Ministerial Responsibility and the Constitution
IT is but a short time since the people of this country and of England each assumed as an axiom that their own form of government was the most perfect that human ingenuity could devise ; while the political writers of each nation received the same doctrine very much like a proposition in geometry, — a thing to be proved, it is true, but a matter of which there could be no doubt, and which needed only a formal demonstration to be readily accepted by every one. All this is so recent that it is not a little surprising to-day to hear criticisms upon the form of their own governments by natives of many of the free countries of Europe and America. The sign is encouraging, because the complaints do not come from persons who wish to change the nature of their governments, making them more or less popular, but arise from a conviction that the government in its actual form does not work as well as it should. The most common grievance is that the legislature is unable to accomplish the work it ought to do. We hear suggestions from England that the rules of the houses of Parliament might be changed to advantage ; from France and from Canada that the system of a responsible ministry is the cause of most of their misfortunes ; and for this country the same system of a responsible ministry is recommended as a panacea for all our ills. Now the government by a responsible ministry has many unquestionable advantages. It has a great tendency to interest and instruct the people ; it conduces to intelligent and systematic legislation ; it turns a flood of light upon every corner of the administration ; and if the object of government is to divide the people into two political parties, and to give rapid and unlimited effect to the opinions of the majority, no better political system has ever, perhaps, been suggested, — provided, indeed, that the people themselves have no deep-rooted prejudices, founded on religion, on race, or on historical association, to impede their progress.
But in the United States the object of government is looked upon in a very different light from this. It is here considered of the first importance to protect the individual, to prevent the majority from oppressing the minority, and, except within certain definite limits, to give effect to the wishes of the people only after such solemn formalities have been complied with as to make it clear that the popular feeling is not caused by temporary excitement, but is the result of a mature and lasting opinion ; and this is done, in the words of the Constitution of Massachusetts, “ to the end it may be a government of laws, and not of men,”or, as we should put it to-day, a government of law, and not of popular impulse. The result is a complicated and unwieldy form of government; a division of powers into legislative, executive, and judicial ; a subdivision of the legislative power between two houses and a president or governor; and in most of the States a distribution of the executive power among a large number of officers who are virtually independent of each other. These divisions of power are also accompanied by cross-divisions separating the powers given to the federal government from those reserved to the several States ; but the feature of the American system which shows in the most striking manner the attachment of our people to the fundamental principles of law is to be found in the power of the courts to disregard an act of the legislature when it violates those rights which have been protected by the Constitution, The notion that legislative power could never infringe private rights was, indeed, carried so far at one time that certain judges assumed an authority to hold a statute invalid if it was repugnant to the common principles of justice and civil liberty, even if it did not conflict with any provision of the Constitution.1 It is needless to say that such a doctrine is not law, but the fact that it could be proclaimed from the bench is significant as an indication of popular feeling.
It is not my intention, in this article, to discuss the relative merits of the English and American forms of government, but merely to attempt to show that a responsible ministry cannot be grafted into our institutions without entirely changing their nature, and destroying those features of our government which we have been in the habit of contemplating with the most pride.
The essential characteristic of a parliamentary government consists in the fact that the ministry (a body comprising all those members of the executive department on whom the policy of the administration depends) can remain in office only so long as it receives the support of the legislature. The members of the ministry have seats in the legislature, and they are expected to superintend its work, and to prepare such bills as they think ought to be enacted. But it is not for the performance of these duties alone that they are responsible. They are liable to be turned out of office if the legislature disapprove of their conduct in matters purely administrative. The late Gladstone ministry, for example, was no less responsible to the House of Commons for sending Lord Wolseley up the Nile than it was for introducing the Franchise Bill, and a vote censuring its policy in the Soudan campaign would have caused its resignation no less certainly than a defeat on the question of extending the suffrage. The legislature is made familiar with the policy of the ministry in legislative matters by the bills it introduces, but it can also obtain as much information about matters of administration as it desires by means of questions addressed to the ministers. It is evident, therefore, that the supervision which the legislature exercises over the details of administration is limited only by the temper of the legislature itself, or, in fact, by the intelligence, energy, and strength of the opposition. The legislature has complete power of control over all matters, both legislative and executive, but so long as the ministry retains the support of the legislature all the powers of government are virtually entrusted to its care. In the words of Bagehot, the cabinet “ is a board of control chosen by the legislature, out of persons whom it trusts and knows, to rule the nation ; ” and this, in the opinion of John Stuart Mill, is the most perfect form of government.
Now let us suppose such a system to be introduced into the United States, and let us try to discover what effect it would produce upon our institutions. I shall, however, confine the inquiry to the federal government, for the results in the States would be very similar.
