



Produced by Juliet Sutherland, Graeme Mackreth and the
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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 prominent feature of the English
government of that time. In England this council, forming the Ministry
or Cabinet, had not, it is true, definitely assumed the form which
characterizes it now; but it had deprived the King of all power to act
except through ministers who were responsible and could be impeached by
Parliament. This, of course, had greatly weakened the executive, a fact
which fully explains why the framers of the Constitution rejected it and
went back to the earlier English king whose veto power was unimpaired
for their model.

As their plan contemplated a strong independent executive who would not
hesitate to use the far-reaching powers placed in his hands to defeat
measures which he disapproved of, it was necessary to guarantee him
against popular removal. In this respect again we see both English and
American constitutional practice disregarded, since neither afforded the
desired security of tenure. In the various states the governor was
liable to be impeached by the lower branch of the legislature and
expelled from office when convicted by the senate, which was usually the
court before which impeachment cases were tried. A mere majority in
each house was usually sufficient to convict,[118] and as both houses
were directly elected,[119] it virtually gave the majority of the voters
the power to remove. This was simply an adaptation of the English
practice which allowed a majority of the Commons to impeach and a
majority of the Lords to convict. That this had a strong tendency to
make the legislative body supreme is evident, since the power, if freely
used, would overcome all opposition on the part of either the executive
or the judiciary. Any combination of interests that could command a
majority in both houses of Parliament could thus enforce its policy.
This practically destroyed the executive check in the English
Constitution and for that very reason the founders of our government
rejected it. They clearly saw that to make the President's veto
effective, he would have to be protected in its exercise. To have
adopted the English practice and allowed a mere majority of the Senate
to convict in impeachment cases would have given Congress power to
destroy the President's veto by impeaching and removing from office any
executive who dared to use it. This was guarded against by making, a
two-thirds majority in the Senate necessary to convict any official
impeached by the House. And since this two-thirds majority is one which
in practice can not be obtained, the power to impeach may be regarded,
like the power to amend, as practically non-existent. Only two
convictions have been obtained since the Constitution was adopted. John
Pickering, a Federal district judge, was convicted March 12, 1803, and
removed from office, and at the outbreak of the Civil War a Federal
district judge of Tennessee, West H. Humphreys, who joined the
Confederacy without resigning, was convicted. William Blount was
acquitted in 1798 on the ground that, as a United States senator, he was
not a "civil officer" within the meaning of the impeachment provision of
the Constitution, and so not liable to impeachment. Samuel Chase,
Associate Justice of the United States Supreme Court, President Andrew
Johnson, and Secretary of War, William W. Belknap, would have been
convicted but for the extraordinary majority required in the Senate.

The practical impossibility of removing a public official by means of
impeachment proceedings has made the executive and the judicial veto
thoroughly effective, since it has deprived Congress of all power to
punish by removing from office those officials who thwart its purpose.
It has made the President and the Supreme Court much stronger than the
House of Representatives--a result which the framers of the Constitution
no doubt desired.

In addition to the President's qualified veto on laws about to be
passed, which, as we have seen, amounts in practice to an unlimited
negative, he has what may be called an absolute veto on their execution.
This is the necessary consequence of his complete independence, taken in
connection with his power of appointment and removal. Controlling the
administrative arm of the government, he can execute the laws of
Congress or not as he may see fit. He may even fail to enforce an act
which he himself signed, inasmuch as his approval in a legislative
capacity does not bar his subsequent disapproval as an executive. Of
course, it does not follow that this power is openly and avowedly
exercised. Usually it is not. An easier and more effective method is the
one which obscures the real intention of the executive by a sham attempt
at enforcement.

It may be contended that the Constitution makes it his duty to enforce
all laws without regard to his own views of their wisdom or expediency.
This contention, however, does not appear to be borne out by the purpose
of the Constitution itself. It was not the intention of the framers of
that instrument to make the President a mere administrative agent of
Congress, but rather to set him over against that body and make him in a
large measure the judge of his own authority. If it be claimed that it
is his duty to enforce all laws that have been regularly enacted, it
must at the same time be conceded that the Constitution permits their
non-enforcement, since it has given neither to Congress nor to the
people any effective power to remove him for neglect of duty. Moreover,
his oath of office does not expressly bind him to enforce the laws of
Congress, but merely to "execute the office of President ... and
preserve, protect, and defend the Constitution of the United
States."[120]

This omission can not be satisfactorily explained as a mere oversight.
The Massachusetts constitution of 1780, from which the fathers copied
the qualified veto power, required the governor to take an oath in which
he obligated himself to perform the duties of his office "agreeably to
the rules and regulations of the constitution and the laws of the
commonwealth." There was no precedent in any then existing state
constitution for expressly binding the executive in his oath of office
to defend the Constitution without mentioning his duty to enforce the
laws. It is a reasonable inference that the framers of the Constitution
intended to impress the President with the belief that his obligation to
defend the Constitution was more binding upon him than his duty to
enforce the laws enacted by Congress.

In the foregoing discussion it has been shown that political authority
was unequally divided between the various branches of the government;
to the extent that this was the case the framers of the Constitution
did not adhere consistently to the theory of checks. But in this, as in
other instances where they departed from precedents which they professed
to be following, they were actuated by a desire to minimize the direct
influence of the people. If the Constitution had been framed in complete
accord with the doctrine of checks and balances, the lower house of
Congress as the direct representative of the people would have been
given a veto on the entire policy of the government. But this, as we
have seen, was not done. The more important powers were placed under the
exclusive control of the other branches of the government over which it
was believed public opinion would have but little influence. This
deprived the people of the unlimited negative to which they were
entitled even according to the theory of checks. Richard Henry Lee did
not greatly exaggerate then when he said: "The only check to be found in
favor of the democratic principle, in this system, is the House of
Representatives, which, I believe, may justly be called a mere shred or
rag of representation."[121] Nor was Mason entirely mistaken when he
referred to the House of Representatives as "the shadow only" and not
"the substance of representation."[122]

It may be thought, even though the Constitution does not give the House
of Representatives a direct negative on all the important acts of the
government, that it does so indirectly through its control over the
purse. An examination of the system with reference to this question,
however, reveals the fact that the control of the House over taxation
and expenditure is narrowly limited. A revenue law is subject to no
constitutional limitation, and when once enacted remains in force until
repealed by subsequent legislation. Assuming that a revenue system has
been established which is sufficient for the needs of the government,
the House can exercise no further control over income. It can not repeal
it, or modify it in any way without the consent of the President and
Senate.

Turning now to the matter of expenditure, we find that the Constitution
allows permanent provision to be made for the needs of the government,
with the single exception of the army, for the support of which no funds
can be appropriated for a longer period than two years. The policy of
permanent appropriations has not yet been applied to the full extent
permitted by the Constitution, but it has been carried much further than
a consistent adherence to the doctrine of popular control over the
budget would warrant. The practice could easily be extended until every
want of the government except the expenses of the army, even including
the maintenance of the navy, had been provided for by permanent
appropriations. And it may be added that with the increasing desire for
stability which comes with the development of vast business interests,
the tendency is strongly in that direction.

Let us suppose that some political party, for the time being in control
of the law-making power of the government, should extend the practice of
making permanent appropriations to the extreme limit allowed by the
Constitution. This would relieve the administration of all financial
dependence upon public sentiment except in the management of the army.
And if, as the framers of the Constitution contemplated, the President
and the Senate should represent the minority, the administration might
for years pursue a policy to which public opinion had come to be
strongly opposed. For with the system once adopted its repeal could not
be effected without the concurrence of all branches of the law-making
authority. The President and Congress could, in anticipation of an
adverse majority in the House, guard against the withdrawal of financial
support from their policy by simply making permanent provision for their
needs. Our present system would permit this to be done even after the
party in power had been overwhelmingly defeated at the polls, since the
second session of the old congress does not begin until after the
members of the new House of Representatives have been elected.[123]
This would tie the hands of any adverse popular majority in a succeeding
congress and effectually deprive it of even a veto on the income and
expenditure of the government, until such time as it should also gain
control of the Presidency and the Senate. But this last could never have
happened if the practical working of the Constitution had been what its
framers intended. Whatever control, then, the majority may now exercise
over taxation and public expenditure has thus been acquired less through
any constitutional provisions intended to secure it, than in spite of
those which seemingly made it impossible.

Equally significant was the failure of the Convention to make any
adequate provision for enforcing publicity. The Constitution says "a
regular statement of the receipts and expenditures of public money shall
be published from time to time," and also that "each House shall keep a
journal of its proceedings, and from time to time publish the same,
except such parts as may in their judgment required secrecy."[124] That
these provisions were of little practical value is evident from the fact
that they contain no definite statement as to when and how often the
accounts and journals are to be published. The phrase _from time to
time_ was susceptible of almost any interpretation that either house of
Congress or the President might wish to give it, and could easily have
been so construed as to justify a method of publication which gave the
people but little information concerning the present state of public
affairs. The framers of the Constitution did not believe that the
management of the government was in any proper sense the people's
business; yet they realized that the people themselves took a different
view of the matter, which made some constitutional guarantee of
publicity necessary. It was, however, the form rather than the substance
of such a guarantee which the Constitution contained.

Neither house of Congress is required by the Constitution to hold open
sittings or publish its speeches and debates.[125] Until 1799 the Senate
exercised its constitutional right to transact public business in
secret; and during that period preserved no record of its debates. This
policy did not win for it the confidence of the people, and until after
it was in a measure abandoned, the Senate, notwithstanding the important
powers conferred on it by the Constitution, was not a very influential
body.

To deny the right of the people to control the government leads
naturally to denial of their right to criticise those who shape its
policy; since if free and unrestricted discussion and even condemnation
of official conduct were allowed, no system of minority rule could long
survive. This was well understood in the Federal Convention. The members
of that body saw that the constitutional right of public officials to
disregard the wishes of the people was incompatible with the right of
the latter to drag them before the bar of public opinion. Hence some
limitation of the right to criticise public officials was necessary to
safeguard and preserve their official independence. This seems to have
been the purpose of the Constitution in providing with reference to
members of Congress that "for any speech or debate in either House they
shall not be questioned in any other place."[126]

This provision may be traced to the English Bill of Rights where it was
intended as a means of protecting members of Parliament against
imprisonment and prosecution for opposing the arbitrary acts of the
Crown. It was at first merely an assertion of the independence of the
Lords and Commons as against the King, and a denial of the right of the
latter to call them to account for anything said or done in their
legislative capacity. But after it had accomplished its original purpose
and the tyrannical power of the King had been overthrown, it was found
to be serviceable in warding off attacks from another direction. It thus
came about that the means devised and employed by Parliament to shield
its members against intimidation and oppression at the hands of the King
was later turned against the people; for Parliament in divesting the
King of his irresponsible authority was desirous only of establishing
its own supremacy. It jealously guarded its own prerogatives, claimed
the right to govern independently, and just as formerly it had resisted
the encroachments of royal authority, it now resented the efforts of the
people to influence its policy by the publication and criticism of its
proceedings.

A standing order passed by the House of Commons in 1728 declared "that
it is an indignity to, and a breach of, the privilege of this House for
any person to presume to give in written or printed newspapers, any
account or minute of the debates or other proceedings; that upon
discovery of the authors, printers, or publishers of any such newspaper
this House will proceed against the offenders with the utmost
severity."[127]

This was the attitude of Parliament down to 1771, when, after a
prolonged and bitter struggle, the House of Commons was finally driven
by the force of an overwhelming public sentiment to acquiesce in the
publication of its proceedings.

There was, however, a small minority in the House that opposed the
policy of prosecuting the representatives of the press. The following
extract from the Annual Register for 1771 describes the attitude of this
minority.

"Some gentlemen however did not rest their opposition on the points of
decorum and prudence, but went so far as to deny the authority of the
House in this respect, and said that it was an usurpation assumed in bad
times, in the year 1641; that while their privileges and authority were
used in defense of the rights of the people, against the violence of the
prerogative, all men willingly joined in supporting them, and even their
usurpations were considered as fresh securities to their independence;
but now that they saw their own weapons converted to instruments of
tyranny and oppression against themselves, they would oppose them with
all their might, and, however they may fail in the first efforts, would
finally prevail, and assuredly bring things back to their first
principles. They also said that the practice of letting the constituents
know the parliamentary proceedings of their representatives was founded
upon the truest principles of the Constitution; and that even the
publishing of supposed speeches was not a novel practice, and if
precedent was a justification, could be traced to no less an authority
than Lord Clarendon."[128]

"In the early years of the colonial era the right of free speech was not
always well guarded. There was frequent legislation, for example,
against 'seditious utterances,' a term which might mean almost anything.
In 1639 the Maryland assembly passed an act for 'determining enormous
offences,' among which were included 'scandalous or contemptuous words
or writings to the dishonor of the lord proprietarie or his lieutenant
generall for the time being, or any of the council.' By a North Carolina
act of 1715 seditious utterances against the government was made a
criminal offence, and in 1724 Joseph Castleton, for malicious language
against Governor Burrington and for other contemptuous remarks, was
sentenced by the general court to stand in the pillory for two hours and
on his knees to beg the governor's pardon. A New Jersey act of 1675
required that persons found guilty of resisting the authority of the
governor or councillors 'either in words or actions ... by speaking
contemptuously, reproachfully, or maliciously, of any of them,' should
be liable to fine, banishment, or corporal punishment at the discretion
of the court. In Massachusetts even during the eighteenth century the
right of free political discussion was denied by the House of
Representatives as well as by the royal governor, though often
unsuccessfully."[129]

"The general publication of parliamentary debates dates only from the
American Revolution, and even then it was still considered a technical
breach of privilege.

"The American colonies followed the practice of the parent country. Even
the laws were not at first published for general circulation, and it
seemed to be thought desirable by the magistrates to keep the people in
ignorance of the precise boundary between that which was lawful and that
which was prohibited, as more likely to avoid all doubtful actions....

"The public bodies of the united nation did not at once invite publicity
to their deliberations. The Constitutional Convention of 1787 sat with
closed doors, and although imperfect reports of the debates have since
been published, the injunction of secrecy upon its members was never
removed. The Senate for a time followed this example, and the first open
debate was had in 1793, on the occasion of the controversy over the
right of Mr. Gallatin to a seat in that body. The House of
Representatives sat with open doors from the first, tolerating the
presence of reporters,--over whose admission, however, the Speaker
assumed control,--and refusing in 1796 the pittance of two thousand
dollars for full publication of its debates.

"It must be evident from these historical facts that liberty of the
press, as now understood and enjoyed, is of very recent origin."[130]

Both the original purpose of this parliamentary privilege and its
subsequent abuse not only in England but also in the Colonies, were
facts well known by those who framed the Constitution. There was no King
here, from whose arbitrary acts Congress would need to be protected, but
there was a power which the framers of the Constitution regarded as no
less tyrannical and fully as much to be feared--the power of the people
as represented by the numerical majority. How to guard against this new
species of tyranny was the problem that confronted them. The majority
was just as impatient of restraint, just as eager to brush aside all
opposition as king or aristocracy had ever been in the past. Taking this
view of the matter, it was but natural that they should seek to protect
Congress against the people as Parliament had formerly been protected
against the Crown. For exactly the same reason as we have seen, they
made the judges independent of the people as they had been made
independent of the King in England. In no other way was it possible to
limit the power of the majority.

That this provision concerning freedom of speech and debate in the
legislative body was not regarded as especially important during the
Revolutionary period is shown by its absence from most of the early
state constitutions. When the Federal Constitution was framed only three
of the original states[131] had adopted constitutions containing such a
provision. There was, as a matter of fact, no real need for it in the
state constitutions of that time. The controlling influence exerted by
the legislature in the state government, and the dependence of the
courts upon that body, precluded the possibility of any abuse of their
powers in this direction.

The Articles of Confederation contained the provision that "Freedom of
speech and debate in Congress shall not be impeached or questioned in
any court or place out of Congress."[132] This was designed to protect
members of Congress against prosecution in the state courts. Here, as in
the English Bill of Rights and in the state constitutions containing a
similar provision, reference is made in express terms to prosecution in
the courts. The framers of the Constitution, however, left out all
reference to the courts. If, as constitutional writers have generally
assumed, the framers of the Constitution intended by this provision to
protect members of Congress against prosecution in the courts, it is
difficult to understand why they should have omitted what had been the
main feature and purpose of this provision, not only in the original
Bill of Rights, but also in the state constitutions copying it and in
the Articles of Confederation. If what they had in mind was the danger
of prosecution in the state or Federal courts, why should they have
changed completely the wording of this provision by omitting all
reference to the very danger which they wished to guard against?

The checks thus far described were intended as a substitute for king and
aristocracy; but to make the Constitution acceptable to the people,
additional checks were required which the English government did not
contain. The division of authority in the latter was solely between
different classes or orders, each of which was supposed to represent
interests co-extensive with the realm. But while the power of each class
was thus limited, their joint and combined action was subject to no
constitutional check or limitation whatever. Any policy upon which they
agreed could be enforced in any part of the realm, since the
Constitution, recognizing no local interests, gave no political
subdivision a negative on the acts of the whole. The government of
England, then, was purely _national_ as opposed to _federal_, that is to
say the general government was supreme in all respects and the local
government merely its creature.

This was the type of government for which Hamilton contended and which a
majority of the delegates in the Federal Convention really favored. But
the difficulty of securing the adoption of a Constitution framed on this
plan made it impracticable. To merge the separate states in a general
government possessing unlimited authority would place all local
interests at the mercy of what the people regarded as virtually a
foreign power. Practical considerations, then, required that the
Constitution should in appearance at least conform to the _federal_
rather than to the _national_ type. Accordingly the powers of government
were divided into two classes, one embracing only those of an admittedly
general character, which were enumerated and delegated to the general
government, while the rest were left in the possession of the states. In
form and appearance the general government and the governments of the
various states were coordinate and supplementary, each being supreme and
sovereign within its respective sphere. By this arrangement any
appearance of subordination on the part of the state governments was
carefully avoided; and since the state retained sovereign authority
within the sphere assigned to it by the Constitution, the protection of
local interests was thereby guaranteed. This understanding of the
Constitution seems to have been encouraged by those who desired its
adoption and was undoubtedly the only interpretation which would have
found favor with the people generally. Moreover, it was a perfectly
natural and logical development of the theory of checks. If the
President, Senate, House of Representatives and the Supreme Court were
coordinate branches of the general government, and each therefore a
check on the authority of the others, a like division of authority
between the general government as a whole on the one hand, and the
states on the other, must of necessity imply a defensive power in the
state to prevent encroachment on the authority reserved to it. And since
the government was _federal_ and not _national_, and since the state
government was coordinate with and not subordinate to the general
government, the conclusion was inevitable that the former was a check on
the latter in exactly the same way that each branch of the general
government was a check on the others.

This view of the Constitution while allowed to go unchallenged for the
time being to secure its adoption by the states, was not accepted,
however, by those who framed it. For although in outward appearance the
Constitution did not provide for a national government, it at least
contained the germs out of which a national government might in time be
developed. The complete supremacy of the general government was one
important result which the members of the Convention desired to bring
about. Several plans were proposed by which this supremacy should be
expressly recognized in the Constitution. Both Randolph and Charles
Pinckney favored giving a negative on state laws to Congress.[133]
Madison suggested giving it to the Senate. Hamilton, as we have seen,
proposed giving an absolute veto to the governors of the various states,
who were to be appointed by the President. According to another plan
this power was to be given jointly to the President and the judges of
the Supreme Court. All of these proposals to give the general government
in express terms the power to annul state laws were finally rejected by
the Convention, no doubt for the reason that they indicated too clearly
their intention to subordinate the state governments. But while
declining to confer this power in express terms, it was not their
intention to withhold it. As in the case of the judicial veto on
congressional legislation, they relied upon control over the
Constitution after its adoption to accomplish their end.

The omission from the Constitution of any provision which clearly and
unequivocally defined the relation of the general government to the
governments of the various states was not a mere oversight. The members
of the Convention evidently thought that to ensure the acceptance of the
Constitution, it was necessary to submit it in a form least likely to
excite the opposition of the states. They expected by controlling its
interpretation to be able after its adoption to mold it into a shape
more in accord with their own views. The choice of this method, though
the only one by which it was possible to attain their end, involved
consequences more serious and far-reaching than they imagined. It paved
the way for a constitutional struggle which lasted for three-quarters of
a century and finally convulsed the country in the greatest civil war of
modern times. Had the Constitution in so many words expressly declared
that the Federal judiciary should have the power to annul state laws, or
had it given this power to some other branch of the Federal government
in accordance with some one of the suggestions above mentioned, and had
it at the same time expressly withheld from the states the power to
negative acts of Congress, there would have been no room for doubt that
the general government was the final and exclusive judge in all cases of
conflict between Federal and state authority.

Such a provision would have left no room for the doctrine of state
rights, or its corollary--the power of a state to nullify a Federal law.
It would have settled the question of Federal supremacy beyond the
possibility of controversy by relegating the states to a strictly
subordinate place in our political system. But inasmuch as the
Constitution contained no provision of this character it left the states
in a position to defend their claim to coordinate rank with the general
government.

The adoption of the Constitution was merely the first step in this
program of political reconstruction. To carry through to a successful
issue the work undertaken by the Federal Convention, it was necessary
that the same influences that dominated the latter should also control
the new government by which the Constitution was to be interpreted and
applied. How well they succeeded may be seen in the impress left upon
our system by the twelve years of Federalist rule which followed its
adoption. During this period the Constitution was in the hands of those
who were in full sympathy with the purpose of its framers, and who
sought to complete the work which they had begun.

In shaping the policy of the government during this period the influence
of Hamilton was even more pronounced than it had been in the Federal
Convention. As Secretary of the Treasury he proposed and brought about
the adoption of a financial policy in harmony with his political views.
Believing that the government must have the confidence of the
conservative and well-to-do classes, he framed a policy which was
calculated to gain their support by appealing to their material
interests. The assumption by the general government of the state debts
incurred during the Revolutionary war was designed and had the effect
of detaching the creditor class from dependence upon the governments of
the various states and allying them to the general government. The
protective tariff system also had far-reaching political significance.
It was expected to develop an influential manufacturing class who would
look to the general government as the source of their prosperity, and
who would therefore support its authority as against that of the states.
To unite the moneyed interests and identify them with the general
government was one of the reasons for chartering the bank of the United
States. The internal revenue system which enabled the general government
to place its officials in every community and make its authority
directly felt throughout all the states was a political as well as a
financial measure. It was prompted partly by the desire to appropriate
this field of taxation before it was laid hold of by the states and
partly by the desire to accustom the people to the exercise of Federal
authority. All these measures which were formulated by Hamilton and
carried through largely by his influence were intended to lay a solid
basis for the development of national as opposed to state authority.

It was the purpose of the Constitution as we have seen to establish the
supremacy of the so-called upper class. To consolidate its various
elements and bring the government under their control was the aim of the
Federalist party.

That such a policy should have aroused much popular opposition and
provoked bitter criticism was to be expected. Criticism, however, was
especially irritating to those who accepted the Federalist theory of
government. For if the few had a right to rule the many, then the
latter, as a matter of course, ought to treat the former with respect;
since otherwise the power and influence of the minority might be
overthrown.

The Alien and Sedition laws by which the governing class sought to
repress criticism were the logical culmination of this movement to limit
the power of the majority. This attempt, however, to muzzle the press
and overthrow the right of free speech instead of silencing the
opposition only strengthened and intensified it. It merely augmented the
rising tide of popular disapproval which was soon to overwhelm the
Federalist party.

The Constitution, as we have seen, did not expressly subordinate the
states. Although framed by those who wished to make the general
government supreme, it contained no provision which could not be so
construed as to harmonize with the widely accepted doctrine of state
rights. It was represented by its framers and understood by the people
generally as dividing sovereignty between the general government on the
one hand and the states on the other. Within the province assigned to
the state, it was to be supreme, which would naturally seem to imply
adequate constitutional power in the state to defend itself against
federal aggression. This view of the Constitution, if not actually
encouraged, was allowed to go unchallenged in order not to endanger its
adoption.

The Constitution is and was intended to be rigid only in the sense that
it effectually limits the power of the majority. The founders of our
government were not averse to such changes in the system which they
established as would promote or at least not interfere with their main
purpose--the protection of the minority against the majority. Indeed,
they intended that the Constitution as framed should be modified,
amended and gradually molded by judicial interpretation into the form
which they desired to give it, but which the necessity of minimizing
popular opposition prevented them from accomplishing at the outset.
Amendment by judicial interpretation was merely a means of conferring
indirectly on the minority a power which the Constitution expressly
denied to the majority. No hint of this method of minority amendment,
however, was contained in the Constitution itself. But, on the contrary,
any such view of the Constitution would have been negatived by the
general theory of checks and balances which, consistently applied, would
limit the power of the minority as well as that of the majority. It was
not reasonable to suppose that the Constitution contemplated placing in
the hands of the minority a power which it was so careful to withold
from the majority. In fact, the language of the Constitution warranted
the belief that it was intended as a means of checking the general
government itself by protecting the states in the exercise of all those
powers not expressly denied to them. And since the Constitution, as we
have seen, merely marked off the limits of federal and state
jurisdiction, without specifying how the general government on the one
hand, or the state government on the other, was to be kept within the
territory assigned to it, it was natural to suppose that it contemplated
giving to each the same means of protecting itself against the
encroachments of the other.

Accordingly, when Congress appeared to overstep the limits which the
Constitution set to its authority, the states naturally looked for some
means of making the checks imposed upon the general government
effective. True, the Constitution itself did not specify how this was to
be done; but neither could one find in it any provision for enforcing
the limitations on the authority of the states. The general government,
however, had supplied itself with the means of self-protection by
calling into existence the veto power of the Federal judiciary. This
made the checks upon the authority of the states operative. But how were
those imposed by the Constitution on the general government itself to be
enforced? Not by the Federal government or any of its organs, since
this would allow it to interpret the Constitution to suit itself. If the
general government should have the right to interpret and enforce the
constitutional limitations on the powers of the states, it would for a
like reason follow that the states should interpret and enforce the
constitutional limitations on the authority of the general government
itself. To carry out in good faith what appeared to be the purpose of
the Constitution, _i.e._, to limit the authority of the general
government as well as that of the states, it would seem to be necessary
to make each the judge of the other's powers. It would devolve then on
the state governments to keep the general government within the bounds
which the Constitution set to its authority.

This could be accomplished, however, in no other way than by a veto on
such acts of the general government as, in the opinion of the state,
exceeded its constitutional authority. Those who believed in a federal
as opposed to a national government and who therefore wished to enforce
the constitutional checks on the general government, were irresistibly
impelled toward the doctrine of nullification as the sole means of
protecting the rights of the states.

As Von Holst says, "Calhoun and his disciples were not the authors of
the doctrine of nullification and secession. That question is as old as
the Constitution itself, and has always been a living one, even when it
has not been one of life and death. Its roots lay in the actual
circumstances of the time, and the Constitution was the living
expression of these actual circumstances."[134]

Madison, in _The Federalist_, refers in a vague and indefinite manner to
the power of a state to oppose an unjustifiable act of the Federal
government.

"Should an unwarrantable measure of the Federal government," he says,
"be unpopular in particular states ... the means of opposition to it are
powerful and at hand. The disquietude of the people; their repugnance,
and perhaps refusal, to co-operate with the officers of the union; the
frowns of the executive magistracy of the state; the embarrassments
created by legislative devices, which would often be added on such
occasions, would oppose, in any state, difficulties not to be despised;
would form in a large state, very serious impediments; and where the
sentiments of several adjoining states happened to be in unison, would
present obstructions which the Federal government would hardly be
willing to encounter."[135]

Again he says, "The state government will have the advantage of the
Federal government, whether we compare them in respect to the immediate
dependence of the one on the other; to the weight of personal influence
which each side will possess; to the powers respectively vested in them;
to the predilection and probable support of the people; to the
disposition and faculty of resisting and frustrating the measures of
each other."[136]

It is doubtful whether Madison, in writing the passages above quoted,
had in mind any thing more than a general policy of opposition and
obstruction on the part of the states. He certainly intended, however,
to convey the idea that under the proposed Constitution the states would
have no difficulty in defending their constitutional rights against any
attempted usurpation at the hands of the Federal government. We can
trace the gradual development of this idea of state resistance to
Federal authority until it finally assumes a definite form in the
doctrine of nullification.

"A resolution [in the Maryland legislature] declaring the independence
of the state governments to be jeopardized by the assumption of the
state debts by the Union was rejected only by the casting vote of the
speaker. In Virginia the two houses of the legislature sent a joint
memorial to Congress. They expressed the hope that the funding act would
be reconsidered and that the law providing for the assumption of the
state debts would be repealed. A change in the present form of the
government of the union, pregnant with disaster, would, it was said, be
the presumptive consequence of the last act named, which the house of
delegates had formally declared to be in violation of the Constitution
of the United States."[137]

The general assembly of Virginia in 1798 adopted resolutions declaring
that it viewed "the powers of the Federal government ... as limited by
the plain sense and intention of [the Constitution] ... and that, in
case of a deliberate, palpable, and dangerous exercise of other powers,
not granted, ... the states ... have the right, and are in duty bound,
to interpose, for arresting the progress of the evil, and for
maintaining within their respective limits, the authority, rights, and
liberties appertaining to them." These resolutions were drawn by Madison
who had now come to oppose the strong centralizing policy of the
Federalists.

A more explicit statement of this doctrine is to be found in the
Kentucky Resolutions of 1798 which declared "that the several states
composing the United States of America are not united on the principle
of unlimited submission to their general government; ... and that
whenever the general government assumes undelegated powers, its acts are
unauthoritative, void, and of no force; that to this compact each state
acceded as a state, and is an integral party; that this government,
created by this compact, was not made the exclusive or final judge of
the extent of the powers delegated to itself, since that would have made
its discretion, and not the Constitution, the measure of its powers; but
that as in all other cases of compact among parties having no common
judge, _each party has an equal right to judge for itself, as well of
infractions as of the mode and measure of redress_."

The Kentucky resolutions of 1799 go one step farther and give definite
expression to the doctrine of nullification. They declare "that the
several states who formed that instrument [the Constitution], being
sovereign and independent, have the unquestionable right to judge of the
infraction; and, _that a nullification, by those sovereignties, of all
unauthorized acts done under color of that instrument, is the rightful
remedy_."

The first clear and unequivocal statement of the doctrine of
nullification may be traced to Jefferson. In the original draft of the
Kentucky resolutions of 1798, which he wrote, it is asserted that where
the Federal government assumes powers "which have not been delegated, a
nullification of the act is the rightful remedy; that every state has a
natural right in cases not within the compact (_casus non foederis_) to
nullify of their own authority, all assumptions of power by others
within their limits."[138] This was omitted, however, from the
resolutions as finally adopted, although included in substance, as we
have seen, in the Kentucky resolutions of 1799.

Jefferson's authorship of the original draft of the Kentucky resolutions
of 1798 is made the basis of Von Holst's contention that he was the
father of the doctrine of nullification. This, however, is something of
an exaggeration. He is more accurate when he refers to the doctrine as
being as old as the Constitution itself and the outgrowth of the
circumstances of the time. The prevalent conception of the state as a
check upon the Federal government derived support, as we have seen, from
the efforts of the framers of the Constitution themselves to give it an
interpretation that would remove as far as possible the obstacles to its
ratification by allaying the fears and jealousy of the states. The idea
that the state government could oppose and resist an unconstitutional
exercise of authority by the Federal government was widely accepted as a
general principle, although little attention had been given to the
practical application of the doctrine. Jefferson merely gave definite
form to what had been a more or less vague conception by showing how the
constitutional checks upon the Federal government could be made
effective.

The best statement of this doctrine, however, is to be found in the
works of John C. Calhoun, whose Disquisition on Government and
Discourse on the Constitution of the United States are a masterly
defense of the system of checks and balances. He had no sympathy with
what would now be called popular government. His point of view was
essentially aristocratic, and he frankly avowed it.

He recognized the fact that under the existing social organization the
interests of all classes are not the same; that there is a continual
struggle between them; and that any interest or combination of interests
obtaining control of the government will seek their own welfare at the
expense of the rest. This, he claimed, made it necessary to so organize
the government as to give the minority the means of self-protection. To
give to the minority this constitutional power would tend to prevent the
selfish struggle to obtain possession of the government, since it would
deprive the majority of all power to aggrandize themselves at the
expense of the minority. The very essence of constitutional government,
according to his view, was the protection afforded to the minority
through the limitation of the power of the majority. To accomplish the
true end of constitutional government, which is the limitation of the
power of the numerical majority, it is necessary, he contended, that the
various classes or interests should be separately represented, and that
each through its proper organ should have a veto on the acts of the
others. In a government so organized no measure could be enacted into
law and no policy enforced, unless it had received the assent of each
element recognized in the Constitution. This method of taking the sense
of the community, which required the concurrence of its several parts,
he termed that of the concurrent majority.

This principle of class representation, he maintained, was fundamental
in the American Constitution, which recognized for certain purposes the
numerical majority as one of its elements, but only for certain
purposes. For he tells us, and correctly, that "the numerical majority
is, strictly speaking, excluded, even as one of its elements."[139] In
support of this statement he undertakes to show that the numerical
majority could not even prevent the amendment of the Constitution, since
through a combination of the smaller states an amendment desired by the
minority could be forced through in opposition to the wishes of the
majority. He might have added that it was the intention of those who
framed our government to allow the minority a free hand in amending by
the method of constitutional interpretation; and also that they intended
to deny to the numerical majority a veto on treaties and appointments.
This refusal to recognize the numerical majority even as one of the
coordinate elements in the government was as hereinbefore shown
inconsistent with the doctrine of checks, and is to be explained on the
theory that they wished to subordinate the democratic element in the
Constitution.

Calhoun argued that the growth of political parties had broken down our
system of constitutional checks. The Constitution as originally adopted
made no mention of, and allowed no place for these voluntary political
organizations. In fact, the purpose of the political party was
diametrically opposed to and subversive of all that was fundamental in
the Constitution itself, since it aimed at nothing less than the
complete destruction of the system of checks by bringing every branch of
the government under its control. To the extent that it had achieved its
purpose, it had consolidated the powers of the general government and
brought them, he contended, under the direct control of the numerical
majority, which was the very thing that the framers of the Constitution
wished to guard against.

The complete control which the numerical majority had thus obtained over
the Federal government made it supremely important that all
constitutional power vested in the several states to resist Federal
aggression should be actively employed. That the states had the power
under the Constitution to check the general government when it attempted
to overstep the limits set to its authority was necessarily implied in
the fact that our system of government was federal and not national.
His argument proceeded on the theory encouraged by the framers of the
Constitution that the general government and the state governments were
coordinate. "The idea of coordinates," he tells us, "excludes that of
superior and subordinate, and necessarily implies that of equality. But
to give either the right, not only to judge of the extent of its own
powers, but, also, of that of its coordinate, and to enforce its
decision against it, would be, not only to destroy the equality between
them, but to deprive one of an attribute--appertaining to all
governments--to judge, in the first instance, of the extent of its
powers. The effect would be to raise one from an equal to a superior,
and to reduce the other from an equal to a subordinate."[140]

From this it would follow that neither should have the exclusive right
to judge of its own powers--that each should have a negative on the acts
of the others. That this was the intention of the framers of the
Constitution he argues from the fact that all efforts in the Convention
to give the general government a negative on the acts of the states were
unsuccessful. The efforts to confer this power, he contends, were made
because it was seen that in the absence of such a provision the states
would have a negative on the acts of the general government. The failure
of these efforts in the Convention was due, he claims, to the fact that
the members of that body wished to make the general government and the
state governments coordinate, instead of subordinating the latter to the
former as the advocates of a national government desired. The fact upon
which Calhoun based this contention would seem to justify his
conclusion; but if we consult the debates which took place in that body,
it is easily seen that the refusal of the Convention to incorporate such
a provision in the Constitution can not be ascribed to any hostility on
the part of that body to national government. In fact, as hereinbefore
shown, it was for purely practical reasons that they rejected all
proposals which contemplated the recognition in the Constitution itself
of the supremacy of the general government. While declining to allow a
provision of this character to be incorporated in the Constitution, they
by no means disapproved of a strong supreme central government, but
merely adopted a less direct and therefore easier method of attaining
their end.

