The War and the Constitution


ON April 2 the President asked Congress to ‘take immediate steps, not only to put the country in a more thorough state of defense, but also to exert all its power.’ Congress, as a body, did not begin to act until April 19, when the House Military Affairs Committee reported a bill. In less than half that length of time, in 1866, Prussia had beaten Austria at Libenau, Türnau, and Podell. In two days less than that entire length of time, the decisive battle of Sadowa was fought, resulting in the complete overthrow of Austria.

Congress did not finish with the army bill until May 17 — forty-five days after the President’s call for immediate action. In the War of 1870, only that number of days had elapsed when the battle of Sedan was fought, making Louis Napoleon a captive and overthrowing his government.

It is obvious that, if the United States were exposed to like conditions, it would be beaten in war before it could even start to defend itself. That much is clear, whatever weight may be allowed to the reasons which it is the habit of Congress to offer in defense of its methods. The issue is of a character that takes no account of abstract considerations. The existence of the State, like that of every form of life, is dependent on provision for the fundamental needs of subsistence and defense, and therein lies the only principle of constitutional value that is practically decisive. Everything else is secondary. This is no new doctrine in American politics, although it is so commonly forgotten and so habitually ignored that it may seem to be new, and, indeed, intrusive. The case could not be put more strongly than it was by Madison in No. 45 of The Federalist, in which he laid down the principle that ‘the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.’

We have a constitution with which the country has prospered and grown great, but those results have been obtained with immunities that have been peculiar to the United States and are now disappearing. Indeed, it may be said that nearly the whole continent of America, in its political forms, bears a close analogy to Australia in the field of natural history — a shelter of archaic types elsewhere superseded by more highly developed forms, but there preserved by seclusion from the conditions of stress which elsewhere had to be met and surmounted in order to keep alive. This is the fundamental explanation of the continuance of methods whose profuse and wasteful character is often confessed and deplored in Congress, although rarely assigned to its proper cause.

Consideration of Congressional procedure from the standpoint of comparative politics causes a feeling of blank amazement at the national tolerance. Viscount Bryce correctly interpreted the matter, in his American Commonwealth by pointing out that Britain, ‘like the Powers of the European Continent, must maintain her system of government in full efficiency for war as well as peace, and cannot afford to let her armaments decline, her finances become disordered, the vigor of her executive authority be impaired, or sources of internal discord continue to prey upon her vitals. But America lives in a world of her own. . . . Safe from attack, safe even from menace, she hears from afar the warring cries of European races and faiths, even as the gods of Epicurus listened to the murmurs of the unhappy earth spread out beneath their golden dwellings.’

That was written about thirty years ago. The situation it describes now belongs to the past as completely as the age of the dinosaurs. It is now a tremendous question whether the political system which took its shape under the old conditions can be adjusted to the new conditions. The constitutional organ of adjustment is Congress, so that its behavior assumes an importance that it has never had before.

At this writing Congress is struggling with this task. From the matter of defense it has passed on to the associated matter of subsistence, which, while equally vital, exhibits itself in many more aspects, thus producing a large group of legislative problems, affording many lines upon which class interests may form to influence action. While results cannot be computed until a complete record is available, the display of method has been such as to show that opportunities exist for obstruction, delay, and miscarriage that might have fatal consequences.

Public opinion shows a tolerance of Congressional method which is in part reasonable and is in part due to misconception. It is reasonable to make allowance for lack of facilities to attend to an extraordinary press of business, provided due effort is made to improve facilities. But public indulgence may be carried too far through failure to realize how bad the situation really is. People are apt to judge the public business by the analogies of private business, even though it be recognized that great differences exist. Without troubling themselves about details of constitutional theory, and simply going upon the assumption that common sense sets bounds which after all must be respected, people are apt to think that the way Congress wrangles and boggles over its business is a superficial defect, not without substantial compensations, and that it does not meanwhile preclude the making of arrangements required for the public safety.

It would be difficult to persuade the average citizen that the President of the United States is denied means of caretaking such as attach as a matter of course to any important administrative position in private business. For instance, it would be regarded as simply incredible that the President should have no power to arrange for clerical aid and secretarial assistance in planning the organization of the new services required in the present emergency, pending legislation by Congress. As the people generally view the case, the work of arrangement is supposed to be going on while Congress is deliberating, so that matters can be put in such readiness that the passage of the necessary laws is in effect like the word ‘Go!’ at the start of a race — a climax of preparation and not merely the beginning of it.

