The political life of the constitutional state is never adequately represented in its formal governmental organization. No states, except the stagnant sacerdotal despotisms of the Orient, are governed by the unchangeable words of dead men. The expanding needs of progressive societies demand a readjustment of creeds, formulas, and constitutions. These changes may proceed silently, under cover of legal fictions, and by the slow accretions of parasitic growth, or obtrusively, through the violent processes of revolution. “Leo X,” comments Sarpi, “would have been a perfect Pope, had he been able to combine with his many fine qualities some knowledge of the affairs of religion.” Our “rigid Constitution” would indeed be rigid if only it possessed in reality a true character of immutability.
The constitutional state is peculiar to highly civilized peoples, but this does not imply that the essence of constitutionalism resides in reverence for the written word, and that reverence for the written word is confined to highly civilized peoples. A closer adherence to the letter of the law is not necessarily a mark of political genius, nor of capacity for self-government. Among crude early societies the prescriptions of law are usually quite definite and the penalties for its violate are quite rigidly enforced. As Ihering notes, the motto over the first chapter in the history of law could very properly be: “In the beginning was the word.” It is the simplicity of early peoples that invests the word with supernatural power, and regards it with reverential awe. Progress is the law of political life in western civilization. Even the supreme courts of theology sometimes reverse decisions based upon earlier interpretations of the written word, in order to reach conclusions which more closely harmonize with the spirit and needs of the age.
A comparison of the English common law with the fabric described by Blackstone will show an almost complete transform. The common law of Blackstone’s day, described by jurists as the “perfection of human reason,” could be more accurately described in Carlylean diction as a “torturous, ungodly jangle.” In like manner, the English criminal law of a hundred years ago has undergone changes which are little short of revolutionary. Blackstone remarks with unaffected complacency “that the female sex is so great a favorite of the law of England,” yet in Blackstone’s day married women occupied about the same legal status with respect to contract and property rights as do infants, idiots, lunatics, and convicts. A husband might legally beat his wife, lock her up, or appropriate her earnings. To-day in England the death penalty may be inflicted for only four offenses, while a hundred years ago two hundred crimes were punishable by death. As late as 1811, Lord Eldon was greatly alarmed by a “dangerous bill,” which abolished the death penalty for the theft of five shillings from a shop. In the same period the English Constitution has undergone fundamental transformation. Blackstone, in his description of the royal authority, finds all executive power vested in the crown. The eyes of the jurist were blinded by unrealities. The ascription of a political omnipotence to the Crown was not true in his own day, much less in ours. What he described was the archaic monarchical system, rather than the modern ministerial system.
It was in Blackstone’s time that our Federal Constitution was adopted, with great forebodings, as a possible solution of a difficult problem. It was an instrument of compromises, and its most loyal friends never ascribed to it a sacrosanct character, nor regarded it as the “perfection of human reason.” Social, industrial, and political changes of a hundred years, which no human wisdom could foresee, and which no human power could prevent, have wrought corresponding changes in the fundamental law.
Our constitutional development is proceeding along British lines. The true character of the British Constitution is to be found, not so much in the positive rules which courts will enforce, as in the spontaneous, institutional growths which have supplemented, or have superseded, the rule of law. In like manner the true genius and character of our institutions, in much greater degree than we commonly suspect, are to be found in forms of political life unknown to the written Constitution, and unenforced by the courts. The exposition of the law of the Constitution has been largely committed to jurists. The treatment of the jurist, from its very nature, is incomplete, simply because our national life, as expressed through governmental agencies, is a larger thing than any code of positive law. One must look beyond the provisions of the written word and its legal interpretation properly to appraise the value and character of our Constitution. This precisely what the jurist is unwilling to do. He will not admit that a rule can be binding which is not enforcible by the courts. For this reason the extra-legal institutions of our governmental system have not always received just attention in the exposition of our constitutional fabric. As language may be employed to conceal thought, so the forms of governmental organization may effectually conceal the true character of the political life of the state.