The first matter to be considered is the position the President would occupy if an amendment to the Constitution were to provide that the executive officers should be responsible to Congress; and let us suppose, to begin with, that the President himself is given a seat in one of the houses. If, in such a case, the President were a man of sufficient ability and force of character, he might become the leader of Congress, and he would then occupy a position essentially the same as that of the premier in England. He would be, in fact, his own prime minister. This was the situation of M. Thiers when President of the French republic, for he refused to allow his advisers to form a ministry, and held himself personally responsible for the acts of his government. But no matter how great a leader the President might be, such a state of things could last only so long as Congress continued to be of his own party. The moment a Congress of the opposite party was elected he would be obliged either to resign, or to give up all exercise of power, and surrender the government into the hands of some one who could obtain the support of Congress; because, by the very definition of a responsible ministry, no one can continue at the head of the administration whose policy has been condemned by the legislature. Experience, indeed, shows us how rarely it would happen that the President elected by the people would be able personally to lead the Congress. If he were not able to do this, the real leader of Congress and head of the government would be some other member of the administration ; and in that case the President would have no more actual power than if he had no seat in Congress, and were not a part of the ministry at all.
But, in fact, no one proposes that the President shall be a responsible prime minister, or have a seat in Congress. The advocates of a parliamentary government go no further than to propose that the advisers of the President shall have seats in Congress, and that they alone shall be responsible to it for their actions. Under such a system the President would remain in office for the four years of his term, in any event, while the cabinet officers would retain their places only so long as Congress was willing to allow them to do so. The President would then be obliged to select his Cabinet from among the leaders of Congress, for otherwise the administration would be without Strength, and in danger of being upset whenever the men who really led the Congress should conclude that they wanted cabinet positions for themselves. Now it is evident that cabinet officers, who know that they cannot be dismissed without the consent of Congress, and who are at the same time the leaders of Congress and able to control its actions, will find it very easy to carry out their own policy of administration without much regard to the wishes of the President. They are called upon, moreover, to explain and defend before Congress the policy of the government, and they cannot do this unless that policy is really their own. They would make but a sorry piece of work in defending the acts of the President unless they really approved of those acts, and were willing to assume complete responsibility for them. They clearly could not shield themselves by pleading the orders of the President, because his orders would not be binding on Congress, and such a defense would not prevent Congress from turning the Cabinet out, and insisting on a ministry which would fulfill its wishes. Of course the responsibility of the Cabinet to Congress would not make the President a figure-head at once. George III. exercised an immense influence over the House of Commons long after the principle of a responsible ministry had become a part of the British Constitution, and in a less degree we should see the same thing here. The tradition of the President’s authority would probably enable him to influence politics for a long time, but as Congress became more and more conscious of its power it would follow more and more closely the acts of the administration. It would gradually force the cabinet officers to be strictly responsible to itself, and finally it would concentrate all powers, both legislative and executive, in its own hands. So long as Congress and the President were of the same political party the process would probably go on slowly ; but it is clear that if a Congress of a party hostile to the President were elected he would immediately lose all control of the administration, which would pass into the hands of his political opponents. Mr. Bagehot, while discussing the separation of the legislative and executive powers in this country, and the exclusion of our cabinet officers from seats in Congress, remarks, “ And, to the effectual maintenance of such a separation, the exclusion of the President’s ministers from the legislature is essential. If they are not excluded, they become the executive, they eclipse the President himseif. A legislative chamber is greedy and covetous ; it acquires as much, it concedes as little, as possible. The passions of its members are its rulers ; the law-making faculty, the most comprehensive of imperial faculties, is its instrument ; it will take the administration, if it can take it. Tried by their own aims, the founders of the United States were wise in excluding the ministers from Congress.” In those countries in which a parliamentary government has been introduced, the nominal head of the administration has lost all political power, and this must, in the nature of things, always take place. Germany, it is true, presents a striking exception to this rule, for there, by means of the vast personal force of Prince Bismarck, the emperor has been enabled to keep a strong hold on the reins of government ; but no one can suppose that Bismarck himself would have been able to treat the Congress of the United States as he has treated the German Reichstag, and even in Germany he has done no more than put off the day he so much dreads, because it will not be possible for his successors to follow in his footsteps in this matter.