That, of course, would be the case in any private corporation with respect to any important decision of the board of directors. Not only would the general manager have the power to make the initial arrangements, but he would be regarded as unfit for his position if he failed to do so. But in such matters the manager of a grocery store is allowed more authority than the President of the United States. It is the policy of Congress, tenaciously adhered to and industriously pursued, to confine the President to the narrowest possible limits of action. The Constitution stands so massively in the way of this policy, that in carrying on services authorized by existing laws, the President may exercise a discretion which is the principal factor in shaping public policy. But in all matters requiring the concurrence of Congress the President is subject to dictation and interference carried to lengths that would be unbelievable if the indisputable record did not exist. The truth is that the President has not had the power to give to the new boards and commissions that have been organizing so much as the help of a single clerk or typewriter. An act of Congress which has been a great public nuisance in this emergency is fortunately so short that it may be quoted in its entirety, since otherwise the fact that it really existed would hardly be credited: —

‘That, hereafter no part of the public moneys, or of any appropriation heretofore or hereafter made by Congress, shall be used for the payment of compensation or expenses of any commission, council, board, or other similar body, or any members thereof, or for expenses in connection with any work or the results of any work or action of any commission, council, board, or other similar body, unless the creation of the same shall be or shall have been authorized by law; nor shall there be employed by detail hereafter or heretofore made, or otherwise, personal services from any executive department or other government establishment in connection with any such commission, council, board, or other similar body.’1

In established departments some latitude of action exists within narrow bounds, which permitted considerable activity in preparations for enlarged functions; but in the case of new offices and services, official activity was debarred by law. To some extent the situation has been relieved by private enterprise. It so happened that there was in Washington an institute for government research maintained by private subscriptions. Its resources were turned over to the government, and numerous details of office-system, with a supply of the forms and records essential to the organization of any large business, have thus been attended to at private expense. Some of the men whom the President called to Washington for the public service have been able to supply out of their own means the necessary clerical help and office supplies to carry on the work of preparation. But such alleviations are partial in their application and limited in their effect, and they have the incidental disadvantage of imparting an appearance of caprice and inconsistency to the general situation. Here work has been advancing, there nothing has been done; here were signs of preparedness, there mere chafing and ineffectual complaint.

The administration may be criticized for incompetency when the true defect is its impotence; and nowhere is the attitude of criticism stronger than in Congress, which is the creator and maintainer of that impotence. Since the President has to deal with things as they are, it will be quite impossible for him to come up to standards set by the pretensions of demagogues and by the universal genius of the press, and he thus becomes liable to imputations upon which Congress will act, not so much in the way of criticism, as in the capacity of a reverberator. In thus behaving, Congress has a license which does not exist as regards its own members. It is out of order to make a disrespectful allusion to one of them, but there is no such protection for the President of the United States; and, since in no sense is he present to defend himself, the situation exemplifies the proverb that the absent are always at fault.


Meanwhile the plight of Congress is even worse. At least the President can reach the nation; but Congress cannot do that, although theoretically it represents the nation. Congressional proceedings are not reported by the press; the official record is not read, and is indeed not readable. The situation had a curious result in January, 1909, when there was an open quarrel between President Roosevelt and Congress. In order to get its side of the case before the public, it was actually proposed in the House to print for distribution two million copies of the reply of the House to the President’s charges, but the proposal was defeated because of its futility. It was admitted by Mr. Williams of Mississippi, the minority leader: ‘We knew, when we took up the cudgels that the President threw down, that he could get the ear of the country for a message, and that we could not get the ear of the country for speeches made in opposition.’ On the particular point that caused the quarrel Congress had to yield, but it avenged itself by the passage of the law now obstructing national preparedness. It was put through as a rider on the Sundry Civil Appropriation bill. This is the usual mode of Congressional encroachment upon the President’s authority, as it puts the matter up to him in such a way that he can hardly use his veto power.

By means of riders Congress has largely superseded the President in the custody of executive power, although the Constitution expressly vests it in his office exclusively. The appropriation bills of every session give instructions to the Secretary of the Treasury, the Secretary of War, and other officials, to do things, and to make preliminary expenditures on undertakings that involve many millions of dollars. The surveys and reports for what are commonly known as the ‘pork-barrel bills,’ are usually arranged for in this way; and, meanwhile, officials charged with the administration of the services affected by such action may not be consulted at all. Postmaster-General Meyer once publicly stated that at the previous session, Congress had appropriated more than twenty million dollars for post-office buildings which had not been recommended by the Department. The present Postmaster-General has repeatedly protested against the unnecessary expense and inconvenience of buildings thus made part of his business plant against his judgment. It is the regular thing for Congress and the Post-office Department to be at cross purposes, for Congress defers to interests that favor a grand central building which shall be a show place, while the Department desires to be close to railroad terminals, its business being essentially one of transportation. The effect of Congressional policy is to increase the cost and reduce the efficiency of the postal service.

