this
would be to affirm that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people
are superior to the people themselves; that men, acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid.
"If it be said that the legislative body are themselves the
constitutional judges of their own powers, and that the construction
they put upon them is conclusive upon the other departments, it may be
answered, that this can not be the natural presumption, where it is not
to be collected from any particular provisions in the Constitution. It
is not otherwise to be supposed that the Constitution could intend to
enable the representatives of the people to substitute their _will_ to
that of their constituents. It is far more rational to suppose that the
courts were designed to be an intermediate body between the people and
the legislature, in order, among other things, to keep the latter within
the limits assigned to their authority. The interpretation of the laws
is the proper and peculiar province of the courts. A constitution is, in
fact, and must be, regarded by the judges as a fundamental law. It
therefore belongs to them to ascertain its meaning, as well as the
meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of course, to
be preferred; in other words, the Constitution ought to be preferred to
the statute, the intention of the people to the intention of their
agents....
"This independence of the judges is equally requisite to guard the
Constitution and the rights of individuals from the effects of those ill
humours which the arts of designing men, or the influence of particular
conjunctures, sometimes disseminate among the people themselves, and
which, though they speedily give place to better information, and more
deliberate reflection, have a tendency, in the mean time, to occasion
dangerous innovations in the government, and serious oppressions of the
minor party in the community."[59]
This argument for an independent judiciary, which has been adopted by
all writers who have attempted to defend the system, may be summarized
as follows:
The Constitution being the solemn and deliberate expression of the will
of the people, is the supreme law of the land. As such it enumerates the
powers of the several branches of the government and sets limits to
their authority. Any act, therefore, on the part of the agents or
representatives of the people, which exceeds the authority thus
delegated, is in violation of the fundamental law and can not bind those
whom they profess to represent.
These checks upon the agents and representatives of the people can not
be enforced, however, if each branch of the government is to be
permitted to determine for itself what powers the Constitution has
conferred upon it. Under such a system Congress would overstep the
limits which have been placed upon its authority and substitute its own
will for the will of the people. To prevent this the framers of the
Constitution placed the courts, in their scheme of government, between
the people and the legislature and gave them power to determine and
enforce the constitutional limitations on the authority of Congress.
This put the Constitution and the rights and liberties of the people
under the protection of their natural guardian, the Federal judiciary,
and thereby secured the people against the danger of legislative
tyranny.
We must not forget the circumstances under which Hamilton wrote this
defence of the Federal judiciary. Although the Constitutional Convention
had spared no pains to prevent the publication of its proceedings, the
feeling was more or less general that the whole movement was a
conspiracy against popular government.
"The charge of a conspiracy against the liberties of the people," said
Hamilton, "which has been indiscriminately brought against the advocates
of the plan [the Constitution], has something in it too wanton and too
malignant not to excite the indignation of every man who feels in his
own bosom a refutation of the calumny. The perpetual changes which have
been rung upon the wealthy, the well-born, and the great, have been such
as to inspire the disgust of all sensible men. And the unwarrantable
concealments and misrepresentations which have been in various ways
practiced to keep the truth from the public eye have been of a nature to
demand the reprobation of all honest men."[60]
The evidence now accessible to students of the American Constitution
proves that the charges of "concealments and misrepresentations" made
with this show of righteous indignation against the opponents of the
Constitution might have justly been made against Hamilton himself. But
knowing that the views expressed in the Federal Convention were not
public property, he could safely give to the press this "refutation of
the calumny."
The publication of the debates on the Constitution at that time would
have shown that the apprehensions of the people were not entirely
without justification. The advocates of the new form of government did
not propose to defeat their own plans by declaring their real
purpose--by explaining the Constitution to the people as they themselves
understood it. For it was not to be supposed that the people would
permit the adoption of a form of government the avowed object of which
was to limit their power. Therefore the conservatives who framed the
Constitution and urged its ratification posed as the friends of
democracy. Professing to act in the name of, and as the representatives
of the people, they urged them to accept the Constitution as a means of
restraining their agents and representatives and thereby making their
own will supreme. It was not the aim of these articles, written, as they
were, to influence public opinion, to explain the real purpose of the
Constitution, but rather to disguise its true character.
In this species of political sophistry Hamilton was a master. It is, to
say the least, strange that the misstatement of historical facts, false
analogies and juggling of popular catch-words which constitute his
defence of the Federal judiciary should have been so often referred to
as an example of faultless logic and a complete vindication of the
system. Hamilton's interpretation of the Constitution as contained in
these articles was merely for popular consumption, and not a frank and
unequivocal expression of what he himself really believed. He was an
uncompromising opponent of democracy and considered the English
government of that day, with its hereditary monarchy and aristocracy,
the best form of government ever devised.[61]
He favored therefore as near an approach to the English system as the
circumstances of the case would permit. According to the plan which he
submitted to the Convention the executive branch of the government was
to be placed beyond the reach of public opinion by a method of
appointment designed to guard against the choice of a popular favorite
and by life tenure. Not only did he wish to make the President
independent of the people, but he proposed to give him an absolute veto
on all acts of Congress. Moreover, the President was to appoint the
governors of the various states, and these, like the royal governors
before the Revolution, were to have an absolute veto on the acts of the
state legislatures.[62] This would have made the President a monarch in
all but name, and though independent of the people, have given him
power to thwart legislation which no majority in Congress, however
great, could override.
But this did not go far enough in the direction of providing checks on
popular legislation to suit Hamilton. The members of the upper house of
Congress were, like the President, to be indirectly elected and to hold
office for life. And finally over and above Congress was to be placed a
Supreme Court whose members, by their mode of appointment and life
tenure, were to be independent of the people. This body, which was to be
the final interpreter of the Constitution, was designed as an additional
safeguard against democratic legislation. The lower house of Congress
was the only branch of the government in which any provision was made,
under Hamilton's plan, for the representation of public opinion. Through
the House of Representatives the people were to have an opportunity to
propose legislation, but no power to enact it, or to control the general
policy of the government.
The refusal of the Convention to endorse the scheme of government
proposed by Hamilton must not be understood as implying lack of sympathy
with the political views which it embodied. With his main purpose, that
of effectually curbing the power of the majority, nearly all the members
of that body were in full accord. They were, however, shrewd
experienced men of affairs who understood the temper of the people and
knew that their plan of political reorganization could be carried
through only by disguising its reactionary character and representing it
as a democratic movement. To have submitted the Constitution in the form
in which it was proposed by Hamilton would have defeated their purpose.
It was too obviously undemocratic, inasmuch as it provided for a strong
centralized government only one branch of which was to be elected by the
people, while the other three were to be placed beyond the reach of
public opinion through indirect election and life tenure. The
Constitution as framed and submitted was more democratic in appearance,
though it really contained all that was essential in Hamilton's plan.
Life tenure for the President and Senate was discarded, it is true, but
indirect election was expected to ensure their independence. The
absolute veto on Federal and state legislation which Hamilton proposed
to give to a permanent executive was the most serious practical
objection to his scheme, since it showed too clearly the purpose of the
Convention to make the aristocratic element supreme not only in the
general government but in the states as well. In form and appearance the
Constitution merely gave the President a qualified negative on the acts
of Congress; but in reality the Convention went much farther than this
and conferred the absolute veto on federal and state legislation
contended for by Hamilton. The power was merely transferred from the
President in whose hands he had proposed to place it, and given to the
Supreme Court. The end which he had in view was thus attained without
arousing the opposition which would have been inevitable had there been
anything in the Constitution to indicate that such a power was intended
to be conferred.
These facts disclose the true motive for Hamilton's untiring efforts in
behalf of the Constitution. He desired its adoption, not because he
believed that it would make the will of the people supreme, as his above
quoted references to _principal_ and _agent_ and _master_ and _servant_
would seem to imply, but for the opposite reason that it would make the
government largely independent of public opinion. As a matter of fact,
Hamilton had no use whatever for a political system which assumed that
the people were a _master_ or _principal_ and the government merely
their _servant_ or _agent_. The chief merit of the Constitution from his
point of view was not its acceptance, but its repudiation of this
principle. Had it been framed on the theory that the will of the people
is the supreme law of the land, no one would have been more bitterly
opposed to its adoption than Hamilton himself. That he gave it his
unqualified support is the best evidence that he did not believe that it
would make the will of the people supreme.