The external forms of republicanism endured in the Roman world long after the Republic had actually assumed a strictly imperial character. In external governmental form America is a democratic republic, and England a monarchy. But if democracy imply a diffusion of power among many, and monarchy the concentration of power in the hands of one, the contrast breaks down absolutely, since the American president actually possesses the far greater power than the British king. Again, the British Cabinet, through which the state effectually expresses and executes its will is, as every one knows, an institution unknown to English law. Indeed, it is not only an extra-legal institution, but in the early days of its development was regarded as strictly illegal. To the term “cabal,” as applied to the second Charles’s kitchen cabinet, a sinister meaning was attached, and from the dyslogistic sense in which the term was then employed two centuries have not availed to rescue it. A young and vigorous cell, — the modern cabinet, — has been grafted upon an unproductive stock—the Privy Council. This ancient, worm-eaten stock has to-day a dignified and well-recognized legal standing, but virtually no political significance; while the vigorous young graft has paramount political significance, but no recognition whatever in the field of positive law.
Growth is spontaneous—life an inner principle. The spirit within, and not the outer form, is the true measure of what we call character. We must penetrate beneath the outward disguising shell of law to understand the nature of our constitutional system. The written word points out the general direction, but not the distance, in which the state is moving. The written word points out the general direction, but not the distance, in which the state is moving. Our governmental structure is the creation of the Constitution, but our Constitution is the creation of the state. Government is merely the agency through which the state acts. We must look to the state, therefore, as well as to the formal governmental organization, in order to discern the true character of our Constitution. We estimate what we call character in a human being largely in terms of personality. But the most distinctive and striking aspects of personality are of an immaterial nature. Anthropometry and craniology can go but a little way toward explaining the true character of a friend. Our notion of character is determined by the measure of individuality, — by points of variation from the fundamental pattern according to which the ordinary mortal is assumed to be constructed. In a certain sense a three months’ old infant has no character, — you know one, you know them all. A sheep has little or no character, — simply because little or nothing is to be discovered in one sheep which is not found in a flock. So with the savage: he possesses an ethnic character, but little personality, — see one savage, and you see them all The characterless man is the conventional man, — the man who is cast in the same mould with his fellows, — the man who regulates his life in the minutest details by prescribed rules. We grant the immateriality of the entity called the state, but when we begin to describe this abstraction we at once employ word-pictures, not of real character or “personality” but only of the outward material structure in which the real political self is lodged. And so it is that the measure of the interpretation of our Constitution is found in the logic of personality, rather than in the logic of legalism. The unfolding of our national life according to this logic has involved three processes: first, new meanings have been written into the fundamental law by judicial interpretation; second, the unrebuked exercise of doubtful powers by the executive and legislative branches has extra-legally enlarged the sphere of governmental action; finally, through the spontaneous out-workings of our political genius, new rules, understandings, and convictions have been introduced into our constitutional system, without the intervention of direct governmental agency.
Illustrations of the expansion of the Constitution by judicial interpretation may be briefly offered. Let it be borne in mind that the jurisdiction of federal courts is, by custom, limited to the determination of concrete cases. Federal judges do not decide abstract questions or settle disputed points of constitutional law unless such points are raised in a bona fide suit. It follows that judicial decision is ordinarily the second term of which legislative enactment is the first in the interpretative series. A decision adverse to a claim based upon the alleged unconstitutionality of a state or federal statute tends, of course, to enlarge the field of legislative competence, and to widen the scope of the written Constitution. Constitutional development has not followed the direct line of strict legalism, nor the haphazard line of pure circumstance, but rather the resultant of these forces. The logic of legalism and the logic of facts are never in exact accord. Congress, following out the logic of legalism, has power to declare war, and did declare war against Spain in 1898. Spain’s sovereignty in Porto Rico and the Philippine islands was extinguished as a result of the war. The United States succeeded to the sovereignty thus relinquished, and a kind of political relationship with the peoples of these islands has been imposed upon us which heretofore had not been deemed compatible with our legal scheme of political existence. According to the logic of legalism, it would seem that the Tagalogs and Moros, since they are subject to the jurisdiction of the United States, are possessed of the civil and political rights of United States citizens. The highest judicial authority, however, following a resultant between the logic of legalism and the logic of events, decides that the islands ceded to us by Spain have not been “incorporated into the United States.” Hence it is perfectly possible for territory to be part of the United states in a geographical sense, without being an integral part of the united States; and that, in spite of the constitutional requirements as to uniformity of legislation, Congress can legislate pretty much as it pleases for the different territories, according to their varying requirements. As a result, then, of the decisions in the so-called “insular cases,” it is judicially settled that the non-contiguous territories of the United States are to be governed in very much the same way as Great Britain governs her vassal states, — the Crown Colonies.