This is a fair sample of the sort of direction and management now attaching to the extension of government functions required by present conditions. The late Senator Aldrich, speaking on April 10, 1909, as Chairman of the Committee on Finance, computed the waste of public money as then amounting to fifty millions a year. What will it amount to as Congressional administration extends to the new services?

Nor does there appear to be any means of limiting the process by any restrictive rule or legal check. A written constitution cannot guard itself against interpretation. No provision could be more explicit than the clause of the Constitution which says that ‘every order, resolution or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President,’ and be subject to his veto. Nevertheless, what is termed a ‘concurrent resolution’ has been invented, which, it is held, does not have to be presented to the President. By this device Congress makes a large distribution of gratuities, perquisites, and offices among members at every session. But even if the veto power were practically available, what could it accomplish save to add to constitutional resources for obstruction and delay? In the new era which the United States has now entered the main question can never be what not to do, but what to do and how to do it. Hence the veto power is now nowhere a feature of government except in the United States. It has not been exercised in England since the age of Queen Anne. It is a survival of mediévalism quite incongruous with modern conditions, and any attempt to retain it and build upon it in the United States would be a grave national peril.

Popular approval of the veto power is now strong in this country because the people have acquired the habit of regarding a legislative assembly as a public enemy to be kept in bounds by intimidation. Sundry individuals in Congress may have strong and cordial local attachments, or may occupy positions of such advantage and opportunity as to inspire deference if not respect; but the prevailing attitude toward Congress is one of distrust, contempt, and hostility. Congressmen are constantly rated below their proper standing in character and capacity because the defects of the constitutional system in which they have to work are laid to their personal account.

Everywhere else in the world there is a close correspondence between private and public business in principles of organization. The administration, like the general manager of any business concern, is in possession of means to prepare all needful measures, to submit them to consideration with unrestricted facilities of statement and explanation, and to obtain a decision from the representative assembly, whose functions are analogous to those of a board of directors. So far as the mere legal power to introduce bills and to make legislative proposals is concerned, members of Congress are situated much as members of other national assemblies; but except in the United States the administration appears directly before the assembly with the power to propose and explain its measures. Such a situation makes criticism of the government’s measures the most advantageous way of obtaining personal distinction, and the natural tendency of members is to leave to the administration the work of preparing bills. This tendency has attained its most extreme development in Switzerland, where it is the habit of members to leave all bill-drafting to the administration, and it is the practice of the administration to publish the text of the bills it intends to offer. Should the administration fail to present a measure which members may desire, the ordinary expedient is the passage of a resolution requesting the administration to prepare that measure. Although the Swiss Congress alters and amends freely, in that matter too it makes use of the administration, which retains charge of the bill and shapes its language in accord with the instructions voted. It is obvious that the system precludes ‘jokers.’

British commonwealths are not quite so open and precise in legislative methods, and their procedure is rather more voluminous and cumbrous than is the case in Switzerland, but nevertheless the number of bills introduced is comparatively small. During the sessions of the British Parliament extending from November 11, 1914, to January 27, 1916, — a period of over fourteen months, — 182 bills of all descriptions were introduced in the House of Commons and 49 came over from the House of Lords — a total of 231, most of them government measures. The last long session of Congress of which the complete record is now available, began December 6,1915, and ended September 8, 1916 — a period of two days over nine months. In that time, 17,798 bills were introduced in the House and 7,020 in the Senate — 24,818 in all. In addition there were 477 joint resolutions and 86 of the ‘concurrent resolutions,’ whose flat opposition to the Constitution has been noticed, but which are probably indispensable to Congressional management under present conditions.

To deal with this mass of business the Senate has seventy-five standing committees and the House has fiftynine. Each of these committees is virtually a fractional administration with a staff of subordinate officials; and as each pursues its views and purposes independently of the others, there may be a contrariety of aims in parts of the same service. Such differences are ordinarily settled by negotiation and compromise behind the scenes, but occasionally they break out on the floor. On February 15, 1909, there was a controversy in the Senate in which the advocates of battleships accused the committee in charge of the navy yards of failure to provide docks roomy enough for such vessels; and in reply it was contended that it was not the fault of the navy yards but was a consequence of ‘the folly of Congress in ordering these monsters.’ Such is the system of committee administration of government services under which our people are to risk their fortunes and their lives in the present war! As these lines were written proposals were pending to create some more of these committees.