No intelligent man who carefully reads Hamilton's argument in defence of
the Federal judiciary could be misled as to his real views. His dread of
democracy is clearly seen in his desire to exalt the Supreme Court and
subordinate Congress, the only branch of the government in which the
people were directly represented. His seeming anxiety lest the
legislative body should disregard the will of the people was a mere
demagogic attempt to conceal his real motive. Had this been what he
really feared, the obvious remedy would have been the complete
responsibility of Congress to the people. In fact, this was necessarily
implied in the doctrine of principal and agent which he professed to
accept, but which found no recognition either in the constitution which
he himself had suggested, or in the one finally adopted. To this theory
of government the system which he defended was in reality diametrically
opposed. Under the guise of protecting the people against
misrepresentation at the hands of Congress, it effectually limited the
power of the people themselves by tying the hands of their responsible
agents. It deprived the people of the power to compel the enactment of
law by making the consent of the Supreme Court necessary to the
enforcement of all legislation, federal and state. This was a
substantial compliance with Hamilton's proposal to give an absolute veto
to an independent and permanent executive. It was a matter of but
little consequence whether this power was conferred on a single person,
as the President, or on a body, as the Supreme Court, provided the
manner of appointment and tenure of those in whose hands it was placed,
were such as to ensure an independent exercise of the power thus
conferred. The result would be the same in either case: the law-making
power would be placed beyond the reach of popular control.
To allow the legislative body to be "the constitutional judges of their
own power," Hamilton tells us, would be to affirm "that the servant is
above his master." Hence it is necessary, he argues, to divest Congress
of all authority to determine the extent of its own powers. To
accomplish this the Supreme Court was made the constitutional judge of
the powers of Congress and of its own powers as well. Hamilton's
argument involves the assumption that, while it is dangerous to allow a
frequently elected and responsible branch of the government to determine
the extent of its own powers, it is at the same time eminently wise and
proper to give, not only this power, but also the power to determine the
authority of all other branches of government, to a permanent body whom
the people neither elect nor control. His constant reference to the
danger of legislative oppression was merely a mask for his hatred of
popular government. He was anxious to curb the power of Congress because
he feared that public opinion would too largely influence the
proceedings of that body. On the other hand, he saw no danger of
executive or judicial tyranny since these branches of the government
were expected to be independent of public opinion. Hamilton's purpose
was to limit the power of the people by subordinating that part of the
government in which they were directly represented and strengthening
those parts over which they had no direct control. His defence of the
Constitution is thus really an argument against responsible government
and a defence of the principles underlying monarchy and aristocracy.
As the English judiciary is really an offshoot from the executive, the
power of the court to declare legislation null and void may be regarded
as merely a phase of the executive veto. No evidence of this can be
found, it is true, in the constitutional history of England during the
eighteenth and nineteenth centuries. But if we go back to the period
preceding the revolution of 1688, it seems to be clearly established
that the English courts claimed, and in a few instances exercised, the
power to annul acts of Parliament. As late as 1686, in the case of
Godden v. Hales, "the Court of King's Bench actually held that important
provisions of the statute of 25 Charles II, cap. 2, were void because
conflicting with the King's rightful prerogative."[63] When we remember
that the courts were then under the control of the King, it is not
surprising that they should have attempted to exercise this power in
defence of the royal prerogative. But with the Revolution of 1688, which
established the supremacy of Parliament, the last trace of the judicial
negative disappeared. From that time on the right of Parliament to be
the constitutional judge of its own powers has not been seriously
questioned. Even the veto power of the King soon became obsolete, though
in theory it for a time survived.
Such was the constitutional status of the English judiciary when the
American colonies asserted their independence. The new state
constitutions adopted at the outbreak of the war, as has been shown in a
previous chapter, represented the more democratic thought of the period
and were really revolutionary in character. They abolished the veto
power of the governor and failed to abolish the judicial negative only
because it did not then exist.[64] This was followed after the
Revolution by a conservative reaction which was not, however, a popular
movement. It received no general support or sympathy from the masses of
the people, but was planned and carried through by those whom we may
describe as the ruling class, and who were, for the most part, strongly
in sympathy with English political institutions. It was characterized by
real, if not avowed, hostility to the new political ideas embodied in
the Declaration of Independence and in the Revolutionary state
constitutions. Its aim was to reform the state governments by restoring,
as far as possible, the checks on democracy which the Revolutionary
movement had swept away.
The judiciary was the only branch of the state government in which the
principle of life tenure had been retained, and therefore the only one
which could be depended on to offer any effectual resistance to public
opinion. Evidently, then, the easiest and most practicable method of
accomplishing the end which the conservative classes had in view was to
enlarge the powers of the judiciary. Accordingly an effort was made at
this time in several of the states to revive and develop the judicial
veto. A practical argument in favor of this check was doubtless the fact
that it required no formal changes in the state constitutions, and, for
this reason, was less likely to arouse formidable opposition than any
avowed attempt to restore the system of checks.
When the Constitutional Convention met in 1787 the courts in five states
were beginning to claim the power to declare acts of the legislature
unconstitutional. In a Virginia case as early as 1782 the judges of the
court of appeals expressed the opinion "that the court had power to
declare any resolution or act of the legislature, or of either branch of
it, to be unconstitutional and void."[65] The court, however, did not
exercise the power to which it laid claim. It merely declared a
resolution of the House of Delegates invalid on the ground that it had
been rejected by the Senate. This case is important only as showing that
the court was then paving the way for the exercise of the power to annul
acts of the legislature.
The case of Trevett v. Weeden, decided by the Superior Court of
Judicature of Rhode Island in September, 1786, is said to be the first
in which a law was declared null and void on the ground that it was
unconstitutional.[66] The court in this case did not expressly say that
the law in question was unconstitutional and therefore void, but it
refused to recognize its validity. The power which the court exercised
to ignore a legislative act was promptly repudiated by the law-making
body, and at the expiration of their term of office a few months later,
the judges responsible for this decision were replaced by others. In
1786 or 1787 a case was decided in Massachusetts, and also one in New
Jersey, in which it is claimed that the court declared a legislative act
null and void.
The first reported case in which an act of a legislature was held to be
contrary to a _written_ constitution is that of Bayard v. Singleton,
decided by the Superior Court of North Carolina in May, 1787. James
Iredell, afterward a member of the North Carolina convention, held to
ratify the Constitution, and a judge of the United States Supreme Court,
and William R. Davie, one of the framers of the Constitution, were
attorneys for the plaintiff, the party in whose interest the law was
declared unconstitutional. This decision received much adverse criticism
at the time. The judges "were fiercely denounced as usurpers of power.
Spaight, afterwards governor, voiced a common notion when he declared
that 'the state was subject to the three individuals, who united in
their own persons the legislative and judicial power, which no monarch
in England enjoys, which would be more despotic than the Roman
triumvirate and equally insufferable.'"[67]
Iredell, in a letter to Spaight written August 26, 1787, defended the
decision as a means of limiting the power of the majority. "I conceive
the remedy of a new election," he says, "to be of very little
consequence, because this would only secure the views of a
majority...."[68] Iredell expressed what was no doubt the real purpose
of the judicial veto--the limitation of the power of the majority.
In eight of the thirteen states the doctrine that the judiciary could
refuse to enforce laws regularly enacted by the legislative body had not
even been asserted by the courts themselves, much less recognized and
accepted by the people generally. There is no evidence to warrant the
belief that this power was anywhere claimed or exercised in response to
a popular demand or that it had at this time become a firmly established
or generally recognized feature of any state government.
This being the case, there is no ground for the contention that the
power to annul acts of the legislature was necessarily implied in the
general grant of judicial authority contained in the Constitution.
Moreover, it was not expressly conferred, for the Constitution as
submitted and ratified contains no reference to this power.
"There is no provision in the Constitution of the United States ...
which clothes the judiciary with the power to declare an act of the
legislature generally null and void on account of its conceived
repugnance to the Constitution or on any other account."[69]
It has been claimed that in this respect our general government is even
less democratic than the framers of the Constitution intended. This
view, however, is not borne out by the facts. The assertion of this
far-reaching power by our national judiciary, though not expressly
authorized by the Constitution, was nevertheless in harmony with the
general spirit and intention of its framers. That the members of the
Constitutional Convention declined to confer this power in unequivocal
language does not justify the inference that they did not wish and
intend that it should be exercised by the courts.