Again, under the commerce clause of the Constitution, federal authority over great commercial corporations chartered by individual states has been exemplified in the application of the Interstate Commerce Act. The Anti-Trust (Sherman) Act of 1890 did not in the view of its framers apply to railroads nor to reasonable restraints of trade, whether reasonable or unreasonable. The scope of federal activity was further widened in the “Northern Securities Decision,” according to which the mere ownership of stock in an interstate railroad brings the owner into such direct relation to interstate commerce as tot subject him to the plenary powers of the federal government. This decision, coming upon the heels of the Lottery case, marks an epoch in the history of federal centralization of power. Two important points were decided in the Lottery case: first, that the transmission of lottery tickets from one state to another is commerce, and therefore subject to federal regulation; second, that the power to regulate commerce includes the power to destroy it.
The inclination of the Congress and the President to give the Interstate Commerce Commission power to fix railway rates, subject to review by the courts, or the conferring of such power upon a new court created for this purpose, as under the provision of the Elkins Bill, are epoch-making proposals in the exertion of federal power through the elastic commerce clause. The creation of the Department of Commerce, with its Bureau of Corporations, marks another stage in the progressive unfolding of federal power over commerce. Mr. Garfield, Commissioner of Corporations, in his recent report, recommends that all corporations doing an interstate business shall be compelled to do so under a federal license. Under the proposed licensing act the national government may impose such conditions as to the organization, capitalization, and management of corporations engaged in interstate commerce, and to vest that power in the federal government, is already commanding a strong following. We hear little talk about the constitutionality of these measures. It is assumed, and rightly, that the courts would support the government in the exercise of these powers, although they are far beyond anything ever contemplated by the framers of the Constitution. The truth is, the courts will not, in interpreting the words of men who lived in the eighteenth century, place an injunction upon American progress in the twentieth century. While the great land-owning, ship-owning, or slave-owning individual was the most potent force in our economic life of a century ago, the great corporation is the most potent force in our economic life of to-day. These great artificial beings, the creatures of state law, have outrun the control of the creators. It is inevitable that the nation should take hold where state control has broken down. A hundred years ago the only media of interstate communication were coastwise sailing vessels and the occasional stagecoach that lumbered across state lines. But to-day steam and electricity lines. But to-day steam and electricity are welding the states together, commercially and industrially. With the destruction of the states as political entities. Historically, federalism is like the grave: it takes, but it does not give.
The development of the commerce clause has been cited as an illustration of the expansion of the Constitution by judicial interpretation. Equally good illustrations may be found in the interpretation the war power grant or the grant of the power to borrow money. We may pass, however, from this point to note that, while the Supreme Court is legally the ultimate guardian of the Constitution, the legislative and executive branches have frequently exercised wide powers of independence in interpretation. Illustrations may be offered, in the first place, of the expansion of the Constitution by legislative action without the actual intervention of the courts. This may proceed by affirmative action, as in the case of the congressional statute prescribing limited tenure of office for federal judges sitting in territorial courts. Or, secondly, the Congress, by refusing to act, can virtually nullify provisions of the organic law. For example, the Congress has never provided adequate machinery for enforcing the extradition clause of the Constitution. Governor Durbin, of Indiana, has steadily refused to surrender ex-Governor Taylor, indicted by a Kentucky court for complicity in the Goebel assassination. The Constitution provides that the governor of the asylum state shall “deliver up the fugitive on demand,” but the Governor of Indiana pays no attention to the demand of Governor Beckham of Kentucky, and the Congress has provided no means for the execution of the constitutional mandate. It is possible, therefore, for a state governor to set himself up as a trial court, and arbitrarily refuse to surrender a fugitive from justice. Again, the provisions of the fourteenth amendment, penalizing by a proportional reduction in representation any state which excludes from the suffrage adult male citizens, is to-day as worthless as a counterfeit note drawn on a broken bank. The constitutional provision appears to be automatic, but no legal provision is self-executing unless the government provides the means. Again and again the Congress has refused to take affirmative action in support of the constitutional mandate. More than this, the fifteenth amendment is cynically nullified in its spirit, if not in its letter, by the constitutions of the Southern states. The Supreme Court recently refused relief to an Alabama negro seeking the suffrage denied to him by the constitution of that state, on the ground that the court lacked jurisdiction over the case as presented. Thus it happens that, when the disfranchised negro petitions the Congress for relief, he is told to go to the courts, because a legal question is involved; when he invokes the aid of the courts, he is told to go to the Congress, because a political question is involved. The truth is, the Congress and the courts recognize that the bitter experience of an entire generation stamps the fifteenth amendment as a cruel error of national judgment. Next to secession, it was perhaps the greatest political mistake of our history. The South has long known it; the North is fast learning it American common sense, as represented in legislative and judicial councils, goes to the root of the matter, and, by acquiescence in the nullification of the written word, constitutes an unwritten amendment to the organic law.