While Calhoun maintained that in order to make the limitations on the
authority of the general government effective it was necessary that a
state should have a veto on Federal laws, he did not contend that the
verdict of a state should be final. It would still be possible for the
general government to override the veto of a state by procuring a
constitutional amendment which would remove all doubt as to its right to
exercise the power in question. This method of appeal, he argued, was
always open to the general government, since it represented and was in
the hands of the numerical majority. This would be true, however, only
when the party in power had the requisite two-thirds majority in both
houses of Congress, or at least controlled the legislatures in
two-thirds of the states. Otherwise its control of the general
government would not enable it to propose the desired constitutional
amendment. With this qualification Calhoun's contention was correct. On
the other hand the state could not defend itself against Federal
aggression, since, belonging to the minority, it would have no means of
compelling the submission of a constitutional amendment involving the
point in dispute. The effect of a state veto on an act of Congress would
be to compel the latter to choose between abandoning the law in question
as unconstitutional and appealing to the constitution-making power in
defense of its claim. If it chose the latter alternative and succeeded
in having its authority supported by an appropriate constitutional
amendment, there was nothing for the state to do but submit, provided
that the amendment in question was one clearly within the scope of the
amending power. If, as Calhoun assumed, it was the purpose of the
Constitution to withhold from a mere majority in control of the general
government the power to enact and enforce unconstitutional legislation,
the veto of a state would seem to be the only means by which the
constitutional rights of a minority of the states could be protected.

Calhoun did not question the right of the Supreme Court of the United
States to declare an act of Congress null and void, or its right to pass
judgment upon the Constitution or the laws of a state when they were
attacked as in conflict with the Federal Constitution in a case before
it. This right, he contended, belonged to all courts whether federal or
state. A decision of the Supreme Court of the United States adverse to
the constitution or law of a state was, however, he maintained, binding
only on the general government itself and the parties to the suit. As
against the state it had no power to enforce its decision.

His entire argument rests upon the assumption that the Federal and state
governments are co-equal and not superior and subordinate. This line of
argument naturally led to the conclusion that the Federal and state
courts were coordinate. It was perfectly natural for the advocate of
state rights to take this view of the matter. Moreover there was nothing
in the Constitution which expressly contradicted it. The framers of that
instrument, as hereinbefore shown, did not wish to make an open attack
on the generally accepted doctrine of state sovereignty before the
Constitution was adopted. Their purpose was fully disclosed only after
they had obtained control of the new government under the Constitution.
To carry out their plan of subordinating the states, it was necessary to
establish the supremacy of the Federal judiciary. This was accomplished
by an act of Congress[141] which provided that "a final judgment or
decree in any suit in the highest court ... of a state in which a
decision in the suit could be had, where is drawn in question the
validity of a treaty or statute of, or an authority exercised under, the
United States, and the decision is against their validity; or where is
drawn in question the validity of a statute of, or an authority
exercised under, any state, on the ground of their being repugnant to
the Constitution, treaties, or laws of the United States, and the
decision is in favor of their validity; or where is drawn in question
the construction ... of a treaty, or statute of, or commission held
under, the United States, and the decision is against the title, right,
privilege, or exemption specially set up or claimed by either party,
under such clause of said Constitution, treaty, statute, or Commission,
may be re-examined, and reversed or affirmed in the Supreme Court of the
United States upon a writ of error."

This act, while expressly conferring upon the Supreme Court of the
United States the power to veto a state law, at the same time denied to
a state court the right to treat as unconstitutional a statute, treaty,
or authority exercised under the general government. The question might
properly be asked why this provision was not incorporated in the
Constitution itself. Why did not the framers of that document clearly
define the relation of the Federal to the state courts? To have included
the substance of this act in the Constitution as submitted to the
states, would have precluded the possibility of any future controversy
concerning the relation of the Federal to the state courts. From the
point of view of practical politics, however, there was one unanswerable
argument against this plan. It would have clearly indicated the
intention of the framers of the Constitution, but in doing so, it would
for that very reason have aroused opposition which it would have been
impossible to overcome. This is why the matter of defining the relation
of the Federal to the state courts was deferred until after the
Constitution had been ratified by the states. They chose the only
practicable means of accomplishing their purpose. With all branches of
the Federal government under their control, they were able to enact a
law which virtually amended the Constitution. Calhoun argues that in
passing this act Congress exceeded the powers granted to it by the
Constitution. What he fails to recognize, however, is the fact that this
measure, although at variance with the interpretation placed upon the
Constitution by the people generally, was, nevertheless, in entire
harmony with the general purpose of its framers and necessary to carry
that purpose into effect.

The view of the American Constitution herein presented may not be
familiar to the average reader of our political literature. For
notwithstanding the overwhelming proof of the aristocratic origin of our
constitutional arrangements accessible to the unbiassed student, the
notion has been sedulously cultivated that our general government was
based on the theory of majority rule. Unfounded as an analysis of our
political institutions shows this belief to be, it has by dint of
constant repetition come to be widely accepted. It is beyond question
that the Constitution was not so regarded by the people at the beginning
of our national life. How, then, was this change in the attitude of the
public brought about? There has doubtless been more than one influence
that has contributed to this result. The abundant natural resources of
the country and the material prosperity of the people are a factor that
cannot be ignored. To these must in a measure be ascribed the uncritical
attitude of mind, the prevailing indifference to political conditions,
and the almost universal optimism which have characterized the American
people. This lack of general attention to and interest in the more
serious and profound questions of government has been favorable to the
inculcation and acceptance of ideas of the system utterly at variance
with its true character. Still, with all due allowance for these
favoring conditions, it is hard to find a satisfactory explanation of
the process by which the worshipers of democracy came to deify an
undemocratic constitution. The desire of the conservative classes to
preserve and perpetuate the system by presenting it in the guise of
democracy, and their influence upon the political thought of the people
generally must be regarded as the chief factor in bringing about this
extraordinary change in public opinion. Hostile criticism of the
Constitution soon "gave place to an undiscriminating and almost blind
worship of its principles ... and criticism was estopped.... The divine
right of kings never ran a more prosperous course than did this
unquestioned prerogative of the Constitution to receive universal
homage. The conviction that our institutions were the best in the world,
nay more, the model to which all civilized states must sooner or later
conform, could not be laughed out of us by foreign critics, nor shaken
out of us by the roughest jars of the system."[142]




CHAPTER VII

UNDEMOCRATIC DEVELOPMENT


It has been shown that the main purpose of the Constitution was to limit
the power of the people. The recognition of this fact enables us to
understand much of the subsequent development of our political
institutions--a development for which the generally accepted theory of
our system affords no adequate explanation. The erroneous view of the
Constitution so generally inculcated has thus far misled the public as
to the true source of our political evils. It would indeed be strange if
some of the abuses incident to every form of minority rule had not made
their appearance under the operation of a system such as has been
described. Where the influence of public opinion has been so restricted,
it would be but reasonable to expect that the practical working of the
government would reflect something of the spirit of the Constitution
itself. As a consequence of these limitations originally placed upon the
power of the people, the development of our system has not been wholly
in the direction of democracy. The constitutional authority conferred
upon the minority has exerted a far-reaching influence upon the growth
of our political institutions. The natural effect of subordinating the
democratic element would be to render its influence more feeble as the
system developed. That this has not been a purely imaginary danger may
be easily shown.

The Constitution expressly gave to the qualified voters of the various
states the right to control the House of Representatives. It was because
of this fact, as explained in the preceding chapter, that this body was
subordinated in our scheme of government. Even the most perfect control
over this branch would have given the people no positive control over
the government as a whole. At the most, it conceded to them merely a
negative on a part of the acts and policy of the government. Yet popular
control over this branch of the government has become less and less
effective as our political system has developed.

The Constitution provides that "the times, places, and manner of holding
elections for senators and representatives shall be prescribed in each
state by the legislature thereof; but the Congress may at any time by
law make or alter such regulations, except as to the place of choosing
senators."[143]

It also provides that "Congress shall assemble at least once in every
year, and such meeting shall be on the first Monday in December, unless
they shall by law appoint a different day."

It also requires that the members of the House of Representatives shall
be elected every second year; but as originally adopted it does not
specify when their term of office shall begin.

After the ratification of the Constitution the Congress of the
Confederation on September 13, 1788, designated March 4, 1789, as the
time for commencing proceedings under the new regime. This made the term
of office of President, Senators, and Representatives begin on that
date.

An act of Congress, March 1, 1792, provided that the term of office of
President should "in all cases, commence on the fourth day of March next
succeeding the day on which the votes of the electors shall have been
given."

This date was recognized as the beginning of the President's term of
office by the Twelfth Amendment to the Constitution, which went into
effect in 1804. By implication this amendment makes the term of
representatives begin on the fourth of March of each odd year.

Congress, exercising the power vested in it by the Constitution to
regulate Federal elections, enacted a law bearing date of February 2,
1872, which requires the election of representatives to be held on the
Tuesday next after the first Monday in November of each even year,
beginning with the year 1876. By act of March 3, 1875, this was modified
so as not to apply to any state whose constitution would have to be
amended before the day fixed for electing state officers could be
changed in conformity with this provision.[144]

Congress has no power to change the date on which the term of office of
a representative begins; but it does have authority to change the time
of electing the House of Representatives, and also to determine when its
own sessions shall begin, subject to the constitutional limitation that
it shall meet at least once each year.

Under the law as it now stands the members of a newly elected House of
Representatives do not meet in regular session until thirteen months
after their election. Moreover, the second regular session does not
begin until after the succeeding Congress has been elected.

The evils of this arrangement are thus described by a member of the
House:

"The lower branch of Congress should at the earliest practicable time
enact the principles of the majority of the people as expressed in the
election of each Congress. That is why the Constitution requires the
election of a new Congress every two years. If it were not to reflect
the sentiments of the people then frequent elections would have no
meaning or purpose. Any evasion of that rule is subversive of the
fundamental principle of our government that the majority shall rule.
No other government in the world has its legislative body convene so
long after the expression of the people....

"As an election often changes the political complexion of a Congress,
under the present law, many times we have the injustice of a Congress
that has been repudiated by the people enacting laws for the people
diametrically opposed to the last expression of the people. Such a
condition is an outrage on the rights of the majority....

"Under the present law a representative in Congress who has been turned
down by the people legislates for that people in the second regular
session....

"A man who has been defeated for re-election is not in a fit frame of
mind to legislate for his people. There is a sting in defeat that tends
to engender the feeling of resentment which often finds expression in
the vote of such members against wholesome legislation. That same
feeling often produces such a want of interest in proceedings as to
cause the members to be absent nearly all the second session....

"It is then that some are open to propositions which they would never
think of entertaining if they were to go before the people for
re-election. It is then that the attorneyship of some corporation is
often tendered and a vote is afterward found in the record in favor of
legislation of a general or special character favoring the
corporation."[145]

To appreciate the magnitude of the evils above described, it is
necessary to remember that upon the average only about one-half of the
members of one Congress are elected to the succeeding Congress. This
large number is, therefore, influenced during the second regular session
neither by the hope of re-election nor the fear of defeat. Under these
circumstances it is not surprising that the second regular session
should be notoriously favorable to corporation measures.

That Congress has not attempted to remedy this evil is striking proof of
its indifference to the wishes of the people. Otherwise it would have so
employed the power which it possesses to perfect its organization, as to
ensure the most prompt and complete expression of public opinion in
legislation possible under our constitutional arrangements. Having the
power to change both the time of electing a Congress and the beginning
of its sessions, it could easily remedy the evils described. Both
sessions of a Congress could be held before the succeeding Congress is
elected. This could be accomplished by having Congress convene, as
advocated by the writer of the article above mentioned, for the first
regular session on the Monday following the fourth of March next after
the election, and for the second regular session on the first Monday
after January first of the following year. In this case the second
regular session would doubtless come to an end before the fall election.
Some such adjustment is required to give the people anything like
adequate control over the House of Representatives during the second
regular session.

The present arrangement which makes the House of Representatives largely
an irresponsible body, while not provided for or perhaps even
contemplated by the framers of the Constitution, is nevertheless the
logical outcome of their plan to throttle the power of the majority. But
although in harmony with the general purpose and spirit of the
Constitution, it is a flagrant violation of the basic principle of
popular government.[146]

This tendency may be still more clearly seen in the growth of the
committee system by which the division of power and its consequence,
political irresponsibility, have been carried much farther than the
Constitution contemplated, especially in the organization of the House,
of Representatives. No standing committees were provided for by the
Constitution and few were established by the House during the early
years of its existence. The system once introduced, however, has
gradually developed until the House now has more than fifty-five of
these committees.

Every legislative proposal must under the rules after its second reading
be referred to the committee having jurisdiction over that particular
branch of legislation. Theoretically, any member has a right to
introduce any bill whatever. But as it must be referred to the proper
committee and be reported by it to the House before the latter can
discuss and adopt or reject it, it is evident that the right to initiate
legislation has in effect been taken from the individual members and
vested in the various standing committees. Under this method of
procedure no proposed legislation can be enacted by the House without
the consent of the committee having that particular branch of
legislation in charge. The fact that a measure must be referred to a
committee does not imply that that committee is obliged to report it
back to the House. This the committee will, of course, do if the
proposed bill is one which it wishes to have passed. But if it views the
proposed legislation with disfavor, it may revise it so as to make it
conform to its own wishes, or it may report it so late in the session as
to prevent its consideration by the House, or it may neglect to report
it altogether. This virtually gives a small body of men constituting a
committee a veto on every legislative proposal. The extent to which this
system diminishes the responsibility of the House can not be fully
appreciated without bearing in mind the manner of appointment and
composition of the committees. The Constitution provides that "the House
of Representatives shall choose their speaker and other officers,"[147]
but it makes no mention of the speaker's powers. The right to appoint
the committees is not conferred on the speaker by the Constitution. The
extent and character of the powers exercised by that official are
determined very largely by the rules and usages of the House. This is
the source of his power to appoint the chairman and other members of the
various standing committees.

The speaker is elected at the beginning of each Congress and retains his
office during the life of that body. The same is now true of the
standing committees which he appoints, though previous to 1861 they were
appointed for the session only.

The speaker is, of course, a member of the dominant party in the House,
and is expected to use the powers and prerogatives of his office to
advance in all reasonable ways the interests of the party which he
represents. The selection of committees which he makes is naturally
enough influenced by various considerations of a political and personal
nature. It is largely determined by the influences to which he owes his
elevation to the speakership. In return for the support of influential
members in his own party certain important chairmanships have been
promised in advance. And even where no definite pledges have been made
he must use the appointive power in a manner that will be acceptable to
his party. This does not always prevent him, however, from exercising
enough freedom in making up the committees to insure him a large measure
of control over legislation.

All the chairmanships and a majority of the places on each committee are
given to the members of his own party. As the speaker's right to appoint
does not carry with it the power to remove, he has no control over a
committee after it is appointed. The committees, as a matter of fact,
are in no true sense responsible either to the speaker or to the House
itself, since once appointed they can do as they please. They are in
fact just so many small, independent, irresponsible bodies, each
controlling in its own way and from motives known only to itself the
particular branch of legislation assigned to it. The only semblance of
responsibility attaching to the committee is found in the party
affiliation of the majority of its members with the majority in the
House. But ineffectual and intangible as this is, it is rendered even
more so by the fact that the opposition party is also represented on
each committee. This allows the dominant party to escape
responsibility, since it can claim that its failure to satisfy the
popular demand has been due to the opposition of the minority in the
various committees, which has made concession and compromise necessary.

"The deliberations of committees," as Bryce says, "are usually secret.
Evidence is frequently taken with open doors, but the newspapers do not
report it, unless the matter excite public interest; and even the
decisions arrived at are often noticed in the briefest way. It is out of
order to canvass the proceedings of a committee in the House until they
have been formally reported to it; and the report submitted does not
usually state how the members have voted, or contain more than a very
curt outline of what has passed. No member speaking in the House is
entitled to reveal anything further."[148]

A system better adapted to the purposes of the lobbyist could not be
devised. "It gives facilities for the exercise of underhand and even
corrupt influence. In a small committee the voice of each member is well
worth securing, and may be secured with little danger of a public
scandal. The press can not, even when the doors of committee rooms stand
open, report the proceedings of fifty bodies; the eye of the nation can
not follow and mark what goes on within them; while the subsequent
proceedings in the House are too hurried to permit a ripping up there
of suspicious bargains struck in the purlieus of the Capital, and
fulfilled by votes given in a committee."[149]

A system which puts the power to control legislation in the hands of
these small independent bodies and at the same time shields them so
largely against publicity affords ample opportunity for railway and
other corporate interests to exercise a controlling influence upon
legislation.

This subdivision of the legislative power of the House and its
distribution among many small, irresponsible bodies precludes the
possibility of any effective party control over legislation. And since
the majority in the House can not control its own agents there can be no
effective party responsibility. To ensure responsibility the party in
the majority must act as a unit and be opposed by an active and united
minority. But our committee system disintegrates both the majority and
the minority.

Another practice which has augmented the authority and at the same time
diminished the responsibility of the committees is the hurried manner in
which the House disposes of the various measures that come before it.
The late Senator Hoar has estimated that the entire time which the House
allows for this purpose during the two sessions which make up the life
of a Congress "gives an average of no more than two hours apiece to the
committees of the House to report upon, debate, and dispose of all the
subjects of general legislation committed to their charge. From this
time is taken the time consumed in reading the bill, and in calling the
yeas and nays, which may be ordered by one-fifth of the members present,
and which require forty minutes for a single roll-call."[150]

Moreover, the member "who reports the bill dictates how long the debate
shall last, who shall speak on each side, and whether any and what
amendments shall be offered. Any member fit to be intrusted with the
charge of an important measure would be deemed guilty of an inexcusable
blunder if he surrendered the floor which the usages of the House assign
to his control for an hour, without demanding the previous
question."[151]

Nothing more would seem to be necessary to give the committee control of
the situation. True the House may reject the bill which it submits, but
the committee may easily prevent the House from voting upon a measure
which a majority of that body desires to enact.

As there are many committees and the time which the House can give to
the consideration of their reports is limited, it naturally follows that
each committee is anxious to get all other business out of the way in
order that it may have an opportunity to bring the measures which it
has prepared to the attention of the House. This struggle between the
various committees for an opportunity to report the bills which they
have framed and have them considered by the House explains the
acquiescence of that body in a system that so greatly restricts the
freedom of debate. Very rarely will a committee encounter any formidable
opposition in bringing the discussion of its measures to a close.

The speaker's power of recognition is another check upon the majority in
the House. This power which he freely uses in an arbitrary manner
enables him to prevent the introduction of an obnoxious bill by refusing
to recognize a member who wishes to obtain the floor for that
purpose.[152] Moreover, as chairman of the Committee on Rules he
virtually has the power to determine the order in which the various
measures shall be considered by the House. In this way he can secure an
opportunity for those bills which he wishes the House to pass and ensure
the defeat of those to which he is opposed by giving so many other
matters the preference that they can not be reached before the close of
the second session.

The power thus exercised by the speaker, coupled with that of the
committees, imposes an effectual restraint not only on the individual
members, but on the majority as well. A large majority of the bills
introduced are vetoed by the committees or "killed" by simply not
reporting them back to the House. There is no way in which the House can
override the veto of a committee or that of the speaker, since even when
the rules are suspended no measure can be considered that has not been
previously reported by a committee, while the speaker can enforce his
veto through his power of recognition. Both the committees and the
speaker have what is for all practical purposes an absolute veto on
legislation.

A motion to suspend the rules and pass any bill that has been reported
to the House may be made on the first and third Mondays of each month or
during the last six days of each session. "In this way, if two-thirds of
the body agree, a bill is by a single vote, without discussion and
without change, passed through all the necessary stages, and made law so
far as the consent of the House can accomplish it. And in this mode
hundreds of measures of vital importance receive, near the close of
exhausting sessions, without being debated, amended, printed, or
understood, the constitutional assent of the representatives of the
American people."[153]

This system which so effectually restricts the power of the majority in
the House affords no safeguard against local or class legislation. By
making it difficult for any bill however worthy of consideration to
receive a hearing on its own merits, it naturally leads to the practice
known as log-rolling. The advocates of a particular measure may find
that it can not be passed unless they agree to support various other
measures of which they disapprove. It thus happens that many of the
bills passed by the House are the result of this bargaining between the
supporters of various measures. Certain members in order to secure the
passage of a bill in which they are especially interested will support
and vote for other bills which they would prefer to vote against. In
this way many bills secure a favorable vote in the House when a majority
of that body are really opposed to their enactment. It is entirely
within the bounds of possibility that no important measure desired by
the people at large and which would be supported by a majority of the
House, can be passed, since any powerful private interest opposed to
such legislation may be able to have the measure in question quietly
killed in committee or otherwise prevented from coming to a final vote
in the House. But while legislation in the interest of the people
generally may be defeated through the silent but effective opposition of
powerful private interests, many other measures which ought to be
defeated are allowed to pass. A system which makes it possible to defeat
the will of the majority in the House by preventing on the one hand the
enactment of laws which that majority favors, and by permitting on the
other hand the enactment of laws to which it is opposed, certainly does
not allow public opinion to exercise an effective control over the
proceedings of the House.

As a foreign critic observes, "the House has ceased to be a debating
assembly: it is only an instrument for hasty voting on the proposals
which fifty small committees have prepared behind closed doors.... At
the present time it is very much farther from representing the people
than if, instead of going as far as universal suffrage, it had kept to
an infinitely narrower franchise, but had preserved at the same time the
freedom, fullness, and majesty of its debates."[154]




CHAPTER VIII

THE PARTY SYSTEM


The political party is a voluntary association which seeks to enlist a
majority of voters under its banner and thereby gain control of the
government. As the means employed by the majority to make its will
effective, it is irreconcilably opposed to all restraints upon its
authority. Party government in this sense is the outcome of the efforts
of the masses to establish their complete and untrammeled control of the
state.

This is the reason why conservative statesmen of the eighteenth century
regarded the tendency towards party government as the greatest political
evil of the time. Far-sighted men saw clearly that its purpose was
revolutionary; that if accomplished, monarchy and aristocracy would be
shorn of all power; that the checks upon the masses would be swept away
and the popular element made supreme. This would lead inevitably to the
overthrow of the entire system of special privilege which centuries of
class rule had carefully built up and protected.

When our Constitution was framed responsible party government had not
been established in England. In theory the Constitution of Great
Britain recognized three coordinate powers, the King, the Lords, and the
Commons. But as a matter of fact the government of England was
predominantly aristocratic. The landed interests exerted a controlling
influence even in the House of Commons. The rapidly growing importance
of capital had not yet seriously impaired the constitutional authority
of the landlord class. Land had been until recently the only important
form of wealth; and the right to a voice in the management of the
government was still an incident of land ownership. Men as such were not
entitled to representation. The property-owning classes made the laws
and administered them, officered the army and navy, and controlled the
policy of the government in every direction.

"According to a table prepared about 1815, the House of Commons
contained 471 members who owed their seats to the goodwill and pleasure
of 144 Peers and 123 Commoners, 16 government nominees, and only 171
members elected by popular suffrages."[155]

As the real power behind the government was the aristocracy of wealth,
the English system, though nominally one of checks and balances, closely
resembled in its practical working an unlimited aristocracy.

The framers of our Constitution, as shown in previous chapters, took the
English government for their model and sought to establish the supremacy
of the well-to-do classes. Like the English conservatives of that time
they deplored the existence of political parties and consequently made
no provision for them in the system which they established. Indeed,
their chief purpose was to prevent the very thing which the responsible
political party aimed to establish, viz., majority rule.

"Among the numerous advantages promised by a well-constructed union,"
wrote Madison in defense of the Constitution, "none deserves to be more
accurately developed than its tendency to break and control the violence
of faction....

"By a faction, I understand a number of citizens, whether amounting to a
majority or minority of the whole, who are united and actuated by some
common impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interests of the
community....

" ... But the most common and durable source of factions has been the
various and unequal distribution of property. Those who hold and those
who are without property have ever formed distinct interests in society.
Those who are creditors, and those who are debtors, fall under a like
discrimination. A landed interest, a manufacturing interest, a
mercantile interest, a moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and divide them into
different classes actuated by different sentiments and views....

"If a faction consists of less than a majority, relief is supplied by
the republican principle, which enables the majority to defeat its
sinister views by a regular vote. It may clog the administration, it may
convulse the society; but it will be unable to execute and mask its
violence under the forms of the Constitution. When a majority is
included in a faction, the form of popular government, on the other
hand, enables it to sacrifice to its ruling passion or interest both the
public good and the rights of other citizens. To secure the public good
and private rights against the danger of such a faction, and at the same
time to preserve the spirit and the form of popular government, is then
the great object to which our inquiries are directed."[156]

The very existence of political parties would endanger the system which
they set up, since in their efforts to strengthen and perpetuate their
rule they would inevitably advocate extensions of the suffrage, and thus
in the end competition between parties for popular support would be
destructive of all those property qualifications for voting and holding
office which had up to that time excluded the propertyless classes from
any participation in public affairs. Hence Washington though a staunch
Federalist himself saw nothing inconsistent in trying to blend the
extremes of political opinion by giving both Hamilton and Jefferson a
place in his Cabinet.

In England the party by the Reform bill of 1832 accomplished its
purpose, broke through the barriers erected against it, divested the
Crown of all real authority, subordinated the House of Lords, and
established the undisputed rule of the majority in the House of Commons.
This accomplished, it was inevitable that the rivalry between political
parties should result in extensions of the suffrage until the House
should come to represent, as it does in practice to-day, the sentiment
of the English people.

The framers of the American Constitution, however, succeeded in erecting
barriers which democracy has found it more difficult to overcome. For
more than a century the constitutional bulwarks which they raised
against the rule of the numerical majority have obstructed and retarded
the progress of the democratic movement. The force of public sentiment
soon compelled, it is true, the adoption of the Twelfth Amendment, which
in effect recognized the existence of political parties and made
provision for the party candidate for President and Vice-President. At
most, however, it merely allowed the party to name the executive
without giving it any effective control over him after he was elected,
since in other respects the general plan of the Constitution remained
unchanged.

The political party, it is true, has come to play an important role
under our constitutional system; but its power and influence are of a
negative rather than a positive character. It professes, of course, to
stand for the principle of majority rule, but in practice it has become
an additional and one of the most potent checks on the majority.

To understand the peculiar features of the American party system one
must bear in mind the constitutional arrangements under which it has
developed. The party is simply a voluntary political association through
which the people seek to formulate the policy of the government, select
the officials who are to carry it out in the actual administration of
public affairs, and hold them to strict accountability for so doing.
Under any government which makes full provision for the political party,
as in the English system of to-day, the party has not only the power to
elect but the power to remove those who are entrusted with the execution
of its policies. Having this complete control of the government, it can
not escape responsibility for failure to carry out the promises by which
it secured a majority at the polls. This is the essential difference
between the English system on the one hand and the party under the
American constitutional system on the other. The one well knows that if
it carries the election it will be expected to make its promises good.
The other makes certain promises with the knowledge that after the
election is over it will probably have no power to carry them out.

It is this lack of power to shape the entire policy of the government
which, more than anything else, has given form and character to the
party system of the United States. To the extent that the Constitution
has deprived the majority of the power to mold the policy of the
government through voluntary political associations, it has defeated the
main purpose for which the party should exist.

The fact that under the American form of government the party can not be
held accountable for failure to carry out its ante-election pledges has
had the natural and inevitable result. When, as in England, the party
which carries the election obtains complete and undisputed control of
the government, the sense of responsibility is ever present in those who
direct it. If in the event of its success it is certain to be called
upon to carry out its promises, it can not afford for the sake of
obtaining votes to make promises which it has no intention of keeping.
But when the party, even though successful at the polls may lack the
power to enforce its policy, it can not be controlled by a sense of
direct responsibility to the people. Promises may be recklessly and
extravagantly made merely for the sake of getting votes. The party
platform from the point of view of the party managers ceases to be a
serious declaration of political principles. It comes to be regarded as
a means of winning elections rather than a statement of what the party
is obligated to accomplish.

The influence thus exerted by the Constitution upon our party system,
though generally overlooked by students and critics of American
politics, has had profound and far-reaching results. That the conduct of
individuals is determined largely by the conditions under which they
live is as well established as any axiom of political science. This must
be borne in mind if we would fully understand the prevailing apathy--the
seeming indifference to corruption and ring rule which has so long
characterized a large class of intelligent and well-meaning American
citizens. To ascribe the evils of our party system to their lack of
interest in public questions and their selfish disregard of civic
duties, is to ignore an important phase of the problem--the influence of
the system itself. In the long run an active general interest can be
maintained only in those institutions from which the people derive some
real or fancied benefit. This benefit in the case of the political party
can come about only through the control which it enables those who
compose it to exercise over the government. And where, as under the
American system, control of the party does not ensure control of the
government, the chief motive for an alert and unflagging interest in
political questions is lacking. If the majority can not make an
effective use of the party system for the attainment of political ends,
they can not be expected to maintain an active interest in party
affairs.

But although our constitutional arrangements are such as to deprive the
people of effective control over the party, it has offices at its
disposal and sufficient power to grant or revoke legislative favors to
make control of its organization a matter of supreme importance to
office seekers and various corporate interests. Thus while the system
discourages an unselfish and public-spirited interest in party politics,
it does appeal directly to those interests which wish to use the party
for purely selfish ends. Hence the ascendency of the professional
politician who, claiming to represent the masses, really owes his
preferment to those who subsidize the party machine.

The misrepresentative character of the American political party seems to
be generally recognized by those who have investigated the subject. It
is only when we look for an explanation of this fact that there is much
difference of opinion. The chief difficulty encountered by those who
have given attention to this problem has been the point of view from
which they have approached it. The unwarranted assumption almost
universally made that the principle of majority rule is fundamental in
our scheme of government has been a serious obstacle to any adequate
investigation of the question. Blind to the most patent defects of the
Constitution, they have ignored entirely its influence upon the
development and character of the political party. Taking it for granted
that our general scheme of government was especially designed to
facilitate the rule of the majority, they have found it difficult to
account for the failure of the majority to control the party machine.
Why is it that under a system which recognizes the right and makes it
the duty of the majority to control the policy of the government, that
control has in practice passed into the hands of a small minority who
exercise it often in utter disregard of and even in direct opposition to
the wishes and interests of the majority? On the assumption that we have
a Constitution favorable in the highest degree to democracy, how are we
to explain the absence of popular control over the party itself?
Ignoring the obstacles which the Constitution has placed in the way of
majority rule, American political writers have almost invariably sought
to lay the blame for corruption and machine methods upon the people.
They would have us believe that if such evils are more pronounced here
than elsewhere it is because in this country the masses control the
government.

If the assumption thus made concerning the nature of our political
system were true, we would be forced to accept one of two conclusions:
either that popular government inevitably results in the despotism of a
corrupt and selfish oligarchy, or if such is not a necessary
consequence, then at any rate the standard of citizenship in this
country intellectually and morally is not high enough to make democracy
practicable. That the ignorance, selfishness and incapacity of the
people are the real source of the evils mentioned is diligently
inculcated by all those who wish to discredit the theory of popular
government. No one knows better than the machine politician and his
allies in the great corporate industries of the country how little
control the people generally do or can exercise over the party under our
present political arrangements. To disclose this fact to the people
generally, however, might arouse a popular movement of such magnitude as
to sweep away the constitutional checks which are the source of their
power. But as this is the very thing which they wish to prevent, the
democratic character of the Constitution must be taken for granted; for
by so doing the people are made to assume the entire responsibility for
the evils which result from the practical operation of the system. And
since the alleged democratic character of our political arrangements is,
it is maintained, the real source of the evils complained of, the only
effective remedy would be the restriction of the power of the people.
This might take the form of additional constitutional checks which would
thereby diminish the influence of a general election upon the policy of
the government without disturbing the present basis of the suffrage; or
it might be accomplished by excluding from the suffrage those classes
deemed to be least fit to exercise that right. Either method would still
further diminish the influence of the majority, and instead of providing
a remedy for the evils of our system, would only intensify them, since
it would augment the power of the minority which is, as we have seen,
the main source from which they proceed.

A government which limits the power of the majority might promote the
general interests of society more effectually than one controlled by the
majority, if the checks were in the hands of a class of superior wisdom
and virtue. But in practice such a government, instead of being better
than those for whom it exists, is almost invariably worse. The complex
and confusing system of checks, with the consequent diffusion of power
and absence of direct and definite responsibility, is much better
adapted to the purposes of a self-seeking, corrupt minority than to the
ends of good government. The evils of such a system which are mainly
those of minority domination must be carefully distinguished from those
which result from majority control. The critics of American political
institutions have as a rule ignored the former or constitutional aspect
of our political evils, and have held majority rule accountable for much
that our system of checks has made the majority powerless to prevent.
The evils of our party system, having their roots in the lack of popular
control over the party machine, are thus largely a consequence of the
checks on the power of the majority contained in the Constitution
itself. In other words, they are the outcome, not of too much, but of
too little democracy.

The advocates of political reform have directed their attention mainly
to the party machine. They have assumed that control of the party
organization by the people would give them control of the government. If
this view were correct, the evils which exist could be attributed only
to the ignorance, want of public spirit and lack of capacity for
effective political co-operation on the part of the people. But as a
matter of fact this method of dealing with the problem is open to the
objection that it mistakes the effect for the cause. It should be
clearly seen that a system of constitutional checks, which hedges about
the power of the majority on every side, is incompatible with majority
rule; and that even if the majority controlled the party organization,
it could control the policy of the government only by breaking down and
sweeping away the barriers which the Constitution has erected against
it. It follows that all attempts to establish the majority in power by
merely reforming the party must be futile.

Under any political system which recognizes the right of the majority to
rule, responsibility of the government to the people is the end and aim
of all that the party stands for. Party platforms and popular elections
are not ends in themselves, but only means by which the people seek to
make the government responsive to public opinion. Any arrangement of
constitutional checks, then, which defeats popular control, strikes down
what is most vital and fundamental in party government. And since the
party under our system can not enforce public opinion, it is but natural
that the people should lose interest in party affairs. This furnishes an
explanation of much that is peculiar to the American party system. It
accounts for that seeming indifference and inactivity on the part of the
people generally, which have allowed a small selfish minority to seize
the party machinery and use it for private ends.

The party, though claiming to represent the people, is not in reality a
popular organ. Its chief object has come to be the perpetuation of
minority control, which makes possible the protection and advancement of
those powerful private interests to whose co-operation and support the
party boss is indebted for his continuance in power.[157] To accomplish
these ends it is necessary to give the party an internal organization
adapted to its real, though not avowed, purpose. The people must not be
allowed to use the party as a means of giving clear and definite
expression to public opinion concerning the questions wherein the
interests of the general public are opposed to the various private
interests which support the party machine. For a strong popular
sentiment well organized and unequivocally expressed could not be
lightly disregarded, even though without constitutional authority to
enforce its decrees. To ensure successful minority rule that minority
must control those agencies to which the people in all free countries
are accustomed to look for an authoritative expression of the public
will. The party machine can not serve the purpose of those interests
which give it financial support and at the same time allow the people to
nominate its candidates and formulate its political creed. Nevertheless,
the semblance of popular control must be preserved. The outward
appearance of the party organization, the external forms which catch the
popular eye, must not reveal too clearly the secret methods and
cunningly devised arrangements by which an effective minority control is
maintained over the nomination of candidates and the framing of party
platforms. The test of fitness for office is not fidelity to the rank
and file of the people who vote the party ticket, but subserviency to
those interests which dominate the party machine. The choice of
candidates is largely made in the secret councils of the ruling minority
and the party conventions under color of making a popular choice of
candidates merely ratify the minority choice already made. Popular
elections under such a system do not necessarily mean that the people
have any real power of selecting public officials. They merely have the
privilege of voting for one or the other of two lists of candidates
neither of which may be in any true sense representative of the people
or their interests.