After considering the position the President would occupy if we had a responsible ministry, we are naturally led to inquire what changes such a system of government would produce upon Congress. That body is now composed of two branches, each of which has not only a constitutional right to refuse to enact laws proposed by the other, but has no hesitation in actually exercising its authority. Mr. Bagehot, a strong advocate of parliamentary government, considers such a state of things exceedingly pernicious, while, on the other hand, the publicists of the last century and most Americans at the present day assert that it is very important, if not absolutely necessary, as a check upon popular impulse. Let us inquire whether the existence of two really independent houses of Congress is possible in a parliamentary government. The Cabinet is to be responsible. Responsible to whom ? To the two houses of Congress. This is all very well so long as the houses are of one mind ; but what will happen when they disagree ? Suppose, for example, that the House of Representatives should continue to support the Cabinet while the Senate opposed it, and that the Cabinet refused to resign. The Senate would then have but two courses open to it : either to hamper the policy of the administration in every possible way, and attempt to force the hands of the Cabinet and the House, or to submit; and if it should submit, it would fall in prestige, and gradually lose all voice in the control of the administration. When, in such a case, the majorities of the House of Representatives and of the Senate do not belong to radically different parties, a compromise may be arranged, it is true : but if this arrangement is really a compromise, and not a virtual surrender on the part of one of the houses, the Cabinet will be weak and its policy negative ; or should it happen that the Cabinet is vigorous and composed of able men, it will play off each of the houses against the other, and be in reality responsible to neither of them. A ministry cannot be responsible to two chambers. In the long run it must depend upon the support of the stronger one alone, and disregard the action of the weaker. And this becomes more clear when we consider that one of the most important duties of a responsible ministry is to explain and defend its policy in the chambers. But the ministry cannot really defend its policy in both chambers, for the debates that take place in one cannot be repeated in the other, nor will a part of the debates take place in one and a part in the other. All the important discussions will tend to occur in the chamber which shows the most power, and the chamber in which the debates take place will have the most attraction for men of talent and ambition ; and so the stronger chamber will grow stronger, and the weaker will become weaker, until all authority is centred in the former. Mr. Bagehot’s description of the position of the House of Lords must in time apply to the second chamber in any country, where the principal chamber is not so torn by factious as to be unable to maintain a definite policy of its own. “ Since the Reform Act,” be says, “ the House of Lords has become a revising and suspending House. It can alter Bills ; it can reject Bills on which the House of Commons is not yet thoroughly in earnest— upon which the nation is not yet determined. Their veto is a sort of hypothetical veto.”
The French Senate appears to be an exception, for it has a very considerable amount of power, and it sometimes happens that it is not afraid to defeat the policy of the Chamber of Deputies. The most extraordinary example of this occurred in 1883, when the premier, M. Duclerk, resigned, because he could not approve of a bill for the expulsion of the Orleans Princes, which was supported by a majority of the committee of the Chamber of Deputies and by most of the members of his own cabinet. M, Fallières formed a ministry, and the bill was immediately passed by the Chamber of Deputies ; two weeks later, however, it was defeated in the Senate, and M. Fallières resigned. M. Ferry succeeded him, and managed to deprive the Princes of their commands in the army under the provisions of an existing statute, but the Chamber of Deputies made no attempt to insist upon its policy of expulsion. Thus within three weeks two prime ministers were wrecked by the same bill : the first by the Chamber of Deputies which supported the bill, and the second by the Senate which refused to pass it. Now this was possible only because the majority of the Chamber of Deputies, although agreed upon the bill in question, was not sufficiently united to be really in earnest in the support of the ministry. The Chamber is, in fact, so split up into factions that a compact majority is impossible, and a committee system unsuited to a parliamentary government tends to increase the difficulty, so that every ministry is the result of a sort of coalition. The Chamber tolerates, but never supports, the ministers ; and this is the cause not only of the weakness of the ministries and their uncertain hold of office, but also of the power which the Senate has been able to retain.
In a parliamentary government the power of dissolving the legislature is almost essential to the smooth working of the system, because a minister who feels that the people are on his side when he loses the support of the house cannot be made properly responsible to the latter. The ministry looks to the house for support, but in order that the system may work well both must feel that their policy is in harmony with the will of the people, because the people are the final judges of the policy of the government, and an election, whether it takes place upon a sudden dissolution or at the expiration of a fixed time, is an appeal to their judgment. Now in regard to the two branches of Congress, there can be no doubt which one would overshadow the other and become the centre of power. Every two years, according to the Constitution, the entire House of Representatives is elected, and there assembles at Washington a new House in sympathy with the opinions of the people : if, therefore, we had a responsible ministry, the people, in electing the House, would pass judgment biennially upon the acts of the ministry. But only one third of the Senate is renewed within the same period. The Senate, therefore, is never a very accurate index of the opinions of its constituents, and a reëlection of a third of the Senators could hardly be looked upon as a verdict upon the acts of a responsible ministry ; and even if the Cabinet were given power to dissolve entirely both branches of Congress, the two houses would not stand upon an equality, because the election of the House of Representatives would indicate the opinion of the people, while the new Senate would represent only the States ; and there can be no question that the will of the people, and not that of the States, would be the decisive matter. The Senate, indeed, represents the people indirectly ; but while the House represents the present wishes of the people, the Senate may be said to represent its more deep-rooted and lasting opinions. It is partly to this quality that the Senate owes its power and its usefulness. In a parliamentary government, however, an appeal to the people means an appeal to the present opinion of the people, for it can mean nothing else. The elections to the House of Representatives would be the answer to this appeal, and it is the House, therefore, which would be clothed with the power of the people.