In the third place, important changes have been made in our constitutional fabric by executive interpretation. It is of interest to recall that Jefferson Jackson, Tyler, Buchanan, and Lincoln successively declared that they did not regard as binding and final an interpretation of the Constitution by the United States Supreme Court. Jefferson was not scrupulous in performing a legal duty as defined by the Supreme Court in the celebrated Marbury v. Madison decision. Jefferson was also responsible for the Embargo Act and for the Louisiana Purchase, — measures of doubtful constitutional standing. Jackson vetoed a bill for re-chartering the United States Bank, on the ground that it was unconstitutional, although the Supreme Court had previously decided to the contrary. President Tyler, later on, endorsed Jackson’s position in his veto of a new Bank Bill. Mr. Buchanan, then a member of the House, voted against the Bank Bill, declaring the legislator to be as independent of the court as the executive. Lincoln impugned the constitutionality of the Dred Scott decision, and, had he been President in 1858, it is doubtful whether he would have employed the executive arm of the Government to enforce the decision of the Court. In the manumission of the slaves and the suspension of the writ of habeas corpus, he made no appeal to constitutional sanction. Legal limitations were brushed aside in order that the life of the nation might be preserved. Not a few of the discretionary acts of the present chief executive have fallen within the shadowy realm of extra-legal powers. The following so-called executive “usurpations” may be noticed: —
1. Ad interim executive appointments, the validity of which rested upon a “constructive” recess of the Congress. The metaphysical subtleties involved in an appeal to the doctrine of infinitesimals baffled the simple intelligence of the plain man, and the “constructive” recess has been challenged as an unwarranted exercise of executive authority.
2. Executive order number 78, constituting the age of sixty-two a prima facie evidence of disability in the adjudication of pension claims. This act has been widely viewed in the light of the appropriation of public revenues by executive decree, rather than by act of the people’s representatives in the Congress.
3. Mr. Whitelaw Reid’s appointment as special ambassador to attend the coronation of his Majesty, King Edward VII, without the advice or consent of the Senate.
4. The executive order excluding a great newspaper from the news of the departments because that paper had published a silly canard about the President’s children.
5. Intervention in the Panama affair, amounting in the view of many thinking men, to a usurpation of the war power vested by the Constitution exclusively in the legislative branch.
6. The interposition of the President in the Pennsylvania coal strike through the creation of a commission to arbitrate a labor dispute.
7. The Executive “Agreement” with the Republic of San Domingo.
8. The creation by executive act of the office of Chief Engineer of the Irrigation and Reclamation Service, without the authorization of the Congress.
The exercise of these and other doubtful powers by President Roosevelt received no rebuke from the courts. From no responsible source came any suggestion of impeachment. Finally, the President received over-whelming vindication by the people at the polls. Hence the so-called usurpations are not to be regarded as usurpations at all. It all goes to show that executive and legislative officials (though this is true of the latter in less degree) are bound to the extent of their conscience and their political responsibility. As Walter Bagehot remarks, in one of his profoundest of political aphorisms: “Success in government is due far more to the civil instincts and capacity of our race, than to any theoretical harmony or perfection of the rules and formulæ of governmental conduct.”
Finally, radical changes, unrecognized as yet in the written law, but embodied in what may be called the organic “common law,” have been wrought in the Constitution by custom, precedent, and the silent pressure of public opinion. The unfolding political consciousness of the nation reveals itself in spontaneous processes of growth, which without legal recognition are gradually transforming the body of written law. Nature’s live growths rive even the rocks. Young and vigorous institution al plants thrust their roots into the crevices of crumbling constitutional walls, and at last overthrow them.