But in nothing is the lack of popular control over the party more
clearly seen than in the party platforms. These are supposed to provide
a medium for the expression of public opinion upon the important
questions with which the government has to deal. Under a political
system which recognized the right of the majority to rule, a party
platform would be constructed with a view to ascertaining the sense of
that majority. Does the platform of the American political party serve
this purpose? Does it seek to crystallize and secure a definite
expression of public opinion at the polls, or is it so constructed as to
prevent it? This question can best be answered by an examination of our
party platforms.

The Constitution, as we have seen, was a reaction against and a
repudiation of the theory of government expressed in the Declaration of
Independence, although this fact was persistently denied by those who
framed it and urged its adoption. The high regard in which popular
government was held by the masses did not permit any open and avowed
attempt to discredit it. The democracy of the people, however, was a
matter of faith rather than knowledge, a mere belief in the right of the
masses to rule rather than an intelligent appreciation of the political
agencies and constitutional forms through which the ends of popular
government were to be attained. Unless this is borne in mind, it is
impossible to understand how the Constitution, which was regarded at
first with distrust, soon came to be reverenced by the people generally
as the very embodiment of democratic doctrines. In order to bring about
this change in the attitude of the people, the Constitution was
represented by those who sought to advance it in popular esteem as the
embodiment of those principles of popular government to which the
Declaration of Independence gave expression. The diligence with which
this view of the Constitution was inculcated by those who were in a
position to aid in molding public opinion soon secured for it universal
acceptance. Even the political parties which professed to stand for
majority rule and which should therefore have sought to enlighten the
people have not only not exposed but actually aided in perpetuating
this delusion.

In the Democratic platform of 1840 we find the following:

"Resolved, That the liberal principles embodied by Jefferson in the
Declaration of Independence, and sanctioned in the Constitution, which
makes ours a land of liberty and the asylum of the oppressed of every
nation, have ever been cardinal principles in the Democratic faith."
This was reaffirmed in the Democratic platforms of 1844, 1848, 1852, and
1856.

Finding its advocacy of the Declaration of Independence somewhat
embarrassing in view of its attitude on the slavery question, the
Democratic party omitted from its platform all reference to that
document until 1884, when it ventured to reaffirm its faith in the
liberal principles which it embodied. Again, in its platform of 1900, it
referred to the Declaration of Independence as "the spirit of our
government" and the Constitution as its "form and letter."

In the Republican platform of 1856 we read "That the maintenance of the
principles promulgated in the Declaration of Independence and embodied
in the Federal Constitution is essential to the preservation of our
republican institutions." This was repeated in the Republican platform
of 1860, and the principles of the Declaration of Independence alleged
to be embodied in the Constitution were specified, viz., "That all men
are created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the pursuit
of happiness; that to secure these rights governments are instituted
among men, deriving their just powers from the consent of the governed."
The authority of the Declaration of Independence was recognized by the
Republican party in its platform of 1868, and again in its platform of
1876.[158]

Both parties have during recent years expressed their disapproval of
monopolies and trusts, though neither when in power has shown any
disposition to enact radical anti-monopoly legislation.

The Democratic party which favored "honest money" in 1880 and 1884 and
demanded the repeal of the Sherman Act in 1892 stood for free coinage of
silver at 16 to 1 in 1896 and 1900. The Republican party which advocated
international bimetallism in 1884, condemned the Democratic party in
1888 for trying to demonetize silver and endorsed bimetallism in 1892,
favored "sound money" and international bimetallism in 1896 and renewed
its "allegiance to the principle of the gold standard" in 1900.

The Republican platform of 1860 branded "the recent reopening of the
African slave trade, under the cover of our national flag, aided by
perversions of judicial power, as a crime against humanity." The
Democratic party in its platform of 1896 expressed its disapproval of
the Income Tax decision of the United States Supreme Court and in both
1896 and 1900 condemned "government by injunction." With these
exceptions neither party has ever expressed its disapproval of any
exercise of authority by the Federal judiciary.

Neither of the great parties has ever taken a stand in favor of an
income tax, government ownership of the railroads or the telegraph, or,
if we except the declaration in favor of direct election of United
States senators in the Democratic platforms of 1900 and 1904, advocated
any important change in our system of government.

Let us now inquire how far the results of a general election can be
regarded as an expression of public opinion upon the questions raised in
the party platforms. Does a popular majority for a party mean that the
majority approve of the policies for which that party professes to
stand? It is generally assumed by the unthinking that this is the case.
But such a conclusion by no means follows. If there were but one
question at issue between the parties and every vote was for principle,
not for particular candidates, the policy of the successful party would
have the approval of the majority. But when the party defines its
position on a number of issues this is no longer true. Take, for
instance, the Democratic and Republican platforms of 1900, the former
containing twenty-five and the latter twenty-nine separate articles in
its party creed. Does a majority vote for a party indicate that the
majority approve of the entire platform of that party? No thoughtful
person would maintain for a moment that all who support a party approve
of its entire platform. In the case of the Republican party in 1900, one
large class of its supporters who believed the money question to be
paramount and who feared the consequences of free coinage of silver
voted the Republican ticket, though opposed to the attitude of that
party on expansion and also on protection. The ardent protectionist may
have given the party his support on the strength of its tariff plank
alone. He may even have been opposed to the party's position on the
silver question and on expansion. Another class who may have disapproved
of both gold monometallism and protection, but who regarded expansion as
the all-important question, supported the Republican party because of
its attitude in this matter. It is certain that some who voted the
Republican ticket did not approve its expansion policy; some did not
approve of its extreme protectionist policy; and some did not approve of
its attitude on the money question. Every man who voted the Republican
ticket is assumed to have endorsed the entire policy of the party,
though, as a matter of fact, the party may have secured his vote by
reason of its position on the one question which he deemed to be of
supreme importance. It is, to say the least, extremely probable that
every intelligent man who supported the party disapproved of its
attitude on one or more questions. Each plank in the platform was put
there for the purpose of catching votes. Some gave their vote for one
reason, some for another and some for still other reasons. And when, as
in our present day party platforms, many separate and distinct bids are
made for votes, it is not only possible but highly probable that no
single plank in that party's creed was approved by all who voted the
party ticket. If the various issues could be segregated and each voted
upon separately, it is conceivable that not one of them would command a
majority of the entire vote; and yet, by lumping them all together and
skilfully pushing to the front and emphasizing each article of its creed
before the class or in the region where it would find most support, the
party may secure a popular majority for its platform as a whole. Both
parties in their platforms of 1900 stood for the admission as states of
Arizona, New Mexico, and Oklahoma; both declared in favor of legislation
against monopolies and trusts; both favored liberal pensions, the
construction of an Isthmian canal, irrigation of arid lands, reduction
of war taxes and protection of American workmen against cheap foreign
labor. Yet it does not by any means follow that a majority of the people
voting really endorsed even these planks which were common to both
platforms.

Moreover the party does not always state its position in a clear and
unequivocal manner. The Democratic platform while opposing Republican
expansion did so with some important reservation. While denouncing the
recent expansion policy of the Republican party it made a bid for the
support of those who believed in a moderate and conservative expansion
policy. The same is true of its attitude on protection. It did not
condemn the principle of protection, but merely the abuse of the system
through which monopolies and trusts had been fostered. The vague and
ambiguous manner in which the party defines its attitude, together with
the highly composite character of its platform, largely defeats the end
for which it should be framed. As a means of arriving at a definite and
authoritative expression of public opinion concerning the political
questions of the day it is far from satisfactory. It is conceivable that
a party may under this system carry an election and yet not a single
principle for which it professes to stand would, if separately
submitted, command the approval of a majority of the voters.

The threefold purpose for which the party exists--(1) popular choice of
candidates, (2) a clear and definite expression of public opinion
concerning the questions with which the government must deal, and (3)
the responsibility of the government to the popular majority are all
largely defeated under the American system. The last named end of the
party is defeated by the Constitution itself, and this, as hereinbefore
shown, has operated to defeat the others as well.

We thus see that true party government is impossible under a
constitutional system which has as its chief end the limitation of the
power of the majority. Where the party which has carried the election is
powerless to enforce its policy, as is generally the case in this
country, there can be no responsible party government. The only branch
of our governmental system which responds readily to changes in public
opinion is the House of Representatives. But this is and was designed to
be a subordinate body, having a voice in shaping only a part of the
policy of the government, and even in this limited field being unable to
act except with the concurrence of the President, Senate and Supreme
Court. A change in public sentiment is not likely under these
circumstances to be followed by a corresponding change in the policy of
the state. Even when such change in sentiment is insistent and
long-continued, it may be unable to overcome the resistance of the more
conservative influences in the Constitution. The most superficial
examination of our political history is sufficient to show that the
practical working of our Constitution has in large measure defeated the
end of party government. Calhoun's contention that the party had
succeeded in breaking down the elaborate system of constitutional checks
on the numerical majority is not borne out by the facts.

Eleven general elections since the adoption of the Constitution have
resulted in a House of Representatives which had no political support in
any other branch of the government. During eighty-four years of our
history under the Constitution the party in the majority in the House
has not had a majority in all the other branches of the general
government, and consequently has not had the power to enforce its
policy. From 1874 to 1896--a period of twenty-two years--there were but
two years (the 51st Congress) during which the same party had a majority
in all branches of the government. But even during this brief period it
failed to control the treaty-making power since it lacked the two-thirds
majority in the Senate which the Constitution requires. In fact, there
has been no time since 1874 when any party had sufficient majority in
the Senate to give it an active control over the treaty-making power.

The more important and fundamental changes in public policy which
involve an exercise of the amending power are still more securely
placed beyond the reach of party control. Not only the power to ratify
amendments, but even the power to propose them, is effectually withheld
from the party, since it can scarcely ever command the required
two-thirds majority in both houses of Congress or a majority in both
branches of the legislature in two-thirds of the states.

Under our constitutional system a political party may have a nominal
majority in all branches of the government and yet lack the power to
enforce its policy. That branch of the government over which the party
has most control through frequent elections--viz., the House of
Representatives--is the one which has least authority, while those which
have most influence in shaping the policy of the government are less
directly subject to the penalties of party disapproval, as in the case
of the President and Senate, or entirely exempt from any effective party
control as in the case of the Supreme Court. The division of authority
under our Constitution makes it possible for either house of Congress to
give the appearance of support to a measure which public opinion demands
and at the same time really accomplish its defeat by simply not
providing the means essential to its enforcement. The opportunity thus
afforded for the exercise of a covert but effective veto on important
legislation is a fruitful source of corruption. The extreme diffusion
of power and responsibility is such as to make any effective party
control and responsibility impossible. This would be the case even if
the party were truly representative of public opinion. But when we
consider that the party is organized on a plan which in some measure at
least defeats both the popular choice of candidates and the expression
of public opinion in party platforms, it is readily seen that the slight
degree of party control permitted under our system is in no true sense a
popular control.




CHAPTER IX

CHANGES IN THE STATE CONSTITUTIONS AFTER 1787


The effects of the conservative reaction were not confined to the
general government. The movement to limit the power of the popular
majority was felt in the domain of state as well as national politics.
Even before the Constitutional Convention assembled the political
reaction was modifying some of the state constitutions. This is seen
especially in the tendency to enlarge the powers of the judiciary which
was the only branch of the state government in which life tenure
survived. This tendency received powerful encouragement and support in
the adoption of the Federal Constitution which secured to the judiciary
of the general government an absolute veto on both federal and state
legislation. For as the state courts were not slow in following the
precedent set by the Federal courts, what had been before the adoption
of the Constitution a mere tendency soon became the practice in all the
states. This in reality accomplished a revolution in the actual working
of the state governments without any corresponding change in their
outward form. It effected a redistribution of political powers which
greatly diminished the influence of the popularly elected and more
responsible branches of the state government and gave a controlling
influence to that branch over which the people had least control.

Not only was the state judiciary allowed to assume the veto power, but
their independence of public opinion was more effectually safeguarded by
depriving a mere majority of the legislature of the power to remove
them. The provision of the Federal Constitution requiring a two-thirds
majority in the legislative body for removal by impeachment or otherwise
was quite generally copied. Without some such safeguard the party in
control of the legislature could prevent the exercise of the judicial
veto by removing from office any judges who dared to oppose its policy.

New York and South Carolina were the only states adopting constitutions
during the Revolutionary period, which included provisions limiting the
power of the majority to impeach public officials. The New York
constitution of 1777 required a two-thirds majority in the lower house,
and the South Carolina constitution of 1778 a two-thirds majority in
both houses. Pennsylvania copied the impeachment provisions of the
Federal Constitution in her constitution of 1790; Delaware went even
farther, and in her constitution of 1792, required a two-thirds majority
in both houses; Georgia followed the example of the Federal
Constitution in 1798; Virginia, in 1830; North Carolina, in 1835;
Vermont, in 1836; New Jersey, in 1844; and Maryland, in 1851.

With the progress of this movement to restore the system of checks in
the state constitutions the governor regained his independence of the
legislature and also many of the rights and prerogatives of which the
Revolution had deprived him. He was made coordinate with the
legislature, set over against it and generally clothed with the
qualified veto power, which made him for all practical purposes the
third house of that body. Georgia increased the governor's term of
office to two years and gave him the qualified veto power in 1798.
Pennsylvania made his term of office three years and gave him the veto
power in 1790. New Hampshire conferred the veto power on him in 1792 and
New York in 1821.

This tendency to make the public official less directly dependent upon
the people or their immediate representatives is clearly seen in other
important changes made in the state constitutions during this period.
Popular control over the legislature was diminished by lengthening the
terms of the members of both houses and by providing that the upper
house should be elected for a longer term than the lower. Georgia
established an upper house in 1789 and made the term of office of its
members three years. In 1790 Pennsylvania also added a senate whose
members were to be elected for four years, and South Carolina increased
the term of its senators from one to four years. Delaware extended the
term from one to two years for members of the lower house and from three
to four years for members of the upper house and made the legislative
sessions biennial instead of annual in 1831. North Carolina increased
the term of members of both houses from one to two years and adopted
biennial sessions in 1835. Maryland in 1837 extended the term of
senators from five to six years, and in 1846 established biennial
sessions of the legislature. The responsibility of the legislature was
still further diminished by the gradual adoption of the plan of partial
renewal of the senate, which was incorporated in the Revolutionary
constitutions of Delaware, New York and Virginia and later copied in the
Federal Constitution. This ensured the conservative and steadying
influence exerted by a body of hold-over members in the upper house.

With the exception of five states in which the members of one branch of
the legislature were elected for terms varying from two to five years,
the Revolutionary state constitutions provided for the annual election
of the entire legislature. This plan made both houses conform to the
latest expression of public opinion by the majority of the qualified
voters at the polls. And since neither the executive nor the courts
possessed the veto power, the system ensured prompt compliance on the
part of the law-making body with the demands of the people as expressed
in the results of the legislative election.

The influence of public opinion on the state governments was greatly
weakened by the constitutional changes above mentioned. The lower branch
of the legislature, inasmuch as all its members were simultaneously
elected, might be regarded as representative of recent, if not present,
public opinion, though effective popular control of that body was made
more difficult by lengthening the term of office, since this diminished
the frequency with which the voters could express in an authoritative
manner their disapproval of the official record of its members. Under
the plan adopted present public opinion as formulated in the results of
the last election was not recognized as entitled to control the state
senate.

These changes in the state constitutions by which the executive and
judicial branches of the government acquired the veto power amounted in
practice to the creation of a four-chambered legislature. By thus
increasing the number of bodies which it was necessary for the people to
control in order to secure the legislation which they desired, their
power to influence the policy of the state government was thereby
diminished. And when we reflect that not only was legislative authority
more widely distributed, but each branch of the state government
exercising it was also made less directly dependent on the qualified
voters, we can see that these constitutional provisions were in the
nature of checks on the numerical majority.

A consideration of the changes made in the method of amending the state
constitutions leads to the same conclusion. During the Revolutionary
period, as we have seen, the tendency was strongly toward making the
fundamental law the expression of the will of the numerical majority.
Difficulties in the way of change were reduced to a minimum. But under
the influence of the political reaction which followed, and which
produced the Constitution of the United States, the state governments
were so organized as to make it more difficult for the majority to
exercise the amending power. Georgia in 1789 changed the method of
amending the state constitution by requiring a two-thirds majority in a
constitutional convention, and made another change in 1798 by which a
two-thirds majority in each house of the legislature and a three-fourths
majority in each house of the succeeding legislature was required for
the adoption of an amendment to the constitution. South Carolina in 1790
adopted a provision guarding against mere majority amendment by making
the approval of a two-thirds majority in both branches of two
successive legislatures necessary for any changes in the constitution.
Connecticut in 1818 restricted the power of amending by requiring a
majority in the house of representatives, a two-thirds majority in both
houses of the next legislature, and final approval by a majority of the
electors. New York in 1821 adopted a plan which required that an
amendment should receive a majority in each branch of the legislature, a
two-thirds majority in each branch of the succeeding legislature, and be
approved by a majority of the voters. North Carolina in 1835 made a
three-fifths majority in each house of the legislature and a two-thirds
majority of each house of the following legislature necessary for
changes in the constitution.

The judicial veto served the purpose of preventing majority amendment
under the guise of ordinary legislation, while a safeguard against
constitutional changes favored by a mere majority was thus provided in
the extraordinary majority required in both houses of the legislature to
propose or adopt amendments. This, as has been shown in the case of the
Federal Constitution, is a formidable check on the majority. In view of
this restriction upon the proposing of amendments the provision for
ratification by a popular majority, which owing to the progress of the
later democratic movement has now been generally adopted, is no real
concession to the principle of majority rule.

Assuming that a two-thirds majority in the legislature is required to
propose an amendment, and that the principle of representation is so
applied that each party is represented in the legislature in proportion
to its popular vote, it would scarcely ever be possible for any party to
propose an amendment to the state constitution, since it can not be
expected under any ordinary conditions to control two-thirds of the
popular vote. But inasmuch as the successful party often secures under
our system much more than its proportional share of representation in
the legislature, it is by no means unusual for a party to have a
two-thirds majority in both houses of a state legislature. This would
appear to give the numerical majority under such conditions the power to
propose and adopt amendments. Such would be the case if the party were
really responsible to those who supported it at the polls. But this
would assume the existence of a purely state party, organized with
reference to state issues only, and carrying the election as the
advocate of a definite state policy. Moreover, it would presuppose all
those means, political and constitutional, by which the majority in the
legislature would be accountable to the popular majority in the state.
This is rendered impossible, however, as has been shown, by our system
of government.

The above-mentioned changes in the constitutions of the older states may
be attributed in large measure to the reaction against democracy which
brought about the adoption of the Federal Constitution. They may be
regarded as an expression of that distrust and fear of democracy which
filled the minds of those who framed and set up our Federal government.
It is not contended, however, that they are now so regarded by the
masses of the people. The work of deifying the Federal Constitution was
soon accomplished. And when the people had come to venerate it as the
most perfect embodiment of the doctrine of popular sovereignty that the
intelligence of man could devise, it was but natural that they should
acquiesce in the proposal to make the state governments conform more
closely to the general plan of that instrument. In view of the
widespread sentiment which amounted to a blind and unthinking worship of
the Constitution, it is not surprising that the political institutions
of the general government should have been largely copied by the states.
The only surprising thing in this connection is the fact that they did
not follow the Federal model more closely, since every feature of it was
the object of the most extravagant eulogy. Here we see, however, an
inconsistency between profession and practice. The people who tolerated
no criticism of the Federal Constitution showed nevertheless a distrust
of some of its more conservative features. Much as the indirect election
of President and United States senators was favored by the framers of
our Federal Constitution, there has been no tendency to apply that
principle in the selection of the corresponding state officials.

In all the states framing new constitutions during the Revolutionary
period, except Massachusetts, New Hampshire, and New York, the governor
was elected by the legislature. Pennsylvania abandoned indirect election
and adopted election by the qualified voters in 1790; Delaware, in 1792;
Georgia, in 1824; North Carolina, in 1835; Maryland, in 1837; New
Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South
Carolina and Maryland are the only states which have ever had indirect
election of the upper house. Both adopted it in 1776, the constitution
of South Carolina providing that the members of the lower house should
elect the members of the upper house, and the constitution of Maryland
requiring that members of the upper house should be chosen by an
electoral college. This was abandoned for direct election in South
Carolina in 1778 and in Maryland in 1837.

The conservative reaction was soon followed by a new movement toward
democracy. This no doubt largely explains the failure of the people to
reproduce in their state constitutions all those features which they
professed to admire in the Federal Constitution. Not only did they not
copy all the new features of that document, but they even discarded some
of the then existing provisions of the state constitutions which had
been copied in the Federal Constitution. The principle of indirect
election which was everywhere recognized in the choice of the state
judiciary during the Revolutionary period was gradually abandoned for
the more democratic method of direct popular choice which has now become
the rule. The life tenure of judges which formerly existed in most of
the states has almost entirely disappeared. In all but four states the
judges are now chosen for terms varying from two to twenty-one
years--the average length of the term being eight or ten years. The
combination of direct popular choice with a fixed term of office has had
the effect of making the state judiciary much more amenable to public
opinion than the corresponding branch of the Federal government. By
reason of the relatively long term for which the judges of the state
supreme court are elected, however, and the plan of gradual renewal
which prevents present public opinion from ever gaining the ascendency
in that body, it is still the least responsible and most conservative
branch of the state government.

We see, then, two motives exerting an influence in the remolding of the
state constitutions, one being the desire to copy the Federal
Constitution and the other the belief that the state government should
reflect the will of the people. That the attainment of one of these ends
would inevitably defeat the other was not generally recognized. The
conviction which had become thoroughly rooted in the popular mind that
the system of checks and balances was the highest expression of
democratic organization ensured the embodiment of the general features
of that system in the constitutions of the various states. The
constitutional changes having this end in view largely destroyed the
responsibility of the state governments to the people and thus prevented
the very thing they were designed to accomplish. But however much this
system was in reality opposed to the principle of direct popular
control, it was adopted by the people with the idea of making the
government more readily reflect their will. They were not conscious of
any inconsistency in holding tenaciously to the doctrine of checks and
balances and at the same time seeking to give the people more control
over the state governments. The latter purpose is clearly seen in the
constitutional changes relating to the tenure and manner of election of
the judiciary and in the adoption of universal suffrage. Summing up the
effects of these changes in the state constitutions, we may say that the
suffrage was placed upon a democratic basis, the state judiciary was
organized on a less irresponsible plan and the appearance of political
responsibility secured by applying the principle of direct election to
every branch of the state government. The longer term of office
established for the legislative and executive branches of the state
government, however, together with the increase in the authority of the
judiciary and the adoption of the system of checks and balances has upon
the whole had the effect of making the state government less responsive
to the electorate.

As seen in preceding chapters, the framers of the Federal Constitution
made use of the scheme of checks and balances for the purpose of
limiting the power of the people. There is little evidence that they
favored diffusion of authority except in so far as that authority rested
upon a popular basis. Hence they carried the plan much farther in
curtailing the power of the House of Representatives than a logical
application of the doctrine would have justified, while at the same time
giving more authority and power of independent action to the other
branches of the general government than was consistent with their
avowed, if not real, purpose.

They gave to the executive and judicial branches of the general
government power to control the administration of Federal laws. The
enforcement of all laws and regulations of the general government, in
so far as the President and Senate might desire to enforce them, was
guaranteed through the power to appoint and remove those who were
entrusted with their execution, while the right of appeal from a state
to the Federal courts precluded the possibility of enforcing a state law
deemed to exceed the proper limits of state authority.

In the state governments on the other hand we find a high degree of
administrative decentralization. The governor, unlike the President, was
not given any adequate power to control those entrusted with the
execution of state laws. A multitude of directly elected local officials
are the agents of the state for this purpose. And since they reflect the
sentiment of the various local interests to which they owe their
election, it may and often does happen that a law to which those
interests are opposed is rendered practically inoperative through the
efforts of those local officials who are sworn to enforce it. The
practical working of this system often gives to a local community an
administrative veto on such general laws of the state as may be opposed
to local sentiment. By this means the general executive authority of the
state is weakened and its responsibility correspondingly diminished.

In still another respect the policy of dividing authority and parcelling
it out between separate and distinct organs of government has been
carried much farther in the state than in the Federal Constitution.
Unlike the Federal government in which executive power is centralized in
the President, the state constitutions have created a number of separate
officials, boards and commissions, some directly elected and some
appointed, independent of each other and irresponsible except in so far
as a fixed term of office implies responsibility. This means that
instead of one executive the state has many. Only one of them--the
governor--has, it is true, a veto on the enactment of laws; but this, as
we have seen, is really a legislative and not an executive power. Each
of these has what may be termed an administrative veto; that is, the
power to negative the laws which they are expected to administer by
simply not enforcing them. The impossibility of securing an honest and
faithful administration of the laws where the responsibility for their
enforcement is divided between a number of separate and practically
independent officials, is clearly shown in the experience of the various
states. The evils of this system are illustrated in the state laws
enacted for the purpose of controlling the railway business. Provision
is usually made for their enforcement through a railway commission
either directly elected or appointed by the governor. That direct
election by the people for a fixed term, thereby securing independence
during that term, fails to guarantee the enforcement of such laws is
strikingly shown in the experience of California, where this body has
been continually under the domination of the railway interests.[159]

Under a system which thus minutely subdivides and distributes the
administrative function, any effective control over the execution of
state laws is made impossible. The governor, who is nominally the head
of the executive agencies of the state, is not in reality responsible,
since he has no adequate power to compel the enforcement of laws
directly entrusted to other independent state officials. Any interest or
combination of interests that may wish to prevent the enforcement of
certain laws may be able to accomplish their end by merely controlling
the one official or board whose duty it is to enforce the law in
question. Their task would be a much more difficult one, if it were
necessary to control for that purpose the entire executive arm of the
state. The opportunity for the corrupt use of money and influence is
thus vastly increased, since the people, though they might watch and
judge fairly well the conduct of one state executive, can not exercise
any effective censorship over a large number of such officials.

This irresponsibility which arises out of a wide diffusion of power is
not confined to the executive branch of the state government. The
legislature in the course of our political development has taken on the
same elaborate committee organization which characterizes, as we have
seen, our Federal Congress. The same sinister influences working through
similar agencies oppose needed legislation. But although the good bills
are frequently killed or mutilated in the secrecy of the committee room,
the skilful use of money or other corrupt influence often secures the
enactment of laws opposed to the interests of the people. Moreover, the
practice known as log-rolling by which the representatives of various
local interests combine and force through measures which secure to each
of certain localities some advantage at the expense of the state at
large are so common as to excite no surprise.

The relation existing between the executive and legislative branches
under our system is another source of irresponsibility, since it does
not follow simply because a law has been placed upon the statute books
of a state that it can be enforced. An act may be passed in response to
a strong public sentiment, it may be constitutional and the executive
may be willing and may even desire to enforce it, and yet be unable to
do so. The legislature may, and frequently does, enact laws under the
pressure of public opinion while at the same time quietly exercising
what is, in effect, a veto on their execution. In the case of much
important legislation it can accomplish this by merely not
appropriating the funds which are required for their enforcement. The
laws against adulteration are a good illustration. An official known
perhaps as a dairy and food commissioner may be provided for, whose duty
it is to enforce these laws. The nature of the work entrusted to him
requires that he should have a corps of assistants, inspectors who are
to keep a watchful eye on the goods likely to be adulterated and collect
samples of such goods from the various places in the state where they
are exposed for sale, and chemists who are to analyze the samples thus
procured and determine whether manufacturers and dealers are complying
with the law. Unless an adequate sum is appropriated for this purpose,
and for prosecuting those who are violating the law, such laws can not
be enforced.

In our state governments the subdivision of authority has been carried
so far that no effective control over the enactment or enforcement of
state laws is possible. Under the influence of the doctrine of checks
and balances the policy of widely distributing political authority has
inured to the benefit of those private interests which are ever seeking
to control the government for their own ends, since it has supplied the
conditions under which the people find it difficult to fix the blame for
official misconduct. Indeed it may be said that wherever power should be
concentrated to ensure responsibility, it has been almost invariably
distributed.




CHAPTER X

MUNICIPAL GOVERNMENT


Our municipal government, like the rest of our political system, was
originally an inheritance from England. The governing power in colonial
times was a single body, the common council, such as exists in England
to-day, composed of mayor, recorder, aldermen, and councilmen. As a rule
the councilmen were elected annually by the qualified voters, while the
mayor was appointed by the colonial governor. The council had authority
to enact local regulations not in conflict with English or colonial
legislation. The mayor had no veto and usually no appointing power.

The Revolution did not modify the general scheme of municipal government
in any important respect. The mayor was still, as a rule, appointed by
the governor, who now owed his office directly or indirectly to the
qualified voters of the state. The power to grant municipal charters,
which before the Revolution was exercised by the provincial governor,
was now lodged in the state legislature.

The important changes in municipal government were made after, and may
be regarded as an effect of the adoption of the Federal Constitution. As
the centralization of authority in the hands of the common council could
not be reconciled with the new doctrine of checks and balances,
municipal government was reorganized on the plan of distributed powers.
This effort to readjust the political organization of the city and make
it conform to the general scheme of the Federal government is seen in
the municipal charters granted after the adoption of the Constitution.
The tendency toward a bicameral council, the extension of the term for
which members of the council were elected and the veto power of the
mayor may be attributed to the influence of the Constitution rather than
to any intelligent and carefully planned effort to improve the machinery
of municipal government.

As in the case of the state governments, the development of the system
was influenced by the growing belief in democracy. Property
qualifications for the suffrage disappeared, and the mayor became a
directly elected local official. The changes made in municipal
government, however, as a concession to the newer democratic thought,
did not ensure any very large measure of popular control. Municipal
government in its practical working remained essentially undemocratic.

It would be perfectly reasonable to expect that popular government
would reach its highest development in the cities. Here modern democracy
was born; here we find the physical and social conditions which
facilitate interchange of thought and concerted action on the part of
the people. Moreover, the government of the city is more directly and
immediately related to the citizens than is the government of state or
nation. It touches them at more points, makes more demands upon them and
is more vitally related to their everyday life and needs than either
state or national government. For these reasons the most conspicuous
successes of democracy should be the government of present-day cities.
Under a truly democratic system this would doubtless be the case. But in
this country the most glaring abuses and most conspicuous failures of
government occur in the cities. The enemies of popular government have
used this fact for the purpose of discrediting the theory of democracy.
They would have us believe that this is the natural result of a system
which places political authority in the hands of the masses--that it is
the fruit of an extreme democracy. This conclusion rests upon the
assumption that municipal government in this country is democratic--an
assumption which will not bear investigation. American cities are far
from being examples of extreme democracy. In some important respects
they are less democratic than the government of either state or nation.
A careful analysis of the situation shows clearly that the municipal
evils so frequently attributed to an excess of democracy are really due
to the system of checks by which all effective power to regulate
municipal matters is withheld from the majority. In this country popular
control is reduced to a minimum in the cities, while in Great Britain
and the countries of western Europe we find in municipal government the
nearest approach to democracy. This is the true explanation of the fact
that municipal government is our greatest failure and their most
conspicuous success.

Under any consistent application of the theory of democracy a city would
be entitled to the fullest measure of local self-government. It ought to
be given an absolutely free hand to initiate and carry out any policies
of purely local concern. This right, however, the American city does not
possess. Local self-government is recognized neither in theory nor in
practice under our political scheme. The true local unit is the city,
and this, according to our legal and constitutional theory, is merely
the creature of the state legislature. The latter called it into being,
determines what powers it may exercise, and may strip it of them at
pleasure. According to the prevailing practice of our state legislatures
and the almost uniform decisions of our courts the exercise of local
self-government by our cities is to be regarded as a mere privilege and
not a right.

The municipal charter was originally a grant of certain privileges of
local government in return for money payments or other services rendered
to the king. It was a mere concession of privileges based upon
expediency, and not a recognition on the part of the Crown of local
self-government as an admitted right. As an express and formal statement
of the measure of local government which the king would bind himself to
respect, it tended to limit his power of interference in matters covered
by such charter, since privileges solemnly granted could not with safety
be lightly and arbitrarily disregarded. Municipal charters thus have the
same origin as the constitution of the state itself, in that they are
the outcome of an effort to place a check upon an irresponsible central
authority.

The legislature of the American commonwealth in succeeding to the power
of the king over municipal charters manifested at first an inclination
to concede to the city the right to a measure of local self-government.
Thus "the city of New York received from the English kings during the
colonial period a charter which, on the Declaration of the Independence
of the colony of New York, and the establishment of the new state of New
York, was confirmed by the first Constitution of the state. For a
considerable period after the adoption of this constitution, changes in
that charter were made upon the initiation of the people of the city,
which initiation took place through the medium of charter conventions
whose members were elected by the people of the city, and no statute
which was passed by the legislature of the state relative to the affairs
of the city of New York took effect within the city until it had been
approved by the city."[160]

But as Professor Goodnow observes, American cities "have very largely
lost their original powers of local self-government."[161] The original
conception of the city charter as a contract which established certain
rights of local self-government which the legislature was bound to
respect, merely recognized municipal corporations as entitled to the
same exemption from unreasonable legislative interference, as the courts
have since the Dartmouth College decision enforced in favor of private
corporations. If this view had prevailed cities could not have been
deprived arbitrarily of rights once recognized by the legislature, but
they could have enforced the recognition of no rights not thus granted.
The recognition of this doctrine would have prevented many of the abuses
that have characterized the relation between state and municipal
government in this country, but it would have guaranteed no rights which
the legislature had not seen fit to confer. Any liberal interpretation
of the theory of democracy must of necessity go farther than this, and
make municipal self-government a fundamental right which the central
authority of the state can, not only neither abridge nor destroy, but
can not even withhold, since it is a right having its source not in a
legislative grant, but in the underlying principles of popular
government.

The failure to recognize the right of local self-government as
fundamental in any scheme of democracy was unfortunate. Some of the
worst evils of municipal government would have been avoided, however, if
authority once granted to municipalities had been treated by the courts
as a limitation of the power of the legislature to interfere in purely
local matters. The refusal of the state government to recognize an
appropriate sphere of municipal activity which it would have no right to
invade, has been the main cause of corruption and inefficiency in
municipal government.

The policy of state interference in municipal affairs was the inevitable
outgrowth of the doctrine that cities had no powers except such as had
been expressly given, or were necessarily implied in their charters.
This lack of the power of initiative made it necessary for cities, as
they increased in size and complexity, to make constant appeals to the
legislature for permission to supply their wants. Every new problem
which the city had to deal with, every new function which it had to
perform, was a ground for state interference. This necessity of invoking
the aid of the state legislature, constantly felt in every rapidly
growing city, tended to develop a feeling of dependence upon legislative
intervention as an indispensable factor in the solution of local
problems. Thus the refusal of the state government to recognize the
right of municipal initiative compelled the cities to welcome state
interference as the only means of dealing with the new problems with
which they were being continually confronted.

Another reason for the extension of state authority at the expense of
the municipality is to be found in the twofold character of city
government. Besides being a local government the city is also for
certain purposes the administrative agent of the state, and as such is
properly subject to state supervision. But, in the absence of any clear
distinction between state and local interests, it was an easy matter for
protection of the former to serve as a pretext for undue interference
with the latter.