Gouverneur Morris, who claims to have written the Constitution with his
own hand, tells us that in framing that part of it relating to the
judiciary, "it became necessary to select phrases," which, expressing
his own views, "would not alarm others."[70] There was, it is true, some
objection in the Convention to the doctrine that the Supreme Court
should have authority to decide upon the constitutionality of
Congressional legislation. Mercer and Dickinson believed that this power
should not be exercised by the judiciary.[71] But it was contended on
the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that
this power could be exercised without any provision expressly conferring
it.[72]
In view of the fact that it was maintained by leading members of the
Convention that this power could and should be exercised by the Federal
judiciary, it is but reasonable to suppose that a majority of that body
wished to confer it; for had this not been the case, the Constitution as
submitted would have contained a provision expressly withholding it. But
however much the Convention may have desired to give to the judiciary
the power to veto legislation, it could not have been done by an express
provision of the Constitution. Any such attempt would have disclosed
altogether too clearly the undemocratic reactionary character of the
proposed government and thus have prevented its adoption. This end was
attained indirectly through the general system of checks which the
Constitution imposed upon the other branches of the government and upon
the people, since it made it possible for the judiciary to assume and
exercise this power.
There is nothing to indicate that the people generally appreciated the
significance of this feature of the Constitution at the time of its
ratification. Outside of the Constitutional Convention the judicial
negative appears to have been seldom mentioned. Hamilton, the most
courageous and outspoken opponent of popular government, claimed, it is
true, that it would be the duty of the Federal courts "to declare all
acts contrary to the manifest tenor of the Constitution void."[73] In a
few of the state conventions held to ratify the Constitution the power
was referred to. Oliver Ellsworth in the Connecticut convention,[74]
James Wilson in the Pennsylvania convention,[75] and John Marshall in
the Virginia convention,[76] expressed the opinion that the Constitution
gave the Supreme Court the power to declare acts of Congress null and
void.
There is no reason for believing, however, that this was the generally
accepted notion at that time. For even Marshall himself a few years
later, as attorney in the case of Ware v. Hylton, which involved the
validity of an act of the legislature of Virginia, appears to have
defended the opposite view before the United States Supreme Court. In
that case he said:
"The legislative authority of any country can only be restrained by its
own municipal constitution: this is a principle that springs from the
very nature of society; and the judicial authority can have no right to
question the validity of a law, unless such a jurisdiction is expressly
given by the Constitution."[77] The mere fact that he presented this
argument shows that the view which he afterwards held as Chief Justice
of the United States Supreme Court was not then generally accepted. His
contention on this occasion that the judiciary can not annul an act of
the legislature unless the power be expressly conferred may have been at
variance with the opinion which he really held, but it certainly was
not opposed to what he regarded as the generally accepted view;
otherwise, his argument would have been based on an admittedly false
theory of judicial powers. The conclusion is irresistible that at this
time the right of the judiciary to declare a legislative act null and
void was not generally recognized. The framers of the Constitution
clearly understood that this power was not implied in the sense that it
was then a recognized function of the judiciary, or one necessarily
contained in the Constitution as they interpreted it to the people to
secure its adoption. It was by controlling the Executive and the Senate,
and through these the appointment of Supreme judges, that they expected
to incorporate this power in the Constitution and make it a permanent
feature of our political system.[78]
This purpose is evident in the appointments to the Supreme bench made
during the twelve years of Federalist rule that followed the adoption of
the Constitution. Of the thirteen chief and associate Justices appointed
during this period, five had been members of the Constitutional
Convention.[79] Eleven had been members of the various state
conventions held to ratify the Constitution.[80] Three, as shown by the
records of the federal and state conventions, had unequivocally
expressed themselves in favor of the exercise of this power by the
Supreme Court,[81] while another, James Iredell, had taken an active
part in securing the first reported decision in which an act of a state
legislature was declared null and void by a court on the ground that it
was contrary to a written constitution.[82] Only one in this entire list
had not taken part directly in framing or adopting the Constitution by
serving as a delegate to the federal, or a state convention, or
both.[83] All had been ardent supporters of the Constitution and were in
full sympathy with its main purpose.
It is true that Washington in the winter of 1795-6 offered the Chief
Justiceship of the United States Supreme Court to Patrick Henry, who had
been the ablest and most conspicuous opponent of the Constitution in the
Virginia convention. Henry had, however, as Presidential elector voted
for Washington for President in 1789 and had in the meantime become
reconciled to the Constitution. Moreover, while he had been opposed to
many features of the Constitution, he was from the first in full
sympathy with the judicial veto. He thought the Constitution was
defective in that it contained no assurance that such a power would be
exercised by the courts. In his argument against the ratification of the
Constitution in the Virginia convention he said:
"The honorable gentleman did our judiciary honor in saying that they had
firmness to counteract the legislature in some cases. Yes, sir, our
judges opposed the acts of the legislature. We have this landmark to
guide us. They had fortitude to declare that they were the judiciary,
and would oppose unconstitutional acts. Are you sure that your Federal
judiciary will act thus? Is that judiciary as well constructed, and as
independent of the other branches, as our state judiciary? Where are
your landmarks in this government? I will be bold to say that you can
not find any in it. I take it as the highest encomium on this country,
that the acts of the legislature, if unconstitutional, are liable to be
opposed by the judiciary."[84]
The fact that only those who were in sympathy with the Constitution were
recognized in these appointments becomes the more significant when we
remember that several of the leading states ratified it by very slender
majorities. In New York, Massachusetts, and Virginia the supporters of
the Constitution barely carried the day; yet they alone were recognized
in the five appointments to the Supreme bench from these states made
during the period above mentioned. The opponents of the Constitution
represented, moreover, not only in these states, but in the country at
large, a majority of the people. Nevertheless, true to the purpose of
those who founded our Federal government, the popular majority was
entirely ignored and the Supreme Court so constituted as to make it
represent the minority. Through these appointments the Federalists
secured an interpretation of the Constitution in harmony with their
political theories and thereby established the supremacy of the
judiciary in our scheme of government. The subsequent success of the
Supreme Court in asserting and enforcing its right to annul acts of
Congress completed the establishment in this country of a form of
government which Professor Burgess correctly describes as an
"aristocracy of the robe."[85]
The full significance of this annulling power is not generally
understood. The Supreme Court claims the right to exercise it only as
the guardian of the Constitution. It must be observed, however, that
while professing to be controlled by the Constitution, the Supreme Court
does, as a matter of fact, control it, since the exclusive right to
interpret necessarily involves the power to change its substance. This
virtually gives to the aristocratic branch of our government the power
to amend the Constitution, though this power is, as we have seen,
practically denied to the people.
We have become so accustomed to the exercise of this power by the courts
that we are in the habit of regarding it as a natural and necessary
function of the judiciary. That this is an erroneous view of the matter
is shown by the fact that this power "is scarcely dreamed of anywhere
else."[86] In other countries the power is unknown whether the
Constitution be unwritten as in England or written as in France,
Germany, and Switzerland. Nor does it make any difference whether the
government be national in character as in England and France, or federal
as in Germany, Switzerland, and Australia. In no other important country
are the courts allowed to veto the acts of the legislative body. The
exercise of this power can be justified here only on the ground that it
is indispensable as a means of preserving and perpetuating the
undemocratic character of the Constitution.
