Responsible Government Under the Constitution

“The question is not merely, How shall the methods of Congress be clarified and its ways made purposeful and responsible? There is this greater question at stake: How shall the essential arrangements of the Constitution be preserved?”

Library of Congress

Our written constitutions are more or less successful generalizations of political experience, and they exercise much the same spell upon the mind that other confident, roundly put generalizations exert. Like other broad inductions, they commend themselves as whole truths, though they are in fact only partial truths. Wherever they have misread or let drop from their reckoning any one of the lasting conditions which go to make a system workable, they must prove to have promised more than they can possibly fulfill. Their tone of command does not at all alter the historic realities of government. Human nature, especially political human nature, remains the same; and written constitutions can stand for facts only within the limits of those universal conditions of government over which they have no reforming power. This is the ground for that contempt everywhere felt and expressed, outside of French national conventions, for a priori constitutions, for paper boats meant to be sea-worthy ships of state. But, though written constitutions cannot create a new nature for government, they can and do create new forms of government; above all, they speak out with the utmost plainness definite purposes of government, and the striking forms or novel purposes which they develop catch and dominate men’s thoughts. The reality of the new forms creates a violent presumption in favor of the reality of the substance which they are supposed to contain.

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The limitation of written constitutions lies centrally in the fact that laws cannot enforce themselves. In one sense, all governments must be governments of men, not of laws. Laws can have no other life than that which is given them by the administration and obedience of men; and the way in which men naturally exercise power must constitute the essence of every system under which they exercise it.

These considerations apply with less force to the Constitution of the United States than to many others, domestic and foreign, that might be cited, because it was framed by exceptional men thoroughly schooled in the realities of government. But even the Constitution of the United States illustrates the congenital weakness of its family. Its weakness in some points is, indeed, all the more striking because of its great strength in all others. Its strength will be found, upon analysis, to lie in its definiteness and in its limitations rather than in any balance of its energetic parts. Sir Henry Maine, with his instinct for central facts, has recently put his finger upon the chief sinews of our system. “American experience,” he says, “has shown that, by wise constitutional provisions thoroughly thought out before-hand, democracy may be made tolerable. The public powers are carefully defined; the mode in which they are to be exercised is fixed; and the amplest securities are taken that none of the more important constitutional arrangements shall be altered without every guarantee of caution and every opportunity for deliberation. … It would seem that, by a wise constitution, democracy may be made nearly as calm as water in a great artificial reservoir.” These facts of the distinctness of the provisions of our Constitution and the difficulties and delays thrown about its amendment are those which would naturally seem most striking to a qualified English observer, because of the capital contrast which they present to the chief features of the singular constitution under which he himself lives. The difference between our own case and that of Great Britain upon which we have most reason to congratulate ourselves is that here, because of our written Constitution, public opinion has definite criteria for its conservatism; whereas in England it has only shifting, uncertain precedent. In both countries there is the same respect for law. But there is not in England the same certainty that exists here as to what the law of the constitution is. We have a fundamental law which is written, and which in its main points is read by all alike in a single accepted sense. There is no more quarrel about its main intent than there is in England about the meaning of Magna Charta. But much of the British constitution has not the support of even a common statute. It may, in respect of many vital parts of it, be interpreted or understood in half a dozen different ways, and amended by the prevalent understanding.

It is significant in this connection that one of the most important and most esteemed of the many legal commentaries on our government is entitled Constitutional Limitations. In expounding the restrictions imposed by fundamental law upon state and federal action, Judge Cooley is allowed to have laid bare the greater meanings of our whole constitutional system. The “may-nots” and “shall-nots” of our constitutions give them their distinctive shape and character. The strength which preserves the system is the strength of self-control. These constitutional restraints express the all-determining characteristic of the people by whom they are accepted and obeyed. They rest upon the legal conscience—upon what Mr. Grote would have called the “constitutional morality” —of our race. We are above all things law-abiding. These prohibitions of the law do not assert themselves as taskmasters set over us by some external power. They are of our own devising. We are self-restrained.