The city was thus placed at the mercy of the state government, since the
legislature could make the needs of the municipality or the protection
of the general interests of the state a pretext for any interference
calculated to further the private or partisan ends of those who
controlled the legislative machine. As cities increased in importance it
was found that this unlimited power over them could be made a valuable
asset of the party machine in control of the state legislature. The city
offered a rich and tempting field for exploitation. It had offices, a
large revenue, spent vast sums in public improvements, let valuable
contracts of various kinds and had certain needs, as for water, light,
rapid transit, etc., which could be made the pretext for granting
franchises and other privileges on such terms as would ensure large
profits to the grantees at the expense of the general public. That the
political machine in control of the state government should have yielded
to the temptation to make a selfish use of its powers in this direction,
is only what might have been expected.

"The legislature has often claimed also the right to appoint municipal
officers and to fix and change the details of municipal organization,
has legislated municipal officers out of office, and established new
offices. In certain cases it has even provided that certain specific
city streets shall be paved, has imposed burdens upon cities for the
purpose of constructing sewers or bringing in water; has regulated the
methods of transportation to be adopted within the limits of cities; in
a word, has attended to a great number of matters which are purely local
in character; matters which do not affect the people of the state as a
whole, and in regard to which there is little excuse for special
legislative action."[162]

The extent to which state regulation of local matters has been carried
in New York is indicated by the fact that in the year 1886 "280 of the
681 acts passed by the legislature ... interfered directly with the
affairs of some particular county, city, village, or town, specifically
and expressly named....

"The Philadelphia City Hall Building affords a good example of how far
this lack of local responsibility may sometimes carry the legislature in
the exercise of local powers, and in the imposition of financial burdens
on cities. 'In 1870 the legislature decided that the city should have
new buildings. The act [which was passed to accomplish this result]
selected certain citizens by name, whom it appointed commissioners for
the erection of the buildings. It made this body perpetual by
authorizing it to fill vacancies.... This commission was imposed by the
legislature upon the city, and given absolute control to create debts
for the purpose named, and to require the levy of taxes for their
payment.

"'The public buildings at Broad and Market streets were,' in the words
of Judge Paxson, 'projected upon a scale of magnificence better suited
for the capitol of an empire than the municipal buildings of a
debt-burdened city.' Yet this act was declared constitutional, the city
was compelled to supply the necessary funds, and 'for nearly twenty
years all the money that could be spared from immediate and pressing
needs' was 'compulsorily expended upon an enormous pile which surpasses
the town halls and cathedrals of the Middle Ages in extent if not in
grandeur.'"[163]

The legislature is strongly tempted to abuse its power when the party
machine in control of the state does not have the political support of
the local authorities. One of the most notorious examples of such
interference in recent years was the so-called "ripper" legislation
enacted in Pennsylvania in 1901, by which the mayors of Pittsburg and
Allegheny were removed from office and the governor given the power to
appoint and remove their successors until the regular municipal election
in the year 1903. The motive for this legislation was the desire to
crush local opposition to the state machine by putting the control of
municipal offices in the hands of a governor friendly to the political
boss of the state. In order to provide an opportunity for the mayor
appointed by the governor to use his office in building up and
perpetuating a local machine that would support the clique in control of
the state government, the appointee of the governor was declared
eligible for re-election, although his locally elected successors were
made ineligible. A more flagrant abuse of legislative authority could
hardly be imagined; yet this act was declared constitutional by the
supreme court of the state.

Many such instances of partisan interference may be found in the recent
legislation of some of the larger and more populous states.

The best example of the misgovernment of cities by the legislature for
private or partisan ends is seen in the franchise legislation by which
privileges of great value have been secured by street railway and other
corporations without any compensation to the cities concerned. The power
which the legislature can exercise in the interest of private
corporations monopolizing for their own profit the very necessities of
life in the modern city--water, light, transportation, communication,
etc.--has been one of the most serious evils resulting from state
domination of municipal affairs. It exposed the legislature to the
temptation which individuals and corporations seeking valuable
concessions readily took advantage of for their own gain. It thus
brought into active operation those forces which have been the chief
factor in corrupting both state and municipal government.

As soon as it came to be generally recognized that state control of
local affairs not only did not prevent, but was, in fact, the chief
source of the misrule of American cities, an effort was made to provide
a remedy by the adoption of constitutional provisions regulating the
power of the legislature to interfere in municipal affairs. These
limitations relate to those matters wherein the evils of state
interference have been most pronounced. Thus in some states the
legislature is not allowed to grant the use of streets to railways or
other private companies without the consent of the municipal
authorities; to create special commissions and bestow upon them
municipal functions; or to incorporate cities or regulate them by
special laws.

It was not the purpose of these constitutional provisions to grant to
municipalities any immunity from state control, but merely to forbid
certain modes of exercising legislative supervision which, as experience
had shown, were liable to serious abuses. The prohibition of special
legislation, generally incorporated in recent state constitutions, has,
however, largely failed to accomplish its purpose, owing to the fact
that the courts have permitted the legislature to establish so many
classes of cities that it has been able to pass special acts under the
guise of general laws.

The state of Ohio furnishes a good example of the practical
nullification of a constitutional provision by the legislature through
the abuse of its power of classification. The constitution of 1851
prohibited the legislature from passing any special act conferring
corporate powers and provided for the organization of cities by general
laws. The legislature, however, adopted a method of classifying cities
which defeated the object of this provision. In 1901 each of the eleven
principal cities in the state was in a separate class. Consequently all
laws enacted for each of these classes were in reality special acts, and
as such were clearly an evasion of the constitutional prohibition of
special legislation. Nevertheless, this method of classification had
been repeatedly upheld by the courts. Its advantages to the party in
control of the state government were obvious, since it gave the
legislature a free hand in interfering in local affairs for partisan
ends. It permitted the state machine to make concessions to a city which
gave it political support and at the same time extend state control over
those cities in which it encountered opposition. This was the situation
down to 1902, when the supreme court rendered two decisions which
overthrew the system of classification in vogue and invalidated the
charter of every city in the state. It is unfortunate that this change
in the attitude of the court, though much to be desired, occurred at a
time when it had the appearance of serving a partisan end. One of these
suits was brought by the Republican attorney-general of the state to
have the charter of the city of Cleveland declared invalid on the ground
that it was a special act. This charter had been in force for over ten
years, having granted liberal corporate powers at a time when Cleveland
was a Republican city. Later it passed into the Democratic column, and
this suit was instituted as part of the plan of the Republican machine
of the state to curb the power and influence of the mayor of that city.
The new municipal code which was adopted at an extra session of the
legislature provided a scheme of government applicable to Cleveland
under which the powers of the mayor were much curtailed.

In the New York constitution of 1894 an effort was made to guard against
the abuse of special legislation. The cities of the state were by the
constitution itself divided into three classes according to population,
and any law which did not apply to all the cities of a class was
declared to be a special act. Special legislation was not prohibited;
but when any act of this kind was passed by the legislature it was
required to be submitted to the authorities of the city or cities in
question, and if disapproved of by them after a public hearing, it could
become law only by being passed again in the regular manner. This merely
afforded to the cities affected by the proposed special legislation an
opportunity to protest against its enactment, the legislature having
full power to pass it in the face of local disapproval. That this is not
an adequate remedy for the evils of special legislation is shown by the
fact that the two charters of New York City enacted since this
constitution went into effect, have both been framed by a
state-appointed commission and passed over the veto of the mayor.

The constitutional changes which have been mentioned must not be
understood as implying any repudiation of the doctrine that a municipal
corporation is a creature of the general government of the state. These
provisions merely secured, or rather sought to secure, to cities some
benefits of a negative character--immunity from certain recognized
abuses of legislative authority. They are the expression of an effort to
find a remedy for the evils of municipal government by restricting the
authority of the legislature rather than by giving cities the power to
act independently in local matters. They have diminished somewhat the
evils of state interference, but they failed to remove the cause by
giving the cities the constitutional right to control their own affairs.

The failure of all these measures to accomplish what was expected of
them finally brought the advocates of municipal reform to a realization
of the fact that the American system made no provision for real local
self-government, and that our refusal to recognize this principle was
the chief cause of the prevalent corruption and misrule of our cities
and the insuperable obstacle to all effective and thoroughgoing reform.
As soon as attention was directed to this feature of the problem it was
seen that no system could be devised that would be better adapted to the
purpose of defeating the end of good city government, since those who
would be directly benefited by the reforms in municipal government were
powerless to bring them about except with the co-operation of the
legislature. Moreover the consent of the legislature, though once given,
was liable at any time to be withdrawn at the instigation of private or
partisan interests, since this body was not directly interested in
establishing and maintaining good municipal government nor responsible
to those who were.

It was finally seen that some more effective measure than the
prohibition of special legislation was required. The next step was the
attempt to secure to cities the needed authority in local matters by
means of a constitutional provision authorizing them to frame their own
charters. In this movement the state of Missouri led the way by
incorporating a home-rule provision in its constitution of 1875.
California, Washington, Minnesota, and Colorado have since adopted
similar provisions. In each of these states the charter is framed by a
commission locally elected except in Minnesota, where it is appointed by
the district judge.

In Missouri this privilege is accorded only to cities having more than
100,000 inhabitants. The constitution of California adopted in 1879
also restricted the benefits of home rule to cities of more than 100,000
population, but it has since been extended to all cities having more
than 3,500 inhabitants. Washington allows all cities having 20,000 or
more population to frame their own charters. Minnesota extends the
privilege to all cities and villages without respect to size, while
Colorado restricts it to cities having more than 2,000 inhabitants.

The right to serve as a member of a charter commission is limited to
freeholders in all these states except Colorado, where it is restricted
to taxpayers. The object of these home-rule provisions was to give
cities some measure of initiative in local affairs without at the same
time permitting them to organize on the plan of simple majority rule. In
the Missouri constitution of 1875 a four-sevenths vote was required to
adopt a charter and a three-fifths vote to ratify an amendment, although
the constitution itself was adopted and could be amended by mere
majority vote. The constitution of California permits ratification by a
majority of the qualified voters, but every charter thus ratified must
be submitted to the legislature for its approval or rejection as a
whole. No charter amendment can be adopted except by a three-fifths
majority of the popular vote and subsequent legislative approval,
although, as in the case of Missouri, a majority vote is sufficient to
approve an amendment to the state constitution. In Washington the
constitution provides for the ratification of charters and charter
amendments by a majority of the qualified electors. The constitutional
amendment adopted in Minnesota in 1896, with its subsequent
modifications, provides for the ratification of charters and charter
amendments by a four-sevenths vote except in the case of certain cities
where a three-fourths majority is required. A three-fifths vote in favor
of a charter amendment is necessary for its ratification. Colorado, by a
constitutional amendment adopted in 1902, permits the ratification and
amendment of charters by a majority vote. A constitutional amendment
adopted in Missouri in 1902 provides for the ratification of charters by
majority vote.

With the exception of California, where the constitutional amendment of
1902 allows 15 per cent. of the qualified voters to require the
submission of a charter amendment, and Colorado, where 25 per cent. of
the voters have that right, the states above mentioned make no provision
in their constitutions for the popular initiative. Both Washington and
Minnesota, however, have permitted it by statute, the former on the
application of 15 per cent., and the latter when 5 per cent. of the
qualified voters demand it.

The chief defect of these constitutional provisions relating to home
rule is that they do not really grant it. There are too many
restrictions imposed upon cities availing themselves of this privilege,
and in two of the states in question, notably in Missouri, they are for
the benefit of the larger cities only. The restriction of the
charter-framing right to freeholders, the withholding from the majority
of the power to amend in California and Minnesota, and the failure to
provide in the constitution for the popular initiative in Missouri,
Washington, and Minnesota indicate a willingness to grant the right of
home rule only under such conditions as are calculated to ensure
adequate limitation of the power of the majority.

These constitutional provisions certainly point in the direction which
we must follow if we would find any satisfactory solution of our
municipal problem. They would, if liberally interpreted by the courts,
secure to cities immunity from interference in local matters. But the
courts are naturally opposed to innovations in our constitutional
system, and have consequently been disposed to give provisions of this
character such an interpretation as will minimize their effect. The
requirement that the charters framed under these provisions must be in
harmony with the constitution and laws of the state has been declared by
the courts to mean that they must not only conform to the laws in force
at the time the charters are adopted, but also that they must conform to
all legislation subsequently enacted. Had the courts been thoroughly
imbued with the principle of local self-government, they could easily
have given these constitutional provisions an interpretation which would
have effectually deprived the legislature of the power to interfere in
purely local affairs. They could have declared all acts by which the
state government sought to invade the sphere of local affairs null and
void, just as they have all acts of the municipal government which have
encroached upon the powers reserved exclusively to the state. What the
courts have done, however, is to hold that these constitutional
provisions merely authorize cities to govern themselves in accordance
with the constitution and in harmony with such laws as the legislature
has or may hereafter enact. The city may adopt a charter which is in
harmony with the constitution and the laws of the state, but the charter
thus adopted may be freely modified by general laws relating to cities.
The unfriendly attitude of the courts has thus largely defeated the
object of these home-rule provisions. The state legislature is still
free to encroach upon or abridge the sphere of municipal
self-government.

The constitutional provisions above mentioned may be regarded as having
a twofold purpose. They were designed to limit, if not destroy, the
power of the legislature to invade the sphere of municipal affairs, and
also to confer upon cities the general power to act for themselves, by
virtue of which they could on their own initiative, subject to certain
restrictions contained in the constitution, set up their own government,
formulate and carry out a municipal policy and manage their own affairs
to suit themselves. This would seem to be implied necessarily in the
grant of constitutional power to frame a charter for their own
government. A liberal interpretation of this feature of the
constitutions in question would have held that all cities to which it
applied were thereby authorized to exercise all powers not expressly
withheld by the constitution or the statutes of the state. This,
however, has not been the attitude of the courts. Their reluctance to
give home-rule provisions a liberal interpretation may be illustrated by
a decision of the supreme court of Washington. In addition to the power
granted to cities of the first class to frame their own charters the
constitution of this state provides that "any county, city, town, or
township, may make and enforce within its limits all such local, police,
sanitary and other regulations as are not in conflict with general
laws." In view of the attitude that courts have generally taken in this
matter it is not surprising that the supreme court of Washington has
intimated that the above-mentioned constitutional provisions are not
self-executing. Moreover, it does not seem disposed to concede even to
cities of the first class any important powers except such as have been
expressly conferred by statute. For example, the statutes of Washington
authorize cities of the first class "to regulate and control the use" of
gas supplied by a private corporation, and the charter of Tacoma
expressly gave to the city council the power to fix the price of gas so
supplied. Suit was brought to enjoin the city from exercising this power
which was claimed under the constitutional and statutory authority given
to cities of the first class. The supreme court held that while Tacoma
had the power to regulate and control, expressly given it by statute, it
did not have the power to fix the price.[164] This decision evinces a
singular lack of sympathy on the part of the court with the home-rule
provisions of the constitution of Washington.

But although the effort to confer upon cities by constitutional
enactment the power to manage their own affairs has thus far largely
failed, it indicates a growing appreciation of the nature of the problem
and the character of the remedy that must be applied. A more clearly
defined and effective public opinion in favor of municipal
self-government must in the end overcome judicial opposition.

The most liberal interpretation of which these constitutional provisions
are susceptible, however, would not have ensured complete municipal
self-government. Unless a city is given adequate financial powers, a
constitutional grant of the right of local self-government does not
enable it to exercise much choice in relation to the more important
matters of municipal policy. By narrowly limiting the powers of cities
in this direction, they have been largely deprived of the advantages
which they would have enjoyed under a consistent application of the
home-rule principle. A certain amount of freedom in the use of the
taxing power would seem to be no less essential to the city than to the
state itself. Within reasonable limits it ought to be conceded the right
to formulate its own scheme of taxation. In every important American
city the taxes collected for municipal purposes greatly exceed those
imposed for the support of the county and state government. In a matter
which so vitally concerns the city it ought to have some right to pursue
a policy of its own. This right has not been recognized, however, even
in the constitutions which have made most concessions to the principle
of municipal home rule. By this means all innovations or reforms in
municipal taxation except such as may be authorized by the state itself
are effectually prevented. It could not, for instance, exempt personal
property from taxation, or make a tax on ground rent the main source of
its revenue.

The power to incur debt for municipal purposes is no less essential than
the power to tax. The present-day city must spend large sums in making
public improvements the cost of which it is necessary to distribute over
a period of years. To limit too narrowly the borrowing power of cities
for these purposes would prevent them from realizing the full benefits
of unhampered self-government. This does not imply that a city should
own and operate all industries of a quasi-public character, but it does
imply that it should have the unquestioned right and the power to do so.
Unless this is the case it is not in a position to secure the most
favorable terms from such private corporations as may be allowed to
occupy this field. Unreasonable restrictions upon the borrowing power of
cities by placing obstacles in the way of municipal ownership of public
utilities tend to deprive the people of the most effective safeguard
against the extortion of private monopolies.

The limitation placed upon the amount of municipal indebtedness has not
had altogether the effect intended. This is mainly due to the fact that
the debt limit fixed in the state constitutions was in many cases so low
that it did not permit cities to make absolutely necessary public
improvements, such as the paving of streets and construction of sewers.
To make these improvements without resorting to credit would require the
owners of the property affected to advance the full amount of their
cost. This would in many instances be extremely inconvenient.
Accordingly, an effort was made to find some method of evading these
restrictions which would be upheld by the courts. This was accomplished
by issuing bonds to be paid out of a special fund which was to be
created by taxes assessed against the property of the district charged
with the cost of the improvements. The courts held that this was merely
a lien upon the property of the district in question, and not a
municipal debt within the meaning of the above-mentioned constitutional
limitations. These decisions by the courts may not appear to be in
harmony with the letter of the constitutional provisions relating to
municipal indebtedness, but they are hardly at variance with their
spirit. The object of these restrictions was not so much to limit the
rights of the property-owning classes as to protect them against the
extravagance of the propertyless voters. To make an exception in favor
of municipal indebtedness incurred in this way and for these purposes
was not calculated to work any hardship upon property owners, but rather
to give them the power to authorize the employment of credit for their
own advantage. They were protected against the abuse of this particular
kind of indebtedness inasmuch as the consent of the owners of a majority
of the property affected was quite generally required.

One influence which helped to mold a public sentiment in favor of
constitutional provisions limiting the amount of municipal indebtedness
was the rapid increase in the debts of American cities during the period
that immediately followed the Civil war. For this condition of affairs
the state government itself was largely to blame. It had prescribed a
form of municipal organization which was scarcely compatible with an
efficient and responsible management of financial matters. Moreover, the
state government, as we have seen, could empower its own agents to
borrow money for a purpose which it had authorized and obligate the city
to pay it. The effort to correct these evils, first noticeable about the
year 1870, took the form of constitutional provisions limiting the
amount of indebtedness which could be incurred by or on behalf of
cities. The main object of these provisions was to protect municipal
taxpayers against an extravagant use of the borrowing power for local
purposes, whether exercised by state or municipal authorities.

Another advantage which these provisions seemed likely to secure to the
capital-owning class deserves at least a passing mention. This policy of
limiting the amount of municipal indebtedness was adopted at a time
when, owing to the rapid growth of urban population, the local
monopolies of water, light, transportation, etc., were becoming an
important and extremely profitable field for the investment of private
capital. The restrictions imposed upon the power of cities to borrow
money would <DW44>, if not preclude, the adoption of a policy of
municipal ownership and thus enable the private capitalist to retain
exclusive possession of this important class of industries.

That the constitutional restrictions upon the general indebtedness of
cities have retarded the movement toward municipal ownership is beyond
question. It is not likely, however, that they will much longer block
the way to municipal acquisition of those industries in which private
management has proven unsatisfactory, since it may be possible to evade
them by resorting to the device of a _special fund_. The same line of
argument which has been accepted by the courts as supporting the
constitutionality of the special fund for local improvement purposes is
no less applicable to special debts incurred for the purchase of
revenue-producing public utilities, such as water works, lighting plants
and street railways. Under this arrangement, however, the city must not
assume any responsibility for the payment of the capital borrowed, the
creditors advancing the purchase price or cost of construction, looking
solely to the earnings under municipal operation for the payment of both
principal and interest. It may be doubted whether the courts in
permitting cities to employ the special fund in relation to local
improvements realized its possibilities in the direction of municipal
ownership.[165]

These restrictions upon the powers of cities indicate a fear that too
much local self-government might jeopardize the interests of the
propertied classes. This attitude on the part of those who have framed
and interpreted our state constitutions is merely an expression of that
distrust of majority rule which is, as we have seen, the distinguishing
feature of the American system of government. It is in the cities that
the non-possessing classes are numerically strongest and the inequality
in the distribution of wealth most pronounced. This largely explains the
reluctance of the state to allow cities a free hand in the management of
local affairs. A municipal government responsive to public opinion might
be too much inclined to make the public interests a pretext for
disregarding property rights. State control of cities, then, may be
regarded as a means of protecting the local minority against the local
majority. Every attempt to reform this system must encounter the
opposition of the property-owning class, which is one of the chief
reasons why all efforts to establish municipal self-government have thus
far largely failed.

We thus see that while property qualifications for the suffrage have
disappeared, the influence of property still survives. In many ways and
for many purposes property is directly or indirectly recognized in the
organization and administration of municipal government. The movement
toward democracy has had less influence upon property qualifications for
the suffrage and for office-holding in its relation to municipal than in
its relation to state and national affairs. When the Federal
Constitution was adopted the property qualifications for voting and
office-holding in force in the various states were not disturbed. The
Constitution did not recognize the principle of universal suffrage. It
not only allowed the states to retain the power to prescribe the
qualifications of voters in state and municipal elections, but also
limited the suffrage for Federal purposes to those who were qualified to
vote at state elections.[166] The removal, during the first half of the
nineteenth century, of property qualifications for voting at state
elections and holding state offices had the effect of placing the
Federal suffrage upon a popular basis.

The influence of the democratic movement was less marked, however, in
the domain of municipal affairs. Here the old system under which voting
and office-holding were regarded as the exclusive right of the
property-owning class has not entirely disappeared. In this as in other
respects the American state has evinced a fear of municipal democracy.
It is true that in the choice of public officials the principle of
manhood suffrage prevails. But the suffrage may be exercised either with
reference to candidates or measures; and in voting upon questions of
municipal policy, which is far more important than the right to select
administrative officers, the suffrage is often restricted to taxpayers
or the owners of real estate. Thus in Colorado, which has gone as far as
any state in the Union in the direction of municipal democracy, no
franchise can be granted to a private corporation or debt incurred by a
city for the purpose of municipal ownership without the approval of the
taxpaying electors. When we consider that 72 per cent. of the families
living in Denver in the year 1900 occupied rented houses,[167] and that
the household goods of a head of a family to the value of two hundred
dollars are exempt from taxation,[168] the effect of this restriction is
obvious. In thus limiting the right to vote, the framers of the state
constitution evidently proceeded upon the theory that the policy of a
city with reference to its public utilities should be controlled by its
taxpayers. The justification for this constitutional provision is not
apparent, however, inasmuch as the burden of supporting the public
service industries of a city is not borne by the taxpayers as such, but
by the people generally. Such a system makes it possible for the
taxpaying class to control public utilities in their own interest and to
the disadvantage of the general public. The part of the community who
are taxpayers, if given the exclusive right to control these industries,
would be tempted to make them an important source of municipal revenue.
They would be likely to favor high rather than low or reasonable charges
for these necessary public services, since their taxes would be
diminished by the amount thus taken from the non-taxpayers through
excessive charges. Where the majority of the citizens are property
owners and taxpayers there is but little danger that public ownership
will be subject to this abuse. But where there is great inequality in
the distribution of wealth and a large propertyless class, democracy is
the only guarantee that the benefits of municipal ownership will not be
monopolized by the property-owning class.

An investigation of the practical working of municipal ownership in
American cities will show that this danger is not purely imaginary. In
the year 1899 53.73 per cent. of the waterworks in this country were
owned and operated by municipalities, public ownership being the rule in
the larger cities. Taking the thirteen largest plants in the United
States, all of which were municipally owned, the income from private
users was $20,545,409, while the total cost of production, including
estimated depreciation, aggregated only $11,469,732. If to this amount
be added the estimated taxes, interest on total investment and rental
value of the municipally owned quarters occupied for this purpose, the
total cost of production would be $22,827,825. Private consumers,
however, used only 80.2 per cent. of the water supplied. If the 19.8 per
cent. supplied free for public purposes had been paid for at the same
rate charged to private users, the total income from these 13
municipally owned plants would have been $25,817,720. This would have
been $2,989,895 in excess of a fair return upon the total investment. No
one would claim that the price of water has been increased under
municipal ownership. As a matter of fact, it has been substantially
reduced and the quality of the water at the same time improved. The
reduction in price, however, has been less than it would have been, had
the interests of the consumers alone been considered. If the object of
municipal ownership is to supply pure water at the lowest possible price
to the general public, there is no good reason why the city should
demand a profit on the capital it has invested in the business. This
would certainly be true where the earnings under municipal ownership
have been sufficient to pay for the plant. In this case it would be an
injustice to consumers to make them contribute, over and above the cost
of operating the plant, an additional amount sufficient to pay interest
on the investment, inasmuch as they have supplied the capital with which
the business is carried on. Any attempt to make municipal ownership a
source of revenue would mean the taxation of water consumers for the
benefit of property owners. Nor is there any reason why the private
consumers of water should be made to pay for the water used for public
purposes. The water needed for public buildings, for cleaning streets
and for extinguishing fires ought to be paid for by those chiefly
benefited--the property-owning class.

If instead of considering these thirteen waterworks together, we take a
single example--the third largest plant--the tendency to make public
ownership a source of revenue is more clearly seen. The income from
private users in the case of this plant was $4,459,404. The city used
for public purposes 29.5 per cent. of the total amount supplied, which
if paid for at the rate charged private consumers would have made the
total income from operation $6,325,395. This would have been $2,929,232
more than was required to pay all expenses, including interest on the
total investment.[169]

In the case of electric-light plants private ownership is the rule, only
460 of the 3,032 plants being under municipal ownership. The Report of
the United States Commissioner of Labor[170] gives the data for 952 of
these plants, 320 of which are municipally owned and operated. Municipal
ownership, however, is mainly confined to the smaller cities and towns.
This is shown by the fact that although more than one-third of the 952
plants above mentioned are under municipal control, only 30 out of 277,
or less than one-ninth of the largest plants, are municipally owned.
This is to be accounted for by the more determined opposition to the
policy of municipal ownership by the capitalist class in the larger
cities, where private management is most remunerative. Municipal plants,
too, are often restricted to public lighting, not being allowed to
furnish light or power for commercial purposes. This restricted form of
municipal ownership is merely a slight concession on the part of the
private monopolist to the taxpaying class. The general public, as
consumers of light and power, derive no benefit from such a policy.

These and other facts which might be mentioned illustrate the natural
tendency of a system under which the power of the masses is limited in
the interest of the property-owning class. The chief evils of municipal
government in this country have their source not in majority but in
minority rule. It is in the city where we find a numerically small but
very wealthy class and a large class owning little or no property that
the general political movement toward democracy has encountered the most
obstinate resistance. Only a small part of our urban population own land
or capital. The overwhelming majority of those who live in cities are
employees and tenants. In the year 1900 74.3 per cent. of the families
in the 160 cities of the United States having 25,000 or more population
lived in rented houses and only 14.5 per cent. in unmortgaged
homes.[171] In the smaller towns the proportion of property owners was
larger, while in the country the majority of the population belonged to
the land-holding class, 64.4 per cent. of the "farm" families owning
their homes, 44.4 per cent. of such families owning homes that were
unencumbered.[172]

"Much has been said concerning the necessity of legislative interference
in some cases where bad men were coming into power through universal
suffrage in cities, but the recent experience of the country shows that
this has oftener been said to pave the way for bad men to obtain office
or grants of unusual powers from the legislature than with any purpose
to effect local reforms. And the great municipal scandals and frauds
that have prevailed, like those which were so notorious in New York
City, have been made possible and then nursed and fostered by
illegitimate interference at the seat of State government."[173]

The numerical preponderance of the property-owning class in the country
and of the propertyless class in the cities must be taken into account
in any attempt to find an explanation of the reluctance on the part of
the state to recognize the principle of municipal self-government. When
we consider that the state government, even under universal suffrage, is
largely government by taxpaying property owners, we can understand why
the progress toward municipal democracy has been so slow. Under
universal suffrage municipal self-government would mean the ascendency
of the propertyless class, and this, from the standpoint of those who
control the state government, would jeopardize the interests of the
property-holding minority.

This is doubtless one of the chief reasons why the state government has
not been willing to relinquish its control over municipal affairs. This
fact is not recognized, however, by present-day writers on American
politics. It is generally assumed that the corruption in state and
municipal government is largely due to the ascendency of the masses.
This view of the matter may be acceptable to those who from principle or
interest are opposed to democracy, but it ignores the facts which a
careful analysis of the system discloses. Even in our state governments
the changes that have been made as a concession to the newer democratic
thought are less important than is generally supposed. The removal of
property qualifications for voting and office-holding was a concession
in form rather than in substance. It occurred at a time when there was
an apparently inexhaustible supply of free land which made it possible
for every one to become a landowner. Under such circumstances universal
suffrage was not a radical or dangerous innovation. In fact, property
qualifications for voting and office-holding were not necessary to the
political ascendency of property owners in a community where the great
majority of the citizens were or could become members of the
property-owning class. It is not likely that property qualifications
would have been removed for state purposes without a more serious
struggle, if the wide diffusion of property in the state at large had
not appeared to be an ample guarantee that the interests of property
owners would not be endangered by universal suffrage. It was probably
not intended that the abolition of property qualifications should
overthrow the influence of property owners, or make any radical change
in the policy of the state government.

It is easily seen that the removal of property qualifications for
voting and office-holding has had the effect of retarding the movement
toward municipal home rule. Before universal suffrage was established
the property-owning class was in control of both state and city
government. This made state interference in local affairs unnecessary
for the protection of property. But with the introduction of universal
suffrage the conservative element which dominated the state government
naturally favored a policy of state interference as the only means of
protecting the property-owning class in the cities. In this they were
actively supported by the corrupt politicians and selfish business
interests that sought to exploit the cities for private ends. Our
municipal conditions are thus the natural result of this alliance
between conservatism and corruption.

We can understand now why the state has been unwilling to permit the
same measure of democracy in municipal affairs that it has seen fit to
employ for its own purposes. This is why our limited majority rule,
which may be safe enough in the state government, is often deemed
inexpedient for the city. It is also the reason for keeping the more
important municipal powers under the control of the state government, as
well as the ground for continuing property qualifications in the city
after their disappearance from the government of the state.

The checks above mentioned are not the only ones to be found, however,
in our municipal government. The city is organized, like the state
government, on the plan of distributed powers and diffused
responsibility. It contains, as a rule, an elaborate system of checks
which affords little opportunity for the prompt and effective expression
of local public opinion in the administration of municipal affairs. At
the same time, it gives the municipal authorities power to inaugurate
and carry out policies to which local public sentiment may be strongly
opposed. This is seen in the control which the mayor and council quite
generally exercise over the matter of municipal franchises. Probably not
a city of any importance could be mentioned in which the council has not
granted privileges which have enriched individuals and private
corporations at the expense of the public. This power has been the chief
source of municipal corruption, since it has made the misgovernment of
cities a source of great profit to a wealthy and influential class.
Those who imagine that the ignorant and vicious part of our urban
population is the main obstacle to reform take but a superficial view of
the matter. The real source of misgovernment--the active cause of
corruption--is to be found, not in the slums, not in the population
ordinarily regarded as ignorant and vicious, but in the selfishness and
greed of those who are the recognized leaders in commercial and
industrial affairs. It is this class that, as Lincoln Steffens says,
may be found "buying boodlers in St. Louis, defending grafters in
Minneapolis, originating corruption in Pittsburg, sharing with bosses in
Philadelphia, deploring reform in Chicago, and beating good government
with corruption funds in New York."[174] This is the natural fruit of
our system of municipal government. The powerful corporate interests
engaged in the exploitation of municipal franchises are securely
entrenched behind a series of constitutional and legal checks on the
majority which makes it extremely difficult for public opinion to
exercise any effective control over them. The effort to provide a remedy
for this condition of affairs took the form of a movement to limit the
powers of the council. Boards and commissions have been created in whose
hands have been placed much of the business formerly controlled by this
body. The policy of subdividing the legislative authority of the city
and distributing it among a number of independent boards has been
carried so far, notably in New York, that, as Seth Low observes, the
council has been largely deprived of all its legislative functions with
the single exception of the power to grant public franchises.[175] It
must not be inferred, however, that public opinion has favored the
retention of this power by the council. The attempt on the part of the
people to control the franchise-granting power has thus far largely
failed, not because of any lack of popular support, but because our
constitutional and political arrangements have made it almost impossible
for any reasonable majority to overcome the opposition of organized
wealth.

Our efforts to bring about reforms in municipal government have thus far
largely failed to accomplish what was expected of them because we have
persistently refused to recognize the principle of majority rule. We
have clung tenaciously to the system of checks and balances with all its
restraints on popular control. The evils of municipal government are not
the evils of democracy, but the evils of a system which limits the power
of the majority in the interest of the minority.




CHAPTER XI

INDIVIDUAL LIBERTY AND THE CONSTITUTION


The eighteenth-century conception of liberty was the outgrowth of the
political conditions of that time. Government was largely in the hands
of a ruling class who were able to further their own interests at the
expense of the many who were unrepresented. It was but natural under
these circumstances that the people should seek to limit the exercise of
political authority, since every check imposed upon the government
lessened the dangers of class rule. The problem which the advocates of
political reform had to solve was how to secure the largest measure of
individual liberty compatible with an irresponsible government. They
were right in believing that this could be accomplished only by building
up an elaborate system of constitutional restraints which would narrowly
limit the exercise of irresponsible authority. Individual liberty as
they understood the term was immunity from unjust interference at the
hands of a minority.

This was a purely negative conception. It involved nothing more than the
idea of protection against the evils of irresponsible government. It
was a view of liberty adapted, however, to the needs of the time and
served a useful purpose in aiding the movement to curb without
destroying the power of the ruling class. Any attempt to push the
doctrine of liberty farther than this and make it include more than mere
immunity from governmental interference would have been revolutionary.
The seventeenth and eighteenth century demand was not for the abolition,
but for the limitation of irresponsible authority. It was not for
popular government based upon universal suffrage, but for such
modifications of the system as would give to the commercial and
industrial classes the power to resist all encroachments upon their
rights at the hands of the hereditary branches of the government. The
basis and guarantee of individual liberty, as the term was then
understood, was the popular veto such as was exercised through the House
of Commons. This conception of liberty was realized for those
represented in any coordinate branch of the government wherever the
check and balance stage of political development had been reached.

The American revolution, which supplanted hereditary by popular rule,
worked a fundamental change in the relation of the individual to the
government. So far at least as the voters were concerned the government
was no longer an alien institution--an authority imposed upon them from
above, but an organization emanating from them--one in which they had
and felt a direct proprietary interest. It was no longer a government in
which the active principle was irresponsible authority, but one which
rested upon the safe and trustworthy basis of popular control.

The overthrow of monarchy and aristocracy necessitated a corresponding
change in the idea of liberty to make it fit the new political
conditions which had emerged. In so far as government had now passed
into the hands of the people there was no longer any reason to fear that
it would encroach upon what they regarded as their rights. With the
transition, then, from class to popular sovereignty there was a
corresponding change in the attitude of the people toward the
government. They naturally desired to limit the authority and restrict
the activity of the government as long as they felt that it was
irresponsible; but as soon as they acquired an active control over it,
the reason which formerly actuated them in desiring to limit its powers
was no longer operative. Their ends could now be accomplished and their
interests best furthered by unhampered political activity. They would
now desire to remove the checks upon the government for the same reason
that they formerly sought to impose them--viz., to promote their own
welfare.