"This power [the Supreme Court] has the last word in the numberless
questions which come under its jurisdiction. The sovereign people after
a time conquers the other powers, but this Supreme Court almost always
remains beyond its reach. For more than twenty or even thirty years,
twice the _grande mortalis aevi spatium_, it may misuse its authority
with impunity, may practically invalidate a law voted by all the other
powers, or a policy unanimously accepted by public opinion. It may
nullify a regular diplomatic treaty[87] ... by refusing to enforce it by
judicial sanction, or may lay hands on matters belonging to the
sovereignty of the states and federalize them without one's being able
to make any effective opposition, for this Court itself determines its
own jurisdiction as against the state tribunals. It is one of
Blackstone's maxims that in every constitution a power exists which
controls without being controlled, and whose decisions are supreme. This
power is represented in the United States by a small oligarchy of nine
irremovable judges. I do not know of any more striking political paradox
than this supremacy of a non-elected power in a democracy reputed to be
of the extreme type. It is a power which is only renewed from generation
to generation in the midst of a peculiarly unstable and constantly
changing state of things--a power which in strictness could, by virtue
of an authority now out of date, perpetuate the prejudices of a past
age, and actually defy the changed spirit of the nation even in
political matters."[88]
It is a fundamental principle of free government that all legislative
power should be under the direct control of the people. To make this
control effective all laws must be enacted by the people themselves, or
they must at least have what practically amounts to the power of
appointing and removing their representatives. Democracy implies not
merely the right of the people to defeat such laws as they do not want,
but the power to compel such legislation as they need. The former power
they possess in any country in which they control one coordinate branch
of the legislature, even though the government be a monarchy or
aristocracy. This negative power of defeating adverse legislation is
merely the first step in the evolution of free government, and is
possessed by the people in all countries which have made much
constitutional progress. There is a vast difference, however, between a
system under which the people constitute a mere check upon the
government and one which gives them an active control over legislation.
It is the difference between a limited monarchy or aristocracy on the
one hand and a government by the people themselves on the other.[89]
If this test be applied to the government of the United States we see
that it lacks the essential feature of a democracy, inasmuch as laws can
not be enacted without the consent of a body over which the people have
practically no control. In one respect at least the American system is
even less democratic than was the English government of the eighteenth
century. The House of Commons was a coordinate branch of the legislature
and as such had a recognized right to interpret the Constitution. No
political program, no theory of state functions, could receive
legislative sanction without its approval. The House of Commons could
enforce its interpretation of the Constitution negatively since it had
an absolute veto on all legislation. On the other hand its own views and
policies could become law only in so far as they were acquiesced in by
the other branches of the law-making authority. Under this system the
accepted interpretation of the Constitution was a compromise, one to
which each branch of the legislature assented. Each of these coordinate
branches of the government was equally the guardian and protector of the
Constitution, since it had the right to interpret, and the power to
enforce its interpretation, of the legislative authority of the other
branches by an absolute veto on their interpretation of their own
powers.
This authority to act as final interpreter of the Constitution which
under the English system was distributed among King, Lords, and Commons,
was under the American scheme of government taken out of the hands of
Congress and vested in the judiciary alone. There are certain matters of
minor importance, however, concerning which the interpretation placed
upon the Constitution by other branches of the government is final. But
in interpreting the Constitution for the purpose of legislating, the
final authority is in the hands of the Federal Supreme Court. It is the
exclusive possession of this most important prerogative of a sovereign
legislative body which makes our Supreme Court the most august and
powerful tribunal in the world. Through the sole right to exercise this
power our Federal judiciary has become in reality the controlling branch
of our government. For while it has an absolute veto on the acts of
Congress, its own exercise of the highest of all legislative
authority--that of interpreting the Constitution and the laws of the
land--is unlimited and uncontrolled. It is not surprising, then, that
the Constitution as it exists to-day is largely the work of the Supreme
Court. It has been molded and developed by, and largely owes its spirit
and character to the interpretation which that body has placed upon it.
Our Supreme Court thus has what virtually amounts to the power to enact
as well as the power to annul. Congress can legislate only with the
consent of the Federal judiciary; but the latter, through its control
over the interpretation of the Constitution may in effect legislate
without the consent of the other branches of the government, and even
in opposition to them. Under the guise of an independent judiciary we
have in reality an independent legislature, or rather an independent
legislative and judicial body combined. This union of sovereign
legislative authority and ordinary judicial functions in the same
independent body is a significant and dangerous innovation in
government. It has not only deprived the people of the power to make the
interpretation of the Constitution and the trend of legislation conform
to the public sentiment of the times; it has even taken from them all
effectual power to prevent changes which they do not want, but which the
judiciary in the exercise of its exclusive right to act as the guardian
and interpreter of the Constitution may see fit to make. Under our
system, then, the people do not have even the negative power of absolute
veto which they possess wherever they control a coordinate branch of the
legislature.
In so far as the exercise of legislative power is controlled by the
Supreme Court our government is essentially aristocratic in character.
It represents the aristocratic principle, however, in its least
obtrusive form. But while avoiding the appearance, it provides the
substance of aristocratic control.
It is easy to see in the exaltation of the Federal judiciary a survival
of the old mediaeval doctrine that the king can do no wrong. In fact,
much the same attitude of mind which made monarchy possible may be seen
in this country in our attitude toward the Supreme Court. As long as the
people reverenced the king his irresponsible power rested on a secure
foundation. To destroy the popular belief in his superior wisdom and
virtue was to destroy the basis of his authority. Hence all criticism of
the king or his policy was regarded as an attack on the system itself
and treated accordingly as a serious political crime.
The old view was well expressed by James I of England in a speech made
in the Star Chamber on June 20, 1601, in which he said:
"That which concerns the mystery of the King's power is not lawful to be
disputed; for that is to wade into the weakness of princes, and to take
away the mystical reverence that belongs unto them that sit on the
throne of God."[90]
We see this same fact illustrated also in the history of the church, for
absolutism was not confined in the Middle Ages to the state alone. As
the King was the recognized guardian of the established political order
and its final interpreter, so the ecclesiastical hierarchy claimed the
right to guard the faith and expound the creed of the people. Criticism
and dissent, political and religious, were rigorously repressed. The
people were required to accept the political and religious system
imposed on them from above. Implicit faith in the superior wisdom of
their temporal and spiritual rulers was made the greatest of all
virtues. But with the growth of an intelligent skepticism throughout the
western world, the power of king and priest has been largely overthrown.
Yet even in this country something akin to the old system of political
control still survives in the ascendency of our Federal judiciary. The
exclusive right claimed by this branch of the government to guard and
interpret the Constitution is the same prerogative originally claimed by
the king. The judiciary, too, is the branch of our government farthest
removed from the influence of public opinion and consequently the one in
which the monarchical principle most largely survives.
The courts not only claim to be the final arbiters of all constitutional
questions, but have gone much farther than this and asserted their right
to annul legislative acts not in conflict with any constitutional
provision. Story says: "Whether, indeed, independently of the
Constitution of the United States, the nature of republican and free
government does not necessarily impose some restraints upon the
legislative power has been much discussed. It seems to be the general
opinion, fortified by a strong current of judicial opinion, that, since
the American Revolution, no state government can be presumed to possess
the transcendental sovereignty to take away vested rights of
property."[91]
The judiciary has thus claimed not only the power to act as the final
interpreter of the Constitution, but also the right, independently of
the Constitution, to interpret the political system under which we live,
and make all legislative acts conform to its interpretation of that
system. According to this doctrine the courts are the final judges of
what constitutes republican government and need not base their power to
annul a legislative act on anything contained in the Constitution
itself. If we accept this view of the matter, legislation must conform
not only to the Constitution as interpreted by the judiciary, but to the
political and ethical views of the latter as well. The President and
Congress derive their authority from the Constitution, but the judiciary
claims, as we have seen, a control over legislation not conferred by the
Constitution itself. Yet, while laying claim to powers that would make
it supreme, the judicial branch of our Federal government has, as a
rule, been careful to avoid any open collision, or struggle for
supremacy, with the other branches of the government. It has retained
the sympathy and approval of the conservative classes by carefully
guarding the rights of property and, by declining to interfere with the
political discretion of Congress or the President, it has largely
escaped the hostile criticism which any open and avowed attempt to
thwart the plans of the dominant party would surely evoke. But in thus
limiting its own authority, the Supreme Court has attempted to make a
distinction between judicial and political powers which does not appear
to have any very substantial basis. The essential marks of a judicial
power, Judge Cooley tells us, are "that it can be exercised only in a
litigated case; that its direct force is spent in determining the rights
of the parties to that case; and that unless and until a case has arisen
for judicial determination, it can not be invoked at all."[92]
"The power given to the Supreme Court," he says, "to construe the
Constitution, to enforce its provisions, to preserve its limitations,
and guard its prohibitions, is not _political_ power, but is judicial
power alone because it is power exercisable by that court only in the
discharge of the judicial function of hearing and deciding causes in
their nature cognizable by courts of law and equity."[93]
In the first place it is to be observed that judicial power as thus
defined is practically co-extensive with that of the legislature, since
scarcely an exercise of legislative authority could be mentioned which
would not affect the rights of persons or of property and which could
not, therefore, be made the subject of a judicial controversy.