This legal conscience constitutes, for instance, the only guarantee of that chief arrangement of our constitutional system, the division of powers between the state and federal governments. The integrity of the powers of the States has depended solely upon the conservatism, the conservative legal conscience, of the federal courts. State functions have certainly not decayed; but the prerogatives of the States have been preserved, not by their own forces of self-defense, but by the national governments grace of self-restraint. What curtailment their province might suffer has been illustrated in several notable cases in which the Supreme Court of the United States has confirmed to the general government extensive powers of punishing state judicial and executive officers for disobedience to state laws. Although the federal courts have again and again obeyed their legal conscience in restraint of the aggressions of Congress upon the States, they have also from time to time countenanced grave encroachments upon state powers; and their occasional laxity of principle upon such points is sufficiently significant of the fact that there is no balance between the state and federal governments, but only a customary “constitutional morality” on the part of the federal courts. The actual encroachments which the latter have permitted to themselves, under the pressure of strong political interest at critical periods, were not needed to prove the potential supremacy of the federal government. They showed how that potential supremacy would on occasion become actual supremacy; but they added nothing but illustration to the principle that there is no guarantee but that of conscience that justice will be vouchsafed a suitor when his adversary is both court and opposing litigant. So strong is the instinct of our governments to keep within the sanction of the law that even when the last three amendments to the Constitution were being forced upon the Southern States by means which were revolutionary, the outward forms of the Constitution were observed. But it was none the less manifest with what sovereign impunity the national government might act in stripping those forms of their genuineness. As there are times of sorrow or of peril which try men’s souls, and so lay bare the inner secrets of their characters, so there are times of revolution which act as fire in burning away all but the basic elements of constitutions. It is then, too, in the case of constitutions, that dormant powers wake which are not afterwards easily lulled to sleep again.

Such was certainly the effect of the civil war upon the Constitution of the Union. The “implying” of powers, once cautious, is now become bold and confident. In the discussions now going forward with reference to federal regulation of great corporate undertakings and federal aid to education, there are a score of writers and speakers who tacitly assume the powers of the national government in such matters for one that urges a constitutional objection. Constitutional objections, before the war habitual, have now lost all prominence. And the source of every contemplated increase of federal function is legislation, of course. Congress stands at the front of all government, because it is the one motive, originating power set up by the Constitution. It is the single affirmative force of the system. The President appoints officers and negotiates treaties subject to the “Yes” of the Senate. Congress organizes departments, organizes the navy, organizes the army. It audits, approves, and pays expenses. It conceives and directs all comprehensive policy. All else is negation. The President says “No” in his veto; the Supreme Court says “No” in its restraining decisions.

It is the habit both of English and of American writers to speak of the constitution of Great Britain as if it were “writ in water,” because nothing but the will of Parliament stands between it and revolutionary change. They fail to ask what it is that constitutes the will of Parliament. Parliament dare not go faster than the public thought. There are vast barriers of conservative public opinion to be overrun before a ruinous speed in revolutionary change can be attained. In the last analysis, our own Constitution has no better safeguard. We have, as I have already pointed out, the salient advantage of knowing just what the standards of our Constitution are. They are formulated in a written code, wherein all men may look and read; whereas many of the designs of the British system are to be sought only in a cloud-land of varying individual readings of affairs. From the constitutional student’s point of view, there are, for instance, as many different Houses of Lords as there are writers upon the historical functions of that upper chamber. But the public opinion of Great Britain is no more a juggler of precedents than is the public opinion of this country. Perhaps the absence of a written constitution makes it even less a fancier of logical refinements. The arrangements of the British constitution have, for all their theoretical instability, a very firm and definite standing in the political habit of Englishmen: and the greatest of those arrangements can be done away with only by the extraordinary force of conscious revolution.