This tendency is seen in the changes made in the state constitutions at
the beginning of the American revolution. As shown in a previous
chapter, they established the supremacy of the legislative body and
through this branch of the government, the supremacy of the majority of
the qualified voters. We have here a new conception of liberty. We see a
tendency in these constitutional changes to reject the old passive view
of state interference as limited by the consent of the governed and take
the view that real liberty implies much more than the mere power of
constitutional resistance--that it is something positive, that its
essence is the power to actively control and direct the policy of the
state. The early state constitutions thus represent a long step in the
direction of unlimited responsible government.

This, as we have seen, was the chief danger which the conservative
classes saw in the form of government established at the outbreak of the
Revolution. They were afraid that the power of the numerical majority
would be employed to further the interests of the many at the expense of
the few, and to guard against such a use of the government they sought
to re-establish the system of checks. The Constitution which restored
the old scheme of government in a new garb also revived the old
conception of individual liberty. There is, however, one important
difference between the eighteenth-century conception of liberty and that
which finds expression in our constitutional literature. Formerly it was
because of the lack of popular control that the people generally
desired to limit the authority of the government, but the framers of the
Constitution wished to bring about the limitation of governmental
functions because they feared the consequences of majority rule.
Formerly the many advocated the limitation of the power of king and
aristocracy in the interest of liberty; now the few advocate the
limitation of the power of the many for their own protection. With the
abolition of monarchy and aristocracy the attitude of the few and the
many has been reversed. The aristocratic and special interests that
formerly opposed the limitation of political activity when they were
predominant in the government, now favor it as a protection against the
growing power of the masses, while the latter, who formerly favored, now
oppose it. The conservative classes now regard the popular majority with
the same distrust which the liberals formerly felt toward the king and
aristocracy. In fact, the present-day conservative goes even farther
than this and would have us believe that the popular majority is a much
greater menace to liberty than king or aristocracy has ever been in the
past.

"There can be no tyranny of a monarch so intolerable," says a recent
American writer, "as that of the multitude, for it has the power behind
it that no king can sway."[176] This is and has all along been the
attitude of the conservative classes who never lose an opportunity to
bring the theory of democracy into disrepute. The defenders of the
American Constitution clearly see that unless the fundamental principle
of popular government is discredited the system of checks can not
survive.

There is no liberty, we are told by the present-day followers of
Alexander Hamilton, where the majority is supreme. The American
political system realizes this conception of liberty mainly through the
Supreme Court--an organ of government which interprets the Constitution
and laws of Congress and which may forbid the carrying out of the
expressed will of the popular majority. It necessarily follows that the
authority which can thus overrule the majority and enforce its own views
of the system is an authority greater than the majority. All governments
must belong to one or the other of two classes according as the ultimate
basis of political power is the many or the few. There is, in fact, no
middle ground. We must either recognize the many as supreme, with no
checks upon their authority except such as are implied in their own
intelligence, sense of justice and spirit of fair play, or we must
accept the view that the ultimate authority is in the hands of the few.
Every scheme under which the power of the majority is limited means in
its practical operation the subordination of the majority to the
minority. This inevitable consequence of the limitation of popular rule
is not alluded to by the advocates of checks and balances, though it is
obvious to any careful student of the system.

It would, however, do injustice to the intelligence of those who
champion the scheme of checks and balances to give them credit for any
real sympathy with the aims and purposes of democracy. Individual
liberty as guaranteed by majority rule was not the end which the framers
of the Constitution had in view, nor is it the reason why the
present-day conservative defends their work. The Constitution as
originally adopted did not contain that highly prized guarantee of
personal liberty which democracy everywhere insists upon. The failure to
make any provision for freedom of the press should be regarded as a
significant omission. This, however, was not an essential part of the
Federalists' scheme of government, which aimed rather to protect the
property and privileges of the few than to guarantee personal liberty to
the masses. This omission is the more noteworthy in view of the fact
that this guarantee was at that time expressly included in a majority of
the state constitutions, and that the temper of the people was such as
to compel its speedy adoption as an amendment to the Federal
Constitution itself.

Liberty, as the framers of the Constitution understood the term, had to
do primarily with property and property rights. The chief danger which
they saw in the Revolutionary state governments was the opportunity
afforded to the majority to legislate upon matters which the well-to-do
classes wished to place beyond the reach of popular interference. The
unlimited authority which the state government had over taxation and its
power to restrict or abridge property rights were viewed with alarm by
the wealthy classes, who felt that any considerable measure of democracy
would be likely to deprive them of their time-honored prerogatives. To
guard against this danger the Constitution sought, in the interest of
the classes which dominated the Federal Convention, to give the widest
possible scope to private property. It prohibited private property in
nothing--permitting it, as originally adopted, even in human beings. It
may be said without exaggeration that the American scheme of government
was planned and set up to perpetuate the ascendency of the
property-holding class in a society leavened with democratic ideas.
Those who framed it were fully alive to the fact that their economic
advantages could be retained only by maintaining their class ascendency
in the government. They understood the economic significance of
democracy. They realized that if the supremacy of the majority were once
fully established the entire policy of the government would be
profoundly changed. They foresaw that it would mean the abolition of all
private monopoly and the abridgment and regulation of property rights
in the interest of the general public.

The Constitution was in form a political document, but its significance
was mainly economic. It was the outcome of an organized movement on the
part of a class to surround themselves with legal and constitutional
guarantees which would check the tendency toward democratic legislation.
These were made effective through the attitude of the United States
courts which, as Professor Burgess says, "have never declined
jurisdiction where private property was immediately affected on the
ground that the question was political."[177]

"There can be no question that the national government has given to the
minority a greater protection than it has enjoyed anywhere else in the
world, save in those countries where the minority is a specially
privileged aristocracy and the right of suffrage is limited. So absolute
have property rights been held by the Supreme Court, that it even, by
the Dred Scott decision, in effect made the whole country a land of
slavery, because the slave was property, and the rights of property were
sacred."[178]

In carrying out the original intent of the Constitution with reference
to property the courts have developed and applied the doctrine of vested
rights--a doctrine which has been used with telling effect for the
purpose of defeating democratic reforms. This doctrine briefly stated is
that property rights once granted are sacred and inviolable. A rigid
adherence to this policy would effectually deprive the government of the
power to make the laws governing private property conform to social and
economic changes. It would disregard the fact that vested rights are
often vested wrongs, and that one important, if not indeed the most
important, task which a government by and for the people has to perform
is to rectify past mistakes and correct the evils growing out of
corruption and class rule. A government without authority to interfere
with vested rights would have little power to promote the general
welfare through legislation.

The adoption of the Constitution brought this doctrine from the realm of
political speculation into the arena of practical politics. The men who
framed and set up our Federal government were shrewd enough to see that
if the interests of the property-holding classes were to be given
effective protection, it was necessary that political power should rest
ultimately upon a class basis. This they expected to accomplish largely
through the judicial veto and the power and influence of the Supreme
Court. The effect of establishing the supremacy of this branch of the
government was to make the legal profession virtually a ruling class. To
their charge was committed under our system of government the final
authority in all matters of legislation. They largely represent by
virtue of their training and by reason of the interests with which they
are affiliated, the conservative as opposed to the democratic
influences. The power and influence exerted by lawyers in this country
are the natural outgrowth of the constitutional position of our Supreme
Court. Its supremacy is in the last analysis the supremacy of lawyers as
a class and through them of the various interests which they represent
and from which they derive their support. This explains the fact so
often commented on by foreign critics, that in this country lawyers
exert a predominant influence in political matters.

We are still keeping alive in our legal and constitutional literature
the eighteenth-century notion of liberty. Our future lawyers and judges
are still trained in the old conception of government--that the chief
purpose of a constitution is to limit the power of the majority. In the
meantime all other democratic countries have outgrown this early
conception which characterized the infancy of democracy. They have in
theory at least repudiated the eighteenth-century doctrine that the few
have a right to thwart the will of the many. The majority has in such
countries become the only recognized source of legitimate authority.
"There is no fulcrum _outside_ of the majority, and therefore there is
nothing on which, as _against_ the majority resistance or lengthened
opposition can lean."[179] This statement was made with reference to
France, but it would apply as well to England, Switzerland, and all
other countries in which the principle of majority rule has received
full recognition.

On the other hand American constitutional and legal literature still
inculcates and keeps alive fear and distrust of majority rule. The
official and ruling class in this country has been profoundly influenced
by political ideas which have long been discarded in the countries which
have made the most rapid strides in the direction of popular government.
The influence which our constitutional and legal literature, based as it
is upon a profound distrust of majority rule, has had upon the lawyers,
politicians, and public men of this country can hardly be overestimated.
It is true that many who have been most influenced by this spirit of
distrust toward popular government would be unwilling to admit that they
are opposed to majority rule--in fact, they may regard themselves as
sincere believers in democracy. This is not to be wondered at when we
consider that throughout our history under the Constitution the old and
the new have been systematically jumbled in our political literature. In
fact, the main effort of our constitutional writers would appear to be
to give to the undemocratic eighteenth-century political ideas a garb
and setting that would in a measure reconcile them with the democratic
point of view. The natural and inevitable result has followed. The
students of American political literature have imbibed the fundamental
idea of the old system--its distrust of majority rule--along with a
certain sentimental attachment to and acceptance of the outward forms of
democracy. This irreconcilable contradiction between the form and the
substance, the body and the spirit of our political institutions is not
generally recognized even by the American students of government.
Constitutional writers have been too much preoccupied with the thought
of defending and glorifying the work of the fathers and not enough
interested in disclosing its true relation to present-day thought and
tendencies. As a consequence of this, the political ideas of our
educated classes represent a curious admixture of democratic beliefs
superimposed upon a hardly conscious substratum of eighteenth-century
doctrines. It is this contradiction in our thinking that has been one of
our chief sources of difficulty in dealing with political problems.
While honestly believing that we have been endeavoring to make democracy
a success, we have at the same time tenaciously held on to the essential
features of a political system designed for the purpose of defeating the
ends of popular government.




CHAPTER XII

INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM


The American doctrine of individual liberty had its origin in economic
conditions widely different from those which prevail to-day. The tools
of production were simple and inexpensive and their ownership widely
diffused. There was no capital-owning class in the modern sense.
Business was carried on upon a small scale. The individual was his own
employer, or, if working for another, could look forward to the time
when, by the exercise of ordinary ability and thrift, he might become an
independent producer. The way was open by which every intelligent and
industrious wage-earner could become his own master. Industrially
society was democratic to a degree which it is difficult for us to
realize at the present day. This economic independence which the
industrial classes enjoyed ensured a large measure of individual liberty
in spite of the fact that political control was in the hands of a class.

The degree of individual freedom and initiative which a community may
enjoy is not wholly, or even mainly, a matter of constitutional forms.
The actual liberty of the individual may vary greatly without any change
in the legal or constitutional organization of society. A political
system essentially undemocratic would be much less destructive of
individual liberty in a society where the economic life was simple and
ownership widely diffused than in a community possessing a wealthy
capitalist class on the one hand and an army of wage-earners on the
other. The political system reacts, it is true, upon the economic
organization, but the influence of the latter upon the individual is
more direct and immediate than that of the former. The control exerted
over the individual directly by the government may, as a matter of fact,
be slight in comparison with that which is exercised through the various
agencies which control the economic system. But the close
interdependence between the political and the business organization of
society can not be overlooked. Each is limited and conditioned by the
other, though constitutional forms are always largely the product and
expression of economic conditions.

Individual liberty in any real sense implies much more than the
restriction of governmental authority. In fact, true liberty consists,
as we have seen, not in divesting the government of effective power, but
in making it an instrument for the unhampered expression and prompt
enforcement of public opinion. The old negative conception of liberty
would in practice merely result in limiting the power of the government
to control social conditions. This would not necessarily mean, however,
the immunity of the individual from external control. To limit the power
of the government may permit the extension over the individual of some
other form of control even more irresponsible than that of the
government itself--the control which inevitably results from the
economic supremacy of a class who own the land and the capital.

The introduction of the factory system forced the great majority of
small independent producers down into the ranks of mere wage-earners,
and subjected them in their daily work to a class rule under which
everything was subordinated to the controlling purpose of the
employers--the desire for profits.

The significance of this change from the old handicraft system of
industry to present-day capitalistic production is fully understood by
all students of modern industry. Even Herbert Spencer, the great
expounder of individualism, admitted that the so-called liberty of the
laborer "amounts in practice to little more than the ability to exchange
one slavery for another" and that "the coercion of circumstances often
bears more hardly on him than the coercion of a master does on one in
bondage."[180] This dependence of the laborer, however, he regarded as
unfortunate, and looked forward to the gradual amelioration of present
conditions through the growth of co-operation in production.

Individualism as an economic doctrine was advocated in the eighteenth
century by those who believed in a larger measure of freedom for the
industrial classes. The small business which was then the rule meant the
wide diffusion of economic power. A _laissez faire_ policy would have
furthered the interests of that large body of small independent
producers who had but little representation in and but little influence
upon the government. It would have contributed materially to the
progress of the democratic movement by enlarging the sphere of
industrial freedom for all independent producers. It does not follow,
however, that this doctrine which served a useful purpose in connection
with the eighteenth-century movement to limit the power of the ruling
class is sound in view of the political and economic conditions which
exist to-day. The so-called industrial revolution has accomplished
sweeping and far-reaching changes in economic organization. It has
resulted in a transfer of industrial power from the many to the few, who
now exercise in all matters relating to production an authority as
absolute and irresponsible as that which the ruling class exercised in
the middle of the eighteenth century over the state itself. The simple
decentralized and more democratic system of production which formerly
prevailed has thus been supplanted by a highly centralized and
thoroughly oligarchic form of industrial organization. At the same time
political development has been tending strongly in the direction of
democracy. The few have been losing their hold upon the state, which has
come to rest, in theory at least, upon the wall of the many. A political
transformation amounting to a revolution has placed the many in the same
position in relation to the government which was formerly held by the
favored few.

As a result of these political and economic changes the policy of
government regulation of industry is likely to be regarded by the masses
with increasing favor. A society organized as a political democracy can
not be expected to tolerate an industrial aristocracy. As soon, then, as
the masses come to feel that they really control the political
machinery, the irresponsible power which the few now exercise in the
management of industry will be limited or destroyed as it has already
been largely overthrown in the state itself. In fact the doctrine of
_laissez faire_ no longer expresses the generally accepted view of state
functions, but merely the selfish view of that relatively small class
which, though it controls the industrial system, feels the reins of
political control slipping out of its hands. The limitation of
governmental functions which was the rallying-cry of the liberals a
century ago has thus become the motto of the present-day conservative.

The opponents of government regulation of industry claim that it will
<DW44> or arrest progress by restricting the right of individual
initiative. They profess to believe that the best results for society as
a whole are obtained when every corporation or industrial combination is
allowed to manage its business with a free hand. It is assumed by those
who advocate this policy that there is no real conflict of interests
between the capitalists who control the present-day aggregations of
corporate wealth and the general public. No argument is needed, however,
to convince any one familiar with the facts of recent industrial
development that this assumption is not true.

The change in the attitude of the people toward the let-alone theory of
government is, as a matter of fact, the outcome of an intelligently
directed effort to enlarge and democratize--not abridge--the right of
initiative in its relation to the management of industry. The right of
individual initiative in the sense of the right to exercise a real
control over production was lost by the masses when the substitution of
machinery for tools made them directly dependent upon a class of
capital-owning employers. The subsequent growth of large scale
production has centralized the actual control of industry in the hands
of a small class of large capitalists. The small capitalists as
separate and independent producers are being rapidly crushed or absorbed
by the great corporation. They may still belong to the capitalist class
in that they live upon an income derived from the ownership of stock or
bonds. But they have no real control over the business in which their
capital is invested. They no longer have the power to organize and
direct any part of the industrial process. They enjoy the benefits which
accrue from the ownership of wealth, but they can no longer take an
active part in the management of industry. For them individual
initiative in the sense of an effective control over the industrial
process has disappeared almost as completely as it has in the case of
the mere wage-earner. Individual initiative even for the capital-owning
class has thus largely disappeared. It has been superseded by corporate
initiative which means the extinguishment of individual initiative
except in those cases where it is secured to the large capitalist
through the ownership of a controlling interest in the business.

The abandonment of the _laissez faire_ policy, then, in favor of the
principle of government regulation of industry is the outgrowth, not of
any hostility to individual initiative, but of the conviction that the
monopoly of industrial power by the few is a serious evil. It is
manifestly impossible to restore to the masses the right of individual
initiative. Industry is too complex and too highly organized to permit a
return to the old system of decentralized control. And since the only
substitute for the old system of individual control is collective
control, it appears to be inevitable that government regulation of
business will become a fixed policy in all democratic states.

The _laissez faire_ policy is supposed to favor progress by allowing
producers to make such changes in business methods as may be prompted by
the desire for larger profits. The doctrine as ordinarily accepted
contains at least two erroneous assumptions, viz., (1) that any
innovation in production which makes it possible for the capitalist to
secure a larger return is necessarily an improvement in the sense of
augmenting the average efficiency of labor, and (2) that policies are to
be judged solely by their economic effects. Even if non-interference
resulted in industrial changes which in all cases increase the
efficiency of labor, it would not follow that such changes are, broadly
considered, always beneficial. Before drawing any sweeping conclusion we
must consider all the consequences direct and indirect, immediate and
remote, political and social as well as economic. Hence the ordinary
test--the direct and immediate effect upon productive efficiency--is not
a satisfactory one. Moreover, many changes in the methods or
organization of business are designed primarily to alter distribution in
the interest of the capitalist by decreasing wages or by raising
prices. In so far as a policy of non-interference permits changes of
this sort, it is clearly harmful to the community at large, though
advantageous to a small class.

In all democratic countries the conservative classes are beginning to
realize that their ascendency in production is imperiled by the
ascendency of the masses in the state. It thus happens that in the hope
of checking or retarding the movement toward regulation of business in
the interest of the people generally, they have taken refuge behind that
abandoned tenet of democracy, the doctrine of non-interference.

At the same time they strongly favor any deviation from this policy
which will benefit themselves. This is exemplified in their attitude in
this country toward our protective tariff system, which, as originally
adopted, was designed to encourage the development of our national
resources by offering the prospect of larger profit to those who would
invest their capital in the protected industries. Under a capitalistic
system development naturally follows the line of greatest profit, and
for this reason any protective tariff legislation which did not augment
the profits of the capitalist would fail to accomplish its purpose. This
was recognized and frankly admitted when the policy was first adopted.
Later, however, when the suffrage was extended and the laboring class
became an important factor in national elections the champions of
protection saw that the system would have to be given a more democratic
interpretation. Thus the Whig platform of 1844 favored a tariff
"discriminating with special reference to the protection of the domestic
labor of the country." This was, however, the only political platform in
which the labor argument was used until 1872, when the Republican party
demanded that "duties upon importations ... should be so adjusted as to
aid in securing remunerative wages to labor, and promote the industries,
prosperity, and growth of the whole country." Protection, since that
time, has been defended, not as a means of augmenting profits, but as a
means of ensuring high wages to American workers. The interests of the
wage-receiving class, however, were far from being the chief concern of
those who were seeking to maintain and develop the policy of protection.
It was to the capitalist rather than the wage-earner that the system of
protection as originally established made a direct appeal, and it was
primarily in the interest of this class that it was maintained even
after the labor argument came to be generally used in its defense. The
capitalist naturally favored a policy that would discourage the
importation of foreign goods and at the same time encourage the
importation of foreign labor. It was to his advantage to keep the labor
market open to all who might wish to compete for employment, since this
would tend to force wages down and thus give him the benefit of high
prices.

Any system of protection established in the interest of labor would have
excluded all immigrants accustomed to a low standard of living. But as a
matter of fact the immigration of cheap foreign labor was actively
encouraged by the employers in whose interest the high tariff on foreign
goods was maintained. The efforts of the wage-earning class to secure
for themselves some of the benefits of protection by organizing to
obtain an advance or prevent a reduction in wages was largely defeated
through the wholesale importation of cheap foreign labor by the large
manufacturing, mining and transportation companies. The agitation
against this evil carried on by the labor unions finally resulted in the
enactment by Congress of legislation forbidding the importation of labor
under contract of employment. This, however, did not, and even if it had
been efficiently enforced, would not have given the American workingman
any real protection against cheap foreign labor. The incoming tide of
foreign immigration has been rising and the civic quality of the
immigrant has visibly declined. The free lands which formerly attracted
the best class of European immigrants are now practically a thing of the
past, and with the disappearance of this opportunity for remunerative
self-employment the last support of high wages has been removed. With
unrestricted immigration the American laboring man must soon be deprived
of any economic advantage which he has heretofore enjoyed over the
laboring classes of other countries.

There has been one notable exception to this immigration policy. The
invasion of cheap Asiatic labor upon the Pacific coast aroused a storm
of protest from the laboring population, which compelled Congress to
pass the Chinese Exclusion Act. But this legislation, while shutting out
Chinese laborers, has not checked the immigration from other countries
where a low standard of living prevails. In fact the most noticeable
feature of the labor conditions in this country has been the continual
displacement of the earlier and better class of immigrants and native
workers by recent immigrants who have a lower standard of living and are
willing to work for lower wages. This has occurred, too, in some of the
industries in which the employer has been most effectually protected
against the competition of foreign goods.[181]

The time has certainly arrived when the policy of protection ought to be
more broadly considered and dealt with in a public-spirited and
statesman-like manner. If it is to be continued as a national policy,
the interests of employees as well as employers must be taken into
account. The chief evils of the protective system have been due to the
fact that it has been too largely a class policy, and while maintained
in the interest of a class, it has been adroitly defended as a means of
benefiting the classes who derived little or no benefit--who were,
indeed, often injured by our tariff legislation.

The large capitalist may grow eloquent in defense of that broad
humanitarian policy under which the weak, the oppressed, and the
ignorant of all nations are invited to come among us and share in the
economic and political opportunities and privileges of American
citizens. Such high-sounding and professedly disinterested
cosmopolitanism appeals to a certain class of sentimental believers in
democracy. It does not appeal, however, to any one who fully understands
present-day industrial and political conditions. This capitalistic
sympathy for the weak and the oppressed of other nations may be regarded
by some as the expression of a broader patriotism, but its tap-root is
class selfishness--the desire to secure high profits through maintaining
active competition among laborers. As a matter of fact, all legislation
does, and always must, appeal to the interest of those without whose
influence and support it could not be enacted, and nothing is ever
gained for true progress by making the pretence of disinterested love
for humanity the cloak for class greed.

The desire of the employing class for cheap labor has been responsible
for the greatest dangers which menace this country to-day. It was the
demand for cheap labor which led to the importation of the African slave
and perpetuated the institution of slavery until, with the voluntary
immigration of foreign labor, it was no longer an economic necessity
from the standpoint of the employing class. Indeed the very existence of
slavery, by discouraging immigration, tended to limit the supply of
labor, and by so doing, to <DW36> all enterprises in which free labor
was employed. In this sense the abolition of slavery was the result of
an economic movement. It was to the advantage of the employing class as
a whole who found in the free labor hired under competitive conditions a
more efficient and cheaper instrument of production than the slave whom
they had to buy and for whose support they were responsible.

Had it not been for this eagerness on the part of the employing class to
secure cheap labor at first through the importation of the African slave
and later through the active encouragement of indiscriminate foreign
immigration, we would not now have the serious political, social and
economic problems which owe their existence to the presence among us of
vast numbers of alien races who have little in common with the better
class of American citizens. This element of our population, while
benefiting the employing class by keeping wages down, has at the same
time made it more difficult to bring about that intelligent political
co-operation so much needed to check the greed of organized wealth.

The limitation of governmental powers in the Constitution of the United
States was not designed to prevent all interference in business, but
only such as was conceived to be harmful to the dominant class. The
nature of these limitations as well as the means of enforcing them
indicate their purpose. The provision relating to direct taxes is a good
example. The framers of the Constitution were desirous of preventing any
use of the taxing power by the general government that would be
prejudicial to the interests of the well-to-do classes. This is the
significance of the provision that no direct taxes shall be laid unless
in proportion to population.[182] The only kind of a direct tax which
the framers intended that the general government should have power to
levy was the poll tax which would demand as much from the poor man as
from the rich. This was indeed one of the reasons for opposing the
ratification of the Constitution.

"Many specters," said Hamilton, "have been raised out of this power of
internal taxation to excite the apprehensions of the people: double sets
of revenue officers, a duplication of their burdens by double taxations,
and the frightful forms of odious and oppressive poll-taxes, have been
played off with all the ingenious dexterity of political legerdemain....

"As little friendly as I am to the species of imposition [poll-taxes], I
still feel a thorough conviction that the power of having recourse to it
ought to exist in the Federal government. There are certain emergencies
of nations, in which expedients, that in the ordinary state of things
ought to be forborne, become essential to the public weal. And the
government, from the possibility of such emergencies, ought ever to have
the option of making use of them."[183]

It is interesting to observe that Hamilton's argument in defense of the
power to levy poll-taxes would have been much more effective if it had
been urged in support of the power to levy a direct tax laid in
proportion to wealth. But this kind of a tax would, in the opinion of
the framers, have placed too heavy a burden upon the well-to-do. Hence
they were willing to deprive the general government of the power to levy
it even at the risk of crippling it in some great emergency when there
might be urgent need of a large revenue.

This is not strange, however, when we remember that it was the
property-owning class that framed and secured the adoption of the
Constitution. That they had their own interests in view when they
confined the general government practically to indirect taxes levied
upon articles of general consumption, and forbade direct taxes levied in
proportion to wealth, seems highly probable. It appears, then, that the
recent decision of the United States Supreme Court declaring the Federal
Income Tax unconstitutional merely gave effect to the original spirit
and purpose of this provision.

The disposition to guard the interests of the property-holding class
rather than to prevent legislation for their advantage is also seen in
the interpretation which has been given to the provision forbidding the
states to pass any laws impairing the obligation of contracts. The
framers of the Constitution probably did not have in mind the extended
application which the courts have since made of this limitation on the
power of the states. Perhaps they intended nothing more than that the
states should be prevented from repudiating their just debts. But
whatever may have been the intention of the framers themselves, the
reactionary movement in which they were the recognized leaders, finally
brought about a much broader and, from the point of view of the
capitalist class, more desirable interpretation of this provision.

There is evidence of a desire to limit the power of the states in this
direction even before the Constitutional Convention of 1787 assembled.
The legislature of Pennsylvania in 1785 passed a bill repealing an act
of 1782 which granted a charter to the Bank of North America. James
Wilson, who is said to have suggested the above-mentioned clause of the
Federal Constitution, made an argument against the repeal of the
charter, in which he claimed that the power, or at least the right of
the legislature, to modify or repeal did not apply to all kinds of
legislation. It could safely be exercised, he thought, in the case of "a
law respecting the rights and properties of all the citizens of the
state."

"Very different," he says, "is the case with regard to a law, by which
the state grants privileges to a congregation or other society.... Still
more different is the case with regard to a law by which an estate is
vested or confirmed in an individual: if, in this case, the legislature
may, at discretion, and without any reason assigned, divest or destroy
his estate, then a person seized of an estate in fee-simple, under
legislative sanction, is, in truth, nothing more than a solemn tenant at
will....

"To receive the legislative stamp of stability and permanency, acts of
incorporation are applied for from the legislature. If these acts may be
repealed without notice, without accusation, without hearing, without
proof, without forfeiture, where is the stamp of their stability?... If
the act for incorporating the subscribers to the Bank of North America
shall be repealed in this manner, a precedent will be established for
repealing, in the same manner, every other legislative charter in
Pennsylvania.... Those acts of the state, which have hitherto been
considered as the sure anchors of privilege and of property, will become
the sport of every varying gust of politics, and will float wildly
backwards and forwards on the irregular and impetuous tides of party and
faction."[184]

In 1810 the case of Fletcher v. Peck[185] was decided in the Supreme
Court of the United States. Chief Justice Marshall, in delivering the
opinion of the court, said:

"The principle asserted is that one legislature is competent to repeal
any act which a former legislature was competent to pass; and that one
legislature can not abridge the powers of a succeeding legislature. The
correctness of this principle, so far as respects general legislation,
can never be controverted. But if an act be done under a law, a
succeeding legislature can not undo it....

"When then a law is in the nature of a contract, when absolute rights
have vested under that contract, a repeal of the law can not devest
those rights; ...

"It may well be doubted whether the nature of society and of government
does not prescribe some limits to the legislative power; ...

"It is, then, the unanimous opinion of the court, that, in this case,
the estate having passed into the hands of a purchaser for a valuable
consideration, without notice, the state of Georgia was restrained,
either by general principles, which are common to our free institutions,
or by the particular provisions of the Constitution of the United
States, from passing a law whereby the estate of the plaintiff in the
premises so purchased could be constitutionally and legally impaired and
rendered null and void."

It is evident from this opinion that the court would have been disposed
at that time to declare state laws impairing property rights null and
void, even if there had been nothing in the Constitution of the United
States to justify the exercise of such a power. Justice Johnson, in a
separate opinion, said:

"I do not hesitate to declare that a state does not possess the power of
revoking its own grants. But I do it on a general principle, on the
reason and nature of things: a principle which will impose laws even on
the Deity....

"I have thrown out these ideas that I may have it distinctly understood
that my opinion on this point is not founded on the provision in the
Constitution of the United States, relative to laws impairing the
obligation of contracts."

It was contended in this case that the state of Georgia had the right to
revoke the grant on the ground that it was secured by corrupt means.
This argument evidently failed to appeal to the court. It was referred
to by Justice Johnson who said "as to the idea that the grants of a
legislature may be void because the legislature are corrupt, it appears
to me to be subject to insuperable difficulties.... The acts of the
supreme power of a country must be considered pure...."

It is interesting to observe that the Federalist judges in the early
years of our history under the Constitution did not deem it necessary to
find a constitutional ground for decisions of this sort. But with the
overthrow of the Federalist party and the progress of belief in popular
government, there is an evident disposition on the part of the court to
extend the protection of the Federal Constitution to all the powers
which it claimed the right to exercise. Thus in the Dartmouth College
case, decided in 1819, the United States Supreme Court appears to have
abandoned its earlier position and to have recognized the Constitution
as the source of its power to annul state laws.

"It is under the protection of the decision in the Dartmouth College
case," says Judge Cooley, "that the most enormous and threatening powers
in our country have been created; some of the great and wealthy
corporations actually having greater influence in the country at large,
and upon the legislation of the country than the states to which they
owe their corporate existence. Every privilege granted or right
conferred--no matter by what means or on what pretence--being made
inviolable by the Constitution, the government is frequently found
stripped of its authority in very important particulars, by unwise,
careless, or corrupt legislation; and a clause of the Federal
Constitution, whose purpose was to preclude the repudiation of debts and
just contracts, protects and perpetuates the evil."[186]

Any government framed and set up to guard and promote the interests of
the people generally ought to have full power to modify or revoke all
rights or privileges granted in disregard of the public welfare. But the
Supreme Court, while permitting the creation or extension of property
rights, has prevented the subsequent abridgment of such rights, even
when the interests of the general public demanded it. The effect of this
has been to make the corporations take an active part in corrupting
state politics. Special legislation was not prohibited. In fact, it was
a common way of creating property rights. If a bank, an insurance
company, or a railway corporation was organized, it was necessary to
obtain a charter from the legislature which defined its powers and
privileges. The corporation came into existence by virtue of a special
act of the legislature and could exercise only such powers and enjoy
only such rights and privileges as that body saw fit to confer upon it.
The legislature might refuse to grant a charter, but having granted it,
it became a vested right which could not be revoked. The charter thus
granted by the legislature was a special privilege. In many instances it
was secured as a reward for political services by favorites of the party
machine, or through the corrupt expenditure of money or the equally
corrupt distribution of stock in the proposed corporation among those
who controlled legislation. Not only did this system invite corruption
in the granting of such charters, but it also created a motive for the
further use of corrupt means to keep possible competitors from securing
like privileges. It was worth the while to spend money to secure a
valuable privilege if when once obtained the legislature could not
revoke it. And it was also worth the while to spend more money to keep
dangerous competitors out of the field if by so doing it could enjoy
some of the benefits of monopoly. By thus holding that a privilege
granted to an individual or a private corporation by special act of the
legislature was a contract which could not be revoked by that body, the
courts in their effort to protect property rights opened the door which
allowed corporation funds to be brought into our state legislatures
early in our history for purposes of corruption.

But little attention has been given as yet to this early species of
corruption which in some of the states at least assumed the proportions
of a serious political evil.

"During the first half century banking in New York," says Horace White,
"was an integral part of the spoils of politics. Federalists would grant
no charters to Republicans, and Republicans none to Federalists. After a
few banks had been established they united, regardless of politics, to
create a monopoly by preventing other persons from getting charters.
When charters were applied for and refused, the applicants began
business on the common-law plan. Then, at the instigation of the favored
ones, the politicians passed a law to suppress all unchartered banks.
The latter went to Albany and bribed the legislature. In short,
politics, monopoly, and bribery constitute the key to banking in the
early history of the state."[187]

The intervention of the courts which made the conditions above described
possible, while ostensibly limiting the power of the state legislature,
in reality enlarged and extended it in the interest of the
capital-owning class. It gave to the state legislature a power which up
to that time it had not possessed--the power to grant rights and
privileges of which the grantees could not be deprived by subsequent
legislation. Before the adoption of the Federal Constitution no act of
the legislature could permanently override the will of the qualified
voters. It was subject to modification or repeal at the hands of any
succeeding legislature. The voters of the state thus had what was in
effect an indirect veto on all legislative acts--a power which they
might exercise through a subsequent legislature or constitutional
convention. But with the adoption of the Constitution of the United
States the Federal courts were able to deprive them of this power where
it was most needed. This removed the only effective check on corruption
and class legislation, thus placing the people at the mercy of their
state legislatures and any private interests that might temporarily
control them.

The power which the legislatures thus acquired to grant charters which
could not be amended or repealed made it necessary for the people to
devise some new method of protecting themselves against this abuse of
legislative authority. The outcome of this movement to re-establish some
effective popular check on the legislature has taken the form in a
majority of the states of a constitutional amendment by which the right
is reserved to amend or repeal all laws conferring corporate powers.
Such constitutional changes provide no remedy, however, for the evils
resulting from legislative grants made previous to their adoption. The
granting of special charters is now also prohibited in many states, the
constitution requiring that all corporations shall be formed under
general laws. These constitutional changes may be regarded as in the
interest of the capitalist class as a whole, whose demand was for a
broader and more liberal policy--one which would extend the advantages
of the corporate form of organization to all capitalists in every line
of business. But even our general corporation laws have been enacted too
largely in the interest of those who control our business undertakings
and without due regard to the rights of the general public.

A study of our political history shows that the attitude of the courts
has been responsible for much of our political immorality. By protecting
the capitalist in the possession and enjoyment of privileges unwisely
and even corruptly granted, they have greatly strengthened the motive
for employing bribery and other corrupt means in securing the grant of
special privileges. If the courts had all along held that any proof of
fraud or corruption in obtaining a franchise or other legislative grant
was sufficient to justify its revocation, the lobbyist, the bribe-giver,
and the "innocent purchaser" of rights and privileges stolen from the
people, would have found the traffic in legislative favors a precarious
and much less profitable mode of acquiring wealth.




CHAPTER XIII

THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION


The distinguishing feature of the Constitution, as shown in the
preceding chapters of this book, was the elaborate provisions which it
contained for limiting the power of the majority. The direction of its
development, however, has in many respects been quite different from
that for which the more conservative of its framers hoped.[188] The
checks upon democracy which it contained were nevertheless so skilfully
contrived and so effective that the progress of the popular movement has
been more seriously hampered and retarded here than in any other country
where the belief in majority rule has come to be widely accepted. In
some important respects the system as originally set up has yielded to
the pressure of present-day tendencies in political thought; but many of
its features are at variance with what has come to be regarded as
essential in any well-organized democracy.