In the second place, it must be remembered that the Federal judiciary in
assuming the exclusive right to interpret the Constitution has taken
into its keeping a power which, as we have seen, was not judicial in
character when the Constitution was adopted, and is not even now
considered judicial in any other important country. In declaring a
legislative act null and void it is exercising a power which every
sovereign law-making body possesses, the power to defeat any proposed
legislation by withholding its assent. The mere fact that our Supreme
Judges and our legal writers generally have with practical unanimity
called it a judicial power does not make it such. That it is in reality
a legislative and not a judicial power is amply confirmed by the uniform
and time-honored practice of all other nations, even including England,
whose institutions until a century and a quarter ago were our own.
There is, however, no difficulty in understanding why those who framed
the Constitution and controlled its interpretation exhausted the arsenal
of logic in trying to prove that it was a judicial power. This was
merely a part of their plan to make the Supreme Court practically a
branch of the Federal legislature and thereby secure an effective check
on public opinion. As the power could not be expressly given without
disclosing too clearly the purpose of the Convention, it was necessary
that it should be implied. And it could be held to be implied only by
showing that it was a natural, usual and, under the circumstances,
proper power for the judiciary to exercise. Unless it could be
established, then, that it was essentially a judicial function and not a
political or legislative power, its assumption by the Supreme Court
could not be defended on any constitutional grounds. This explains the
persistent and untiring efforts to convince the American people that the
power to set aside an act of Congress is purely judicial--efforts which,
though supported by the weight of American authority, are far from
convincing.
The Supreme Court has, it is true, time and again expressly disclaimed
all right to exercise legislative or political power; yet under the
pretext that the authority to annul legislation is purely judicial, it
has made use of a power that necessarily involves the exercise of
political discretion. The statement, then, that it is the settled policy
of this body not to interfere with the political powers of the other
departments can not be taken literally, since under the accepted
interpretation of the Constitution it has the power to, and as a matter
of fact does interfere, whenever it declares an act of Congress null and
void.
It would be a mistake, then, to suppose that the Federal judiciary has
suffered any loss of influence through its voluntary relinquishment of
the veto power in the case of political questions. This self-imposed
restriction on its authority merely affords it a convenient means of
placing beyond its jurisdiction measures which it may neither wish to
approve nor condemn. And since the court must decide what are and what
are not political questions, it may enlarge or narrow the scope and
meaning of the word _political_ to suit its purposes. As a matter of
fact, then, the power which it appears to have voluntarily surrendered,
it still largely retains.
Upon the whole, the Supreme Court has been remarkably fortunate in
escaping hostile criticism. Very rarely have its decisions and policy
been attacked by any organized party. In the platform of the Republican
party of 1860 the strong pro-slavery attitude of the court was, it is
true, severely denounced. But from that time until 1896 no party dared
to raise its voice in criticism of the Federal judiciary. Both the
Democratic and the Populist platforms of the latter date, however,
condemned the Income Tax decision and government by injunction. The
Democratic platform also hinted at the possible reorganization of the
Supreme Court--the means employed by the Republican party to secure a
reversal of the Legal Tender decision of 1869.
This comparative freedom from criticism which the Supreme Court has
enjoyed until recent years does not indicate that its decisions have
always been such as to command the respect and approval of all classes.
It has from the beginning had the full confidence of the wealthy and
conservative, who have seen in it the means of protecting vested
interests against the assaults of democracy. That the Supreme Court has
largely justified their expectations is shown by the character of its
decisions.
During the first one hundred years of its history two hundred and one
cases were decided in which an act of Congress, a provision of a state
constitution or a state statute, was held to be repugnant to the
Constitution or the laws of the United States, in whole or in part.
Twenty of these involved the constitutionality of an act of Congress.
One hundred and eighty-one related to the Constitution or the statute of
a state. In fifty-seven instances the law in question was annulled by
the Supreme Court on the ground that it impaired the obligation of
contracts. In many other cases the judicial veto was interposed to
prevent what the court considered an unconstitutional exercise of the
power to regulate or tax the business or property of corporations.[94]
These decisions have been almost uniformly advantageous to the
capital-owning class in preserving property rights and corporate
privileges which the unhindered progress of democracy would have
abridged or abolished. But we need not confine our attention to these
comparatively few instances in which laws have actually been declared
null and void. There is a much more numerous and more important class of
cases in which the Supreme Court, while not claiming to exercise this
power, has virtually annulled laws by giving them an interpretation
which has defeated the purpose for which they were enacted. The
decisions affecting the powers of the Inter-State Commerce Commission
may be cited as an illustration. This body, created by Congress for the
purpose of regulating the railway traffic of the country, has, as Mr.
Justice Harlan observes,[95] "been shorn by judicial interpretation, of
authority to do anything of an effective character." Both the general
and the state governments in their efforts to grapple with this problem
have encountered the restraining arm of the Federal judiciary which has
enlarged its jurisdiction until nearly every important case involving
corporate interests may be brought before the Federal court.
It is not, however, in the laws which have been annulled or modified by
interpretation that we find the chief protection afforded to capital,
but rather in the laws which have not been enacted. The mere existence
of this power and the certainty that it would be used in defence of the
existing social order has well-nigh prevented all attacks on vested
rights by making their failure a foregone conclusion.
It is but natural that the wealthy and influential classes who have been
the chief beneficiaries of this system should have used every means at
their command to exalt the Supreme Court and thereby secure general
acquiescence in its assumption and exercise of legislative authority. To
the influence of these classes in our political, business, and social
life must be attributed in large measure that widespread and profound
respect for the judicial branch of our government which has thus far
almost completely shielded it from public criticism.
There are many indications, however, that popular faith in the
infallibility of the Supreme Court has been much shaken in recent years.
This is not surprising when we consider the wavering policy of that body
in some of the important cases that have come before it. Take, for
example, the _Legal Tender_ decisions. The court at first declared the
legal tender acts unconstitutional by a majority of five to three. Then
one of the justices who voted with the majority having resigned and
Congress having created an additional judgeship, Justices Strong and
Bradley were appointed to fill these vacancies. The former, as a member
of the Supreme Bench of the State of Pennsylvania, had rendered a
decision upholding the constitutionality of these acts, and the latter
was said to hold the same opinion. At any rate the first decision was
reversed by a majority of five to four. The point at issue in these two
decisions was whether Congress had authority to enact measures of this
kind in time of war. The matter coming up again, the Supreme Court
decided, and this time by a majority of eight to one, that Congress had
this power, not only during war, but in times of peace as well.[96]
Reference should also be made in this connection to the Income Tax
decisions of 1895. The first of these was a tie, four to four, Justice
Jackson being absent. Six weeks later the second decision was read
declaring the Income Tax unconstitutional by a vote of five to four,
Justice Shiras, who had voted on the first hearing to uphold the Income
Tax, now voting against it. This change in the attitude of a single
member of the court converted what would have been a majority for, into
a majority against the measure, overruled a line of decisions in which
the tax had been sustained and thereby effectually deprived Congress of
the power to impose a Federal Income Tax until such time as the court
may change its mind. Even more significant are the recent Insular cases
in which the division of opinion and diversity of grounds for the
conclusions reached are, to say the least, surprising.
One may well ask, after viewing these decisions, if constitutional
interpretation as practiced by the Supreme Court is really a science in
the pursuit of which the individual temperament, personal views and
political sympathies of the Justices do not influence the result. Have
we gained enough under this system in the continuity and consistency of
our legislative policy and its freedom from class or political bias to
compensate us for the loss of popular control? That these questions are
likely to receive serious consideration in the near future we can
scarcely doubt, when we reflect that the Supreme Court has, by the
character of its own decisions, effectually exploded the doctrine of
judicial infallibility, which constitutes the only basis upon which its
monopoly of constitutional interpretation can be defended.
The evident lack of sympathy with proposed reforms which has, upon the
whole, characterized the proceedings of the Federal courts is rather
strikingly illustrated in the address of Judge Taft on "Recent
Criticisms of the Federal Judiciary." He makes use of the following
language: "While socialism, as such, has not obtained much of a foothold
in this country, ... schemes which are necessarily socialistic in their
nature are accepted planks in the platform of a large political party.