We are too apt to forget how much of our own institutions rests upon the same basis, upon no other foundations than those that are laid in the opinions of the people. It is within the undoubted constitutional power of Congress, for example, to overwhelm the opposition of the Supreme Court upon any question by an increase in the number of justices and a refusal to confirm any appointments to the new places which do not promise to change the opinion of the court. Once, at least, a plan of this sort was thought to have been carried deliberately into effect. But we do not think of such a violation of the spirit of the Constitution as possible, simply because we share and contribute to that public opinion which makes such outrages upon constitutional morality impossible by standing ready to curse them. There is a close analogy, as it seems to me, between this virtual inviolability of the Supreme Court and the integrity hitherto vouchsafed to the English House of Lords. There may be an indefinite creation of peers at any time that a strong ministry chooses to give the sovereign its now virtually imperative advice in favor of such a course. It was, doubtless, fear of the final impression that would be made upon public opinion by action so extraordinary, as much as the timely yielding of the Lords upon the question at issue, that held the ministry back from such a measure, on one notable occasion. Hitherto that ancient upper chamber has had in this regard the same protection that shields our federal judiciary. Here again it is Congress which is equipped for aggression. With it lies the potential, the virtual, supremacy.

It is not essentially a different case as between Congress and the Executive. What with the covetous admiration of the presidency recently manifested by some alarmed theorists in England, and the renewed prestige lately given that office by the prominence of the question of civil service reform, it is just now particularly difficult to apply political facts to an analysis of the Presidents power. But a clear conception of his real position is for that very reason all the more desirable. While he is a dominant figure in politics would seem to be the best time to scrutinize and understand him.

It is clearly misleading to use the ascendant influence of the President in effecting the objects of civil service reform as an illustration of the constitutional size and weight of his office. The principal part in making administration pure, business-like, and efficient must, under any conceivable system of government, be taken by the executive. It was certainly taken by the executive in England thirty years ago; and that much in opposition to the will of Parliament. The prominence of our administration in administrative reform furnishes no legitimate illustration of the singularity of executive influence in this country.

In estimating the actual powers of the President it is no doubt best to begin, as almost all writers in England and America now habitually begin, with a comparison between the executives of the two kindred countries. Whilst Mr. Bagehot has done more than any other thinker to clear up the facts of English constitutional practice, he has also, there is reason to believe, done something towards obscuring those facts. Everybody, for instance, has accepted as wholly true his description of the ministry of the Crown as merely an executive committee of the House of Commons; and yet that description is only partially true. An English cabinet represents, not the Commons only, but also the Crown. Indeed, it is itself “the Crown.” All executive prerogatives are prerogatives which it is within the discretion of the cabinet itself to make free use of. The fact that it is generally the disposition of ministers to defer to the opinion of Parliament in the use of the prerogative does not make that use the less a privilege strictly beyond the sphere of direct parliamentary control, to be exercised independently of its sanction, even secretly on occasion, when ministers see their way clear to serving the state thereby. “The ministry of the day,” says a perspicacious expounder of the English system, “appears in Parliament, on the one hand, as personating the Crown in the legitimate exercise of its recognized prerogatives; and on the other hand, as the mere agent of Parliament itself, in the discharge of the executive and administrative functions of government cast upon them by law.” Within the province of the prerogative “lie the stirring topics of foreign negotiations, the management of the army and navy, public finance, and, in some important respects, colonial administration.” Very recent English history furnishes abundant and striking evidence of the vitality of the prerogative in these fields in the hands of the gentlemen who personate the Crown in Parliament. “No subject has been more eagerly discussed of late,” declares Mr. Amos, “than that of the province of Parliament in respect of the making of treaties and the declaration of war. No prerogative of the Crown is more undisputed than that of taking the initiative in all negotiations with foreign governments, conducting them throughout, and finally completing them by the signature and ratification of a treaty. … It is a bare fact that during the progress of the British diplomatic movements which terminated in the Treaty of Berlin of 1878, or more properly in the Afghan war of that year,” — including the secret treaty by which Turkey ceded Cyprus to England, and England assumed the protectorate of Asia Minor, — “Parliament never had an opportunity of expressing its mind on any one of the important and complicated engagements to which the country was being committed, or upon the policy of the war upon the northwest frontier of India. The subjects were, indeed, over and over again discussed in Parliament, but always subsequent to irreparable action having been taken by the government.” Had Mr. Sheldon Amos lived to take his narrative of constitutional affairs beyond 1880, he would have had equally significant instances of ministerial initiative to adduce in the cases of Egypt and Burmah.