It is not so much in formal changes made in the Constitution as in the
changes introduced through interpretation and usage that we must look
for the influence of nineteenth-century democracy. In fact, the formal
amendment of the Constitution, as shown in Chapter IV, is practically
impossible. But no scheme of government set up for eighteenth-century
society could have survived throughout the nineteenth and into the
twentieth century without undergoing important modifications. No century
of which we have any knowledge has witnessed so much progress along
nearly every line of thought and activity. An industrial and social
revolution has brought a new type of society into existence and changed
our point of view with reference to nearly every important economic and
political question. Our constitutional and legal system, however, has
stubbornly resisted the influence of this newer thought, although enough
has been conceded to the believers in majority rule from time to time to
keep the system of checks from breaking down.

Some of the checks which the founders of our government established no
longer exist except in form. This is true of the electoral college
through which the framers of the Constitution hoped and expected to
prevent the majority of the qualified voters from choosing the
President. In this case democracy has largely defeated the end of the
framers, though the small states, through their disproportionately
large representation in the electoral college, exert an influence in
Presidential elections out of proportion to their population.

The most important change in the practical operation of the system has
been accomplished indirectly through the extension of the suffrage in
the various states. Fortunately, the qualifications of electors were not
fixed by the Federal Constitution. If they had been, it is altogether
probable that the suffrage would have been much restricted, since the
right to vote was at that time limited to the minority. The state
constitutions responded in time to the influence of the democratic
movement and manhood suffrage became general. This placed not only the
various state governments but also the President and the House of
Representatives upon a basis which was popular in theory if not in fact.
Much remained and still remains to be done in the matter of perfecting
the party system and the various organs for formulating and expressing
public opinion with reference to political questions, before there will
be any assurance that even these branches of the general government will
always represent public sentiment.

There is one serious defect in the method of choosing the President. The
system makes possible the election of an executive to whom a majority
and even a large majority of the voters might be bitterly opposed. From
the point of view of the framers of the Constitution the choice of a
mere popular favorite was undesirable and even dangerous; but according
to the view now generally accepted the chief executive of the nation
should represent those policies which have the support of a majority of
the people.

It is possible that the candidate receiving a majority of all the votes
cast may be defeated,[189] while it often happens that the successful
candidate receives less than a majority of the popular vote.[190] When
three or more tickets are placed in the field, the candidate having a
majority in the electoral college may fall far short of a majority of
the popular vote. This was the case when Lincoln was elected President
in 1860. There were four candidates for the Presidency, and while
Lincoln received a larger popular vote than any other one candidate, he
received less than the combined vote for either Douglas and
Breckenridge, or Douglas and Bell. In fact, he received less than
two-fifths of the total popular vote.

It is easily seen that a system is fraught with grave danger, especially
in times of bitter sectional and party strife, which makes possible the
election of a minority President. At such times opposition to
governmental policies is most likely to assume the form of active
resistance when a minority secures control of the government. In other
words, a majority is more likely to resist a minority than a minority is
to resist a majority. This would be true especially in a country where
the people generally accept the principle of majority rule.

It can not be claimed that Lincoln was, or that the South regarded him
as, the choice of a majority of the people. A different system which
would have precluded the election of a President who did not have a
clear majority of the popular vote might have done much toward
discouraging active resistance on the part of the Southern States.

No one, in fact, has stated the case against minority rule more clearly
or forcefully than Lincoln himself. In a speech made in the House of
Representatives January 12, 1848, on "The War with Mexico," he said:

"Any people anywhere, being inclined and having the power, have the
_right_ to rise up and shake off the existing government, and form a new
one that suits them better. This is a most valuable, a most sacred
right--a right which, we hope and believe, is to liberate the world. Nor
is this right confined to cases in which the whole people of an existing
government may choose to exercise it. Any portion of such people that
_can may_ revolutionize, and make their _own_ of so much of the
territory as they inhabit. More than this, a _majority_ of any portion
of such people may revolutionize, putting down a _minority_,
intermingled with, or near about them, who may oppose their movements.
Such minority was precisely the case of the Tories of our own
Revolution."[191]

This was quoted in defense of the right of secession by Alexander H.
Stephens in his "Constitutional View of the Late War between the
States."[192]

The chief remaining obstacles to popular legislation are the Senate and
the Supreme Court. Some means must be found to make these two branches
of the government responsible to the majority before the government as a
whole can be depended upon to give prompt and effective expression to
public opinion. The Senate presents the most difficult problem for
democracy to solve. The present method of choosing senators is
altogether unsatisfactory. It has resulted in making the upper house of
our Federal legislature representative of those special interests over
which there is urgent need of effective public control. It has also had
the effect of subordinating the making of laws in our state legislatures
to that purely extraneous function--the election of United States
senators. The exercise of the latter function has done more than
anything else to confuse state politics by making it necessary for those
interests that would control the United States Senate to secure the
nomination and election of such men to the state legislatures as can be
relied upon to choose senators who will not be too much in sympathy with
anti-corporation sentiments.

The Senate has fulfilled in larger measure than any other branch of the
government the expectation of the founders. It was intended to be
representative of conservatism and wealth and a solid and enduring
bulwark against democracy. That it has accomplished this purpose of the
framers can scarcely be denied. But the political beliefs of the framers
are not the generally accepted political beliefs of to-day. It is
immaterial to the people generally that the attitude of the Senate on
public questions is in line with the purpose for which that body was
originally established. The criticism of the Senate's policy expressed
in the phrase "all brakes and no steam"[193] indicates not so much a
change in the character and influence of that body as in the attitude of
the people toward the checks which the Constitution imposed upon
democracy. Conservatism has always been characteristic of the United
States Senate, which, as Sir Henry Maine says, is "the one thoroughly
successful institution [upper house] which has been established since
the tide of modern democracy began to run."[194] Measuring success by
the degree of resistance offered to the will of the majority, as this
writer does, the conclusion is correct. This is the standard of judgment
which the framers of the Constitution would have applied, but it is not
the generally accepted standard according to which the success of that
body would be judged to-day. We have now come to accept the view that
every organ of government must be approved or condemned according as it
furthers or thwarts the ends of democracy. Applying this test, the
conclusion is inevitable that the Senate as now constituted is out of
harmony with present-day political thought.

What, then, can be done to make that body an organ of democracy? There
are three distinct evils in the Senate as it is now organized. The first
pertains to the irresponsibility of its members due to their method of
election and long term of office. But inasmuch as this could be remedied
only by a constitutional amendment, it is not likely that anything short
of a revolutionary public sentiment in favor of such change could compel
the preliminary two-thirds majority in that body which the Constitution
makes necessary. A body made up of men who for the most part realize
that they owe their political advancement to a minority would naturally
be loth to support a change in the system which would place the election
to membership in that body directly in the hands of the people. It is
improbable that any such reform can be accomplished at present. Any
such direct attack upon the system would under present conditions be
almost certain to fail. Some method of accomplishing this object must be
employed which does not require the co-operation of the Senate, and
which, without any constitutional amendment, really deprives the
legislature of the power to select United States Senators as the
electoral college has been deprived of all power in the choice of
President.

The second defect in the Senate is the equal representation of the
states in that body. It is not only absurd but manifestly unjust that a
small state like Nevada should have as much representation in the
controlling branch of Congress as New York with more than one hundred
and seventy-one times as much population. A more inequitable
distribution of representation it would be difficult to imagine; yet
this evil could not be removed even by constitutional amendment, since
this matter does not come within the scope of the amending power, unless
the state or states affected by such proposed change should all give
their assent.

The third defect in the Senate is the extraordinary power which the
Constitution has conferred upon it. If it were a directly elected body
whose members were apportioned among the states according to population,
the overshadowing influence of the Senate would not be a serious
matter. But, as shown in Chapter VI, that body controls jointly with the
President the appointing and the treaty-making power. Moreover, the
latter power may be exercised with reference to many things concerning
which Congress has or could legislate. The Senate and the President may
thus repeal what Congress has enacted. We thus have the peculiar
situation that a law enacted with the concurrence of the House may be
repealed without its consent, while a law which takes the form of a
treaty can not be repealed without the consent of the Senate.

Theoretically, the Constitution could be amended so as to diminish the
power of the Senate, but as a matter of fact no change in the
Constitution would be more difficult to bring about. Any proposal to
reduce the power of the Senate would jeopardize the prestige and
influence of the smaller states no less than the proposal to deprive
them of equal representation in that body. The small states approach
political equality with the large, just in proportion as the influence
of the Senate is a dominating factor in the policy of the government.
Any attack on this equality of representation would ally the small
states together in defense of this privilege, and make it impossible to
obtain the assent of three-fourths of the states to any such change.

There is still another respect in which this equality of representation
in the Senate is unfortunate. It tends to make it easier for
corporation influences to dominate that body. This arises out of the
fact that it is more difficult and more expensive to control the
election of senators in a large than in a small state. This tends to
make the small states a favorite field for political activity on the
part of those corporations which wish to secure or prevent Federal
legislation.

The Supreme Court is generally regarded as the most effective of all our
constitutional checks upon democracy. Still, if the Senate were once
democratized, it would not be a difficult matter to bring the Federal
judiciary into line with the popular movement. In fact, the means
employed in England to subordinate the House of Lords to the Commons
indicates the method which might be employed here to subordinate the
Supreme Court to Congress. The Ministry in England, virtually appointed
by and responsible to the majority in the House of Commons, secured
control of the prerogatives of the Crown, one of which was the right to
appoint peers. No sooner did the House of Commons come into possession
of this power through a responsible Ministry than it realized the
possibility of making use of it to overcome opposition to their policies
on the part of the Lords. If the House of Lords did not yield to the
House of Commons, the latter, through its Cabinet, could create new
peers in sufficient number to break down all resistance in that body.
The possession of that power by the Commons and the warning that it
would be used if necessary has been sufficient to ensure compliance on
the part of the Lords. In a similar manner Congress and the President
could control the Supreme Court. The Constitution does not fix the
number of Supreme judges. This is a matter of detail which was left to
Congress, which may at any time provide for the addition of as many new
judges to the Supreme Court as it may see fit. Thus Congress, with the
co-operation of the President, could control the policy of the Supreme
Court in exactly the same way and to the same extent that the House of
Commons controls the House of Lords.

That the Federalists who were in possession of our general government
during the early years of its history appreciated the advantage of
controlling the policy of the Supreme Court was pointed out in the
chapter on the Federal judiciary. They accomplished their purpose,
however, by selecting for membership in that body, men whose political
record was satisfactory and whose views concerning judicial functions
were in harmony with the general plan and purpose of the Federalist
party. In fact, the scheme of government which they set up contemplated
no such possibility as the democratization of the Executive or the
Senate. If their expectation in this regard had been fully realized, a
judicious use of the appointing power would have been all that was
necessary to ensure a conservative court. Perhaps the framers of the
Constitution did not imagine that the power to increase the number of
judges would ever be needed to enable the President and Senate to secure
the co-operation of the Supreme Court. At any rate, the power given to
Congress and the President to enlarge the membership of that body was
not, in the opinion of the framers, a power that could ever be employed
against the conservative class, since the radical element, it was
believed, would never be able to control more than one branch of the
government, the House of Representatives. But, although it can not be
determined whether the Federalists had in mind the possibility of using
this power to control the policy of the court, it should be noted that,
according to their view of the government, it might be used by, but not
against, the conservative class. Nor is it likely that they would have
hesitated to use this power had it been necessary to the success of
their plan.

The failure of the Federalists to check the growth of democratic ideas
and the success of the more liberal party in bringing about the election
of Jefferson alarmed the conservative class. It was seen that if all
other branches of the government should come under the influence of the
liberal movement, the judicial check could be broken down. To guard
against this danger, an effort was made by the conservative interests
to mold a public sentiment that would protect the Supreme Court against
political interference at the hands of those who might wish to override
judicial opposition to radical measures. This took the form of what
might be called the doctrine of judicial infallibility. The judiciary in
general and the Supreme Court in particular were held up as the guardian
and protector of American liberty. The security of the people was
represented as bound up with the freedom of the courts from political
interference. At the same time it was proclaimed that the Supreme Court
exercised only judicial functions and that any attempt on the part of
the President or Congress to interfere with them would make that body
the organ of faction or class. But, as a matter of fact, the danger
which they foresaw to the Supreme Court was not a danger growing out of
its judicial, but out of its legislative functions. It was not because
the Supreme Court was a purely judicial body, but because it exercised a
supremely important legislative function, that they were so solicitous
to guard it against anything approaching popular control. The threefold
division of governmental powers into legislative, executive, and
judicial, as shown in a preceding chapter, has no logical basis. There
are, as Professor Goodnow has said,[195] but two functions of
government, that of expressing and that of executing the will of the
state. The Supreme Court, in so far as it is a purely judicial
body--that is, a body for hearing and deciding cases--is simply a means
of executing the will of the state. With the performance of this
function there was little danger that any democratic movement would
interfere. Nor was this the danger which the conservative classes really
feared, or which they wished to guard against. What they desired above
all else was to give the Supreme Court a final voice in expressing the
will of the state, and by so doing to make it operate as an effective
check upon democratic legislation. It is this power of expressing the
will of the state which our conservative writers defend as the
pre-eminently meritorious feature of our judicial system. Indeed, this
is, in the opinion of the conservative class, the most important of all
the checks on democracy. Any suggestion of using the power vested in
Congress and the President to reorganize the Supreme Court is naturally
enough denounced as the most dangerous and revolutionary of political
heresies. It is not probable, however, that the Supreme Court would much
longer be permitted to thwart the will of the majority if the other
branches of the Federal government were thoroughly imbued with the
belief in democracy. As explained in Chapter V, the Constitution
contains no hint of this power to declare acts of Congress null and
void. It was injected into the Constitution, as the framers intended, by
judicial interpretation, and under the influence of a thoroughly
democratic President, and Congress might be eliminated in the same way.

The most important feature of the Constitution from the standpoint of
democracy is the provision contained in article V, requiring Congress
"on the application of the legislatures of two-thirds of the several
states" to "call a convention for proposing amendments." The progress of
democracy in the various state governments is likely to compel resort to
this method of changing the Federal Constitution if the Senate much
longer persists in disregarding the will of the people. In fact, this
is, in the opinion of the conservative class, the one fatal defect in
the scheme of constitutional checks established by our forefathers. It
in reality opens the door to the most revolutionary changes in our
political arrangements. Congress can not refuse to call a general
constitutional convention when two-thirds of the states demand it, and
this convention might propose an entirely new constitution framed in
accord with the most advanced ideas of democracy. It might also follow
the precedent, set by the framers of our present Constitution and
prescribe an entirely new method of ratification as our more
conservative forefathers did when they disregarded the then existing
provision governing the amendment of the Articles of Confederation. It
is true that they ignored the established method of amending as well as
the instructions from the states by which they were appointed, in order
to bring about the adoption of a political system more acceptable to the
conservative classes. But what has been done in the interest of the
minority may also be done in the interest of the majority. A new Federal
constitution might be framed which would eliminate the whole system of
checks on the people and provide for direct ratification by a majority
of the voters, as has already been done in the case of most of our state
constitutions. If the Constitution does not yield sufficiently to
satisfy the popular demand for reform, it is possible that the
reactionary forces will, in their anxiety to defeat moderate democratic
measures, arouse sufficient opposition on the part of the people to
compel sweeping constitutional changes.

The fact that two-thirds of the states can require Congress to call a
convention of all the states to propose changes in the Constitution is a
matter of no small importance. True, even this method of initiating
changes in the system would be very difficult, since the smaller states
would naturally fear an attempt to establish a more equitable plan of
representation, and the special and privileged interests of all sorts
which have found the present system satisfactory would use every means
at their command to prevent the states from resorting to this power. It
is possible, if not indeed probable, that a serious and concerted
attempt by the people to force changes in the Constitution by this
method would sufficiently alarm the opponents of democracy to convince
them of the wisdom and expediency of such amendments as would appease
the popular clamor for reform without going too far in the direction of
majority rule. To prevent the complete overthrow of the system, which
might be the outcome if the states were compelled to assume the
initiative in amending the Constitution, the minority may accept the
inevitable, and, choosing what appears to them to be the lesser of two
evils, allow Congress to propose such amendments as the people are
determined to bring about.

It is in the state and in the municipal governments, however, that the
influence of democracy has been greatest. Yet even here much still
remains to be done before the practical operation of the system will be
in accord with the principle of majority rule. Direct election and
universal suffrage have not under our scheme of checks and balances
secured any large measure of political responsibility. The logical
result of this system has been the growing distrust of public officials
and especially of such representative bodies as state legislatures and
city councils. This lack of confidence in the local governmental
machinery, due to the irresponsibility of public officials, is certain
to lead to the adoption of radical changes in the organization of our
state and municipal governments. Either the tenure of public officials
will be made to depend in some more effective way upon the will of the
majority, or the power which they now have and which they often use to
further private interests at the expense of the people will be taken
from them and conferred directly upon the majority of the voters.

The movement to give the people greater control over the officials whom
they have elected is really just beginning. Heretofore the effort to
make the government truly representative of the people has been mainly
along the line of broadening the suffrage and perfecting the method of
voting. This, the people are just beginning to realize, does not
guarantee political responsibility. The secret ballot under present
conditions is important, but it is by no means adequate. The right of
the majority to elect one or the other of two men, both of whom may have
been nominated through the machinations of a corrupt and selfish
minority, does not give the people any real control over the officials
whom they vote into office. What they need, to ensure responsibility, is
the power to make a real, not a merely nominal choice, coupled with the
power to remove in case the person selected should lose the confidence
of the majority.

The plan for depriving the minority of the power to control the
selection of public officials, which is now rapidly gaining adherents
among the advocates of political reform, is the direct primary. That
some such change in our method of nominating candidates is necessary to
make the so-called popular election of public officials anything more
than an empty form is apparent to any intelligent student of American
politics. But any proposal to deprive the minority of this power must
encounter the determined opposition of the party machine and the various
private interests which now prosper at the expense of the people. These
opponents of political reform are continually declaiming against the
corruption and incapacity of the people and trying to make it appear
that a government can be no better than its source--those who elect the
public officials. That a government is not likely to be better than the
people whom it represents may be admitted. But this is aside from the
question. Our present system in its practical operation is not a
democracy. It is not truly representative, but misrepresentative. To
prevent this evil--this betrayal of public trust in the interest of the
minority--is the aim of the direct primary. That it will go far toward
breaking the power of the machine may be safely predicted, and that it
will be generally adopted as soon as the people realize its significance
there is scarcely room for doubt.

But while the direct nomination of candidates would doubtless go far
toward making public officials respect the wishes of the people, it
would not provide adequate protection against misconduct in office under
our plan of election for a definite term without any effective power of
removal. A corrupt official may often find that by favoring private
interests at the expense of the people who have elected him, he can
afford to forfeit all chance of re-election. The independence of public
officials which our forefathers were so anxious to secure has been found
to be a fruitful source of corruption. A realization of this fact has
been responsible for the introduction of the recall system under which
the people enforce official responsibility through their power to remove
by a vote of lack of confidence in the form of a petition signed by a
certain percentage of the voters. Such an expression of popular
disapproval has the effect of suspending from office the offending
official who can regain the office only by offering himself again as a
candidate at an election called for that purpose. This is as yet merely
an innovation in municipal government, but if it proves to be
satisfactory, the principle will doubtless be incorporated, not only in
municipal charters generally, but in our state constitutions as well.

Simultaneous with this movement to make government really representative
by enforcing official responsibility is another movement which also
aims to make the will of the majority supreme, but by a totally
different method of procedure. This is the movement looking toward the
establishment of the initiative and the referendum. Instead of leaving
power in the hands of representative bodies and seeking to make them
responsible as the first plan of reform contemplates, the second plan
would guard representative bodies against temptation by divesting them
of all powers which they are liable to misuse and conferring them
directly upon the people. This is merely an attempt to get back to the
basic idea of the old town meeting, where local measures were directly
proposed and adopted or rejected by the people. It is, moreover, the
logical outcome of the struggle which the advocates of majority rule
have been and are now making to secure control of our state and
municipal governments. The constitutional checks on democracy have
greatly obstructed and delayed the progress of political reform. Some of
them have been removed, it is true, but enough still remain to make it
possible for the minority to defeat the will of the majority with
reference to many questions of vital importance.

It must be admitted, when we review the course of our political
development, that much progress has been made. But the evolution has
been toward a direct rather than toward a representative democracy. The
reason for this is not far to seek. The system of checks which limited
the power of the majority made the legislature largely an irresponsible
body; and since it could not be trusted, it was necessary to take out of
its hands the powers it was most likely to abuse.

The legislature was first deprived of its power to enact constitutional
legislation, though it was allowed to retain an effective veto on such
changes through its refusal to take the initiative. With the progress of
the democratic movement some of the legislative powers most frequently
abused were, like the state constitution itself, made subject to popular
ratification. This submission of constitutional and certain kinds of
statutory legislation to the people before it could go into effect
merely gave them to this extent a veto on the recommendations of their
legislatures and constitutional conventions. There was still no way to
prevent the legislature from misrepresenting the people with respect to
those measures which did not require popular ratification. The tendency
was to diminish the power of the legislature by including in the
constitution itself much that might have taken the form of ordinary
statutory legislation, as well as by requiring that some of the more
important acts passed by the legislature should receive the direct
assent of the voters. This merely gave to the people a partial negative.
It enabled them to reject some measures which they did not approve of,
but not all, since in those cases where popular ratification was not
required, public sentiment could be disregarded by the law-making body.
Moreover, the people did not have the right to initiate measures--a
right which is indispensable if the people are to have any real power to
mold the policy of the state. The logical outcome of this line of
development is easily seen. As pointed out in an earlier part of this
volume, constitutional development first limits and eventually destroys
irresponsible power, and in the end makes the responsible power in the
state supreme. The prevalent lack of confidence in our state
legislatures is no indication of hostility to the principle of
representative government; for representative government in the true
sense means government that is responsible to the people. The popular
movement has in modifying our state and municipal governments merely
taken the line of least resistance, and that has involved the transfer
of legislative powers to the people themselves.

Just how far this movement will go it is impossible to foresee. A
government of the representative type, if responsive to public
sentiment, would answer all the requirements of a democratic state. It
would at the same time be merely carrying out in practice what has long
been the generally accepted, if mistaken, view of our political system.
The adoption of some effective plan of direct nomination and recall of
officials would accomplish much in the way of restoring confidence in
legislative bodies. To this extent it would check the tendency to place
the law-making power directly in the hands of the people. Popular
ratification of all important laws would be unnecessary, if our
legislative bodies were really responsible to the people. Nevertheless,
the popular veto is a power which the people should have the right to
use whenever occasion demands. This would prevent the possibility of
legislation in the interest of the minority as now often happens. The
popular veto through the referendum is not, however, of itself
sufficient. The people need the power to initiate legislation as well as
the power to defeat it. The initiative combined with the referendum
would make the majority in fact, as it now is in name only, the final
authority in all matters of legislation.

It is in our state and municipal governments that democracy is likely to
win its first victories. The minority, however, will make a desperate
struggle to prevent the overthrow of the system which has been and still
is the source of its power. The political machine supported by every
privileged interest will oppose by every means in its power the efforts
of the people to break down the checks upon the majority. To this end we
must expect them to make large use in the near future, as they have in
the past, of the extraordinary powers exercised by our courts. In fact
the courts as the least responsible and most conservative of our organs
of government have been the last refuge of the minority when defeated in
the other branches of the government. The disposition so generally seen
among the opponents of democracy to regard all measures designed to
break down the checks upon the majority as unconstitutional points to
the judiciary as the chief reliance of the conservative classes. Indeed,
the people are beginning to see that the courts are in possession of
political powers of supreme importance--that they can, and often do,
defeat the will of the majority after it has successfully overcome
opposition in all other branches of the government. If the will of the
majority is to prevail, the courts must be deprived of the power which
they now have to declare laws null and void. Popular government can not
really exist so long as judges who are politically irresponsible have
power to override the will of the majority. The democratic movement will
either deprive the judicial branch of the government of its political
powers or subject it to the same degree of popular control applied to
other political organs. The extension of direct nomination and recall to
the members of our state judiciary would deprive the special interests
of the power to use the courts as the means of blocking the way to
popular reforms. In any democratic community the final interpreter of
the constitution must be the majority. With the evolution of complete
popular government, then, the judicial veto must disappear, or the
court must become a democratic body.

It is through our state governments that we must approach the problem of
reforming the national government. Complete control of the former will
open the door that leads to eventual control of the latter. Democratize
the state governments, and it will be possible even to change the
character of the United States Senate. With a state legislature directly
nominated and subject to removal through the use of the recall, it will
be possible to deprive that body of any real power in the selection of
United States senators. Under these conditions the legislature would
merely ratify the candidate receiving a majority of the popular vote
just as the electoral college has come to ratify the popular choice of
the President. In this way direct nomination and direct election of
United States senators could be made really effective while at the same
time preserving the form but not the substance of election by the state
legislatures.[196]

This would make possible that much needed separation of state and
municipal from national politics. Candidates for the state legislature
are now nominated and elected largely with reference to the influence of
that body upon the composition of the United States Senate. This has a
tendency to, and in fact does, make state legislation in no small degree
a by-product of senatorial elections. By divesting the legislature of
this function, it would cease to be, as it is now, one of the organs of
the Federal government, and in assuming its proper role of a local
legislative body, it would become in fact what it has hardly been even
in theory--a body mainly interested in formulating and carrying out
purely local policies. Experience has shown beyond question that its
function as an electoral college for the choice of United States
senators is incompatible with the satisfactory exercise of local
legislative functions. The latter will be sacrificed in the interest of
the former. This of itself is no small evil. For if there is any
advantage in our Federal form of government, it is in the opportunity
thus provided for the faithful expression of local public opinion in
local legislation. But in addition to this subordination of state to
national politics, which might be justified under existing conditions on
the ground that local measures and local interests should be sacrificed
whenever by so doing it would contribute to the success of the larger
and more important matters of national policy, it has become a prolific
source of corruption.

It is not a mere accident that the United States Senate is to-day the
stronghold of railway and other corporate interests. Possessing as it
does more extended powers than the House of Representatives, it is for
that very reason the body in which every privileged interest will make
the greatest effort to obtain representation. Moreover, the indirect
method of election is one that readily lends itself to purposes of
corruption. It is a notorious fact that it is much easier to buy the
representatives of the people than to buy the people themselves. Money
expended in influencing elections always has in view certain benefits
direct or indirect which those who contribute the funds for that purpose
expect to receive. Such funds invariably come in the main from special
interests which expect to get back from the people more than the amount
of their political investments. If they had to deal with the people
directly, the latter would demand an equivalent for any concession
granted, since it would not be to their advantage to enrich special
interests at their own expense. But where the concession can be granted
by a small body such as a state legislature, the latter may find that it
is to its advantage to co-operate with a selfish and unscrupulous class
in furthering purely private interests at the expense of the public. The
opportunity for the successful employment of corrupt means is greatly
augmented, too, through the confusion of state and national issues under
the present system. Many measures may be sacrificed by the party in
control of the state legislature under the plea that it is necessary in
order to advance the general interests of the party by the election of a
United States senator. This possibility of evading responsibility for
the nonfulfillment of its duty as a local legislative body would
disappear as soon as it is deprived of the part which it now plays in
the choice of United States senators.




CHAPTER XIV

EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY RULE UPON MORALITY


In tracing the influence which the growth of democracy has had upon
morality, we should be careful to look below the surface of present-day
affairs. The deeper and more enduring social movements and tendencies
are not always obvious to the superficial observer. For this reason much
that has been written in recent years concerning our alleged decline in
public morality is far from convincing. Facts tending to show the
prevalence of fraud and corruption in politics and business are not in
themselves sufficient to warrant any sweeping conclusions as to present
tendencies. Paradoxical as it may seem, an increase in crime and other
surface manifestations of immorality, is no proof of a decline, but may
as a matter of fact be merely a transient effect of substantial and
permanent advance toward higher standards of morality.

Before making any comparison between the morality of two different
periods, we should first find out whether, in passing from the one
period to the other, there has been any change in the accepted ideas of
right and wrong. Now, if such is the case, it is manifestly an important
factor in the problem--one that should not be ignored; and yet this is
just what many writers are doing who imagine that they are proving by
statistics a decline in morality. Their error consists in overlooking
the one fact of paramount importance, viz., that the accepted standard
of morality has itself been raised. We are not judging conduct to-day
according to the ideas of civic duty in vogue a century, or even a
generation ago. We are insisting upon higher standards of conduct both
in politics and in business. Our ideas of right and wrong in their
manifold applications to social life have been profoundly changed, and
in many respects for the better. We are trying to realize a new
conception of justice. Many things which a century ago were sanctioned
by law, or at least not forbidden, are no longer tolerated. Moreover,
enlightened public opinion now condemns many things which have not yet
been brought under the ban of the law.

During any period, such as that in which we are now living, when society
is rapidly assuming a higher ethical type, it is inevitable that much
resistance should be made to the enforcement of the new standard of
justice. Old methods of business and old political practices are not
easily repressed, even when the public opinion of the community has come
to regard them as socially injurious. Forms of conduct once permitted,
but now regarded as anti-social, tend to persist in spite of the effort
of law and public opinion to dislodge them. The more rapid the ethical
progress of society, the more frequent and the more pronounced will be
the failure of the morally backward individuals to meet the requirements
of the new social standard. At such a time we always see an increase in
crimes, misdemeanors and acts which enlightened public opinion condemns.
This is due, however, not to any decline in public morality, but to the
fact that the ethical progress of society as a whole has been more rapid
than that of the offending class.

There is another source of error which we must guard against. Social
immorality is not always detected even when it exists. Much that is
socially immoral both in politics and in business escapes observation.
Nevertheless, the agencies for ferreting out and holding up to public
condemnation offences against society, are far more efficient and active
to-day than they have ever been in the past. Both the corrupt public
official and the unscrupulous business man dread the searchlight of
public opinion, which is becoming more and more effective as a regulator
of conduct with the growth of intelligence among the masses. Nor is it
surprising that when the hitherto dark recesses of politics and business
are exposed to view, an alarming amount of fraud and corruption should
be revealed. We are too prone to forget, however, that publicity is
something new--that in our day the seen may bear a much larger
proportion to the unseen than it has in the past. What appears, then, to
be an increase in business and political immorality may, after all, be
largely accounted for as the result of more publicity. Here, again, we
see that the facts usually taken to indicate a decline in public
morality are susceptible of a very different interpretation.

Another feature of present-day society which deserves careful
consideration by reason of its far-reaching effect upon public morality
is the change now taking place in theological beliefs. Heretofore the
church has been by far the most important agency for enforcing
conformity to the accepted moral standard. The hope of reward or fear of
punishment in the world to come has been the chief support upon which
the church has in the past rested its system of social control. But this
other-world sanction is now losing its compelling force in consequence
of the growing disbelief in the old doctrine of rewards and punishments.
The fear of the supernatural, which has its highest development in the
savage, steadily declines with the progress of the race. When the
general level of intelligence is low, the supernatural sanction is a far
more potent means of regulating conduct than any purely temporal
authority. But, just in proportion as society advances, the other-world
sanction loses its potency and increasing reliance must, therefore, be
placed upon purely human agencies.

The immediate effect of this change in our attitude toward the hereafter
and the supernatural has been to remove or at least to weaken an
important restraint upon anti-social tendencies. There is no reason,
however, for apprehension as to the final outcome. Society always
experiences some difficulty, it is true, in making the transition from
the old to the new. In every period of social readjustment old
institutions and beliefs lose their efficacy before the new social
agencies have been perfected. But if the new is higher and better than
the old, the good that will accrue to society will in the long run
greatly outweigh any temporary evil.

But great as has been the change in our point of view with reference to
the church, our attitude toward the state has been even more profoundly
changed. We do not have to go very far back into the past to find
government everywhere controlled by a king and privileged class. The
ascendency of the few was everywhere established by the sword, but it
could not be long maintained by force alone. The ignorance of the masses
was in the past, as it is now, the main reliance of those who wished to
perpetuate minority rule. Fraud and deception have always been an
indispensable means of maintaining class ascendency in government. The
primitive politician no less than his present-day successor saw the
possibility of utilizing the credulity of the masses for the purpose of
furthering his own selfish ends. This explains the long-continued
survival of that interesting political superstition which for so many
centuries protected class rule under the pretended sanction of a
God-given right.

The growth of intelligence among the masses by discrediting the doctrine
of divine right made it necessary to abandon the old defense of class
rule. From that time down to the present the disintegration of the old
political order has been rapid. Every effort has been made by the
defenders of the old system to find some means of justifying and
maintaining class rule--a task which is becoming more and more difficult
with the growing belief in democracy. At the present time we are in a
transition stage. The divine theory of the state, which was the
foundation and support of the old system of class rule, is no longer
accepted by intelligent people in any civilized country. But class rule
still has its advocates, even in the countries that have advanced
farthest in the direction of popular government. The opponents of
democracy, however, comprise but a small part of the population
numerically, yet, owing to their great wealth and effective
organization, their influence as a class is everywhere very great. Over
against these is arrayed the bulk of the population, who are struggling,
though not very intelligently always, to overcome the opposition of the
few and make the political organization and the policy of the state a
complete and faithful expression of the popular will. No modern state
has yet passed entirely through this transition stage. Everywhere the
movement toward democracy has been and is now being energetically
resisted by those who fear that thoroughgoing popular government would
deprive them of economic or political privileges which they now enjoy.
Let us not deceive ourselves by thinking that the old system of class
rule has been entirely overthrown. No fundamental change in government
or any other social institution ever comes about suddenly. Time, often
much time, is required for those intellectual and moral readjustments
without which no great change in social institutions can be made. And
when we remember that only a century ago every government in the Western
world was avowedly organized on the basis of minority rule, we can
readily understand that society has not yet had sufficient time to
outgrow the influence of the old political order.

No one can discuss intelligently the question of political morality if
he ignores the effect of this struggle between the old system of
minority domination and the new system of majority rule. And yet
scarcely ever do our text-books or magazine articles dealing with
present political evils even so much as allude to this most important
fact--the one, indeed, on which hinges our whole system of business
fraud and political corruption. We often hear the opinion expressed by
people of more than ordinary intelligence that the public immorality so
much in evidence in this country is the natural and inevitable result of
popular government. This view is industriously encouraged by the
conservative and even accepted by not a few of those whose sympathies
are with democracy. Yet no conclusion could be more erroneous. It would
be just as logical to attribute the religious persecutions of the Middle
Ages to the growth of religious dissent. If there had been no
dissenters, there would have been no persecution; neither would there
have been any reformation or any progress toward a system of religious
liberty. Persecution was the means employed to repress dissent and
defeat the end which the dissenters had in view. Corruption sustains
exactly the same relation to the democratic movement of modern times. It
has been employed, not to promote, but to defeat the ends of popular
government. No intelligent person should any longer be in doubt as to
the real source of corruption. It is to be eradicated, not by placing
additional restrictions on the power of the people, but by removing
those political restraints upon the majority which now preclude any
effective popular control of public officials. We forget that when our
government was established the principle of majority rule was nowhere
recognized--that until well along into the nineteenth century the
majority of our forefathers did not even have the right to vote. The
minority governed under the sanction of the Constitution and the law of
the land. Then a great popular movement swept over the country, and in
the political upheaval which followed, the masses secured the right of
suffrage. But universal suffrage, though essential to, does not ensure
popular government. The right to vote for some, or even all, public
officials, does not necessarily involve any effective control over such
officials by, or any real responsibility to, the majority of the voters.
Nor is any constitutional system set up to achieve the purpose of
minority rule likely to contain those provisions which are necessary for
the enforcement of public opinion in the management of political
affairs. It was thought by the masses, of course, when they acquired the
suffrage that they acquired the substance of political power. Their
expectation, however, was but partially realized. Indirect election,
official independence, and the rigidity of the constitutional system as
a whole, with its lack of responsiveness to popular demands, largely
counteracted the results expected from universal suffrage. But the
extension of the suffrage to the masses, though having much less direct
and immediate influence upon the policy of the state than is generally
supposed, was in one respect supremely important. In popular thought it
worked a transformation in the form of the government. The old view
which recognized the political supremacy of the minority was now largely
superseded by the new view that the will of the majority ought to be the
supreme law of the land.