I shall now boldly assume that I have convinced the reader that all I have said is true, and I shall lay it down as a foundation for further discussion that, if a responsible ministry were introduced into our government, the House of Representatives would acquire the powers of the House of Commons ; that the Senate would occupy a position similar to that of the House of Lords ; and that the President would be reduced to such a condition that, except for the absence of a pedigree and of crown jewels, he might well bear the dreaded name of King. I wish now to inquire what effect such a state of things would have upon the relations of the state and federal governments. In discussing the government of the United States, Mr. Bagehot remarks, “ After saying that the division of the legislative and executive in presidential governments weakens the legislative power, it may seem a contradiction to say that it also weakens the executive power. But it is not a contradiction. The division weakens the whole aggregate force of government — the entire imperial power ; and therefore it weakens both halves.” The converse of this is also true. The union of the legislative and executive departments would increase the aggregate force of the federal government, — would increase its power to accomplish its purposes; and would, therefore, enable it with much greater ease to encroach on the authority of the States if it should desire to do so. Now it is almost an axiom in political science that the powerful always hunger for more power, and that the ability of one body to encroach upon the authority of another is the father of a desire to do so. but this is not all. It is claimed by those who advocate a parliamentary government for this country that such a government would increase the interest of the people in national affairs; and this in itself is a very good thing, but it must not be forgotten that a concentration of popular interest means a concentration of popular power. If the people become excited over a federal issue beyond a certain point, if they learn to look upon it as a matter of paramount importance, they will endeavor to give effect to their opinions with all the power that they possess, without much regard for the theoretical rights of the States. We saw an example of this at the time of the civil war. It is indeed a proof of the strength of our Constitution that the war did not produce a far greater concentration than we have witnessed, and that the system has so nearly recovered its equilibrium ; but in spite of its strength the Constitution would not stand many strains of such violence. Now, of course I do not mean to assert that under a responsible ministry the popular excitement would at all compare with what it was at the time of the civil war; but I do mean to say that national questions would constantly assume an importance in the eyes of the people which would entirely overshadow local interests, and that a responsible ministry, armed with the power of public opinion, would bring to bear upon the States a steady pressure which they would be unable to resist. It has been said that the United States is still in its feudal period, and to a certain extent the metaphor is appropriate ; because, just as the feudal barons in the Middle Ages presented points of physical resistance to the centralizing ambition of the king, so to-day the States present points of moral resistance to the centralizing tendency of our national government. They form centres for the organization of local opinion, and rallying points for those who are in a minority on federal questions.2
We have not yet considered the effect of a responsible ministry upon the most vital part of our government, the part on which the whole system hinges, and that is the authority of the courts to refuse to treat as law a statute which violates the provisions of the Constitution. It is this which marks the limits of the different powers in the government, which prevents gradual and unobserved encroachments, and makes it possible to maintain a system of divided sovereignty. To European statesmen this power of our courts is a standing wonder, but to the American it is the obvious and natural result of a written constitution. It is, in fact, the logical consequence of a limited form of government. Suppose, for example, that a legislature is invested with only a limited authority; any act outside that limit is unauthorized, ultra vires, as the lawyers would say, — that is, beyond the powers of the legislature, — and has no force. Every one may disregard it, for it is entirely invalid, and clearly the courts cannot give it any effect.3 Inasmuch as the legislature represents the people, and in the States, at least, the very same people who establish the Constitution, it may seem strange that they should limit the power of their own representatives ; but it is precisely because the people alone are the unquestioned source of all government in this country that they are willing to limit their own power. The most astonishing thing to foreign statesmen, however, is not that the people should profess to limit their own power, for this has been done in European constitutions, but that they should keep to those limits, and allow the courts to disregard the acts of their representatives when they overstep them. In the United States, on the other hand, all this is so much a matter of every-day occurrence that we are in the habit of looking upon a constitution as possessing a sort of intrinsic strength, and maintaining itself proprio vigore. The illusion is beautiful, and justified in our own case by experience, for it is founded on the respect which our citizens feel for the law, and especially for those fundamental principles which are embodied in their constitutions. But in reality a constitution can retain its force only so long as the people care for it more than they care to effect any immediate object. Every government is bottomed on force; or, at least, its existence depends upon the consent of those who have power to change it, and in a purely democratic nation the form of the government depends upon the consent of the majority. When the majority make up their minds that they would rather amend the constitution than fail to effect some desired object, it becomes certain that the constitution will be amended, and if this happens often the fate of the constitution is sealed. The Constitution of the United States depends, therefore, upon the fact that the people, with rare exceptions, care more about that Constitution than about any present issue; and the courts are supported in holding a statute unconstitutional because the people cling to the fundamental principles of law represented by the court with more affection than they feel for the statute which the court decides to be invalid.