The underlying principle of such schemes is that it is the duty of the
government to equalize the inequalities which the rights of free
contract and private property have brought about, and by enormous outlay
derived as far as possible from the rich to afford occupation and
sustenance to the poor. However disguised such plans of social and
governmental reform are, they find their support in the willingness of
their advocates to transfer without any compensation from one who has
acquired a large part of his acquisition to those who have been less
prudent, energetic, and fortunate. This, of course, involves
confiscation and the destruction of the principle of private
property."[97] This emphatic condemnation of proposed reforms which had
the full sympathy and approval of many thoughtful and conscientious
people furnishes the show of justification at least for the very
criticisms which it was intended to silence.
With the progress of democracy it must become more and more evident that
a system which places this far-reaching power in the hands of a body not
amenable to popular control, is a constant menace to liberty. It may not
only be made to serve the purpose of defeating reform, but may even
accomplish the overthrow of popular rights which the Constitution
expressly guarantees. In proof of this statement we need but refer to
the recent history of our Federal judiciary. The Sixth Amendment to the
Constitution guarantees the right of trial by jury in all criminal
prosecutions; but it is a matter of common knowledge that this
time-honored safeguard against the tyranny and oppression of ruling
classes has been overthrown by the Federal courts. With the ascendency
of corporate wealth and influence, government by injunction has become
an important feature of our system. The use made of the injunction in
recent years in the conflicts between labor and capital has placed a
large and important class of crimes beyond the pale of this
constitutional provision. Moreover, this particular class of crimes is
the one where denial of the right of trial by jury is most likely to
result in oppression. Under this mode of procedure the court has
virtually assumed the power to enact criminal legislation, and may
punish as crimes acts which neither law nor public opinion condemns. It
ensures conviction in many cases where the constitutional right of trial
by jury would mean acquittal. It places a powerful weapon in the hands
of organized wealth which it is not slow to use.[98]
This so-called _government by injunction_ is merely an outgrowth of the
arbitrary power of judges to inflict punishment in cases of contempt. In
this respect, as well as in the power to veto legislation, the authority
of our courts may be regarded as a survival from monarchy. The right of
judges to punish in a summary manner those whom they may hold to be in
contempt of their authority has been defended by legal writers generally
on the ground that it is the only way in which the necessary respect for
judicial authority can be maintained. It is difficult, however, to see
why this argument would not apply with equal force to the executive and
legislative branches of the government; for there must be some means of
enforcing obedience to every lawful authority, legislative, executive,
or judicial. The progress toward responsible government has long since
deprived the executive of the power to inflict arbitrary punishment, and
the legislature, though still retaining in a limited degree the power to
imprison for contempt of its authority, seldom uses and almost never
abuses it. The question is not whether contempt of authority should be
punished, but whether the officer whose authority has been disregarded
should also act as judge and jury, should ascertain the guilt and fix
the punishment of those whom he as complaining witness has accused of
contempt of his authority. This procedure is utterly at variance with
the idea of political responsibility, and survives only because the
judicial branch of our government has thus far effectually resisted the
inroads of democracy. That the exercise of this arbitrary and
irresponsible power is necessary in a democratic community, to ensure
proper respect for the courts, seems highly improbable. In fact, no
course could be suggested which would be more likely in the end to bring
them into disrepute.[99]
It is interesting to observe that while the Supreme Court of the United
States has not hesitated to veto an act of Congress, "no treaty, or
legislation based on, or enacted to carry out, any treaty stipulations
has ever been declared void or unconstitutional by any court of
competent jurisdiction; notwithstanding the fact that in many cases the
matters affected, both as to the treaty and the legislation, are
apparently beyond the domain of Congressional legislation, and in some
instances of Federal jurisdiction."[100]
Why has the Federal Supreme Court freely exercised the power to annul
acts of Congress and at the same time refrained from exercising a like
control over treaties? The Constitution makes no distinction between
laws and treaties in this respect. It provides that "the judicial power
shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and the treaties made, or
which shall be made, under their authority."[101] If this provision is
to be interpreted as conferring on the Federal courts the power to
declare acts of Congress null and void, it also confers the same power
in relation to treaties. Moreover, the Supreme Court has claimed, and
has been conceded, the right to act as the guardian of the Constitution.
The authority thus assumed by the Federal judiciary can be justified, if
at all, only on the theory that the Constitution limits all governmental
powers, and that it is the duty of the Supreme Court to enforce the
limitations thus imposed by declaring null and void any unconstitutional
exercise of governmental authority.
Not only in the Constitution itself was no distinction made between laws
and treaties in relation to the power of the judiciary, but the same is
true of the Judiciary Act of September 24, 1789, which provided that
where the highest court in a state in which a decision in the suit could
be had decides against the validity of "a treaty or statute of, or an
authority exercised under, the United States," such judgment or decree
"may be re-examined, and reversed or affirmed in the Supreme Court [of
the United States] on a writ of error." The right of the Federal Supreme
Court to declare both laws and treaties null and void was thus clearly
and unequivocally recognized in this act. The object here, however, was
not to establish judicial control over treaties, but to deprive the
state courts of all authority over them.
The failure of the Supreme Court to exercise the right to annul treaties
is to be explained in part by the fact that the judicial veto was
intended primarily as a check on democracy. From the point of view of
the conservatives who framed the Constitution it was a device for
protecting the classes which they represented against democratic
"excesses" in both the state and Federal government. It was expected
that this tendency would be manifested mainly in the legislation of the
various states and possibly in some slight degree in Congressional
legislation, since the President and Senate would occasionally find it
expedient to yield too largely to the demands of the directly elected
House. But in the case of treaties made by the President and Senate,
both safely removed, as they thought, beyond the reach of popular
influence, there was no obvious need of a conservative check. In
developing the policy of the Federal courts in pursuance of the purpose
of those who framed the Constitution, it was perfectly natural that the
judicial veto should not have been used to limit the treaty-making
power.
But even if the Federal courts had felt inclined to extend their
authority in this direction, the Constitution did not as in the case of
Congressional legislation confer upon them the means of self-protection.
In declaring null and void an act of Congress which did not have the
support of at least two-thirds of the Senate, the Supreme Court is
exercising a power which, if not expressly conferred upon it by the
Constitution, it can at any rate exercise with impunity, since the
majority in the Senate which it thus overrides is not large enough to
convict in case of impeachment. All treaties must have the approval of
two-thirds of the Senate; and since the majority in this body required
to ratify a treaty is the same as that required to convict in
impeachment proceedings, it is readily seen that the Senate has the
constitutional power to prevent judicial annulment of treaties.
Two-thirds of the Senate could not overcome judicial opposition,
however, unless supported by at least a majority in the House of
Representatives. But inasmuch as the Supreme Court is pre-eminently the
representative of conservatism and vested interests, it is likely to
disapprove of the policy of the Senate only when that body yields to the
demands of the people. In all such cases the House would naturally
support the Senate as against the Supreme Court. It is not surprising,
then, that the Federal courts have not attempted to limit the
treaty-making power.
Before leaving the subject of the Federal courts one feature of the
judicial negative deserves further notice. The fact that it is not
exercised until a case involving the law in question is brought before
the court in the ordinary course of litigation is often referred to by
constitutional writers as one of its chief merits. And yet until a
competent court has actually declared a legislative act null and void,
it is for all practical purposes the law of the land and must be
recognized as such. It may vitally affect industry and commerce and
require an elaborate readjustment of business relations. It may even be
years after such an act is passed before a decision is obtained from the
court of last resort. And if the decision annuls the law, it does so not
from the time that the judgment of the court is rendered, but from the
time the act in question was originally passed. This retroactive
character of the judicial veto is strongly suggestive of the _ex post
facto_ legislation which the Constitution expressly forbids. By thus
invalidating the law from the beginning it may leave a vast body of
business contracts without legal protection or support. As a
consequence, it is impossible for any one, be he ever so well informed,
to know just what legislative acts are valid and what are not. The
amount of uncertainty which this introduces into business relations is
more easily imagined than described.
America can claim the rather questionable distinction of being the only
important country in which we find this uncertainty as to the law, since
it is the only one in which the courts have a negative on the acts of
the legislature. That we have ourselves realized the disadvantages of
the system is shown by the changes made in the constitutions of several
states with a view of diminishing the frequency of the judicial veto.
