Library of Congress

I.

In one of Schopenhauer’s essays he remarks that we fancy that the leading events in life will make a great entrance on the stage, whereas, when we look back, we find that they all came in quietly, slipped in, as it were, by the side door, almost unnoticed. The truth of this remark is conspicuously displayed in the life of nations. The principal institutions of civilized life all made such an unassuming start that the tracing of origins is the most the most difficult task of historical research. It will probably be admitted that the most important political facts of our times are nationality and representative government. Both are comparatively recent as history runs, but both emerged from obscurity so gradually and imperceptibly that their very existence was not recognized until after they had been established as actual facts.

How vast may be the transformations unwittingly initiated by the continual effort of humanity for safe adjustment to practical conditions is shown by the fact that the name of an ancient republican politician has become an imperial title. From Cæsar to Kaiser has been a long way to go, but the continuity of the process is as complete as in the successions of species noted by the science of biology. The imperial office itself was as republican in its origin as the presidency of the United States. The term imperator meant at first the office of commander-in-chief, with scarcely more than the authority admitted by our own Constitution, which we are in the habit of designating as the war power of the president.

History obeys the dramatic instinct noted by Schopenhauer, in marking such eras as the fall of the Roman Republic and the establishment of the Empire; but the generations that experienced the events did not thus observe their significance. For centuries after the time when, according to present classifications, the Empire superseded the Republic, the institutions of government were habitually regarded as republican in character. Long after the office of the imperator had actually become an autocracy, it was explained by the Roman jurists as a popular trusteeship. There was in the beginning no more apparent purpose of introducing absolutism than there is in the political arrangements now being made in the United States.

This fact does not stand out in history, for the reason that developments have obscured origins; but the etymology of imperial titles is in the nature of a fossil record of primitive conditions. It is a commonplace of history that the Roman transition from republic to empire was bridged by the principate. But the original meaning of the word ‘prince’ was simply ‘first,’ and it primarily indicated, not rule but leadership. Our presidency is now a principate of the original type, but it is as readily susceptible of prerogative development as the ancient pattern.

As a rule public opinion is too impatient of considerations of this character to be at all willing to attend to them. If they are met with, they are usually sniffed at and passed by as futile pedantry. Nothing is harder to get through the head of the practical man than that only history can teach practical politics. His notion of practical politics is to provide for present needs and deal with emergencies as they arrive. This is an animal instinct of adaptation to circumstances which may do for animal needs but it surrenders evolution to accident and force as among brute species. If ever political development is brought under the guidance of reflection and choice, it is by studious attention to the lessons of history. It was by effort of this character—of which The Federalist is the literary monument—that this country was lifted out of anarchy in 1787.

The habitual disposition of the so-called practical politician toward casual adjustment of means to ends, according to immediate opportunity and interest, is the great obstacle to political progress, although it is ordinarily the main agency of political development. The sustained energy with which it adapts interests to conditions carries on development, and moderates popular sentiment in conformity with the changes thus produced; but whatever the fundamental conditions happen to be, it tends to conserve them as the basis of its diplomacy. It takes things as they are and makes dispositions accordingly with a perseverance which bit by bit contrives arrangements which settle into structure as unwittingly produced by its agents as the rise of a coral reef. It has ever been in this way that republics have succumbed and absolutism has been established.

To the framers of the Constitution, surveying the history of ancient and mediæval republics, the process looked like a vicious circle, in which every republican experiment was doomed to move, unless kept out of it by special precautions. The ordinary motives and activities of practical politics do not supply such precautions, but tend to divert attention from them and to resist consideration of them should they be proposed. If such precautions are now needed, successful effort to supply them will have to override the practical politics of the times through action as energetic and as independent as that which rescued the country from the practical politics of the Confederation period.

If anything can excite public opinion to this action, it is such a spectacle of peremptory authority as is now presented. It is not merely that the government seizes and directs every important industry, controls transportation, and regulates the production, supply, and use of commodities; not merely that it runs its hand into every pocket and takes what it sees fit of the citizen’s money: those things abridge property rights in ways that are but extreme applications of powers which to a lesser degree have been heretofore asserted, although unfamiliar to the mass of American citizens. But it is a novel and startling experience to find the hand of authority laid upon the individual citizen against his personal freedom. His meals are rationed, his fireside is stinted, his shop is closed to business if the command is issued, his office-door is shut upon him in the exercise of an official discretion which supersedes his own discretion in the conduct of his own business.