Now some one will, perhaps, concede that all this may be very true, but ask how a responsible ministry affects the matter. It affects it vitally, because, as I have attempted to show, a responsible ministry involves the fusion of the legislative and executive branches of the government, and the concentration of all political power in the hands of the direct representatives of the people ; and this, accompanied by the increased excitement over national issues and the decay in the political power and importance of the States, would accustom us to seeing rapid and unlimited effect given to the opinions of the majority. The people would soon learn to chafe at the delays and obstructions of our constitutional methods, and lose the habit of restraining themselves for the sake of an ideal ; while the majority would naturally consider every political issue as of paramount importance, and feel that the solution of a pressing question ought not to be endangered for the sake of any theoretical principles, or in order to preserve the forms of a paper constitution. The courts, too, would find themselves in a very different position. Instead of standing between the different branches of government among which political authority is divided, and limiting the power of one for the benefit of another, they would have the full force of government on one side, and nothing to support them on the other. At present the more important questions of constitutional law before the court usually involve the authority of the nation as against the States, or the rights of the States as against the nation, or the power of one department of the government as against another ; and even when the court holds an act unconstitutional on the ground that it violates one of those provisions which are established solely for the protection of individuals, it does not set aside the act of the people, but only the act of a body which but partially represents the people, and exercises only a very small part of the popular sovereignty. But under a parliamentary government a court which should venture to declare a statute unconstitutional would be brought face to face with the people themselves.
In a speech at Edinburgh, two or three years ago, Lord Salisbury is reported to have said that he did not often envy the Americans anything, but that there was one institution which he did envy them, and which he should like to see adopted in England, and that was a court possessing power to declare a statute unconstitutional. No doubt the Tory leader would have been pleased with any institution which would check the legislation of the Liberals, but in this instance he was unfortunate, because he desired an impossibility. Apart from the fact that the one principle of the English Constitution is the omnipotence of Parliament, and that the court would find no ground to build its decisions upon, no court in England could possibly have power to hold acts of Parliament invalid, because Parliament is, in effect, a meeting of the people acting through their representatives. Complete sovereignty resides, therefore, in Parliament, and to oppose the will of that body is to oppose the will of the people. But the American Congress has not complete sovereignty, nor has any department of the government, state or federal, nor, indeed, have all of them acting together. Congress has no authority to declare the will of the people, except within the limits prescribed by the Constitution; for the Constitution itself is the final expression of the popular will, and is binding upon every officer of the government as the supreme law of the land. I am not speaking of the Constitution from a legal standpoint alone. I am speaking of it as it is regarded by the people themselves ; for if this view of the matter were entertained only by the lawyers, no court which assumed power to set aside an act of Congress would be tolerated for a moment. The power of our court, then, to pass judgment upon the validity of statutes depends upon the fact that the voice of Congress is not the voice of the people : but if a parliamentary form of government were to be introduced into this country, Congress, like the British Parliament, would acquire authority to declare the will of the people, and then no court could long withstand its power.
I have, so far, only attempted to consider the probable consequences of making cabinet officers responsible to Congress, and to prove that, under such a change of methods, our government would centralize strongly, at the expense of the authority and independence of the States, and that in time the national House of Representatives would draw unlimited political power into its own hands. But a recent writer on the subject claims that, in the absence of a responsible ministry, these results have already taken place, and this article would be incomplete without a review of the facts on which he bases his opinion.