These provisions make it the duty of the judges of the supreme court of
the state to give their opinion upon questions of law when required by
the governor or other branch of the law-making authority.[102]
In so far as constitutional provisions of this sort have been intended
to prevent the evils resulting from a deferred exercise of the judicial
veto, they have largely failed to accomplish their purpose. This has
been due to the attitude of the courts, which have held that an opinion
thus given in compliance with a constitutional requirement is not
binding upon them when the question is raised again in the ordinary way
in the trial of a case.
CHAPTER VI
THE CHECKS AND BALANCES OF THE CONSTITUTION
Two features of this system, the difficulty of amendment and the
extraordinary powers of the judiciary have been discussed at some
length. Both, as we have seen, were designed to limit the power of the
popular majority. This purpose is no less evident when we view the
Constitution as a whole.
The members of the Federal Convention had little sympathy with the
democratic trend of the Revolutionary movement. It was rapidly carrying
the country, they thought, to anarchy and ruin. To guard against this
impending evil was the purpose of the Constitution which they framed. It
was their aim to eliminate what they conceived to be the new and false
and bring the government back to old and established principles which
the Revolutionary movement had for the time being discredited. They
believed in the theory of checks and balances in so far as the system
implied the limitation of the right of popular control, and made the
Constitution to this extent as complete an embodiment of the theory as
the circumstances of the time permitted.
In any evolutionary classification of governments the American system
occupies an intermediate position between the old type of absolute
monarchy on the one hand and thoroughgoing democracy on the other.
Following in a general way the course of political development in
England, we may say that there was an early stage in the growth of the
state when the power of the king was predominant. Neither the nobility
nor the common people exercised any effective control over him. He was
what we may call an absolute monarch. His power was unlimited in the
sense that there were no recognized checks imposed upon it. He was
irresponsible, since no one could call him to account for what he did.
The upper classes, however, were anxious to share with the king the
control of the state. Their efforts were directed first toward limiting
his power by making their own consent necessary before he could enact
any law, carry out any policy, or do any thing of a positive nature. But
even after they had been admitted to this share in the government the
negative power of the king remained unlimited. The veto power acquired
by the upper classes might prevent him from enacting a particular law,
or enforcing a given policy, but no one had a veto on his inaction. He
might be unable to do what the classes having a voice in the management
of the government forbade, but he could decline to do what they wished.
The appearance of a House of Commons did not change essentially the
character of the scheme, nor would it have done so, had this body been
truly representative of the people as a whole. It placed an additional
check on both King and Lords by giving to the representative body the
power to negative their positive acts. Both the King and the Lords
retained, however, their negative authority unimpaired and could use it
for the purpose of defeating any measure which the Commons desired. This
is what we may call the check and balance stage of political
development. Here all positive authority is limited, since its exercise
may be prevented by the negative power lodged for this purpose in the
other branches of the government. This negative power itself, however,
is absolute and unlimited. The government is in no true sense
responsible to the people, or any part of them, since they have no
positive control over it.
This complex system of restrictions which is the outgrowth and
expression of a class struggle for the control of the government must
necessarily disappear when the supremacy of the people is finally
established. This brings us to the next and for our present purpose, at
least, the last stage of political evolution.
Here the authority of the people is undisputed. Their will is law. The
entire system of checks has been swept away. No irresponsible and
insignificant minority is longer clothed with power to prevent reform.
The authority of the government is limited only by its direct and
complete responsibility to the people.
Corresponding to these three stages of political evolution we have three
general types of government:
1. Unlimited and irresponsible.
2. Positively limited, negatively unlimited and irresponsible.
3. Unlimited and responsible.
As shown in a previous chapter, the Revolutionary movement largely
destroyed the system of checks. It abolished the veto power, centralized
authority and made the government in a measure responsible to the
electorate. The Constitution, however, restored the old order in a
modified form. In this sense it was reactionary and retrogressive. It
went back to the old doctrine of the separation of powers, ostensibly to
limit the authority of the government and thereby make it responsible to
the people as Hamilton argued in _The Federalist_. That this could not
have been the real object is evident to any one who has carefully
studied the situation. The unthinking reader may accept Hamilton's
contention that the system of checks and balances was incorporated in
the Constitution to make the government the servant and agent of the
people; but the careful student of history can not be so easily misled.
He knows that the whole system was built up originally as a means of
limiting monarchical and aristocratic power; that it was not designed to
make government in any true sense responsible, but to abridge its powers
because it was irresponsible. The very existence of the system implies
the equal recognition in the Constitution of antagonistic elements. As
it could not possibly exist where monarchy or aristocracy was the only
recognized source of authority in the state, so it is likewise
impossible where all power is in the people. It is to be observed, then,
that what originally commended the system to the people was the fact
that it limited the positive power of the king and aristocracy, while
the framers of the Constitution adopted it with a view to limiting the
power of the people themselves.
There is no essential difference between the viewpoint of the framers of
the American Constitution and that of their English contemporaries.
Lecky says: "It is curious to observe how closely the aims and standard
of the men who framed the memorable Constitution of 1787 and 1788
corresponded with those of the English statesmen of the eighteenth
century. It is true that the framework adopted was very different....
The United States did not contain the materials for founding a
constitutional monarchy or a powerful aristocracy.... It was necessary
to adopt other means, but the ends that were aimed at were much the
same. To divide and restrict power; to secure property; to check the
appetite for organic change; to guard individual liberty against the
tyranny of the multitude...."[103]
Our Constitution was modeled in a general way after the English
government of the eighteenth century. But while the English system of
constitutional checks was a natural growth, the American system was a
purely artificial contrivance. James Monroe called attention to this
fact in the Virginia convention. He observed that the division of power
in all other governments ancient and modern owed its existence to a
mixture of monarchy, aristocracy, and democracy.[104] This artificial
division of power provided for in the Constitution of the United States
was intended as a substitute for the natural checks upon the people
which the existence of king and nobility then supplied in England.
This idea of government carried out to its logical conclusion would
require that every class and every interest should have a veto on the
political action of all the others. No such extended application of the
theory has ever been made in the actual working of government, nor is it
practicable, since no class can acquire, or having acquired, retain a
veto on the action of the government unless it is large and powerful
enough to enforce its demands. The attempt on the part of a small class
to acquire a constitutional right of this character must of necessity
fail. This is why the system which theoretically tends toward a high
degree of complexity has not in practice resulted in any very complex
constitutional arrangements.
Poland is the best example of the practical working of a system of
checks carried to an absurd extreme. The political disintegration and
final partition of that once powerful country by its neighbors was due
in no small degree to its form of government, which invited anarchy
through the great power which it conferred upon an insignificant
minority.
The fact that this system can not be carried far enough in practice to
confer upon every distinct interest or class the veto power as a means
of self defence, has given rise to the doctrine of _laissez faire_. No
class in control of the government, or even in possession of the power
to negative its acts, has any motive for advocating the let-alone
theory. Its veto power affords it adequate protection against any
harmful exercise of political authority. But such is not the case with
those smaller or less fortunate classes or interests which lack this
means of self-protection. Since they do not have even a negative control
over the government, they naturally desire to limit the scope of its
authority. Viewed in this light we may regard the _laissez faire_
doctrine as merely supplementary to the political theory of checks and
balances.
It is easy to see that if the idea of checks were carried out in
practice to its extreme limits, it would lead inevitably to the
destruction of all positive authority by vesting a veto in each class
and ultimately in each individual. In fact, John C. Calhoun, the ablest
and most consistent expounder of this doctrine, defines a perfect
popular government as "one which would embrace the consent of every
citizen or member of the community."[105] When this last stage is
reached we would have no government in any proper sense; for each
individual would be clothed with constitutional power to arrest its
action. Indeed the theory of checks and balances, if taken without any
qualification and followed out consistently, leads naturally to the
acceptance of anarchy as the only scientific system.
The absence of king and aristocracy did not deter the members of the
Convention from seeking to follow the English model. In doing this,
however, it was necessary to find substitutes for the materials which
were lacking. The constitutional devices adopted to accomplish this
purpose form the system of checks and are the most original and
interesting feature of our government.