Our Constitution provides a theoretically perfect plan for the indirect election of president and vice-president. The demand of the popular consciousness for a direct choice has nullified this provision. Presidential electors have become mere pawns. They register, they do not elect. They must take what has been proposed at a convention and ratified by the people. Furthermore, while as late as 1824 presidential electors in the majority of states were chosen by the legislatures thereof, they are now, in all cases, chosen on a general ticket by a direct vote of the people This practice, with rare exceptions, — as, for example, Maryland’s split electoral vote in the last general election, — throws the entire weight of each state for the candidate whose list of electors happens to be carried. The device of indirect election has thus gone to the constitutional scrap-heap. The growth of democratic sentiment has not only reduced the choice to a direct popular basis, but has hinged the decision on a vote by states.
In like manner, the growth of democratic sentiment is demanding the election of United States senators by direct popular vote, and we may look to see a progressive nullification of the legally prescribed plan of indirect election. The demand for formal amendment breaks fruitlessly against the determined opposition of the Senate itself, but the desired end is being sought through extra-legal channels. As, for example, in South Carolina, where a senatorial nomination in a primary election is considered binding upon the formal action of the state legislature. Under such condition the legislature, like the electoral college, no longer elects, but merely ratifies the popular choice. In other states the legislature is not infrequently called upon to ratify a selection made by a knot of party bosses, in some back-parlor conference, weeks before the legislature convenes. Mr. Depew affably receives congratulations upon his return to the Senate three weeks before the convening of the legislative caucus nominally charged with the function of naming a junior senator for the state of New York. The old Frankish Mayors of the Palace were accustomed to pay elaborate homage to the kings of the Merovingian dynasty. Yet the king was a mere trapping of state, a glittering puppet, and the will of the enthroned monarch actually yielded in all important matters to the will of the uncrowned vassal. Thus it is that the body vested with independent choice may be reduced in great states, such as Pennsylvania, New York, and Indiana, to a mere ratification assemblage. Of the three branches of the government only one sixth, in the beginning, was popularly elected, and the sappers and miners of Democratic tendency are already beneath the foundations of another sixth, the Senate.
Again, the great national nominating conventions are absolutely unknown to the federal Constitution or statutes. The National Convention, made up of a thousand delegates, and as many alternates, elected by all sorts of process, not knowing one another, bound by no oath of office, is an absolute and final judge of its own procedure and its own results. Such a body, as in the case of the last Democratic Convention, passes through a four-day delirium of intrigue, oratory, and uproar, proclaims its creed and its nominees, and with adjournment goes down to a death that knows no resurrection. The conduct of public affairs, even when not veiled from the public eye, is humdrum enough. A convention, with its brass bands, its mad cheering, its high-keyed oratory, its thousands of spectators, and its frenzied enthusiasm, furnishes the most stirring, dramatic, and grandiose exemplification of public action which the political processes of this country afford. Yet the conduct, function, and place of the convention in our political system the foreign student would gain not a hint nor suggestion from the entire body of our written organic law with all the commentaries thereon.
Equally without recognition in the organic law is the spoils system, the great foundation upon which party service rests. The practice of the executive today in appointments and removals is, barring the limitations of the Civil Service Law, substantially what President Jackson made it seventy years ago by the removal, during the first year of his administration, of two thousand placemen for political reasons. In recent years there has been a practical transfer of the appointing power in the case of postmasters from the president to members of the House. The appointing power is, of course, legally shared by the Senate. The president must take somebody’s recommendation, and the custom of allowing congressmen the right to name postmasters implies a disposition on the part of senators to “go halves” on the spoils of office. Washington was called upon to appoint but seventy-five postmasters; this number has since increased a thousandfold, and it is absurd to suppose that any mortal can, on his own judgment and intuition, pick out suitable men for all these places. The president, in the majority of cases, can do no more than ratify an antecedent choice. In the cause célèbre of the recent Haverhill appointment, the President asserted a dormant prerogative and rejected the candidate for postmaster named by the local representative, Mr. Gardner. But even this exercise of so-called independence reduces tot eh acceptance of another’s nominee. In this case Attorney-General Moody was given the right of way in nominating an official for his home city. The outpourings of Mr. Gardner on the occasion are of interest. He felt that he had been beaten by a series of moves not allowed under the rules of the game. He relied upon his “rights,” and speaks of the “unwritten law” which vests in congressmen the right to name the postmasters in their respective districts. The representative from the sixth Massachusetts district received a stinging rebuke for bluntly insisting upon the observance of a custom which is tacitly recognized. In this respect he reminds one of Helvetius, who put into print in his book, L’Esprit, theories which contemporary thinkers had been content to advocate only in private. “They make so much ado about Helvetius,” said Madame du Deffand, “because he has revealed everybody’s secret.” There is no reason other than the letter of the Constitution why postmasters should not be named by legislatively determined post-office districts, just as congressmen are chosen from legislatively defined congressional districts. The appointment of a postmaster who is persona non grata to the locality immediately concerned, as in the Indianola case, is foreign to our political habit, and one may assume that the attitude of the executive in this matter will tend even more to become one of mere acquiescence in a predetermined choice.