Surely such things cannot be without provoking consideration of the nature and position of an authority so imperious and so exacting. The situation puts sharply to every one questions that go to the bottom of things. What is now the actual constitution of the United States? What does its traditional republican form amount to in practice? Wherein does the reality differ from a dictatorship?

II.

The fact must be owned that there is in principle no limit to the power of government. While considerations of practical convenience will always confine the operations of authority, yet as a jurisdictional principle the government may take the last man and the last dollar for its own use. Life, liberty, and property are all subject to the sovereignty of the state. There are really no inalienable rights. If it has been thought that there are, this has been due to confusion of thought by which orderly process maintained by the state has been mistaken for real limitation of power. Purely private vocations have heretofore been so exempt from restraint that it was easy to suppose that they were of right secure from interference. Events are now showing this to be a delusion. It is not worth while discussing the subject from the standpoint of legal theory, when facts of common experience are thumping into every head the real situation.

The American citizen is now in the position of the man who was arrested by executive order in President Lincoln’s time and put in prison. He sent for his lawyer, who cited to him doctrines, rules, and principles showing that the government could not do what it had done. ‘Yes,’ said the prisoner; ‘but all the same, here I am!’ And there he stayed. As sharp a contrast between actual fact and traditional theory now faces every American citizen; and if he clears his head from cant and is able to see things as they are, he must recognize the fact that he is living under a dictatorship.

If he looks about to see how people in other countries are faring, he finds that the same situation exists wherever the war zone extends. Indeed, the example of other countries facilitated the rapid erection of dictatorship in the United states and disposed public opinion to ready acceptance of it. Whatever the nominal constitution may be, — empire, kingdom, republic, or Bolsheviki rule, — the actual fact is dictatorship. So far as assumption of authority to direct individual behavior is concerned, the amount is the same whether in England, France, Russia, Holland, Switzerland, or the United States. Behavior varies, but the authority assumed is practically unlimited. No difference exists in point of power; what difference does exist, is in means of making the power accountable for its operation.

The situation thus makes clear that the real difference between despotism and constitutional government does not lie in limitation of power but in the existence of means of enforcing responsibility. Ability to act promptly and energetically in the presence of emergency is of paramount importance to the preservation of life in all its sensitive forms, great or small, and every other consideration must give way to it. No form of government can survive that excludes dictatorship when the life of the nation is at stake. One of Jefferson’s favorite aphorisms was that power always tends to steal from the many to the few; and his inference was that special precautions should be taken to resist this tendency. He sought to accomplish this by limitations of governmental function now universally discarded. What political party in the world to-day acts upon Jeffersonian principles? Certainly no party has less ground for pretending to do so than that which claims him as its founder. Stress of practical necessity has prevailed over theory in a way which shows that, if theory is to have any relation to fact, fundamental principles must receive a different statement from that which Jefferson gave. His major premise was indisputably sound: power always does steal from the many to the few. It is an inexorable law which scouts attempts at resistance. It must be accepted and reckoned with if constitutional government is to be maintained.

Under every form of government power must exist and be trusted somewhere, its scope commensurate with all the might and all the means of the community, its actual exertion proportionate to the emergencies with which it may have to cope. No limit can be assigned to it. No distinction between private vocation and public employment can restrain it. If it can seize one and send him to the battle-line to die there for his country if it should so happen, why should it not detain another from his shop or his office upon occasion, or enter his home and regulate his table? Nowhere can the line be actually drawn between public power and private right. When the conscription act was attacked as an invasion of individual right, the Supreme Court unanimously replied: ‘This but challenges the existence of all power, for governmental power which has no sanction to it, and which can be exercised only provide the citizen consents, is in no substantial sense such a power.’

It comes to this, then: that there is nothing but deceit in the notion of maintaining republican institutions and democratic government by limitations put to the scope of authority. The only way to secure the situation is by recognizing the inevitable fullness of power and then insisting upon its responsible behavior. The danger-point in our constitutional arrangements is not the organ of administration; it is the organ of control. The President’s position is necessarily one of action: he cannot resist the forces that impel him. Like one whose canoe is in the rapids, he must keep paddling, with no power to stay his course, but compelled to steer it as best he may along the obstacles that beset it. So long as Congress exists, the power to make or alter the legal conditions under which presidential authority is exercised rests with it. But Congress acts upon the mistaken principle that the way to reduce power is to divide it, and hence it is continually encroaching upon executive functions. The result is confusion of responsibility such as Hamilton described in The Federalist: —

‘It is often impossible amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to those whose account the evil which may have been incurred is truly chargeable.’