The unfortunate campaign in the Soudan was the direct outcome of the purchase of the Suez Canal shares by the British government in 1875. The result of that purchase was that “England became pledged in a wholly new and peculiar way to the support of the existing Turkish and Egyptian dominion in Egypt; that large English political interests were rendered subservient to the decisions of local tribunals in a foreign country; and that English diplomatic and political action in Egypt, and indeed in Europe, was trammeled, or at least indirectly influenced, by a narrow commercial interest which could not but weigh, however slightly, upon the apparent purity and simplicity of the motives of the English government.” And yet the binding engagements which involved all this were entered into “despite the absence of all assistance from, or consent of, Parliament.” Such exercises of the prerogatives of the Crown receive additional weight from “the almost recognized right of evolving an army of almost any size from the Indian seed-plot, of using reserve forces without communication to Parliament in advance, and of obtaining large votes of credit for prospective military operations of an indefinite character, the nature of which Parliament is allowed only dimly to surmise.” The latest evidence of the “almost recognized” character of such rights was the war preparations made by England against Russia in 1885. Add to such powers of committing the country irrevocably to far-reaching foreign policies, of inviting or precipitating war, and of using Indian troops without embarrassment from the trammels of the Mutiny Act, the great discretionary functions involved in the administration of colonial affairs, and some measure has been reached of the amount of power wielded by ministers, not as the mere agents of Parliament, but as personating the Crown. Such is in England the independence of action possible to the executive.

As compared with this, the power of the President is insignificant. Of course, as everybody says, he is more powerful than the sovereign of Great Britain. If relative power were the principle of etiquette, Mr. Cleveland would not have to lift his bat to the Queen, because the Queen is not the executive. The prerogatives of the Crown are still much greater than the prerogatives of the presidency; but they are exercised, not by the wearer of the crown, but by the ministry of the Crown.

As Sir Henry Maine rightly says, the framers of our Constitution, consciously or unconsciously, made the President’s office like the King’s office under the English constitution of their time, — the constitution, namely, of George III., who chose his advisers with or without the assent of Parliament. They took care, however, to pare down the model where it seemed out of measure with the exercise of the people’s liberty. They allowed the President to choose his ministers freely, as George seemed to have established his right to do; but they made the confirmation of the Senate a necessary condition to his appointments. They vested in him the right of negotiating treaties with foreign governments; but he was not to sign and ratify treaties until he had obtained the sanction of the Senate. That oversight of executive action which Parliament had not had the spirit or the inclination to exert, and which it had forfeited its independence by not exerting, was forever secured to our federal upper chamber by the fundamental law. The conditions of mutual confidence and coöperation between executive and legislature now existing in England bad not then been developed, and consequently could not be reproduced in this country. The position and disposition of mutual wariness which were found existing there were therefore made constitutional here by express written provision. In short, the transitional relations of the Crown and Parliament of that day were crystallized in our Constitution, such guarantees of executive good faith and legislative participation in the weightier determinations of government as were lacking in the model being sedulously added.