In his book on Congressional Government Mr. Wilson uses a line of argument very different from the one commonly in vogue with those who advocate a parliamentary government for this country. He says nothing, in fact, inconsistent with what I have described as the probable consequences of ministerial responsibility in this country, but, on the contrary, after the manner of Bagehot’s essay on the English Constitution, he attempts to show that the actual form of our government is already radically different from the plan that our forefathers designed, and from the descriptions to be found in our political literature. He claims that the supposed checks and balances of the system have failed; that the President has ceased to be an obstacle to the power of Congress ; and that the States are no longer able to resist the encroachments of the federal government. Of the power of the Senate, curiously enough, he says but little, although he devotes a chapter to this body ; but he certainly gives the reader the impression that he considers all real power centred in the committees of the House of Representatives. All this is the more surprising, because one of the complaints of Congress which we most commonly hear is that the House of Representatives has brought itself into such a condition that it is unable to legislate. Of the judiciary, after explaining that the courts do not and cannot put any effective restraint upon the actions of Congress, Mr. Wilson says, “ This balance of judiciary against legislature and executive would seem, therefore, to be another of those ideal balances which are to be found in the books, rather than in the rough realities of actual practice ; ” and later he adds, “ For all practical purposes the national government is supreme over the state governments, and Congress is supreme over its so-called coördinate branches. Whereas Congress at first overshadowed neither President nor federal judiciary, it now on occasion rules both with easy mastery and a high hand.” On these facts he founds the argument that if our theoretical division of powers has miscarried in practice, and if our government has already become centralized, we had better adopt that form of centralized government which will work the best; we had better establish a responsible ministry. The argument is logically sound, and the conclusion follows properly enough, if the premises are admitted ; but these I cannot agree with, and I wish to consider them in the brief space which this article will allow.
Our government has undoubtedly centralized since the beginning of the century ; for the greater facility of communication between the different parts of the Union, the formation of vast corporations comprising several States in the scope of their operations, and the consequent industrial development of the country make demands upon the federal government for the exercise of powers which were far less important eighty years ago. There exists unquestionably a tendency to centralization, which all citizens who care for the Constitution should watch with a jealous eye ; but it is a tendency very easy to exaggerate, and not yet developed to such an extent as to impair the political power and independence of the States. The war and the reconstruction which followed it necessarily produced for a time a great increase in the power of the national government. A part of this increase of power has been rendered permanent by the adoption of the recent amendments to the Constitution, while the decision of the Supreme Court in the legal tender cases has assured to Congress the possession of another part; and for the rest, it is difficult to shake off habits of political thought once acquired ; but for the last ten years the federal government has been playing a constantly decreasing part in the internal affairs of the Southern States, and he must be blind to the signs of the times who does not perceive the tendency to leave to these States the management of their domestic interests. The Supreme Court, moreover, in the civil rights cases has struck a heavy blow at the parental policy of Congress, by denying to it the right to interfere directly with the social condition of the citizens of the States, and limiting its authority to counteracting and redressing the effects of the action of the stare authorities. Mr. Wilson cites as an illustration of the growth in the power of the federal government the enormous increase in the number of federal officials ; and so long as offices are made a reward for party service, this standing army of placemen adds dangerously to the political power of the United States; but when we obtain the complete reform of the civil service, for which every citizen ought to hope, the mere number of federal office-holders will in itself be little or no source of power to the national government. Mr, Wilson also mentions the practice of spending federal money to make internal improvements, and undoubtedly the power of Congress to do this was hotly debated fifty years ago, and has now become an unquestioned part of our constitutional system ; and yet even during the administration of President Jackson, Congress, under the name of deposits, in effect gave to the States the surplus from the national treasury, and it can hardly be said that Congress has of late years done anything under the name of internal improvements which carries the doctrine of implied powers further than this. The statute which provides for the appointment of supervisors of election is cited as the most galling example of the assumption of power by the national government. But it must be remembered that the statute was intended to counteract an illegal exercise of power,— not by the States, it is true, but by persons whom the States ought to control, — and that the statute has not so much the effect of changing the original balance of power between the States and the federal government as of restoring the balance of power; for the framers of the Constitution never contemplated any local power to tamper with the results of elections. The fact appears to be that, although the United States has largely increased its authority, the government has not become centralized to such an extent as to upset the balance of power, or even to disturb seriously the equilibrium of the system. Nor has the gain been all on one side. Certain States, of which New York is a conspicuous example, for a long time chose the presidential electors by districts, but by adopting the plan of choosing them on a general ticket they have greatly consolidated their political power. We must not forget, moreover, that the electoral commission in 1876 decided that Congress had no power to go behind the returns of the States in counting the votes for President; whereas in 1839 the House of Representatives refused to allow certain members whose election was contested to take part in the organization of the House, although these members held the official certificates of the governor and council declaring them elected ; for the House denied that the certificate of the State gave the holder even a prima facie right to a seat. The two cases, of course, are not exactly parallel, and the decisions were rendered under the pressure of party excitement; but still they go far to disprove the theory that the political power of the States has decayed.