It so happens that, at the present juncture, it is quite plain where responsibility for inefficient organization of the executive departments is truly chargeable. It is distinctly on record that executive authority did all it could to introduce economy and efficiency, but was stopped by Congress. During President Roosevelt’s administration a group of experts, commonly known as the Keep Commission, was appointed to investigate departmental methods. Unnecessary offices, duplication of effort, slow, cumbrous, and wasteful methods were discovered, and a report was made recommending changes that would reduce the cost and increase the efficiency of the public service. Congress ignored the report, but it took steps to prevent any further presidential action of the kind by putting a rider on the Sundry Civil Appropriation bill of 1909, prohibiting the use of any appropriation ‘heretofore or hereafter made’ for the ‘payment of compensation or expenses of any commission, council, board, or similar body,’ unless the same has been expressly authorized by Congress. As a matter of fact, the Keep Commission was in the main constituted by detail of experienced officials belonging to various departments, so the work of reorganization might possibly have been carried on without an appropriation. Congress took care to shut off that possibility by prohibiting ‘personal services from any executive department or other government establishment in connection with any such commission, council, board, or similar body.’

President Taft exerted himself to persuade Congress to consent to improvement, with such effect that he was able to get express authorization for the appointment of an Economy and Efficiency Commission, which carried on a systematic survey of departmental methods and submitted a series of instructive reports. Congress remained quiescent so long as no positive action was taken; but when President Taft sent in his special messages of January 17 and April 4, 1912, recommending changes which would increase efficiency and incidentally make a saving of eleven million dollars; and when he announced that he would send in budget estimates according to the accurate system worked out by the Commission, Congress acted with energy and effect. It destroyed the Commission by refusing any further appropriation for it; and it added a rider to an appropriation bill prohibiting the president from making any change in the mode of transmitting the estimates. President Taft protested that this was an invasion of the constitutional rights of his office, but Congress had its way, and budget reform was defeated.

Congress is so constituted and organized that its habitual activities create a vicious circle. Its interference is a source of administrative defect, and then the defect is made the occasion for more interference. The inevitable result is that presidential influence must be exerted to control Congress, and an accordant state of public opinion has been developed. It is popularly conceived to be one of the President’s duties to keep Congress in order; whereas normally it is the constitutional function of Congress to keep him in order. The march of events is already on the Roman road. If Congress is incapable of exercising the function of control, and continues to figure as an incumbrance upon the necessary authority of government, suppression of it is simply a question of time. An institution which habitually stands in the way of efficiency will eventually be pushed out of the way.

III.

The most dangerous feature of the situation is the present attitude of public opinion. The behavior of Congress is a chronic grievance, but it does not produce action at all commensurate with the feeling that exists about the matter. This singular lethargy is due to the fact that resentment of Congressional behavior is overshadowed by uneasiness over the portentous growth of presidential authority. People view with dismay the possibilities of abuse of such vast powers as are accumulating the hands of the President. They feel disposed to endure much from Congress in consideration of the fact that it appears to be a rival power, and in the belief that, badly as it behaves in all particulars, it serves as a counterpoise to the aggrandizement of the presidential office.

The same view is held in Congress, and members who acknowledge that its powers are scandalously abused are yet disposed to put up with anything rather than do anything that might weaken those powers. This view of the case is plausible, but it is quite mistaken. It is true that the power of the President has increased and is increasing at a tremendous rate; but the constitutional aspect of the case is quite different from what is commonly supposed. The great expansion of the presidential function is going on outside of the formal Constitution, by reason of his enforced activity as lobbyist and promoter. His authority within the bounds of the Constitution has not increased at all, but has in fact been diminished by Congressional encroachment, and that is the true source of actual peril to constitutional government.