The really subordinate position of the presidency is hidden from view partly by that dignity which is imparted to the office by its conspicuous place at the front of a great government, and its security and definiteness of tenure; partly by the independence apparently secured to it by its erection into an entirely distinct and separate “branch” of the government; and partly by those circumstances of our history which have thrust our Presidents forward, during one or two notable periods, as real originators of policy and leaders in affairs. In a word, the President has always been at least the titular head of a great nation; and he has sometimes been the real master of its destinies. He has been powerful, however, only at such times as he has had Congress at his beck. While the new government was a-making, — and principally because it was a-making, — Washington and his secretaries were looked to by Congress for guidance; and during the presidencies of several of Washington’s immediate successors the continued prominence of questions of foreign policy and of financial management kept the officers of the government in a position of semi-leadership. Jackson was masterful with or without right. He entered upon his presidency as he entered upon his campaign in Florida, without caring too much about constitutional warrant for what he was to undertake. In the settlement of the Southern question Congress went on all fours with the President. He was powerful because Congress was acquiescent.

But such cases prove rather the usefulness than the strength of the presidency. Congress has at several very grave crises in national affairs been seasonably supplied with an energetic leader or agent in the person of the President. At other times, when Congress was in earnest, our executives have either been overwhelmed, as Johnson was, or have had to decline upon much humbler services. Their negotiations with foreign governments are as likely to be disapproved as approved; their budgets are cut down like a younger son’s portion; their appointments are censured and their administrations criticised without chance for a counter-hearing. They create nothing. Their veto is neither revisory nor corrective. It is merely obstructive. It is, as I have said, a simple blunt negation, oftentimes necessarily spoken without discrimination against a good bill because of a single bad clause in it. In such a contest between origination and negation, origination must always win, or government must stop. In England the veto of the Crown has not passed out of use, as is commonly said. It has simply changed its form. It no longer exists as an imperative, obstructive “No,” uttered by the sovereign. It has passed over into the privilege of the ministers to throw their party weight, reinforced by their power to dissolve Parliament, against measures of which they disapprove. It is a much-tempered instrument, but for that reason all the more useful and flexible. The old blunt, antagonistic veto is no longer needed. But here it is needed, to preserve the presidency from the insignificance of merely administrative functions. Since executive and legislature cannot come into relations of mutual confidence and coöperation, the former must be put into a position to maintain a creditable competition for consideration and dignity.

A clear-headed, methodical, unimaginative President like Mr. Cleveland unaffectedly recognizes the fact that all creating, originating power rests with Congress, and that he can do no more than direct the details of such projects as he finds commanded by its legislation. The suggestions of his message he acknowledges to have been made merely to satisfy his own conscience. That they are not regarded by Congress he takes as a matter of course, and does not stop even to regret. It is his duty to tell Congress what he thinks concerning the pending questions of the day; it is not his duty to interest himself in the effect produced on Congressmen.

A partial confirmation of these views comes from those who oppose any such leadership of Congress by the executive as exists in England, on the ground of the increase of power which would accrue as a result to Congress. It is said that such a change would, by centring party and personal responsibility in Congress, give to legislation too great a prominence; would make Congress the object of too excited an interest on the part of the people. Legislation in Parliament, instead of being piecemeal, tessellated work, such as is made up in Congress of the various pieces contributed by the standing committees, is, under each ministry, a continuous, consistent, coherent whole; and, instead of bearing the sanction of both national parties, is the peculiar policy of only one of them. It is thought that, if such coherence of plan, definiteness and continuity of aim, and sanction of party were to be given the work of Congress, the resulting concentration of popular interest and opinion would carry Congress over all the barriers of the Constitution to an undisputed throne of illimitable power. In short, the potential supremacy of Congress is thought to be kept within bounds, not by the constitutional power of the executive and the judiciary, its coördinate branches, but by the intrinsic dullness and confusion of its own proceedings. It cannot make itself interesting enough to be great.