Again, one discovers no statutory basis for the custom which limits the choice of a congressman to the district in which he resides. American local pride rejects the notion that one’s district cannot be suitably represented by a local product; then, too, each district feels itself entitled to special legislative favors, and bases its hopes of realization upon a representative’s familiarity with home needs, rather than upon the quality of his influence in legislative halls. The idea that Mr. Bryce, a Londoner, may acceptably represent the constituency of Aberdeen in the British House of Commons, is quite foreign to the average American’s notion of representative government. This custom of limiting the choice of a congressman to the district in which he resides has entailed a distinct loss in the character of our representative body. An important state, and the nation, as well, were deprived of the fine legislative capacities of the late William L. Wilson, because a passing party upheaval changed the political complexion of the particular district in which the distinguished member from West Virginia happened to reside.
Without any sanction of positive law is the rule which declares the president ineligible for a third term, and the senatorial rule of confirming, without question, the president’s cabinet appointments.
Again, both legislative houses are bound by a mass of rules which possess no legal sanction whatever. Invoking the rule of senatorial courtesy, Senator Hill was able, single-handed, and for purely personal and factional reasons, to defeat President Cleveland’s excellent nomination of William B. Hornblower to the bench of the United States Supreme Court.
Unlimited debate in the Senate may now be regarded as an extra-legal feature of our Constitution. This unwritten rule is defined by failures repeated through a hundred years to secure the adoption of a closure rule. Limitation of debate has been found necessary in the parliamentary bodies of England, France, Germany, Denmark, Belgium, Italy, Switzerland, and Canada. The United States Senate alone of all the great deliberative, law-making bodies honors no demand for the “previous question.” The populistic outpourings of the Allens, Peffers, and Pettigrews, constitute a heavy price to pay for absolute freedom of debate, but perhaps not too high a price when one reflects that Senator Carter, invoking the equal protection of the unwritten law, held the floor of the Senate for ten hours during the last legislative day of the fifty-sixth Congress, and thus killed the River and Harbor Bill. By the failure of the bill, a saving of fifty million dollars was accomplished, and, as Senator Carter phrased it, “no injury was done to any living human being anywhere.” In like manner, through the inflexibility of this unwritten rule, the whole fifty-seventh Congress, in its closing hours, was whip-lashed by Senator Tillman over an old war claim of South Carolina’s for forty-seven thousand dollars, which an auditor of the Treasury had appraised at thirty-four cents. Chairman Cannon of the Appropriations Committee denounced this transaction on the floor of the House in memorable words: “In another body,” said he, “an individual member can rise in his place and talk for hours. … Your conferees had the alternative of submitting to legislative blackmail at the demand, in my opinion, of one individual, or of letting these great money bills fail. … In my opinion, another body must change its methods of procedure, or our body, backed up by the people, will compel the change, else this body, close to the people, shall become a mere tenderer, a mere bender of the pregnant hinges of the knee, to submit to what one member of another body may demand of this body as a price for legislation.”
Another extra-constitutional rule, which will undoubtedly prevail in future cases of ad interim gubernatorial appointments to Senate vacancies, was recently established in the Quay case. The Senate, by majority of one, decided that Mr. Quay was not entitled to his seat on a certificate of appointment issued by Governor Stone after the legislature of Pennsylvania had adjourned without making a choice. That the governor has no power to appoint in case the legislature fails to elect is a rule which may now be described as a principle of Federal “Common Law.”
In like manner a binding customary rule provides that all appropriation bills shall originate in the House, although the written Constitution is silent upon the subject.
Equally without legal sanction is the Congressional Caucus, which silences the opposition of party dissenters, and secures unity of party action; or the unwritten rule of the senate that seniority shall govern in the make-up of committees. Under this latter custom the most distinguished lawyer in the country probably could not reach the head of the Judiciary Committee until all party members who preceded him on the committee had retired from the Senate.