Comprehension of the true nature of our political system is obscured by the fact that the adoption of the Constitution is usually taken as a starting-point, whereas it was only an episode. The proper starting-point of our constitutional history is the organization of the Continental Congress. An assembly raised to power by a revolutionary movement has ever been prone to corruption. It could scarcely be otherwise, since public order is disturbed, traditional sanctions are impaired, and new opportunities are opened to those casting about for ways and means to employ their activities and push their fortunes. The Continental Congress was no exception to this general rule. Originally controlled by the landed gentry, of which Washington was an illustrious specimen, it soon fell into the hands of lawyer-politicians, who availed themselves of their personal opportunities with characteristic energy, diligence, and pertinacity. Committees of Congress took charge of the conduct of the war and directed all public services. Waste and mismanagement abounded. The result was that by 1779 the American cause was in a state of collapse and was saved only by the intervention of France.

The majority in Congress were obstinately opposed to any reform that would abridge their opportunities. The creation of executive departments, which went on from 1779 to 1781, was really due to French influence. Chevalier de la Luzerne, who was sent out by the French government in 1779, was a witness to the sufferings of the American army, and he attributed the situation to Congressional administration. He reported to his government: —

‘It is difficult to form a just conception of the depredations which have been committed in the mismanagement of war-supplies—forage, clothing, hospitals, tents, quarters, and transportation. About nine thousand men, employed in this service, received enormous salaries and devoured the subsistence of the army, while it was tormented with hunger and the extremes of want.’ When matters had gone so far that the paper money issued by Congress would not circulate, and the government had to depend upon France for money and supplies, Congress had to accede to reforms which were withstood when proposed by Hamilton and recommended by Washington, but which could no longer be resisted when French influence was enlisted in their support.

But the characteristic propensity of Congress to take matters into its own hands was simply curbed, not extinguished. It was again indulged as soon as circumstances permitted; and when Robert Morris’s position as Superintendent of Finance was made so uncomfortable for him that he resigned, the Treasury was put in charge of commissioners appointed and directed by committees of Congress.

After the war was over, Congress was again stranded by exhaustion of its resources. It still clung tenaciously to authority it was unfit to exercise, and it still pursued wasteful and inefficient methods; but the people could now protect themselves against Congressional administration by withholding supplies. Hence the national government was drifting into bankruptcy, and the country was about to break up, when the situation was miraculously saved by the adoption of the Constitution.

With that movement the Continental Congress had little to do. It originated outside of it, was carried to success outside of it, and was viewed with jealousy and suspicion by the group of politicians which then held control of Congress. But they were left with nothing in their hands but the mere rind of authority; all its meat was gone; so they could do nothing but watch events and await fresh opportunity.

It was perfectly well understood that a prime object of the constitutional movement was to put Congress in its proper place and keep it there. This purpose is distinctly avowed in the writings of the leaders of the movement. It runs all through The Federalist. But in this the movement was only partially successful, and this is the true explanation of the peculiar defects of our system of government, and of the extraordinary fact that the United States has lagged behind the democratic movement of the age.

The turning-point was the battle in the first session of the Federal Congress over the organization of the executive departments. An effort was made to perpetuate the situation as it existed under the Continental Congress, leaving the Treasury in the hands of a board of commissioners under Congressional direction. But this demand was met by such crushing disclosures that it could not be maintained. It was shown by instances which could not be disputed that, instead of the order and clearness in accounts which had existed while the Superintendent of Finance was in charge, there had been a return of waste, confusion, and extravagance. Those seeking to perpetuate the old opportunities fought on stubbornly, and although defeated on most issues, finally effected a compromise on an issue which was really the most important of all. The heads of the executive departments had direct access to the Continental Congress. This facility was now withdrawn. The effect upon the constitutional system will be found stated and analyzed in Justice Story’s Commentaries, from knowledge derived from his own observation and experience.

The whole trend of our constitutional development has been determined by that event. It was a relapse to the old methods of the Continental Congress, shutting out the executive authority created by the Constitution and substituting administration by Congressional committees. During Washington’s administration, however, Congress still relied upon the heads of the executive departments to prepare business for its consideration. The House of Representatives had no Ways and Means committee or Appropriations committee, except the committee of the whole house—just as is still the case in all British commonwealths. A separate Committee of Ways and Means was not established as a permanent standing committee until 1802, and thereafter the parceling of legislative initiative among standing committees went on until the system gradually obtained its present monstrous development.