But this is a two-edged argument, which one must needs handle with great caution. It is evidently calculated to destroy the work of any argument constructed on the principle that it is laws which are effective to the salvation of our constitutional arrangements: for it is itself constructed on the opposite principle, that it is the state of popular interest in the nation which balances the mechanism of the government. It would, too, serve with equal efficacy against any scheme whatever for reforming the present methods of legislation in Congress, with which almost everybody is dissatisfied. Any reform which would tend to give to national legislation that uniform, open, intelligent, and responsible character which it now lacks would also create that popular interest in the proceedings of Congress which would unhinge the Constitution. Democracy is so delicate a form of government that it must break down if given too great facility or efficacy of operation. No one body of men must be suffered to utter the voice of the people, lest that voice become, through it, directly supreme.

The fact of the overtopping power of Congress, however, remains. The houses create all governmental policy, with that wide latitude of “political discretion” in the choice of means for giving effect to their will within the sphere of the federal powers which the Supreme Court unstintingly accords them. Congress has often come into conflict with the Supreme Court by attempting to extend the province of the federal government as against the States; but it has never, I believe, been brought to book for any alleged exercise of powers as against its competing branch, the executive, — a fact which would seem to furnish proof of its easy supremacy within the federal field. Having by constitutional grant the last word as to foreign relations, the control of the finances, and even the oversight of executive appointments, Congress exercises what powers of direction and management it pleases as fulfilling, not as straining, the Constitution. Government lives in the origination, not in the defeat, of measures of government. The President obstructs by means of his “No;” the houses govern by means of their “Yes.” He has killed some policies that are dead; they have given birth to all policies that are alive.

But the measures born in Congress have no common lineage. They have not even a traceable kinship. They are fathered by a score or two of unrelated standing committees: and Congress stands godfather to them all, without discrimination. Congress, in effect, parcels out its great powers amongst groups of its members, and so confuses its plans and obscures all responsibility. It is a leading complaint of Sir Henry Maine’s against the system in England, which is just under his nose, that it confers upon the cabinet, a body which deliberates and resolves in strict secrecy, — and so reminds him of the Spartan Ephors and the Venetian Council of Ten, — the preliminary shaping and the initiation of all legislation. He commends, by contrast, that constitution (our own, which he sees at a great distance) which reserves to the legislature itself the originating and drafting of its measures. It is hard for us, who have this commended constitution under our noses, to perceive wherein we have the advantage. British legislation is for the most part originated and shaped by a single committee, acting in secret, whose proposals, when produced, are eagerly debated and freely judged by the sovereign legislative body. Our legislation is framed and initiated by a great many committees, deliberating in secret, whose proposals are seldom debated and only perfunctorily judged by the sovereign legislative body. It is impossible to mistake the position and privileges of the British cabinet, so great and conspicuous and much discussed are they. They simplify the whole British system for men’s understandings by merely standing at the centre of it. But our own system is simple only in appearance. It is easy to see that our legislature and executive are separate, and that the legislature matures its own measures by means of committees of its own members. But it may readily escape superficial observation that our legislature, instead of being simply served, is ruled by its committees; that those committees prepare their measures in private; that their number renders their privacy a secure secrecy by making them too many to be watched, and individually too insignificant to be worth watching; that their division of prerogatives results in a loss, through diffusion, of all actual responsibility; and that their coördination leads to such a competition amongst them for the attention of their respective houses that legislation is rushed when it is not paralyzed.

It is thus that, whilst all real power is in the hands of Congress, that power is often unhinged and its exercise brought almost to a standstill. The competition of the committees is the clog. Their reports stand in the way of each other: and so the complaint is warranted that Congress can get nothing done. Interests which press for attention in the nation are reported upon by the appropriate committee, perhaps, but the report gets pushed to the wall. Or they are not reported upon. They are brought to the notice of Congress, but they go to a committee which is unfavorable. The progress of legislation depends both upon the fortunes of competing reports and upon the opinions held by particular committees.