The minority, however, still continue to exert a controlling influence
in most matters of public policy directly affecting their interests as a
class, although the extension of the suffrage made the exercise of that
control a much more difficult matter and left little room for doubt that
actual majority rule would ultimately prevail. A large measure of
protection was afforded them through the checks which the Constitution
imposed upon the power of the majority. There was no certainty, however,
that these checks could be permanently maintained. A political party
organized in the interest of majority rule, and supported by a strong
public sentiment, might find some way of breaking through or evading the
constitutional provisions designed to limit its power. Certain features
of the Constitution, however, afforded excellent opportunities for
offering effective resistance to the progress of democratic legislation.
Entrenched behind these constitutional bulwarks, an active, intelligent
and wealthy minority might hope to defeat many measures earnestly
desired by the majority and even secure the adoption of some policies
that would directly benefit themselves. Here we find the cause that has
been mainly responsible for the growth of that distinctively American
product, the party machine, with its political bosses, its army of paid
workers and its funds for promoting or opposing legislation, supplied by
various special interests which expect to profit thereby. With the
practical operation of this system we are all familiar. We see the
results of its work in every phase of our political life--in municipal,
state and national affairs. We encounter its malign influence every time
an effort is made to secure any adequate regulation of railways, to
protect the people against the extortion of the trusts, or to make the
great privileged industries of the country bear their just share of
taxation. But the chief concern of those in whose interest the party
machine is run is to defeat any popular attack on those features of the
system which are the real source of the great power which the minority
is able to exert. Try, for example, to secure a constitutional amendment
providing for the direct election of United States senators, the
adoption of the initiative and the referendum, a direct primary scheme,
a measure depriving a city council of the power to enrich private
corporations by giving away valuable franchises, or any provision
intended to give the people an effective control over their so-called
public servants, and we find that nothing less than an overwhelming
public sentiment and sustained social effort is able to make any headway
against the small but powerfully entrenched minority.

Many changes will be required before efficient democratic government can
exist. The greatest and most pressing need at the present time, however,
is for real publicity, which is the only means of making public opinion
effective as an instrument of social control. The movement toward
publicity has been in direct proportion to the growth of democracy.
Formerly the masses were not regarded by the ruling class as having any
capacity for political affairs, or right to criticise governmental
policies and methods. With the acceptance of the idea of popular
sovereignty, however, the right of the people to be kept informed
concerning the management of governmental business received recognition;
but practice has lagged far behind theory.

Much would be gained for good government by extending publicity to the
relations existing between public officials and private business
interests. This would discourage the corrupt alliance which now too
often exists between unscrupulous politicians and corporate wealth. The
public have a right and ought to know to what extent individuals and
corporations have contributed money for the purpose of carrying
elections. The time has come when the political party should be
generally recognized and dealt with as a public agency--as an essential
part or indispensable organ of the government itself. The amount of its
revenue, the sources from which it is obtained, the purposes for which
it is expended, vitally concern the people and should be exposed to a
publicity as thorough and searching as that which extends to the
financial transactions of the government itself. The enforcement of
publicity in this direction would not be open to the objection that the
government was invading the field of legitimate private activity, though
it would bring to light the relations which now exist between the party
machine and private business, and in so doing would expose the true
source of much political corruption.

But this is not all that the people need to know concerning party
management. They can not be expected to make an intelligent choice of
public officials, unless they are supplied with all the facts which have
a direct bearing upon the fitness of the various candidates. Popular
elections will not be entirely successful until some plan is devised
under which no man can become a candidate for office without expecting
to have all the facts bearing upon his fitness, whether relating to his
private life or official conduct, made public. Publicity of this sort
would do much toward securing a better class of public officials.

Publicity concerning that which directly pertains to the management of
the government is not all that will be required. The old idea that all
business is private must give way to the new and sounder view that no
business is entirely private. It is true that the business world is not
yet ready for the application of this doctrine, since deception is a
feature of present-day business methods. It is employed with reference
to business rivals on the one hand and consumers on the other. This
policy of deception often degenerates into down-right fraud, as in the
case of secret rebates and other forms of discrimination through which
one competitor obtains an undue and perhaps crushing advantage over
others; or it may take the form of adulteration or other trade frauds by
which the business man may rob the general public.

"Deception," says Lester F. Ward, "may almost be called the foundation
of business. It is true that if all business men would altogether
discard it, matters would probably be far better even for them than they
are; but, taking the human character as it is, it is frankly avowed by
business men themselves that no business could succeed for a single year
if it were to attempt single-handed and alone to adopt such an
innovation. The particular form of deception characteristic of business
is called _shrewdness_, and it is universally considered proper and
upright. There is a sort of code that fixes the limit beyond which this
form of deception must not be carried, and those who exceed that limit
are looked upon somewhat as a pugilist who 'hits below the belt,' But
within these limits every one expects every other to suggest the false
and suppress the true, while _caveat emptor_ is lord of all, and 'the
devil take the hind-most.'"[197]

Under this system the strong, the unscrupulous and the cunning may
pursue business tactics which enable them to accumulate wealth at the
expense of consumers or business rivals, but which, if generally known,
would not be tolerated. The great profits which fraudulent manufacturers
and merchants have made out of adulterated goods would have been
impossible under a system which required that all goods should be
properly labeled and sold for what they really were. Such abuses as now
exist in the management of railroads and other corporations could not,
or at least would not long be permitted to exist, if the general public
saw the true source, character, extent and full effects of these evils.

The greatest obstacle to publicity at the present time is the control
which corporate wealth is able to, and as a matter of fact does,
exercise over those agencies upon which the people must largely depend
for information and guidance regarding contemporary movements and
events. The telegraph and the newspaper are indispensable in any
present-day democratic society. The ownership and unregulated control of
the former by the large corporate interests of the country, and the
influence which they can bring to bear upon the press by this means, as
well as the direct control which they have over a large part of the
daily press by actual ownership, does much to hinder the progress of the
democratic movement. This hold which organized wealth has upon the
agencies through which public opinion is formed, is an important check
on democracy. It does much to secure a real, though not generally
recognized, class ascendency under the form and appearance of government
by public opinion.

This great struggle now going on between the progressive and the
reactionary forces, between the many and the few, has had a profound
influence upon public morality. We have here a conflict between two
political systems--between two sets of ethical standards. The supporters
of minority rule no doubt often feel that the whole plan and purpose of
the democratic movement is revolutionary--that its ultimate aim is the
complete overthrow of all those checks designed for the protection of
the minority. The only effective means which they could employ to <DW44>
the progress of the popular movement involved the use of money or its
equivalent in ways that have had a corrupting influence upon our
national life. Of course this need not, and as a rule does not, take the
coarse, crude form of a direct purchase of public officials. The methods
used may in the main conform to all our accepted criteria of business
honesty, but their influence is none the less insidious and deadly. It
is felt in many private institutions of learning; it is clearly seen in
the attitude of a large part of our daily press, and even in the church
itself. This subtle influence which a wealthy class is able to exert by
owning or controlling the agencies for molding public opinion is doing
far more to poison the sources of our national life than all the more
direct and obvious forms of corruption combined. The general public may
not see all this or understand its full significance, but the conviction
is gaining ground that it is difficult to enact and still more difficult
to enforce any legislation contemplating just and reasonable regulation
of corporate wealth. The conservative classes themselves are not
satisfied with the political system as it now is, believing that the
majority, by breaking through restraints imposed by the Constitution,
have acquired more power than they should be permitted to exercise under
any well-regulated government. It is but a step, and a short one at
that, from this belief that the organization of the government is wrong
and its policy unjust, to the conclusion that one is justified in using
every available means of defeating the enactment or preventing the
enforcement of pernicious legislation. On the other hand, the supporters
of majority rule believe that the government is too considerate of the
few and not sufficiently responsive to the wishes of the many. As a
result of this situation neither the advocates nor the opponents of
majority rule have that entire faith in the reasonableness and justice
of present political arrangements, which is necessary to ensure real
respect for, or even ready compliance with the laws.

Here we find the real explanation of that widespread disregard of law
which characterizes American society to-day. We are witnessing and
taking part in the final struggle between the old and the new--a
struggle which will not end until one or the other of these
irreconcilable theories of government is completely overthrown, and a
new and harmonious political structure evolved. Every age of
epoch-making change is a time of social turmoil. To the superficial
onlooker this temporary relaxation of social restraints may seem to
indicate a period of decline, but as a matter of fact the loss of faith
in and respect for the old social agencies is a necessary part of that
process of growth through which society reaches a higher plane of
existence.




CHAPTER XV

DEMOCRACY OF THE FUTURE


The growth of the democratic spirit is one of the most important facts
in the political life of the nineteenth century. All countries under the
influence of Western civilization show the same tendency. New political
ideas irreconcilably opposed to the view of government generally
accepted in the past are everywhere gaining recognition. Under the
influence of this new conception of the state the monarchies and
aristocracies of the past are being transformed into the democracies of
the future. We of the present day, however, are still largely in the
trammels of the old, though our goal is the freedom of the new. We have
not yet reached, but are merely traveling toward democracy. The progress
which we have made is largely a progress in thought and ideals. We have
imbibed more of the spirit of popular government. In our way of
thinking, our point of view, our accepted political philosophy, there
has been a marked change. Everywhere, too, with the progress of
scientific knowledge and the spread of popular education, the masses are
coming to a consciousness of their strength. They are circumscribing
the power of ruling classes and abolishing their exclusive privileges
which control of the state has made it possible for them to defend in
the past. From present indications we are at the threshold of a new
social order under which the few will no longer rule the many.

Democracy may be regarded, according to the standpoint from which we
view it, either as an intellectual or as a moral movement. It is
intellectual in that it presupposes a more or less general diffusion of
intelligence, and moral in that its aim is justice. It could not have
appeared or become a social force until man became a thinker and critic
of existing social arrangements. It was first necessary that he should
acquire a point of view and a habit of thought that give him a measure
of intellectual independence and enable him to regard social
institutions and arrangements as human devices more or less imperfect
and unjust. This thought can not be grasped without its correlative--the
possibility of improvement. Hence democracy everywhere stands for
political and social reform.

Democracy is modern, since it is only within recent times that the
general diffusion of knowledge has been possible. The invention of
printing, by making possible a cheap popular literature, contributed
more than any other one fact to the intellectual and moral awakening
which marks the beginning of modern times. The introduction of
printing, however, did not find a democratic literature ready for
general distribution, or the people ready for its appearance. A long
period of slow preparation followed, during which the masses were being
educated. Moreover, it is only within recent times that governments
would have permitted the creation and diffusion of a democratic
literature. For a long time after printing was invented the ruling
classes carefully guarded against any use of the newly discovered art
that might be calculated to undermine their authority. Books containing
new and dangerous doctrines were rigorously proscribed and the people
carefully protected from the disturbing influence of such views as might
shake their faith in the wisdom and justice of the existing social
order.[198]

It is perhaps fortunate for the world that the political and social
results of printing were not comprehended at the time of its
introduction. Had the ruling classes foreseen that it would lead to the
gradual shifting of political power from themselves to the masses, it is
not unlikely that they would have regarded it as a pernicious
innovation.

But, as is the case with all great inventions, its full significance was
not at first understood. Silently and almost imperceptibly it paved the
way for a social and political revolution. The gradual diffusion of
knowledge among the people prepared them for the contemplation of a new
social order. They began to think, to question and to doubt, and
thenceforth the power and prestige of the ruling classes began to
decline. From that time on there has been an unceasing struggle between
the privileged few and the unprivileged many. We see it in the peaceful
process of legislation as well as in the more violent contest of war.
After each success the masses have demanded still greater concessions,
until now, with a broader outlook and a larger conception of human
destiny, they demand the complete and untrammeled control of the state.

To the student of political science, then, the spirit and temper, the
aims and ideals of the new social order now coming into existence, are a
matter of supreme importance. That our industrial system will be
profoundly modified may be conceded. Other consequences more difficult
to foresee because less direct and immediate, but not necessarily less
important, may be regarded as not unlikely. That our ideas of right and
wrong, our conception of civic duty, and human character itself will be
modified as a result of such far-reaching changes in social relations,
may be expected. But while the more remote and indirect consequences of
democracy may not be foreseen, some of its immediate results are
reasonably certain.

The immediate aim of democracy is political. It seeks to overthrow every
form of class rule and bring about such changes in existing governments
as will make the will of the people supreme. But political reform is
regarded not as an end in itself. It is simply a means. Government is a
complex and supremely important piece of social machinery. Through it
the manifold activities of society are organized, directed and
controlled. In a very real sense it is the most important of all social
institutions, since from its very nature it is the embodiment of social
force, asserting and maintaining a recognized supremacy over all other
social institutions and agencies whatever, modifying and adapting them
to suit the purposes and achieve the ends of those who control the
state.

The form or type of government is all-important, since it involves the
question as to the proper end of government as well as the proper means
of attaining it. Our notion of what constitutes the best political
system depends on our general theory of society--our conception of
justice, progress and social well-being. As government by the few
inevitably results in the welfare of the few being regarded as the chief
concern of the state, the widest possible diffusion of political power
is the only guarantee that government will seek the welfare of the many.

The advocate of democracy does not think that it will be a perfect
government, but he does believe that it will in the long run be the
best, most equitable and most progressive which it is possible to
establish. Government by the few and government by the many stand for
widely divergent and irreconcilable theories of progress and social
well-being. As the methods, aims, and social ideals of an aristocracy
are not those of which a democratic society would approve, it
necessarily follows that the purposes of democracy can be accomplished
only through a government which the people control.

Modern science has given a decided impetus to the democratic movement by
making a comfortable existence possible for the many. It has explored
the depths of the earth and revealed hidden treasures of which previous
ages did not even dream. Inventions and discoveries far-reaching in
influence and revolutionary in character have followed each other in
rapid succession. With the progress of the sciences and mechanical arts,
man's power to control and utilize the forces and materials which nature
has so bountifully provided has been enormously increased; and yet, much
as has been accomplished in this field of human endeavor, there is
reason to believe that the conquest of the material world has but just
begun. The future may hold in store for us far greater achievements
along this line than any the world has yet seen.

It is not surprising, then, that the masses should feel that they have
received too little benefit from this marvelous material progress. For
just in proportion as the old political system has survived, with its
privileged classes, its checks on the people and its class ascendency in
government, the benefits of material progress have been monopolized by
the few. Against this intrusion of the old order into modern society the
spirit of democracy revolts. It demands control of the state to the end
that the product of industry may be equitably distributed. As the
uncompromising enemy of monopoly in every form, it demands first of all
equality of opportunity.

Democracy, however, is not a mere scheme for the redistribution of
wealth. It is fundamentally a theory of social progress. In so far as it
involves the distribution of wealth, it does so as a necessary condition
or means of progress, and not as an end in itself.

Democracy would raise government to the rank and dignity of a science by
making it appeal to the reason instead of the fear and superstition of
the people. The governments of the past, basing their claims upon divine
right, bear about the same relation to democracy that astrology and
alchemy do to the modern sciences of astronomy and chemistry. The old
political order everywhere represented itself as superimposed on man
from above, and, thus clothed with a sort of divine sanction, it was
exalted above the reach of criticism. The growth of intelligence has
dispelled one by one the crude political superstitions upon which the
old governmental arrangements rested. More and more man is coming to
look upon government as a purely human agency which he may freely modify
and adapt to his purposes. The blind unthinking reverence with which he
regarded it in the past is giving way to a critical scientific spirit.
Nor has this change in our point of view in any way degraded government.
In stripping it of the pretence of divine authority, it has in reality
been placed upon a more enduring basis. In so far as it can no longer
claim respect to which it is not entitled we have a guarantee that it
can not persistently disregard the welfare of the people.

Democracy owes much to modern scientific research. With the advance of
knowledge we have gained a new view of the world. Physics, astronomy,
and geology have shown us that the physical universe is undergoing a
process of continual change. Biology, too, has revolutionized our notion
of life. Nothing is fixed and immutable as was once supposed, but change
is universal. The contraction of the earth's crust with its resultant
changes in the distribution of land and water, and the continual
modification of climate and physical conditions generally have
throughout the past wrought changes in the form and character of all
animal and vegetable life. Every individual organism and every species
must change as the world around it changes, or death is the penalty. No
form of life can long survive which does not possess in a considerable
degree the power of adaptation. Innumerable species have disappeared
because of their inability to adjust themselves to a constantly changing
environment. It is from this point of view of continuous adjustment that
modern science regards the whole problem of life individual and
collective.

We must not, however, assume that what is true of the lower forms of
life is equally true of the higher. In carrying the conceptions of
biology over into the domain of social science we must be careful to
observe that here the process of adapting life to its environment
assumes a new and higher phase. In the lower animal world the
life-sustaining activities are individual. Division of labor is either
entirely absent or plays a part so unimportant that we may for purposes
of comparison assume its absence. The individual animal has free access
to surrounding nature, unrestrained by social institutions or private
property in the environment. For the members of a given group there is
what may be described as equality of opportunity. Hence it follows that
the individuals which are best suited to the environment will thrive
best and will tend to crowd out the others.

But when we come to human society this is not necessarily true. Here a
social environment has been created--a complex fabric of laws, usages,
and institutions which envelopes completely the life of the individual
and intervenes everywhere between him and physical nature. To this all
his industrial activities must conform. The material environment is no
longer the common possession of the group. It has become private
property and has passed under the control of individuals in whose
interests the laws and customs of every community ancient and modern
have been largely molded. This is a fact which all history attests.
Wherever the few acquire a monopoly of political power it always tends
to develop into a monopoly of the means and agents of production. Not
content with making the physical environment their own exclusive
property, the few have often gone farther and by reducing the many to
slavery have established and legalized property in human beings
themselves. But even when all men are nominally free and legalized
coercion does not exist, the fact nevertheless remains that those who
control the means of production in reality control the rest. As Mr. W.H.
Mallock, the uncompromising opponent of democracy and staunch defender
of aristocracy, puts it: "The larger part of the progressive activities
of peace, and the arts and products of civilization, result from and
imply the influence of kings and leaders in essentially the same sense
as do the successes of primitive war, the only difference being that the
kings are here more numerous, and though they do not wear any arms or
uniforms, are incomparably more autocratic than the kings and czars who
do."[199] "Slavery, feudalism, and capitalism," he tells us, "agree with
one another in being systems under which the few"[200] control the
actions of the many.

This feature of modern capitalism--the control of the many by the
few--which constitutes its chief merit in the eyes of writers like Mr.
Mallock is what all democratic thinkers consider its chief vice. Under
such a system success or failure is no longer proof of natural fitness
or unfitness. Where every advantage that wealth and influence afford is
enjoyed by the few and denied to the many an essential condition of
progress is lacking. Many of the ablest, best, and socially fittest are
hopelessly handicapped by lack of opportunity, while their inferiors
equipped with every artificial advantage easily defeat them in the
competitive struggle.

This lack of a just distribution of opportunity under existing
industrial arrangements, the defenders of the established social order
persistently ignore. Taking no account of the unequal conditions under
which the competitive struggle is carried on in human society, they
would make success proof of fitness to survive and failure evidence of
unfitness. This is treating the complex problem of social adjustment as
if it were simply a question of mere animal struggle for existence.
Writers of this class naturally accept the Malthusian doctrine of
population, and ascribe misery and want to purely natural causes, viz.,
the pressure of population on the means of subsistence. Not only is this
pressure with its attendant evils unavoidable, they tell us, but,
regarded from the standpoint of the highest interests of the race it is
desirable and beneficent in that it is the method of evolution--the
means which nature makes use of to produce, through the continual
elimination of the weak, a higher human type. To relieve this pressure
through social arrangements would arrest by artificial contrivances the
progress which the free play of natural forces tends to bring about. If
progress is made only through the selection of the fit and the rejection
of the unfit, it would follow that the keener the struggle for existence
and the more rapid and relentless the elimination of the weak, the
greater would be the progress made. This is exactly the contention of
Kidd in his Social Evolution. He claims that if the pressure of
population on the means of subsistence were arrested, and all
individuals were allowed equally to propagate their kind, the human race
would not only not progress, but actually retrograde.[201] If we accept
this as true, it would follow that a high birth rate and a high death
rate are necessary in order that the process of selection and rejection
may go on. This is indeed a pleasant prospect for all except the
fortunate few. But the question, of course, is not whether this is
pleasant to contemplate or unpleasant, but whether it is true. Is the
evolution of a higher human type the same kind of a process as that of a
higher animal or vegetable type? Is progress achieved only through the
preservation of the fit and the elimination of the unfit? If it could be
shown that this is the case, then certainly the conditions under which
this struggle to the death is carried on would be a matter of supreme
importance. Are our social adjustments such as to facilitate, or at
least not interfere with it? Do they make the question of success or
failure, survival or elimination, depend upon individual fitness or
unfitness? This, as we have seen, is not the case, though the partisans
of the biological theory of human progress have constantly assumed it.
Mr. Mallock takes even a more extreme position than most writers of this
class, and actually says "that the social conditions of a time are the
same for all, but that it is only exceptional men who can make
exceptional use of them."[202] The unequal distribution of wealth he
seeks to justify on the ground that "the ordinary man's talents as a
producer ... have not appreciably increased in the course of two
thousand years and have certainly not increased within the past three
generations."[203]

"In the domain of modern industrial activity the many" ... he tells us,
"produce only an insignificant portion of the total, ... and in the
domain of intellectual and speculative progress the many produce or
achieve nothing."[204] If we accept his premises, we must agree with
his conclusion that democracy's indictment of our modern industrial
system falls to the ground. This view of the matter is acceptable, of
course, to those who are satisfied with present social arrangements. It
furnishes a justification for the system under which they have prospered
while others have failed. It relieves their conscience of any misgiving
and soothes them with the assurance that only through the poverty and
misery of the unfit can a higher civilization be evolved. This largely
explains the popularity among the well-to-do classes of such books as
Malthus' Principle of Population and Kidd's Social Evolution.

Such a treatment of the social problem, however, will not bear the test
of analysis, since it assumes that the present distribution of
opportunity is just. To ignore or treat as unimportant the influence of
social arrangements upon the struggle for existence between individuals,
as apologists for the existing social order are too much inclined to do,
is like ignoring the modern battle-ship as a factor in the efficiency of
the modern navy.

But while this biological theory of evolution has been made to serve the
purpose of defending existing social arrangements, it is in reality no
adequate explanation of human progress. Selection and rejection do not,
as a matter of fact, play any important part in the progress of
civilized communities. Here the struggle for existence has assumed the
form of a struggle for domination. The vanquished are no longer
eliminated as a result of the competitive struggle; for, as Mr. Spencer
says, social institutions preserve the incapables.[205] Not only are the
unsuccessful not eliminated but, as sociological students well know,
they increase more rapidly than the successful few. If, then, we accept
the biological theory of social evolution, we are forced to the
conclusion that the human race, instead of advancing, is really
retrograding. Seeing that this is not a satisfactory explanation of
human progress, Mr. Mallock supplements it with a new factor which he
describes as "the unintended results of the intentions of great
men."[206] But, like all of these writers, he makes progress depend
entirely on the biological struggle for existence or the industrial
struggle for supremacy, not recognizing the all-important part which
social ideals and conscious social choice play in human evolution.

There is, then, as we have seen, ample justification for the hostility
to privilege which the democratic movement everywhere exhibits. In
making equality of opportunity a feature of the new social order, the
advocates of reform are proceeding in harmony with the teaching of
modern science. Such changes must be brought about in the organization
of industry, the laws of property, the scope and character of public and
private activities, as will sweep away entirely the whole ancient system
of special privileges, and by placing all individuals upon the same
footing, make success the unfailing reward of merit. To accomplish this
is to solve the monopoly problem. Some progress has been made in this
direction, but it consists for the most part in discovering that such a
problem exists. Just how posterity will deal with it, it is impossible
to foresee; but of one thing we may be sure--this new conception of
justice will exert a profound influence upon the legislation of the
future.

The attention of the democratic movement has up to the present time been
occupied almost exclusively with the question of a just distribution of
opportunity; yet this is not the only problem which democracy will have
to solve. Indeed, it is but the first step in a continuous process of
conscious social readjustment. This fact many writers on social science
have not fully grasped. There is still a tendency to regard society as a
sort of divinely ordered mechanism, which, if properly started, will
automatically work out the process of social evolution. * * * * From
this point of view it is easy to conclude that "whatever is, is right."
* * * * If we accept this belief in the beneficent and progressive
character of all natural processes, the conclusion is irresistible that
nature's methods should not be interfered with.

This is largely the point of view of the earlier English political
economists, and it partly explains their belief in the policy of
non-interference. The best and most comprehensive statement of this view
of social progress is found in Adam Smith's Wealth of Nations. In this
work he attempted to show that legislative interference with industry is
unnecessary. Therefore he advocated the repeal of all laws which
interfered with or in any way restricted the liberty of the individual.
He believed that the natural principle of competition would of itself
effectually regulate industrial life. The desire of each individual to
pursue his own interests made state interference, in his opinion,
unnecessary. In the absence of legal restraints industrial matters would
spontaneously regulate themselves. The varied economic activities of
individuals in society would be adequately controlled and harmonized
with the general interests of society, if statute or human law did not
interfere with natural or divine law. Reliance on competition would
ensure order, harmony and continuous progress in society, just as in the
realm of matter the influence of gravitation has transformed by a
long-continued development the original chaos into an orderly universe.
Each individual acting in obedience to this law would be "led by an
invisible hand to promote"[207] the well-being of society, even though
he was conscious only of a selfish desire to further his own ends.

Such was the industrial philosophy of Adam Smith. It was in harmony with
and the natural outcome of the movement which had already revolutionized
religious and philosophic thought. In every department of human activity
emphasis was being put on the individual. Liberty was the watchword of
society--the panacea for all social ills. The Western world was breaking
through the old system of restraints under which the individual had been
fettered in religion, politics and business. A new conception of the
state, its duties and its functions, had been evolved. Mere human law
was being discredited. Philosophers, distrusting the coercive
arrangements of society, were looking into the nature of man and the
character of the environment for the principles of social organization
and order. Belief in the curative power of legislation was being
supplanted by a growing faith in the sufficiency of natural law.

The underlying motives for advocating the _laissez faire_ policy were,
however, mainly political and economic.[208] The ready acceptance of
this doctrine must be attributed largely to the fact that it offered a
plausible ground for opposing the burdensome restraints of the old
system of class rule.

This is the origin of our modern doctrine of _laissez faire_ which has
so profoundly influenced our political and economic life. But as
movements of this character are likely to do, it carried society too far
in the opposite direction. This is recognized by that most eminent
expounder of the let-alone theory of government, Mr. Herbert Spencer,
who, in the third volume of his Principles of Sociology, admits that
"there has been a change from excess of restriction to deficiency of
restriction."[209] This means that in our accepted political and
economic philosophy we have overvalued the organizing power of
unregulated natural law, and have consequently undervalued the state as
an agency for controlling and organizing industrial forces.

All new ideas have to be harmonized with much that is old. As at first
accepted they are only partially true. A new philosophy requires time
before its benefits can be fully realized. It must pass through a
process of adaptation by which it is gradually modified, broadened and
brought into orderly relations with life in general.

The theory of industrial freedom has during the nineteenth century been
passing through just such a stage of development. The contention of Adam
Smith and his followers that the mere desire for gain would of itself
ensure adequate regulation of industry is certainly not true under
existing conditions. Natural law is not, as he assumed, always
beneficent in its operation. It is just as liable to produce harm as
benefit unless it is regulated, controlled and directed by appropriate
human agencies. It needs no argument to convince one that this is true
so far as the forces of the physical world are concerned. Gravitation,
steam and electricity contributed nothing to human progress until man
discovered the means whereby they could be harnessed and controlled.
Material civilization means nothing else but the development of control
over and the consequent utilization of the materials and forces of the
physical world. The important part played by mere human agencies is the
only feature that distinguishes civilization from barbarism. Everything
which in any way contributes to material progress augments the power of
man to control, modify and adapt his environment.

And though it may not be so obvious, this general principle is just as
true in the moral and spiritual world as in the physical. All progress,
material and moral, consists in the due subordination of natural to
human agencies. Laws, institutions and systems of government are in a
sense artificial creations, and must be judged in relation to the ends
which they have in view. They are good or bad according as they are well
or poorly adapted to social needs. Civilization in its highest sense
means much more than the mere mastery of mind over inanimate nature; it
implies a more or less effective social control over individual conduct.
Certain impulses, instincts and tendencies must be repressed; others
must be encouraged, strengthened, and developed.

It is a mistake to suppose that the unrestrained play of mere natural
forces ensures progress. Occasional advance is the outcome, but so also
is frequent retrogression. There is no scientific basis for the belief
in a natural order that everywhere and always makes for progress.
Competition or the struggle for existence ensures at most merely the
survival of the fittest; but survival of the fittest does not always
mean survival of the best. Competition is nature's means of adapting
life to its environment. If the environment is such as to give the more
highly organized individuals the advantage, progress is the result. But
if it is such as to place them at a disadvantage, retrogression, not
progress, is the outcome. The higher types of character, no less than
the higher organic forms, presuppose external conditions favorable to
their development. Competition is merely the means through which
conformity to these external conditions is enforced. It eliminates alike
that which is better than the environment and that which is worse. It is
indifferent to good or bad, to high or low. It simply picks out,
preserves and perpetuates those types best suited to environing
conditions. Both progress and retrogression are a process of adaptation,
and their cause must be sought, not in the principle of competition
itself, but in the general external conditions to which it enforces
conformity. Success, then, is a matter of adaptation to the environment,
or the power to use it for individual ends--not the power to improve and
enrich it. The power to take from, is nature's sole test of fitness to
live; but the power to enrich is a higher test, and one which society
must enforce through appropriate legislation.

Laws, institutions and methods of trade which make it possible for the
individual to take from more than he adds to the general resources of
society tend inevitably toward general social deterioration. Competition
is wholesome only when all our social arrangements are such as to
discourage and repress all individual activities not in harmony with the
general interests of society. This is the point of view from which all
social and industrial questions must be studied. The problem which
democracy has to solve is the problem of so organizing the environment
as to assure progress through the success and survival of the best.


[Footnote 1: Sebohm, English Village Community, Ch. III; Traill, Social
England, Vol. I, p. 240; Ashley, English Economic History, Vol. I, p.
17.]

[Footnote 2: Lowell, Governments and Parties in Continental Europe, Vol.
I, Ch. I; Lecky, Democracy and Liberty, Vol. I, p. 265.]

[Footnote 3: Work and Wages, p. 398.]

[Footnote 4: Tyler, The Literary History of the American Revolution,
Vol. I, p. 300.]

[Footnote 5: Tyler, The Literary History of the American Revolution,
Vol. I, p. 301.]

[Footnote 6: Massachusetts, New Hampshire, New Jersey, Pennsylvania and
Virginia.]

[Footnote 7: Delaware, Maryland and North Carolina.]

[Footnote 8: Massachusetts, New Hampshire, Pennsylvania and Maryland.]

[Footnote 9: Delaware, New York, New Jersey, North Carolina, South
Carolina and Virginia.]

[Footnote 10: Connecticut, Rhode Island, New Jersey, Virginia, North
Carolina, South Carolina, Georgia, New York and Delaware.]

[Footnote 11: Massachusetts, New Hampshire, Maryland, Delaware, South
Carolina and Pennsylvania.]

[Footnote 12: Massachusetts, New Hampshire, New York, Delaware,
Maryland, North Carolina, South Carolina and Virginia.]

[Footnote 13: Macdonald's Select Charters, Vol. I, pp. 94-101.]

[Footnote 14: Schouler's Constitutional Studies, pp. 70-78, Macdonald's
Select Charters, Vol. I.]

[Footnote 15: "Who would have thought, ten years ago, that the very men
who risked their lives and fortunes in support of republican principles,
would now treat them as the fictions of fancy?" M. Smith in the New York
Convention held to ratify the Constitution, Elliot's Debates, Second
Edition, Vol. II, p. 250.]

[Footnote 16: Simeon E. Baldwin, Modern Political Institutions, pp. 83
and 84.]

[Footnote 17: Critical Period of American History, p. 226.]

[Footnote 18: S.F. Miller, Lectures on the Constitution of the United
States, pp. 84-85.]

[Footnote 19: McMaster, With the Fathers, pp. 112-113.]

[Footnote 20: "They [the framers of the Constitution] represented the
conservative intelligence of the country very exactly; from this class
there is hardly a name, except that of Jay, which could be suggested to
complete the list." Article by Alexander Johnston on the Convention of
1787 in Lalor's Cyclopaedia of Pol. Science, Pol. Econ. and U.S. Hist.]

[Footnote 21: Elliot's Debates, Vol. V, p. 557.]

[Footnote 22: Ibid., p. 138.]

[Footnote 23: "By another [rule] the doors were to be shut, and the
whole proceedings were to be kept secret; and so far did this rule
extend, that we were thereby prevented from corresponding with gentlemen
in the different states upon the subjects under our discussion.... So
_extremely solicitous_ were they that their proceedings should not
transpire, that the members were prohibited even from taking copies of
resolutions, on which the Convention were deliberating, or extracts of
any kind from the Journals without formally moving for and obtaining
permission, by a vote of the Convention for that purpose." Luther
Martin's Address to the Maryland House of Delegates. Ibid., Vol. I, p.
345.

"The doors were locked, and an injunction of strict secrecy was put upon
everyone. The results of their work were known in the following
September, when the draft of the Federal Constitution was published. But
just what was said and done in this secret conclave was not revealed
until fifty years had passed, and the aged James Madison, the last
survivor of those who sat there, had been gathered to his fathers."
Fiske, The Critical Period of American History, p. 229. McMaster, With
the Fathers, p. 112.]

[Footnote 24: Elliot's Debates, Vol. I, pp. 119-127.]

[Footnote 25: Elliot's Debates, Vol. II, p. 470.]

[Footnote 26: Elliot's Debates, Vol. I, p. 422.]

[Footnote 27: Ibid., p. 450.]

[Footnote 28: Book 5, Ch. I, Part II.]

[Footnote 29: Elliot's Debates, Vol. V, p. 160.]

[Footnote 30: Ibid., p. 137.]

[Footnote 31: Elliot's Debates, Vol. I, p. 450.]

[Footnote 32: Ibid., pp. 421-422.]

[Footnote 33: Ibid., p. 475.]

[Footnote 34: No. 10.]

[Footnote 35: In Massachusetts and New Hampshire the constitutions
framed during the Revolutionary period were submitted to popular vote.
The Virginia Constitution of 1776 contained the declaration "that, when
any government shall have been found inadequate or contrary to these
purposes [the purposes enumerated in the Bill of Rights], a majority of
the community hath an indubitable, inalienable, and indefeasible right
to reform, alter, or abolish it, in such manner as shall be judged most
conducive to the public weal." The Revolutionary constitution of
Pennsylvania contained a similar declaration. Poore, Charters and
Constitutions.]

[Footnote 36: Elliot's Debates, Vol. III, pp. 48-50.]

[Footnote 37: Ames, Proposed Amendments to the Constitution of the
United States. This book gives a list of the amendments proposed during
the first one hundred years of our history under the Constitution.
During the fifteen years from 1889 to 1904, four hundred and thirty-five
amendments were proposed. These figures are taken from a thesis
submitted for the LL.B. degree at the University of Washington by
Donald McDonald, A.B.

It is interesting to observe that this is one of the few important
features of the Constitution not copied by the Confederate States at the
outbreak of the Civil War. The constitution which they adopted provided
an easier method of amendment. Any three states could suggest amendments
and require Congress to summon a convention of all the states to
consider them. To adopt a proposed amendment ratification by
legislatures or conventions in two-thirds of the states was necessary.]