Such conditions inevitably affect the ability of members to keep to a regular order and to take deliberate action. Hence the growth of special privilege and exclusive opportunity in the management of legislation. Hence the multiplication of offices and the distribution of ‘pork’ to keep members tractable and obedient to the exigencies of the situation. Once in a while the nature of the control exercised over Congress is nakedly revealed. On May 30, 1908, a committee chairman bluntly informed the House, ‘I have the report of the conference on the Public Buildings bill in my pocket. I am going to keep it there until a satisfactory currency bill is passed.’ Soon after the standing committee system was introduced, Fisher Ames predicted that the functions of Congress would be ‘impaired and nullified by the monopoly as well as the perversion of information by these committees.’

The growth of the system has tended to convert the House into a mere registration machine and the Senate into a diplomatic assembly whose open proceedings are mere pageantry. The place in which conclusive action is taken is the committee of conference, whose theoretical function is to adjust differences between the two Houses, but which in practice may put in, leave out, or recast at its discretion; and its report must be accepted or rejected as a whole.

In No. 58 of The Federalist, Madison observed that ‘in all legislative assemblies the greater the number composing them, the fewer will be the men who in fact direct the proceedings.’ This is a fact inherent in the constitution of human nature, and no political arrangement can alter it. It is as true of private affairs as it is of public affairs. A few persons acting together can move freely; a large procession can move only on an appointed route and under designated leaders, or else it is certain to fall into disorder. The only open question is, who shall be the few that in fact direct the proceedings. A sound constitutional system makes this clear, and puts the responsibility for everything where it belongs. No such system exists in Congress; casual opportunity and interest decide everything, and members simply have to take such place and act such part as is open to them in the scuffle. Their success in extracting tolerable results from such conditions is really the most remarkable feature of the case. Acting under a system whose guiding principle is, not what will benefit the nation, but what will please the districts; bound to service as employment agent, pension agent, seed-distributor, or district solicitor; dependent for position on success in these particular activities and not on service to the nation; immersed in the low morality and exposed to the capricious moods which always ensue when public opinion is so situated that it cannot know to whom to give praise or blame for the character of public service, members as a class exhibit higher patriotism and greater capacity than have ever before been associated with assemblies of the type of our Congress.

The system naturally tends to select for itself men whose abilities are conformable to its nature, and a characteristic product is frank, humorous, impudent scoundrelism; but the fundamental source of evil is the system itself. The propensities displayed by our Congress and by our State legislatures have always been displayed by bodies of their type. Like the European diets of the Middle Ages, and like the Parliament of the Commonwealth period in England, they are organized as a representation of particular interests. Instruments of rapacity by the nature of their constitution, the tendency of such bodies has always been to become more corrupt, more noxious, more detestable, until they are swept away by the development of some form of Cæsarism.


It so happens that the outbreak of the war occurred at a stage of our constitutional development in which there was general recognition, among thoughtful political observers, of the breakdown of existing arrangements and of the necessity of radical treatment of the situation. Distrust of democracy, fear of the power of the people, is now the chief obstacle to the needed reforms, for it is the mainstay of the mediævalists whose influence is the more dangerous since it may be personally respectable. No difficulty whatever is presented by the case of the candid Congressmen who frankly avow that the present system is a grab game in which they intend to get their share. That is an intelligible position which can be dealt with. But there is nothing intelligible in the position which the mediævalists take in maintaining the conditions which produce the grab game. A distinguished Senator — who may perhaps be regarded as the leader of this element, in whose ranks he is certainly the most eminent —is always on the alert to see that the administration shall not propose measures directly to Congress. He has made solemn protests in the Senate against even allowing the heads of departments to lay drafts of bills before committees — a practice whose convenience makes it of frequent occurrence. It would puzzle him to state specifically what public interest would be endangered. There is not an instance in all history of any public injury from direct communication of administrative proposals to the legislature; but doubtless plentiful discourse would be forthcoming as to the importance of checks, balances, and limitations of power.

That is the characteristic trait of mediævalism — its insistence upon the limitation of power. It is a political absurdity which the world has outgrown. It is as nonsensical for a statesman to complain about power in the government as it would be for an engineer to complain about the existence of force. The element of truth contained in the mediæval fallacy is that the irresponsible exercise of power is dangerous, and that is just what the present system provides. But there cannot be too much power in government. The advance of democracy is everywhere putting upon government tasks which require for its use all the power that can possibly be supplied. The ideal to which democratic progress is everywhere tending, with the United States lagging behind, is plenary power in the administration, subject to absolute control by the representatives of the people.