The President possesses an actual initiative of masterful authority, but he derives it only from his position as head of his party; he exercises it, not by means defined by the Constitution, but through party agency. The fact that in the United States, of all the countries in the world, the administration is dependent upon party favor for the mere opportunity of getting measures before the legislature and receiving its decision, accounts for the massive development of political structure peculiar to this country—party platforms, political bosses, caucus dictation, and, in fine, that vast engine of sordid interest known as the party machine. It is an instructive exemplification of the principle that structure is proportioned to function, that, notwithstanding the close general resemblance between the Constitution of Switzerland and that of the United States, not one of these developments has occurred in Switzerland. The reason is that there a clause of the Constitution gives the administration the right to propose and explain its measures directly to the Congress. Hence, although parties abound they are merely propaganda of opinion, carried on by spontaneous amateur effort like any other social activity. As opinion is matured, it is reflected in the formation of public policy by the Congress, of its own accord and through its ordinary personnel.

The true constitution of a country is always the actual distribution of power. From time to time this has varied in the United States without ever producing settled arrangements. Prior to the parliamentary revolution of March, 1910, commonly known as the overthrow of Cannonism, the seat of authority was a group of undertakers embracing the Speaker, and some leading chairmen of committees in both houses who held the gateways of legislation. It was the rule of an oligarchy, resting not upon public confidence but upon mere advantages of position. With its overthrow the seat of authority has shifted to the party caucus. The Committee on Rules, formerly directed by the Speaker, now acts under caucus direction in reporting the special orders under which important business is necessarily transacted if it is to get through at all.

The change has invigorated the initiative of the President as the national leader of his party; but since he has effective access to Congress only by caucus favor, it is essential to keep the caucus in an acquiescent temper. The President can apply great pressure to Congress by arousing and directing public opinion, but the work of obtaining practical results falls upon Congressional managers whose most effective argument is appeal to individual interest. In this respect the situation is worse under the present rules than it was under the previous oligarchic control, and it is a subject of acute anxiety with members who still have a sense of national responsibility. How can a country maintain itself under the trials that must now be borne, when it has a system which ever construes merit and efficiency in terms of partisanship, and makes it practically impossible to shape and decide issues except at the expense of the public treasury.

IV.

In view of these facts of our constitutional history, the prime cause of our troubles is manifest. It is the usurpation of presidential and Congressional functions by the standing committees. The creation of that system has been a deep corruption of the Constitution, which has perverted its character and has spread disease through all its parts. The actual system of government produced by this corruption is incongruous with the constitutional scheme, which looked to the concentration of executive authority in the office of the President while Congress was to be an organ of control over the government in behalf of the people. So long as the Constitution has any life left in it, nothing can relieve the President of his obligation to ‘give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.’ The Congressional theory at present is that this means no more than that he may request Congress to take the subject into consideration; but the Constitution makes no such statement, nor has such a view of the case ever been successfully exemplified in practice. On the other hand, the Constitution says nothing as to the form in which the President shall present his measures, or the means by which he shall get them before Congress. The cardinal difference between the Swiss Constitution and our own is that it attends to that point whereas ours does not. To this defect is due the degradation of Congress and the growth of dictatorship.

There is only one effectual way of arresting those tendencies, and that is to return to the Constitution as originally designed, restoring to the President his right of direct access to Congress for the presentation of his measures, and restoring to Congress its right to have the administration before it, subject to its open supervision and control.

Fortunately we have a President who thoroughly understands the situation. In his work entitled Congressional Government, he exposed the source of the disease, and in his dealings with Congress he has gone as far as he could to enter into open relations with it. If administration measures have to ooze through committees, contracting stains in the process, that is not his fault. He will propose them directly to Congress and explain them directly to Congress when he is allowed to do so. If he acts as a dictator, that is because he is not allowed to act as a Constitutional leader.

This is a matter which rests with Congress, and it is upon Congress that the pressure of public opinion should be exerted to compel such changes in the rules as will introduce constitutional government. In practice this would mean that the President’s recommendations would be presented to Congress in the form of bills drafted by experts, informed by administrative experience and acting under national responsibility. The present method allows legislation to be drafted according to the views of irresponsible committees acting under the guidance of particular interests and upon calculations of factional advantage. The sinister results of which this process is capable are displayed by the legislative record of every session. The situation has become so intolerable that some decisive treatment of it is inevitable.

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