[Footnote 38: Political Science and Constitutional Law, Vol. I, p. 151.]

[Footnote 39: The American Commonwealth, Vol. I, Ch. III.]

[Footnote 40: Second Edition, Vol. I, Appendix, Note on Constitutional
Conventions.]

[Footnote 41: Fiske, The Critical Period of American History, p. 328.]

[Footnote 42: McMaster, With the Fathers, p. 71.]

[Footnote 43: Elliot's Debates, Vol. I, p. 423.]

[Footnote 44: Woodrow Wilson, Division and Reunion, p. 12.]

[Footnote 45: The vote in Massachusetts was 187 to 168 in favor of
ratification; in New York, 30 to 27; in Virginia, 89 to 79.]

[Footnote 46: No. 81.]

[Footnote 47: The American Commonwealth, Vol. I, Ch. XXXII.]

[Footnote 48: _Ibid._]

[Footnote 49: Roosevelt in 1904 received less than 56.4 per cent. of the
total popular vote.]

[Footnote 50: In 1904 Roosevelt carried thirty-two states--two more than
two-thirds.]

[Footnote 51: Poore, Charters and Constitutions.]

[Footnote 52: A. Lawrence Lowell, Essays on Government, p. 40.]

[Footnote 53: _The Federalist_, No. 78.]

[Footnote 54: "The object of the Act of Parliament was to secure the
judges from removal at the mere pleasure of the Crown; but not to render
them independent of the action of Parliament." Story, Commentaries on
the Constitution, Sec. 1623.]

[Footnote 55: Works (Ford's Edition), Vol. X, p. 38.]

[Footnote 56: Cf. supra p. 21.]

[Footnote 57: The Jeffersonian System, pp. 112-113.]

[Footnote 58: Referring to Hamilton's defence of the judicial veto,
Jefferson says "If this opinion be sound, then indeed is our
Constitution a complete _felo de se_. For intending to establish three
departments, coordinate and independent, that they might check and
balance one another, it has given, according to this opinion, to one of
them alone, the right to prescribe rules for the government of the
others, and to that one too, which is unelected by, and independent of
the nation." Ford's Edition of his works, Vol. X, p. 141.]

[Footnote 59: _The Federalist_, No. 78.]

[Footnote 60: _The Federalist_, No. 85.]

[Footnote 61: Elliot's Debates, Vol I, p. 421.]

[Footnote 62: Ibid., Vol. V, Appendix No. 5.]

[Footnote 63: Brinton Coxe, Judicial Power and Unconstitutional
Legislation, p. 165. The reader is referred to this work for a
discussion of this and other cases.]

[Footnote 64: The constitutions of Massachusetts, Maryland, New
Hampshire, North Carolina and Virginia contained provisions expressly
declaring that no power of suspending laws, or the execution of laws,
should be exercised unless by the legislature, or by authority derived
from it. The Vermont constitution of 1786 also contained a similar
provision.]

[Footnote 65: Commonwealth v. Caton, Hopkins and Lamb. Quoted from Coxe,
p. 221.]

[Footnote 66: Cooley, Constitutional Limitations, 6th ed., p. 193, n.
and Thorpe, A Short Constitutional History of the United States, p.
238.]

[Footnote 67: Quoted in Coxe, Judicial Power and Unconstitutional
Legislation, p. 252.]

[Footnote 68: _Ibid._, p. 263.]

[Footnote 69: Burgess, Pol. Sci. and Const. Law, Vol. II, p. 364.]

[Footnote 70: Elliot's Debates, Vol. I, p. 507.]

[Footnote 71: Ibid., Vol. V, p. 429.]

[Footnote 72: Ibid., Vol. V, pp. 151, 344, 345, 346, 347.]

[Footnote 73: _Federalist_, No. 78.]

[Footnote 74: Elliot's Debates, Vol. II, p. 196.]

[Footnote 75: Elliot's Debates, Vol. II, p. 489.]

[Footnote 76: Ibid., Vol. III, p. 553.]

[Footnote 77: 3 Dallas.]

[Footnote 78: "'You have made a good Constitution,' said a friend to
Gouverneur Morris after the adjournment of the Convention. 'That,'
replied Morris, 'depends on how it is construed.'" Gordy, Political
Parties in the United States, Vol. I, p. 114. This was clearly
understood by the framers of the Constitution and by all the leading
Federalists.]

[Footnote 79: Rutledge, Wilson, Blair, Patterson, and Ellsworth.]

[Footnote 80: Jay, Rutledge, Wilson, Blair, Iredell, Johnson, Chase,
Ellsworth, Cushing, Washington, and Marshall.]

[Footnote 81: Wilson, Ellsworth, and Marshall.]

[Footnote 82: Supra, p. 89.]

[Footnote 83: Alfred Moore.]

[Footnote 84: Elliot's Debates, Vol. III, pp. 324-325.]

[Footnote 85: Political Science and Constitutional Law, Vol. II, p.
365.]

[Footnote 86: Burgess, Political Science and Constitutional Law, Vol.
II, p. 365.]

[Footnote 87: Infra, pp. 119-122.]

[Footnote 88: Boutmy, Studies in Constitutional Law, pp. 117-118 (Eng.
Trans.).]

[Footnote 89: Referring to the power of the Supreme Court in our scheme
of government, Jefferson said "It is a misnomer to call a government
republican, in which a branch of the supreme power is independent of the
nation." Works, Vol. X, p. 199.]

[Footnote 90: Lee, Source Book of English History, p. 336.]

[Footnote 91: Commentaries on the Constitution of the United States,
sec. 1399; cf. Infra pp. 321-325.]

[Footnote 92: Constitutional History as Seen in American Law, p. 80.]

[Footnote 93: _Ibid._, p. 258.]

[Footnote 94: For a list of these cases see United States Supreme Court
Reports, Vol. 131. Appendix CCXXXV. Banks and Brothers Edition.]

[Footnote 95: Dissenting opinion Inter-State Commerce Commission, v.
Alabama Midland Railway Company, 168 United States, 144.]

[Footnote 96: For a discussion of these cases see "The Legal Tender
Decisions" by E.J. James, Publications of the American Economic
Association, Vol. III.]

[Footnote 97: Report of the Am. Bar Association, 1895, p. 246.]

[Footnote 98: For a discussion of this recent use of the injunction by
our Federal Courts see Annual Address of the President of the Georgia
Bar Association, John W. Akin, on "Aggressions of the Federal Courts,"
1898; W.H. Dunbar, "Government by Injunction," Economic Studies, Vol.
III; Stimson, Handbook of Am. Labor Laws.]

[Footnote 99: "We should like to see the law so changed that any man
arrested for contempt of court, for an act not performed in the presence
of the court and during judicial proceedings, should have a right to
demand trial by jury before another and an impartial tribunal. It is not
safe, and therefore it is not right, to leave the liberties of the
citizens of the United States at the hazard involved in conferring such
autocratic power upon judges of varied mental and moral caliber as are
conferred by the equity powers which our courts have inherited through
English precedents." Editorial in the _Outlook_, Vol. LXXIV, p. 871.]

[Footnote 100: C.H. Butler, Treaty-Making Power of the United States,
Vol. II, p. 347.]

[Footnote 101: Art. III, sec. 2.]

[Footnote 102: The constitutions of Maine (since 1820), Rhode Island
(since 1842), Florida (since 1875), and Missouri (constitution of 1865,
but omitted in constitution of 1875 and since).

A provision of this kind is also found in the Massachusetts constitution
of 1780, from which it was copied in the New Hampshire constitution of
1784. Its purpose in these two constitutions, however, was not to guard
against the subsequent exercise of the judicial veto, since the latter
was then unknown, but to make the judges of the Supreme Court an
advisory body to the legislature.]

[Footnote 103: Democracy and Liberty, Vol. I, p. 9.]

[Footnote 104: Elliot's Debates, Vol. III, p. 218.]

[Footnote 105: Works, Vol. I, p. 29. Cralle's Ed.]

[Footnote 106: Supra, p. 18.]

[Footnote 107: Infra p. 239.]

[Footnote 108: Pennsylvania and Georgia had only a single legislative
body.]

[Footnote 109: "There was certainly no intention of making the
appointment of the Presidential electors subject to popular election. I
think it is evident that the framers were anxious to avoid this."
Burgess, Political Science and Constitutional Law, Vol. II, p. 219.

According to Fiske, "electors were chosen by the legislature in New
Jersey till 1816; in Connecticut till 1820; in New York, Delaware, and
Vermont, and with one exception in Georgia, till 1824; in South Carolina
till 1868. Massachusetts adopted various plans, and did not finally
settle down to an election by the people until 1828." The Critical
Period of American History, p. 286.]

[Footnote 110: Elliot's Debates, Vol. I, p. 421.]

[Footnote 111: Madison, Elliot's Debates, Vol. I, p. 450.]

[Footnote 112: Elliot's Debates, Vol. V, p. 158.]

[Footnote 113: Boutmy, Studies in Constitutional Law, p. 91 (Eng.
Trans.).

See also Ford, The Rise and Growth of American Politics, p. 254.]

[Footnote 114: Previous to Andrew Johnson's administration but six
measures were passed over the President's veto. Up to 1889 the veto
power of the President had been exercised four hundred and thirty-three
times, and in but twenty-nine instances had it been overridden by the
required two-thirds majority in both houses of Congress. Fifteen
measures vetoed by Andrew Johnson were passed over his veto--more than
in the case of all other Presidents combined. Mason, The Veto Power, p.
214.]

[Footnote 115: Mason, The Veto Power, p. 214.]

[Footnote 116: Elliot's Debates, Vol. V, p. 151. Hamilton's statement,
which was made in support of a motion to give the President an absolute
veto on acts of Congress, was not correct. William III vetoed no less
than four acts of Parliament, and his successor used the veto power for
the last time in 1707. Medley, English Constitutional History, p. 315.]

[Footnote 117: Supra, p. 19.]

[Footnote 118: Infra, p. 231.]

[Footnote 119: Senate in South Carolina and Maryland (constitutions of
1776) exceptions, Infra p. 239.]

[Footnote 120: Constitution, Art. II. Sec. I.]

[Footnote 121: Elliot's Debates, Vol. I, p. 503.]

[Footnote 122: Ibid., p. 494.]

[Footnote 123: For a discussion of this feature of our government see
the following chapter.]

[Footnote 124: Under the Articles of Confederation the Congress of the
United States was required to "publish the journal of their proceedings
monthly, except such parts thereof relating to treaties, alliances, or
military operations as in their judgment require secrecy." Art. IX.]

[Footnote 125: The Revolutionary constitutions of New York and
Pennsylvania provided that the doors of the legislature should be kept
open at all times for the admission of the public except when the
welfare of the state should demand secrecy.]

[Footnote 126: Cf. Ford, The Rise and Growth of American Politics, p.
63.]

[Footnote 127: Quoted from Article on Reporting in Encyclopedia
Brittanica.]

[Footnote 128: Vol. XIV, p. 62. See also Porritt, The Unreformed House
of Commons, Vol. I, pp. 590-596.]

[Footnote 129: Greene, The Provincial Governor, pp. 198-199.]

[Footnote 130: Cooley, Constitutional Limitations, 6th ed., pp.
514-516.]

[Footnote 131: Massachusetts, New Hampshire and Maryland.]

[Footnote 132: Art. V.]

[Footnote 133: Elliot's Debates, Vol. I, p. 181 and Vol. V, p. 132.]

[Footnote 134: Constitutional History of the United States, Vol. I, p.
79.]

[Footnote 135: No. 46.]

[Footnote 136: No. 45.]

[Footnote 137: Von Holst, Vol. I, p. 88.]

[Footnote 138: Ford's Ed. Jefferson's Works, Vol. VII, p. 301.]

[Footnote 139: Works, Vol. I, p. 169.]

[Footnote 140: Works, Vol. I, p. 242.]

[Footnote 141: Sept., 24, 1789. U.S. Statutes at Large, Vol. I.]

[Footnote 142: Woodrow Wilson, Congressional Government, p. 4.]

[Footnote 143: Art. I, Sec. 4.]

[Footnote 144: The states of Maine, Oregon and Vermont still elect their
representatives to Congress before the general November election. Maine
holds her election on the second Monday in September, Oregon on the
first Monday in June and Vermont on the first Tuesday in September next
preceding the general November election.]

[Footnote 145: John F. Shafroth, When Congress Should Convene; North Am.
Rev., Vol. 164. The writer of this article makes the common but
erroneous assumption that the fundamental principle of our government is
majority rule. From the standpoint of democracy, however, his argument
is unassailable.]

[Footnote 146: A modification of this check on public opinion has been
incorporated in the charter of one of our new Western cities. In
Spokane, Washington, one-half of the councilmen take their seats
immediately after the regular municipal election, and the other half,
though elected at the same time, do not enter upon the discharge of
their duties until one year later.]

[Footnote 147: Art. I, Sec. 2.]

[Footnote 148: The American Commonwealth, Vol. I, Ch. 15.]

[Footnote 149: The American Commonwealth, Vol. I, Ch. 15.]

[Footnote 150: The Conduct of Business in Congress, North Am. Rev., Vol.
CXXVIII, p. 121.]

[Footnote 151: _Ibid._, p. 122.]

[Footnote 152: For instances of the exercise of this power see Follett,
The Speaker of the House of Representatives, Ch. IX.]

[Footnote 153: Senator Hoar's Article.]

[Footnote 154: Boutmy, Studies in Constitutional Law, pp. 98-99.]

[Footnote 155: Ostrogorski, Democracy and the Organization of Political
Parties, Vol. I, p. 20.]

[Footnote 156: _Federalist_, No. 10.]

[Footnote 157: For a discussion of the causes of present-day corruption,
see an article by Professor Edward A. Ross in _The Independent_, July
19, 1906, on "Political Decay: An Interpretation."]

[Footnote 158: In the enabling acts for the admission of Nebraska and
Nevada (1864), Colorado (1875), North Dakota, South Dakota, Montana and
Washington (1889), and Utah (1896), we find the provision that the state
constitution shall not be repugnant to the Constitution of the United
States and the principles of the Declaration of Independence.]

[Footnote 159: See Annals of the American Academy of Political and
Social Science, Vol. VI, p. 469.]

[Footnote 160: Goodnow, Municipal Home Rule, p. 20.]

[Footnote 161: Municipal Problems, p. 9.]

[Footnote 162: Goodnow, Municipal Home Rule, p. 23.]

[Footnote 163: Goodnow, Municipal Home Rule, pp. 24-26.]

[Footnote 164: Tacoma Gas and Electric Light Co. v. Tacoma, 14 Wash.]

[Footnote 165: The employment of the special fund device for municipal
ownership purposes has been upheld by the Supreme Court of Washington.
See Winston v. Spokane, 12 Wash. 524, and Faulkner v. Seattle, 19 Wash.
320.]

[Footnote 166: Const., Art. I, sec. 2 and Art. II, sec. 1.]

[Footnote 167: Abstract of the Twelfth Census, p. 133.]

[Footnote 168: Constitution of Colorado, Art. X, Sec. 3.]

[Footnote 169: These figures concerning municipally owned waterworks as
well as those in the following paragraph relating to electric light
plants, are based on the data contained in the Fourteenth Annual Report
of the U.S. Commissioner of Labor on Water, Gas and Electric Light
Plants.]

[Footnote 170: Water, Gas and Electric Light Plants, 1899.]

[Footnote 171: Abstract of the Twelfth Census, p. 133.]

[Footnote 172: Ibid, p. 28.]

[Footnote 173: Cooley, Constitutional Limitations, 6th ed., p. 282, n.]

[Footnote 174: The Shame of the Cities, p. 5.]

[Footnote 175: Bryce, Vol. I, p. 663.]

[Footnote 176: Willoughby, The Nature of the State, p. 416.]

[Footnote 177: Pol. Sci. and Const. Law, Vol. I, p. 197.]

[Footnote 178: Ford's ed. of _The Federalist_, Introduction, p. xiii.]

[Footnote 179: Boutmy, Studies in Constitutional Law, p. 155.]

[Footnote 180: Principles of Sociology, Vol. III, p. 525.]

[Footnote 181: In the year 1857 over 37 per cent. of the immigrants
arriving in the United States were from Germany, and over 39 per cent.
were from Great Britain and Ireland. The bulk of our foreign immigration
continued to come from these two countries until about 1886 or 1887. In
1890 these countries together contributed but little more than 47 per
cent. of our foreign immigrants, and in 1904 but 17 per cent. Italy,
including Sicily and Sardinia, supplied but 6 per cent. of the total
number of immigrants in 1886 and 23 per cent. in 1904. The Russian
Empire and Finland furnished only 5 per cent. of the total number in
1886 and about 18 per cent. in 1904. In 1886 the immigration from
Asiatic countries was insignificant, but in 1904 it had increased to
26,186. See Report of the Commissioner-General of Immigration, 1904.]

[Footnote 182: Art. I, sec. 9.]

[Footnote 183: _Federalist_, No. 36.]

[Footnote 184: Considerations, on the Power to Incorporate the Bank of
North America, Works, Vol. I.]

[Footnote 185: 6 Cranch, 87.]

[Footnote 186: Constitutional Limitations, 6th ed., pp. 335-336, n.]

[Footnote 187: Money and Banking, p. 327. See also Myers, The History of
Tammany Hall, pp. 113-116.]

[Footnote 188: "Over and over again our government has been saved from
complete breakdown only by an absolute disregard of the Constitution,
and most of the very men who framed the compact would have refused to
sign it, could they have foreseen its eventual development." Ford's
Federalist, Introduction, p. vii.]

[Footnote 189: This was true of Samuel J. Tilden, the Democratic
candidate in 1876.]

[Footnote 190: Supra p. 56.]

[Footnote 191: Appendix to the Congressional Globe, 1st sess., 30th
Cong., p. 94.]

[Footnote 192: Vol. I, p. 520.]

[Footnote 193: _Outlook_, Vol. 79, p. 163.]

[Footnote 194: Popular Government, p. 181.]

[Footnote 195: Politics and Administration, p. 9.]

[Footnote 196: This was one of the objects of the Oregon Direct Primary
Law, which was enacted by the people of that state upon initiative
petition at the general election held June 6, 1904. Under this law the
elector seeking nomination for the office of senator or representative
in the legislative assembly is expected to sign and file, as part of his
petition for nomination, one of the two following statements:

No. 1. "I further state to the people of Oregon as well as to the people
of my legislative district, that during my term of office, I will always
vote for that candidate for United States Senator in Congress who has
received the highest number of the people's votes for that position at
the general election next preceding the election of a Senator in
Congress, without regard to my individual preference."

No. 2. "During my term of office I shall consider the vote of the people
for United States Senator in Congress as nothing more than a
recommendation, which I shall be at liberty to wholly disregard if the
reason for doing so seems to me to be sufficient."]

[Footnote 197: Pure Sociology, p. 487.]

[Footnote 198: "The art of printing, in the hands of private persons,
has, until within a comparatively recent period, been regarded rather as
an instrument of mischief, which required the restraining hand of the
government, than as a power for good, to be fostered and encouraged....
The government assumed to itself the right to determine what might or
might not be published; and censors were appointed without whose
permission it was criminal to publish a book or paper upon any subject.
Through all the changes of government, this censorship was continued
until after the Revolution of 1688, and there are no instances in
English history of more cruel and relentless persecution than for the
publication of books which now would pass unnoticed by the
authorities....

"So late as 1671, Governor Berkeley, of Virginia, expressed his
thankfulness that neither free schools nor printing were introduced in
the Colony, and his trust that these breeders of disobedience, heresy,
and sects, would long be unknown....

"For publishing the laws of one session in Virginia, in 1682, the
printer was arrested and put under bonds until the King's pleasure could
be known, and the King's pleasure was declared that no printing should
be allowed in the Colony. There were not wanting instances of the public
burning of books as offenders against good order. Such was the fate of
Elliot's book in defense of unmixed principles of popular freedom, and
Calef's book against Cotton Mather, which was given to the flames at
Cambridge." Cooley, Constitutional Limitations, 6th ed., pp. 513-515.]

[Footnote 199: Aristocracy and Evolution, p. 58.]

[Footnote 200: Ibid. p. 377.]

[Footnote 201: Social Evolution, p. 39.]

[Footnote 202: Aristocracy and Evolution, p. 105.]

[Footnote 203: Ibid p. 218.]

[Footnote 204: Ibid p. 219.]

[Footnote 205: Principles of Biology, Vol. I, p. 469.]

[Footnote 206: Aristocracy and Evolution, p. 105.]

[Footnote 207: Adam Smith, Wealth of Nations, Book I, Ch. 2.]

[Footnote 208: Supra, chapters XI and XII.]

[Footnote 209: P. 534.]




INDEX

Alien and sedition laws, 166.

Amendment, Articles of Confederation, 57;
  Australia, 62;
  England, 62;
  France, 62;
  Revolutionary state constitutions, 59;
  state constitutions after 1787, 235;
  Switzerland, 63;
  checks on undemocratic, 63. See Constitution of the United States.

American colonies, government of, 12.

American government, aristocratic, 79, 103, 126.
  See Checks and Balances,
  Constitution of the United States,
  House of Representatives,
  President,
  Senate,
  Supreme Court.

American revolution, change in the spirit of, 13;
  results of, 27.

Anarchism. See Checks and Balances.

Articles of Confederation, democratic tendency of, 25, 57;
  weakness of, 23.


Baldwin, Simeon E., on the source of the Constitution, 28.

Bank of North America, repeal of the charter of, 321.

Boutmy, Emile, on the powers of the Supreme Court, 98;
  on the relation of the House of Representatives to treaties, 138;
  on hasty voting in the House, 202;
  on the sovereignty of the majority in France, 301.

Bryce, James, on the opposition of the masses to the ratification of the
Constitution, 49;
  on the ratification of the last three amendments, 54;
  on the committee system, 196.

Budget. See House of Representatives.

Burgess, John W., on the difficulty of amending the Constitution, 47;
  on the veto power of the Supreme Court, 90;
  on the desire of the framers to avoid popular choice of Presidential
  electors, 134 note;
  on the protection of private property by the Supreme Court, 299.

Butler, C.H., on the attitude of the Supreme Court toward treaties, 119.


Calhoun, John C., on popular government, 132;
  on state rights, 178.

Channing, Edward, on removal of judges, 71.

Checks and balances, American system of artificial, 130;
  anarchism an extreme application of, 132;
  belief of framers in, 125;
  in early state constitutions, 21;
  in English government, 8;
  limitation of power of the people under, 129;
  origin of, 126;
  Poland an example of, 131;
  practical limit to extension of, 130;
  relation of, to _laissez faire_, 131;
  subordination of House of Representatives not in accord with, 147.
  See Constitution of the United States.

Chinese exclusion act, 315.

Common law, influence of the ruling class upon, 11.

Constitutional convention of 1787. See Constitution of the United States.

Constitutional government, origin of, 3;
  relation to democracy, 3.

Constitution of the United States, a product of 18th century thought, 28;
  change in the attitude of the people toward, 184;
  germs of national government in, 161;
  influence of the Federalists upon the development of, 164;
  limitation of the taxing power in, 318;
  no provision for political parties in, 205;
  numerical majority not recognized in, 176;
  power of minority to modify, 167;
  protection of property in, 298;
  purpose of, misrepresented by the framers, 77;
  relation of, to individual liberty, 297;
  relation of, to the doctrine of nullification, 169;
  responsible for the state rights controversy, 163;
  significance of, economic, 299;
  states not expressly subordinated in, 161;
  substitutes for monarchy and aristocracy in, 132;
  vote in the conventions ratifying, 53 note;
  an insignificant minority may prevent amendment of, 46;
  Patrick Henry's objection to the amendment feature of, 44;
  number of amendments proposed, 47;
  power of two-thirds of the states to call a constitutional convention,
  346;
  importance of this provision, 346;
  difficulty of securing the co-operation of the smaller states, 347;
  the first ten amendments, 53;
  the eleventh amendment, 53;
  the twelfth amendment, 53;
  the last three amendments, 54.
  See House of Representatives. President, Senate, Supreme Court.

Contracts, laws impairing the obligation of, 320-325.

Cooley, T.M., on the difference between judicial and political power, 107;
  on the attitude of the fathers toward publicity, 156;
  on the evils of legislative interference in municipal affairs, 284;
  on the influence of the Dartmouth College decision upon the growth of
  corporate power, 325;
  on government censorship of printing, 381 note.

Coxe, Brinton, on the judicial veto in England, 85;
  on the judicial veto in the early state governments, 88, 89.


Dartmouth College case, 325.

Declaration of Independence, 14, 33, 219.

Democracy, immediate aim of, political, 388;
  influence of economic progress on, 384;
  influence of printing on growth of, 380;
  reaction against, 27;
  relation of, to reform, 380.

Direct primary, 350;
  adoption of, in Oregon, 357 note.


Electoral college, influence of democracy on, 332.
  See President.

English Bill of Rights, 152;
  abuse of, by Parliament, 153.


Federal elections, 188.

Federalists, 165.

Federal judiciary. See Supreme Court.

Fiske, John, on the conservatism of the framers, 29;
  on the secrecy of the debates on the Constitution, 34 note;
  on the election of Presidential electors by state legislatures, 134 note.

Ford, Paul L., on the protection of the minority by the Supreme Court, 299;
  on the rigidity of the Constitution, 331 note.

Framers of the Constitution, attitude of, toward criticism of public
officials, 152-159;
  character of, 32;
  deliberations of, secret, 34.

Free land, influence of, on wages, 314.

Free speech, in American colonies, 155.


Goodnow, F.J., on the freedom of New York City from legislative
interference in the early years of our history, 253;
  on the abuses of legislative interference in municipal affairs, 257.

Governor, limited powers of, under early state constitutions, 19;
  small executive power of, 244;
  veto power of, 19, 244. See Impeachment, State constitutions after 1787.

Government, but two functions of, 344;
  distinction between national and federal, 159;
  influence of the minority upon, 370;
  kinds of, 128;
  ultimate source of authority in, 296.

Government of England, control of, by the landlord class in the 18th
century, 204;
  change in the character of, 207.

Government by injunction, 116-119.

Great Charter, the political significance of, 4.

Great Council, 4;
  separation of, into lords and commons, 6.

Greene, E.B., on free speech in the colonies, 155.


Hamilton, Alexander, on life tenure of judges, 66;
  on the right of the courts to declare legislative acts null and void,
  73-75;
  his effort to mislead the public, 77;
  his defense of poll taxes, 319;
  his policy as Secretary of the Treasury, 164;
  his reasons for supporting the Constitution, 82;
  kind of government favored by, 79.

Henry Patrick, on amending the Constitution, 44;
  on the right of judges to oppose acts of the legislature, 96;
  offer of the Chief Justiceship to, 95.

Hoar, George F., on law-making in the House of Representatives, 197,
198, 200.

House of Commons, character of, in the 18th century, 10, 153, 204.

House of Representatives, an irresponsible body during the second regular
session, 189;
  a subordinate branch of the government, 136;
  influence of the committee system on, 192;
  relation of, to taxation and expenditure, 148.
  See President, Senate, Speaker of the House.


Immigration, decline in the quality of, 314.

Impeachment, by a majority of the legislature, 142;
  changes in state constitutions relating to, 231;
  of judges, 20;
  reason for making difficult, 142;
  relation of, to executive and judicial veto, 143.
  See Judges, President, Senate.

Income Tax decision, 114, 222, 320.

Industry, control of, by the few, 307.

Initiative and referendum, 352.

Iredell, James, judicial veto defended by, as a means of limiting the
power of the majority, 89.


James I, on the divine right of kings, 104.

Jefferson, Thomas, on the independence of Federal judges, 68, 73 note,
100 note;
  on the right of a state to nullify a federal law, 173.

Johnson, Alexander, on the conservatism of the Federal Convention, 33 note.

Judges, reason for advocating the independence of, 67;
  removal of, under the early state constitutions, 71.
  See Impeachment, Judicial Veto, Supreme Court.

Judicial infallibility, 115, 344.

Judicial veto, effort to revive, 87;
  how conferred, 92;
  in England, 85;
  relation of, to the executive veto, 85;
  relation of, to popular government, 99, 356;
  significance of, 97.

Judiciary Act of 1789, 182;
  why not incorporated in the Constitution, 183.


Kentucky resolutions, 172.

Kidd, Benjamin, on social progress, 391.


Labor, free trade in, 314.

_Laissez faire_, opposition of the masses to, 308;
  relation of, to progress, 309, 311, 398.

Law, lack of respect for, 376-378.

Lawyers, virtually a ruling class, 300-302.

Lecky, W.E.H., on the purpose of the framers, 129.

Liberty, class control of industry destructive of, 306;
  democratic conception of, 293;
  eighteenth century economic conditions favorable to, 304;
  eighteenth century view of, negative, 291;
  survival of the old view in our legal literature, 301-303.

Lincoln, Abraham, on the right of the majority to overthrow minority
government, 335;
  a minority president, 334.

Lowell, A. Lawrence, on the importance of the judiciary in our scheme
of government, 65.


Madison, James, on the evils of American government, 42;
  on the power of a state to oppose the Federal government, 170;
  on the danger of government by a majority, 205.

Maine, Henry S., on the success of the Senate in opposing democracy, 337.

Mallock, W.H., on the benefits and justice of minority control, 389,
392, 394.

Marshall, John, on the judicial veto, 93, 322.

Martin, Luther, on the precautions against publicity in the Federal
Convention, 34 note.

McMaster, J.B., on the character of the framers, 32;
  on the political immorality of the fathers, 50.

Miller, S.F., on the relation of the people to the government, 31.

Morality, change in the standard of, 361;
  effect of change in theological beliefs on, 364;
  influence of class rule on, 366-378.

Municipal government, a creature of the legislature, 252;
  attitude of the courts toward, 254;
  evils of, attributed to the rule of the masses, 251, 284;
  examples of legislative interference, 258-263;
  extension of legislative authority over, 254;
  fear of majority rule in, 277;
  financial powers of, limited, 271-273;
  franchise granting power in, 288-290;
  home rule movement, 265;
  retarded by the extension of the suffrage, 287;
  hostility of the courts to home rule, 268, 270;
  legislative control a source of corruption, 256;
  limitation of the power of the majority, 266-268;
  municipal ownership under class rule, 280;
  origin of municipal charters, 253;
  origin of restrictions on the borrowing power, 274-276;
  prohibition of special legislation, 261;
  survival of property qualifications, 279;
  source of corruption in, 288;
  twofold character of, 256.
  See Special Fund.


Oath of office. See President.

Opportunity, equality of, indispensable, 390;
  but will not ensure progress, 395.

Ostrogorski, M., on class control of the House of Commons, 204.


Parliament, control of taxing power by, 6;
  four distinct constituencies represented in, 7.
  See English Bill of Rights, Government of England, House of Commons,
  Suffrage.

Party government, attitude of the framers toward, 135, 205.

Poland. See Checks and Balances.

Political parties, attitude of, on the money question, 221;
  monopolies, 222;
  control of nominations by minority, 218;
  erroneous view of the Constitution promulgated by, 219-221;
  evils of, due to checks on the majority, 214;
  influence of the Constitution on, 208;
  lack of power to control the government, 209;
  largely representative of private interests, 216;
  purpose of the party platform, 218;
  reason for lack of interest in, 210.

Poll tax. See Hamilton.

Popular government, effort to discredit the theory of, 212, 251, 284.

President, administrative veto of, 145;
  difficulty of passing measures over his veto, 139;
  effort of the framers to preclude the election of a popular favorite,
  135;
  election of, by a minority, 56;
  growth of veto power of, 141;
  limited term of, 133;
  not obligated by his oath of office to enforce the acts of Congress, 145;
  minority election of, a source of danger, 334-336.
  See Impeachment.

Press, influence of corporate wealth upon, 376.

Printing, minority control of, in the past, 381.

Property qualifications. See Suffrage.

Protective tariff, defended as a means of raising wages, 313;
  maintained in the interest of the capitalist class, 313-317;
  relation of, to _laissez faire_, 312.

Publicity, lack of adequate provision for, in the Constitution, 150;
  relation of, to democracy, 372;
  should extend to political contributions and the record of candidates,
  372-373;
  would cure many business evils, 374-375.

Public opinion, control of the organs of, by corporate wealth, 375.


Recall of public officials, 351.

Rogers, J.E.T., on the attitude of the English government toward the
laborer, 11.


Senate, difficulty of reforming by constitutional amendment, 338-340;
  Direct nomination of the members of, 357;
  disadvantages of equal representation of the states in, 339;
  election of, by state legislatures an evil, 335;
  long term of office of, 338;
  influence of, on state politics, 358;
  its large powers, 339;
  members of, can not be impeached, 144;
  opposition of to democratic legislation, 337.

Serfs, numerical importance of, 5.

Shafroth, J.F., on how to make the House of Representatives more
responsive to public opinion, 189.

Slavery, 317.

Smith, Adam, on civil government as a means of protecting the rich
against the poor, 37.

Social progress, influence of theological beliefs upon the accepted
theory of, 395-398;
  relation of government to, 399-402.

Speaker of the House, veto of, on legislation, 199.

Special fund, for local improvements, 274;
  for municipal ownership purposes, 276.

Spencer, Herbert, on the wage system as a form of slavery, 306;
  on the need of more restriction, 399.

State constitutions after 1787, adoption of direct election and limited
term for judges, 240;
  administrative power decentralized, 242;
  change from annual to biennial sessions, 233;
  development of the judicial veto, 230;
  direct election of the governor, 239;
  influence of democracy on, 239-242;
  local administrative veto on state laws, 243;
  majority deprived of power to amend, 235;
  term of members of the legislature extended, 232.

State constitutions of the Revolutionary period, movement toward
democracy seen in, 16-21.

State legislatures, administrative veto of, 246;
  distrust of, 352-355;
  limitation of the power of, by the courts a cause of corruption, 325-330.
  See Contracts.

State rights. See Calhoun, Constitution of the United States.

Steffens, Lincoln, on the wealthy business man as a corruptor of
municipal politics, 289.

Story, Joseph, on the independence of judges in England, 67 note;
  on the right of courts to veto laws, 105.

Suffrage, limitation of in England in the 18th century, 10;
  property qualifications for, 25, 43, 333;
  universal, does not ensure popular government, 369.

Supreme Court, attitude toward, a survival of monarchy, 103-105;
  cases in which it has exercised the veto power, 111;
  decline of faith in, 113-117;
  Federalist appointments, 94-99, 342;
  freedom from criticism, 110;
  influence of, upon legislation, 111-113;
  non-interference with treaties, 119-123;
  political and judicial powers, 107-110;
  possibility of controlling, 341;
  significance of powers claimed by, 105;
  the controlling branch of the government, 102.
  See Contracts, Hamilton, Impeachment, Jefferson, Judges, Judicial
  Infallibility, Judicial Veto.


Taft, W.H., on the movement to confiscate private property under the
guise of reform, 115.

Taxes, limitation of the power to impose, 318.

Treaty making power, importance of, 137.

Tyler, M.C., on the number and character of the opponents of the
Revolution, 15.


Vested rights, an obstacle to reform, 299;
  means of enforcing, 300.

Veto power. See Judicial Veto, President.

Virginia resolutions, 172.

Von Holst, H., on the origin of the doctrine of nullification, 169, 171.


Ward, L.F., on deception in business, 374.

Waterworks, public ownership of, 280.

White, Horace, on favoritism in granting bank charters in New York, 327.

Willoughby, W.W., on the tyranny of majority rule, 295.

Wilson, James, on amending the Articles of Confederation, 35;
  argument of, against the right of a legislature to revoke privileges
  granted, 321.

Wilson, Woodrow, on the Constitution as the outcome of a ruling class
movement, 51;
  on the deification of the Constitution, 185.





End of the Project Gutenberg EBook of The Spirit of American Government, by
J. Allen Smith

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