This situation is now the general one in democratic countries. It is exemplified in the legislation of a neighboring commonwealth belonging to the same constitutional stock as that from which our own constitution was derived. A Canadian statute requires the administration ‘to do and authorize such acts and things’ as may be deemed ‘necessary or advisable for the security, defense, peace, order, and welfare of Canada.’ The statute proceeds to instance particular requirements, but expressly declares that they are to be construed ‘not so as to restrict the generality of the foregoing terms.’ By putting this statute beside the statute of the United States heretofore cited, there is obtained a typical contrast between modern democratic government and mediævalism. The Canadian statute can be abundantly paralleled in the legislation of England, Switzerland, Australia, New Zealand, and indeed in every modern state. To find a parallel to the law on our own statute books it will be necessary to go back at least two centuries; indeed, the archives of Poland or the records of mediæval diets might have to be searched before an enactment of like tenor could be found.

It should be observed that public necessities do not abate because legal provision for them is refused. The inadequacy of the statutory powers of the President of the United States is causing his office to have a strong tendency to assume the character of a dictatorship, acting without regulation or control in the exercise of the vague and illimitable war powers of the Constitution. It is true that such an enactment as the Canadian statute confers all the powers a dictator could employ, but with the all-important difference that those powers are a legal trust, exercised under responsibilities enforced by a representative assembly in direct contact with the administration and thus in a position to maintain supervision and control. No such organ of control now exists in the United States; and here we reach the heart of the situation. The cure for all our constitutional defects, the remedy for all the varied ills of our politics, is the conversion of Congress into an organ of control. It is at present what Burke described as ‘a confused and scuffling bustle of local agency.’ Every assembly tends to fall into that situation unless precautions are adopted which are simple in their nature, but exacting in their requirements and difficult to apply. The cardinal principle is that the representative body shall have absolutely no share in the administration; then, and only then, will it form a system of national control over the administration in behalf of the people. It cannot share in the administration and hold control over it at the same time. It is quite obvious that, if members can distribute offices and appropriations among themselves, they will be interested in profusion rather than in economy, and they will practice the one while they may talk the other.

It is a singular piece of good fortune in this emergency that the proper course of action was distinctly traced by the founders of our government. No more is required than to carry on the work of reform which they began, and by the same expedients that they recommended. It is still as true as when Hamilton said it, that the way to correct the defects of Congress is to increase its powers, enlarge its functions, and augment its responsibilities. It is still as true as when he said it, that by making it the business of the administration to initiate legislation, ’a million of abuses now existing would be corrected, and judicious plans would be formed and executed for the public good.’ The Federalist will still serve as the textbook of constitutional improvement. Statements of correct principles for present application abound in its pages. The fallacies which now bewilder some well-meaning publicists will be found analyzed and refuted there. The pet argument of the mediævalists, to the effect that the principle of the separation of the powers forbids direct connection between the executive and legislative branches, was dissected by Madison in Nos. 47 and 48. He made an observation which goes to the very root of the matter when he pointed out that a proper separation between the executive and legislative branches cannot be maintained in practice without such connection as will enable each to discharge its functions by its own proper authority. All the evils now experienced in Congressional procedure spring from defect at this point. If that defect can be corrected, everything else may be safely disregarded. It will have the effect of lifting Congress to a plane of dignity and power to which its character will inevitably respond, through the ordinary working of political force even while moving only on lines of party convenience. It will hold the government up to the full measure of its duties and keep it within the proper bounds of its authority, by subjecting all the details of its conduct to direct, minute, and continuous responsibility. It will establish in their integrity the functions both of administration and of control on which the health of a constitutional system depends.

There is therefore just one demand which need be made by public opinion. It is this: that the administration shall have the right to introduce bills into Congress and obtain its decision upon them without unreasonable delay; and that no appropriations shall be made by Congress except upon executive recommendation. This implies that the administration shall have complete access to the House, and that it shall have the powers over time of debate now wielded by the Committee on Rules. No more than this is required to cure the defects of our system of government; nothing less will suffice.

Present conditions are intolerable. Some change must take place. The one open question is, whether it will be brought about by reflection and choice or by accident and force.

  1. Act of March 4, 1909. Statutes at Large, ch. 299, sec. 9.