The English model was followed, however, only so far as it served their
purpose. In the case of the judiciary, for instance, they declined to
follow it; but the reason for this as explained in the preceding chapter
was their desire to establish a more effective check on the people. They
showed no special preference for the English form where some other
method would better accomplish the desired purpose. Hence in many
instances they deliberately rejected English precedent, but always with
the view of providing something that would impose a more effective check
on the public will. An apparent exception to this may be found in the
limited term of President and United States senators. But these were the
very instances in which lack of king and nobility made departure from
the English model a matter of necessity. Moreover, any avowed attempt to
provide an effective substitute for the hereditary branches of the
English model would have been distasteful to the people generally and
for that reason would have ensured the rejection of the Constitution.
Theoretically, the nearest approach to the English system possible would
have been life tenure, and there were not wanting those who, like
Hamilton, contended for it; but the certainty of popular disapproval was
an unanswerable argument against it.
It was thought that substantially the same result could be obtained by
indirect election for moderately long periods. Hence we notice a marked
departure from the practice of the state constitutions in term of office
and mode of election. In every state the governor was elected either by
the legislature or directly by the voters, usually for one year and
nowhere for as long a period as four years.[106] With only two
exceptions[107] the members of the upper legislative chamber were
directly elected by the qualified voters, generally for one year and in
no state for as long a term as six years.[108]
The desire of the Convention to secure to the President and United
States Senators more freedom from popular control than was enjoyed by
the corresponding state officials is most clearly seen in the mode of
election prescribed.[109] They adopted what Madison called "the policy
of refining popular appointments by successive filtrations." They
provided that the President should be chosen by an electoral college,
the members of which were not required to be elected by the people.
This, it was thought, would guard against the choice of a mere popular
favorite and ensure the election of a President acceptable to the
conservative and well-to-do classes. It was taken for granted that the
indirect method would enable the minority to control the choice. For a
like reason they provided that United States senators should be chosen
by the legislatures instead of by the people of the several states.
The system as originally adopted did not contemplate, and made no
provision for the selection of candidates in advance of a popular
election. But this is not surprising when we reflect that it was the
very thing they were trying to prevent. They intended that the electoral
college should be such in fact as well as in name, that it should have
and exercise the power of independent choice instead of merely
registering a popular selection already made as if has come in practice
to do. They recognized very clearly that there was a distinct line of
cleavage separating the rich from the poor. They believed with Hamilton
that in this respect "all communities divide themselves into the few and
the many,"[110] that the latter will tend to combine for the purpose of
obtaining control of the government; and having secured it, will pass
laws for their own advantage. This, they believed, was the chief danger
of democracy--a danger so real and imminent that it behooved the few to
organize and bring about, if possible, such changes in the government as
would "protect the minority of the opulent against the majority."[111]
This was the purpose of the system of checks by which they sought to
give the former a veto on the acts of the latter. In thus depriving the
masses of the power to advance their interests through combination, they
thought that the organization of a political party representing the many
as opposed to the few would be discouraged. On the other hand, the few
while co-operating for a common purpose, could best accomplish it
without any visible party organization or any appearance of concerted
action. Hence the Constitution as originally adopted made no provision
for the party candidate.
In view of the fact that the Constitution was intended to limit the
power of the majority, it is perfectly natural that it should have
attempted to assign to the popular branch of the government a position
of minor importance. This was, of course, in direct opposition to what
had been the uniform tendency during the Revolutionary period in the
various states. In the latter the lower house had been raised to
coordinate rank with the upper and in Massachusetts, Gerry tells us, the
people were for abolishing the senate and giving all the powers of
government to the other branch of the legislature.[112]
In the Federal Constitution we see a strong reaction against this policy
of enlarging the authority of the lower, and what was assumed to be the
more popular branch of the legislative body. The House of
Representatives was, it is true, given equal power with the Senate in
the matter of ordinary legislation. But here its equality ends. The
treaty-making and the appointing power were given to the President and
Senate, where, it was thought, they would be safe from popular
interference. The effect of this was to make the influence of these two
branches of the government greatly preponderate over that of the
directly elected House. Through the treaty-making power the President
and Senate could in a most important sense legislate without the consent
of the popular branch of Congress. They could enter into agreements with
foreign countries which would have all the force and effect of laws
regularly enacted and which might influence profoundly our whole social,
political, and industrial life. The only semblance of a popular check on
the exercise of this power was to be found in those cases where
appropriations were required to carry treaties into effect. Here the
House of Representatives, in theory at least, could defeat the treaty by
refusing its assent to the necessary appropriation. In practice,
however, the House has surrendered this power. A treaty is at no stage
"submitted to or referred to the House of Representatives, which has no
more right to be informed about it than ordinary citizens. The President
and the Senate may, for example, cede or annex territories, and yet
nothing of the fact will appear in the discussions of the House of
Representatives unless the cession involves expenditure or receipt of
money. Besides, I must add that even if the treaty contains clauses
imposing a charge on the public revenue, it is the rule, since
Washington's time, that the House of Representatives should not discuss
the terms of the treaty adopted by the Senate, but accept it in silence
as an accomplished fact, and simply vote the necessary funds."[113]
The appointing power was in many respects even more important. It meant
the right to select those who were to interpret and enforce the laws,
and this really involved the power to mold the spirit and character of
the government. That this was fully appreciated by those who framed the
Constitution we saw in the preceding chapter.
The statement contained in the Constitution that all legislative
authority is vested in Congress is far from accurate, not only for the
reason above indicated that a portion of it under the guise of
treaty-making power is conferred on the President and Senate, and the
further reason that the Supreme Court exercises legislative authority of
great importance, but for the additional reason that the President,
aside from his control over treaties, possesses legislative power
co-extensive and co-equal with that of either house. He has been
expressly given by the Constitution only a qualified veto, but it is so
difficult for Congress to override it by the necessary two-thirds
majority that it is in most cases as effective as an absolute
negative.[114] Attention has been called to the fact that a two-thirds
majority is difficult to secure even under the most favorable
circumstances; but here the situation is such as to place practically
insurmountable obstacles in the way of its attainment. As an
illustration let us suppose that each state is solidly for or against
the measure which the President has vetoed and that both Senators and
Representatives accurately reflect the sentiment of their respective
states. Then taking the population of the forty-five states in 1900 as
the basis of our calculation, the smallest popular majority which would
ensure the required two-thirds vote in both houses would be obtained by
taking enough of the smaller states to make the necessary majority in
the House. But this would mean a popular majority of over 65 per cent.
and an eight-ninths majority in the Senate. To obtain the necessary vote
in both houses by taking the larger states would require a popular
majority of over 93 per cent. and a nine-tenths majority in the House.
This gives us some, but by no means an adequate, idea of the President's
control over legislation. He may use in support of his veto all the
other powers which the Constitution has placed in his hands; and when we
consider the immense influence which he can bring to bear upon Congress,
especially through his control over appointments, we can readily see the
practical impossibility of enacting any measure which he opposes with
all the powers at his command. Moreover, the President and Senate would,
it was expected, belong to the same class, represent the same interests,
and be equally faithful in guarding the rights of the well-to-do. They
were to be, therefore, not so much a check on each other, as a double
check on the democratic House; and as against the latter, it was the
intention that the qualified negative of the President should, in all
important matters concerning which the radical and conservative classes
disagreed, be fully equivalent to an absolute veto. This follows from
the fact that the Senate would in such cases sympathize with the action
of the President and refuse to co-operate with the House in overriding
it.
It was believed by the framers of the Constitution that the veto power
of the President would be seldom used. This was true until after the
Civil War. Washington used the power only twice; John Adams, Jefferson,
J.Q. Adams, Van Buren, Taylor, and Fillmore did not make use of it at
all. During the first seventy-six years of our history under the
Constitution the power was exercised only fifty-two times. Andrew
Johnson was the first President to use it freely, vetoing as many acts
as were vetoed by the first eight Presidents. The largest use of the
veto power was by President Cleveland who, during his first term,
exercised it three hundred and one times.[115]
In conferring the veto power on the President the members of the
Convention were actuated by the desire to strengthen a conservative
branch of the government rather than by any desire to copy the English
Constitution, or the constitutions of the American states. As a matter
of fact, the veto power of the Crown was then obsolete, Hamilton himself
remarking in the Convention that it had not been used since the
Revolution of 1688,[116] while in all but two states the last vestige
of it had been destroyed.[117]
The position of the President was still further strengthened by
discarding the executive council which then existed in every state as a
check upon the governor and which was a prominen
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