The relative strength of the three departments of the federal government has suffered much greater changes during the century, but it has not always been the same department that has encroached on the others. At times the power of Congress has been in the ascendant, at times that of the President; and this must continue to happen as long as Congresses differ so much in the talent and experience of their members, and as long as a weak and short-sighted President is unable to exercise as much influence as a President of ability and force of character. But Mr. Wilson is in error when he states that “ Congress is supreme over its so-called coördinate branches.” A sufficient proof of the continuing strength and independence of the President is to be found in the fact that to this day he has no hesitation in using his power of veto; and, indeed, the veto has been used fully as often of late years as at any period of our national existence. If any further evidence of the power of the President is needed, it is enough to refer to the last great struggle he has had with Congress,— the controversy between President Hayes and Congress about riders upon appropriation bills, in which the President was completely victorious. The veto can, of course, be overriddenby a two-thirds vote of both houses of Congress, and this is done as often as the majority in both houses is large enough to make it possible; but this is no encroachment on the part of Congress, for it is merely the legitimate exercise of a power which Congress was intended to possess.
Turning from the legislative to the executive functions of the President, we find that his power has undergone very great variations. When Jackson adopted the practice of giving federal offices as a reward for party service, he forged for the use of Presidents a political instrument of tremendous power. A stranger, indeed, who knew nothing of America except what he could hear during a presidential campaign, would readily believe that the President held the only federal office of any real importance. This results in part from the habit of making the candidate for that office the standard-bearer in the fight, but it comes also from the fact that the party workers yearn more for the spoils which lie in the gift of the President than for the control of legislation which lies in the hands of Congress. The President has not been suffered to reap in peace the benefit of this great invention, for a practice has arisen by which the congressional delegations from the several States have acquired a great power over the distribution of the federal patronage. This practice has grown gradually and silently, but during the attempt of Congress to tie the hands of President Johnson it passed the Tenure of Office Act, which struck an open blow, not only at the power of the President to use the spoils for his own advantage, but also at his power to direct the policy of his own administration. The authority of the President fell at this time lower than it has ever been before or since; and although the Tenure of Office Act, in a slightly modified form, still exists, it has not the political importance which it possessed in Johnson’s day. The doctrine that the President has, under the Constitution, no right to remove any federal officer without the consent of the Senate is not new. It has been a subject of dispute ever since Washington’s administration, but in Johnson’s time it was used to force him to retain a cabinet officer who was bitterly opposed to his policy. It will probably be a long time before the Senate tries to do this again, and it is clear that such an attempt could not now be successful. The subject of the appointing power of the President cannot properly be dismissed without a reference to the principle of senatorial courtesy, by which each Senator of the President’s political party controlled an important part of the federal patronage in his own State, because the contest between President Garfield and Senator Conkling on this matter is one indication of the recovery by the President of his lost influence. Mr. Wilson’s views in regard to the position of the President are explained by a passage in which he says, “ No one, I take it for granted, is disposed to disallow the principle that the representatives of the people are the proper ultimate authority in all matters of government, and that administration is merely the clerical part of government.” The first proposition contained in this sentence is true in a parliamentary government, but the second is not true in any form of government ; and that it cannot be applied to our President, even if we pass over the veto and the power to control foreign relations, is clear when we remember how large a part the executive played in the final settlement of the Southern question. The importance of the executive in the solution of that question was not exceptional. It has long been evident, for example, that Congress can do very little towards the reform of the civil service without a zealous coöperation on the part of the President.
It is only necessary to look at the recent volumes of the Supreme Court reports to be convinced that the judiciary has not lost its independence or its power. The decisions in the civil rights cases,4 in the Arlington Heights case,5 and in the case which decides that the House of Representatives has no power to examine a witness and to commit him for contempt on a matter not strictly connected with its legislative duties,6 all prove that the judiciary has not become subservient to the other departments of the government. In spite of the wellknown packing of the bench under President Grant, and the unfortunate connection of the judges with the electoral commission, the Supreme Court appears to stand at the present day as high in public estimation as it ever stood before. I might with truth go further, and say that the concentration of power caused by the civil war has turned in the long run mainly to the profit of the national courts. The recent amendments to the Constitution have increased but little the powers of the President and of Congress, but they have added enormously to the authority of the federal judiciary.