Finally, we search the Constitution and statutes in vain to discover legal sanction for the tremendous legislative and political power now exercised by the Speaker of the House. The precedent which had the greatest influence with the men who sat with the Philadelphia Convention was that of the Colonial Speaker. He, like the Speaker of the House of Commons, was nothing more than an impartial moderator. The imperfect organization of the House, the rise of the party system, the vast increase in the amount of congressional business, have united to transform the speakership into a great political office. The central, vital weakness in our legislative system is found in its lack of unity and coherence. By processes of slow and inappreciable adaptation, our political genius applies empirical remedies to our constitutional defects, just as nature herself, by silent and inscrutable agency, applies to a wound or sore her processes of healing. Our income is raised by one set of men, our expenditures are applied by another. Government by standing committees means government by fifty-five jarring, petty legislatures. A unifying influence in legislation is demanded, and partial coordination is found in the paramount political and legislative control now exercised by the Speaker. One admits that his power, through recognition, seems tyrannical, that his authority to appoint all committees seems arbitrary, and that his control over the order of business, as Chairman of the Rules Committee, seems dictatorial. But what then! The House acquiesces in “one man power,” and there is a reason for it. Macaulay observes that an army cannot be led by a debating club; neither can the House, which, without rigid discipline, would degenerate into a debating club, lead itself. Individuals, for the sake of order and efficiency, must under military discipline surrender their capricious, conflicting, casual wills to the will of a common superior, just as, in the thought of Hobbes, the warring human atoms in “a state of nature” confer, for the sake of peace and order, all their powers upon a common coercive superior, called by Hobbes the great Leviathan, or mortal God. The British House of Commons is able to govern because obedience to leaders is of its essence. It lives in a state of perpetual potential choice of leaders, but leaders there will always be, and these leaders must be obeyed. The penalty of disobedience is legislative impotence. In a sense the House of Commons does not rule; it merely elects the nation’s rulers. This, in larger measure than is generally suspected, is true of the House of Representatives. The three hundred and eighty-six members who may occupy the floor constitute the House on parade. The House at work is a disintegrate body, grinding way behind the closed doors of fifty or more committee rooms. The House in session is no longer the real legislative power, but rather the maker of the real legislative power, — the Speaker and his appointees, the chairmen of the great standing committees. Instead of a responsible ministry, as under the British system, the House appoints a hierarchy, which in the present state of evolution consists of four members, three a constant, and one a variable, — the constant being the Speaker and his two party associates of the Rules Committee, the variable being the chairman of the committee having jurisdiction of the measure which has been given right of way by the Rules Committee. While the House has the constitutional right to determine its own rules of procedure, it cannot be maintained that the Fathers intended to grant a power which should deprive the popular legislative branch of its deliberate functions, or impair the free representative character of the body itself. The transformation of the popular branch has proceeded in obedience to the laws of our political evolution. This development has been largely along extra-constitutional lines, and, in the opinion of the writer, changes will continue to work themselves out along the line of coordinating, with the legislative power of the rulers of the House, a reciprocal measure of defined political responsibility.
Who, ten years ago, could have divined the mighty changes wrought in our institutional fabric within the narrow limits of a single decade? To-day the thoughtful man who turns to the future and wonders what is coming to the Republic. One notes the drift toward strong government and the growing disposition to appeal to Washington for the correction of all manner of public ills. The conclusion is borne in upon us on every side that out of the federal state is rising the Unitarian state, just as out of the federation, — a band of states, — rose the Federal Republic, — a banded state.
The Constitution can be treated no longer as a written instrument defining the measure of American destiny, but rather as the sum of the political habits and convictions of the nation. This is not the place to deplore nor to approve. What is written, is written. Litera scripta manet. The written word does not change, but the consciousness of a progressive society, like that of the human organism, is always changing. Herein is a relation between a constant and a variable, — fixed law and changing life. Life cannot be expressed in a formula or reduced to a syllogism. In a tempest the sea anchor, fixed in nothing more stable than the watery element, holds the ship to windward when otherwise the craft might be blown helplessly from her course. Our political development has followed the course laid down by the rigid, written constitution, but the anchor of limitations is fixed in an element which is itself shifting and unstable. The old conflict between the unyielding law and the living organism has resulted, as it must always result in any expanding life, in a victory for the organism. For the letter killeth, but the spirit giveth life.