The same system of committee government prevails in our state legislatures, and has led to some notable results, which have recently been pointed out in a pamphlet entitled American Constitutions, contributed to the Johns Hopkins series of Studies in History and Political Science by Mr. Horace Davis. In the state legislatures as in Congress, the origination and control of legislation by standing committees have led to haphazard, incoherent, irresponsible law-making, and to a universal difficulty about getting anything done. The result has been that state legislatures have been falling into disrepute in all quarters. They are despised and mistrusted, and many States have revised their constitutions in order to curtail legislative powers and limit the number and length of legislative sessions. There is in some States an apparent inclination to allow legislators barely time enough to provide moneys for the maintenance of the governments. In some instances necessary powers have been transferred from the legislatures to the courts, sometimes to the governors. The intent of all such changes is manifest. It is thought safer to entrust power to a law court, performing definite functions, such as the granting of charters, for example, under clear laws and in accordance with strict judicial standards, or to a single conspicuous magistrate, who can be watched and cannot escape responsibility for his official acts, than to entrust it to a numerous body which burrows towards its ends in committee rooms, getting its light through lobbies, and which has a thousand devices for juggling away responsibility, as well as scores of antagonisms where-with to paralyze itself.

Like fear and distrust have often been felt and expressed of late years for Congress, for like reasons. But so far no attempt has been made to restrict either the powers or the time of Congress. Amendments to the Constitution are difficult almost to the point of impossibility, and the few definite schemes nowadays put forward for a revision of the Constitution involve extensions rather than limitations of the powers of Congress. The fact is that, though often quite as exasperating to sober public opinion as any state legislature, Congress is neither so much distrusted nor so deserving of distrust. Its high place and vast sphere in the government of the nation cause its members to be more carefully chosen, and its proceedings to be more closely watched and controlled by criticism. The whole country has its eyes on Congress, and Congress is aware of the fact. It has both the will and the incentive to be judicious and patriotic. Newspaper editors have constantly to be saying to their readers, “Look what our state legislators are doing;” they seldom have to urge, “Look what Congress is doing.” It cannot be watched easily, or to much advantage. It requires a distinct effort to watch it. It has no dramatic contests of party leaders to attract notice. Its methods are so much after the fashion of the game of hide-and-seek that the eye of the ordinary man is quite baffled in trying to understand or follow them, if he try only at leisure moments. But, at the same time, the interests handled by Congress are so vast that at least the newspapers and the business men, if no others, must watch its legislation as best they may. However hard it may be to observe, it is too powerful in great things to make it safe for the country to give over trying to observe it faithfully.

But though Congress may always be watched, and so in a measure controlled, despite its clandestine and confusing methods, those methods must tend to increase the distrust with which Congress is widely regarded; and distrust cannot but enervate, belittle, and corrupt this will-centre of the Constitution. The question is not merely, How shall the methods of Congress be clarified and its ways made purposeful and responsible? There is this greater question at stake: How shall the essential arrangements of the Constitution be preserved? Congress is the purposing, designing, aggressive power of the national government. Disturbing and demoralizing influences in the organism, if there be any, come out from its restless energies. Damaging encroachments upon ground forbidden to the federal government generally originate in measures of its planning. So long as it continues to be governed by unrelated standing committees, and to take its resolves in accordance with no clear plan, no single, definite purpose, so long as what it does continues to be neither evident nor interesting, so long must all its exertions of power be invidious; so long must its competition with the executive or the judiciary seem merely jealous and always underhand; so long must it remain virtually impossible to control it through public opinion. As well ask the stranger in the gallery of the New York Stock Exchange to judge of the proceedings on the floor. As well ask a man who has not time to read all the newspapers in the Union to judge of passing sentiment throughout the country. Congress in its composition is the country in miniature. It realizes Hobbes’s definition of liberty as political power divided into small fragments. The standing committees typify the individuals of the nation. Congress is better fitted for counsel than the voters simply because its members are three hundred and twenty-five instead of ten millions.