Among the recent historical studies published at Johns Hopkins University is a valuable essay, by Mr. Horace Davis, on the Relations of the Departments as Adjusted by a Century, and the conclusions of the author are singularly contradictory to those of Mr. Wilson. He shows that in the States the executive has been continually gaining at the expense of the legislature, and he considers that the President is recovering the power which he lost during Johnson’s administration, while he believes that the judiciary, both state and federal, has steadily increased in power and influence. Slight variations, however, in the relative strength of the different departments of the government do not affect my argument, so long as the balance of the system remains substantially unimpaired. It is enough that the power of the federal government is still limited by the rights of the States ; and that the houses of Congress, the President, and the federal judiciary can each check any serious encroachments on the part of the others.
I have not attempted in this article to consider the question whether a parliamentary system would be better for us than our present Constitution, much less to discuss the relative merits of these two forms of government in the abstract. In fact, the time has passed when every good American believed that all foreign nations were more or less benighted, because they did not adopt our Constitution. For myself, I believe that our own system is still the best for us ; although, apart from those abuses which have no necessary connection with our form of government, no one can shut his eyes to the defects inherent in the system itself.
The American does not accept the maxim that eternal vigilance is the price of liberty. He has altogether too much tendency to believe that liberty and good government can be bought with a written constitution ; and that, once possessed, these blessings form part of that property of which he cannot be deprived, except by due process of law. In consequence of the division of political power into so many small fragments, the ordinary citizen does not take interest enough in any one of them, and leaves the control of public affairs too exclusively in the hands of the professional politicians. Whether these defects are greater than those which we ought to expect under a parliamentary government I do not here pretend to inquire. I have only endeavored to prove that a responsible ministry cannot form a part of our present system ; that one of these forms of government or the other must be accepted in its completeness, with all its merits and with all its faults.
Abbott Lawrence Lowell.
- See cases collected in Cooley on Constitutional Limitations, * 164, et seq.↩
- It is also to be remembered that the smaller the community which exercises political power the larger will the individual be in proportion to that community. A member of a small community will find it comparatively easy, therefore, to assert his rights, and the community will find it difficult to trample upon them .↩
- M. Boutmy, in comparing the governments of France, England, and the United States, imputes the absolutism of the French to the absence of great public corporations. His remarks are so much in point here that I venture to quote them at some length (Droit Constitutionnel, page 239 et seq.) : ” En France, il n’y’ a pas depuis 1789 d’autre être collectif animé d’une vie puissante que la nation, concue dans sa totalité indivisible. An sein de la nation il n’y a de consistant que l’individu. . . . La souverainté sera théoriquement la volonté de tous les citoyens, et pratiquement elle se confondra avec la volonté de la majorité numérique. ... Il n’y a pas de point d’appui en dehors de la majorité, il n’y en a done pas contre elle pour une résistance ou une dissidenee qui dure. . . . On a vu qu’en France l’équation politique ne comprend que deux termes : l’individu l’État, un infiniment petit et un infiniment grand. . . . L’égoisme chétif de chaque citoyen fait seul face a l’intérêt indivisible et supérieur de la nation. . . . Les droits de l’individu, premier thème de la constitution, source reconnue de tout pouvoir légitime, pâlissent trop souvent pendant cette seconde phase et s’effacent devant cette idéal usurpateur. L’intempérance législative et réglementaire du Parlement et des pouvoirs public, l’existence et l’activité exagérée d’une justice administrative où 1’État figure comme juge et partie, sont les deux faits qui accusent le plus sûrement ce penchant à subordonner et à humilier l’intérêt ou les libertés privées, et à fonder le despotisme consciencieux de l’intérêt public. L’Angleterre, et, dans la sphère fédérale, les États-Unis, ont moins souffert que nous du premier do ces maux; ils out échappé au second.↩
- “ Ces deux pays ont dû en effet à l’importance et au prestige des grandes personnes morales qui out précédé et créé leurs constitutions, de ne pas counaître jusqu’a présent cette antithése heurtée de l’État et de l’individu, cette oscillation sans arrêt intermédiaire, qui relève et fait dominer alternativement les droits de l’un et la haute mission de l’autre. Un autre problème a retenu dans une région moyenne l’attention des constituants et les a empêchés de glisser sur la pente vers ces deux questions extrêmes, c’est celui d’une balance à ètablir entre des puissances préexistantes.”↩
- He adds later that this is ceasing to be true of England. It is only fair to say that M. Boutmy considers the absolutism of France to be a higher form of civilization than the decentralization of the United States.↩
- In The Atlantic Monthly for November, 1884, Mr. Brooks Adams has made a very interesting study of the historical development of this idea.↩
- 109 U. S. 3.↩
- United States v. Lee, 106 U. S. 196.↩
- Kilbourn v. Thompson, 103 U. S. 168.↩