There are several ways in which Congress can be so integrated as to impart to its proceedings system and party responsibility. It may be done by entrusting the preparation and initiation of legislation to a single committee in each house, composed of the leading men of the majority in that house. Such a change would not necessarily affect the present precedents as to the relations between the executive and the legislature. They might still stand stiffly apart. Congress would be integrated and invigorated, not the whole system. To integrate that, there must be some common meeting-ground of public consultation between the executive and the houses. That can be accomplished only by the admission to Congress, in whatever capacity, — whether simply to answer proper questions and to engage in debate, or with the full privileges of membership, — of official representatives of the executive who understand and are interested and able to defend the administration. Let each of the houses impose what conditions of responsibility it will upon its guiding committee; let the tenure of ministers have what disconnection from legislative responsibility may seem necessary to the preservation of the equality of House and Senate and the separation of administration from legislation; but throw light upon administration, and give it the same advantages of public suggestion and unhampered self-defense that Congress, its competitor, has, and constrain Congress to apply system and party responsibility to its proceedings. Such arrangements would constitute responsible government under the Constitution.

The establishment in the United States of what is known as ministerial responsibility would unquestionably involve some important changes in our constitutional system, as I have elsewhere fully admitted. I am strongly of the opinion that such changes would not be too great a price to pay for the advantages secured us by such a government. Ministerial responsibility supplies the only conditions which have yet proved efficacious, in the political experience of the world, for vesting recognized leadership in men chosen for their abilities by a natural selection of debate in a sovereign assembly of whose contests the whole country is witness. Such survival of the ablest in debate seems the only process possible for selecting leaders under a popular government. The mere fact that such a contest proceeds with such results is the strongest possible incentive to men of first-rate powers to enter legislative service; and popular governments need more than any other governments leaders so placed that, by direct contact with both the legislative and the executive departments of the government, they shall see the problems of government at first hand, and shall at the same time be, not mere administrators, but also men of tact and eloquence, fitted to persuade masses of men and to draw about themselves a loyal following.

If we borrowed ministerial responsibility from England, we should, too, unquestionably enjoy an infinite advantage over the English in the use of it. We should sacrifice by its adoption none of that great benefit and security which our federal system derives from a clear enumeration of powers and an inflexible difficulty of amendment. If anything would be definite under cabinet government, responsibility would be definite; and, unless I am totally mistaken in my estimate of the legal conscience of the people of this country, — which seems to me to be the heart of our whole system, — definite responsibility will stablish rather than shake those arrangements of our Constitution which are really our own, and to which our national pride properly attaches, namely, the distinct division of powers between the state and federal governments, the slow and solemn formalities of constitutional change, and the interpretative functions of the federal courts. If we are really attached to these principles, the concentration of responsibility in government will doubly insure their preservation. If we are not, they are in danger of destruction in any case.

But we cannot have ministerial responsibility in its fullness under the Constitution as it stands. The most that we can have is distinct legislative responsibility, with or without any connection of cooperation or of mutual confidence between the executive and Congress. To have so much would be an immense gain. Changes made to this end would leave the federal system still an unwieldy mechanism of counteracting forces, still without unity or flexibility; but we should at least have made the very great advance of fastening upon Congress an even more positive form of accountability than now rests upon the President and the courts. Questions of vast importance and infinite delicacy have constantly to be dealt with by Congress; and there is an evident tendency to widen the range of those questions. The grave social and economic problems now putting themselves forward, as the result of the tremendous growth and concentration of our population, and the consequent sharp competition for the means of livelihood indicate that our system is already aging, and that any clumsiness, looseness, or irresponsibility in governmental action must prove a source of grave and increasing peril. There are already commercial heats and political distempers in our body politic which warn of an early necessity for carefully prescribed physic. Under such circumstances, some measure of legislative reform is clearly indispensable. We cannot afford to put up any longer with such legislation as we may happen upon. We must look and plan ahead. We must have legislation which has been definitely forecast in party programmes and sanctioned by the public voice. Instead of the present arrangements for compromise, piecemeal legislating, we must have coherent plans from recognized party leaders, and means for holding them to a faithful execution of those plans in clear-cut Acts of Congress.