The best statement of this doctrine, however, is to be found in the works of John C. Calhoun, whose Disquisition on Government and Discourse on the Constitution of the United States are a masterly defense of the system of checks and balances. He had no sympathy with what would now be called popular government. His point of view was essentially aristocratic, and he frankly avowed it.
He recognized the fact that under the existing social organization the interests of all classes are not the same; that there is a continual struggle between them; and that any interest or combination of interests obtaining control of the government will seek their own welfare at the expense of the rest. This, he claimed, made it necessary to so organize the government as to give the minority the means of self-protection. To give to the minority this constitutional power would tend to prevent the selfish struggle to obtain possession of the government, since it would deprive the majority of all power to aggrandize themselves at the expense of the minority. The very essence of constitutional government, according to his view, was the protection afforded to the minority through the limitation of the power of the majority. To accomplish the true end of constitutional government, which is the limitation of the power of the numerical majority, it is necessary, he contended, that the various classes or interests should be separately represented, and that each through its proper organ should have a veto on the acts of the others. In a government so organized no measure could be enacted into law and no policy enforced, unless it had received the assent of each element recognized in the Constitution. This method of taking the sense of the community, which required the concurrence of its several parts, he termed that of the concurrent majority.
This principle of class representation, he maintained, was fundamental in the American Constitution, which recognized for certain purposes the numerical majority as one of its elements, but only for certain purposes. For he tells us, and correctly, that "the numerical majority is, strictly speaking, excluded, even as one of its elements."[139] In support of this statement he undertakes to show that the numerical majority could not even prevent the amendment of the Constitution, since through a combination of the smaller states an amendment desired by the minority could be forced through in opposition to the wishes of the majority. He might have added that it was the intention of those who framed our government to allow the minority a free hand in amending by the method of constitutional interpretation; and also that they intended to deny to the numerical majority a veto on treaties and appointments. This refusal to recognize the numerical majority even as one of the coördinate elements in the government was as hereinbefore shown inconsistent with the doctrine of checks, and is to be explained on the theory that they wished to subordinate the democratic element in the Constitution.
Calhoun argued that the growth of political parties had broken down our system of constitutional checks. The Constitution as originally adopted made no mention of, and allowed no place for these voluntary political organizations. In fact, the purpose of the political party was diametrically opposed to and subversive of all that was fundamental in the Constitution itself, since it aimed at nothing less than the complete destruction of the system of checks by bringing every branch of the government under its control. To the extent that it had achieved its purpose, it had consolidated the powers of the general government and brought them, he contended, under the direct control of the numerical majority, which was the very thing that the framers of the Constitution wished to guard against.
The complete control which the numerical majority had thus obtained over the Federal government made it supremely important that all constitutional power vested in the several states to resist Federal aggression should be actively employed. That the states had the power under the Constitution to check the general government when it attempted to overstep the limits set to its authority was necessarily implied in the fact that our system of government was federal and not national. His argument proceeded on the theory encouraged by the framers of the Constitution that the general government and the state governments were coördinate. "The idea of coördinates," he tells us, "excludes that of superior and subordinate, and necessarily implies that of equality. But to give either the right, not only to judge of the extent of its own powers, but, also, of that of its coördinate, and to enforce its decision against it, would be, not only to destroy the equality between them, but to deprive one of an attribute—appertaining to all governments—to judge, in the first instance, of the extent of its powers. The effect would be to raise one from an equal to a superior, and to reduce the other from an equal to a subordinate."[140]
From this it would follow that neither should have the exclusive right to judge of its own powers—that each should have a negative on the acts of the others. That this was the intention of the framers of the Constitution he argues from the fact that all efforts in the Convention to give the general government a negative on the acts of the states were unsuccessful. The efforts to confer this power, he contends, were made because it was seen that in the absence of such a provision the states would have a negative on the acts of the general government. The failure of these efforts in the Convention was due, he claims, to the fact that the members of that body wished to make the general government and the state governments coördinate, instead of subordinating the latter to the former as the advocates of a national government desired. The fact upon which Calhoun based this contention would seem to justify his conclusion; but if we consult the debates which took place in that body, it is easily seen that the refusal of the Convention to incorporate such a provision in the Constitution can not be ascribed to any hostility on the part of that body to national government. In fact, as hereinbefore shown, it was for purely practical reasons that they rejected all proposals which contemplated the recognition in the Constitution itself of the supremacy of the general government. While declining to allow a provision of this character to be incorporated in the Constitution, they by no means disapproved of a strong supreme central government, but merely adopted a less direct and therefore easier method of attaining their end.
While Calhoun maintained that in order to make the limitations on the authority of the general government effective it was necessary that a state should have a veto on Federal laws, he did not contend that the verdict of a state should be final. It would still be possible for the general government to override the veto of a state by procuring a constitutional amendment which would remove all doubt as to its right to exercise the power in question. This method of appeal, he argued, was always open to the general government, since it represented and was in the hands of the numerical majority. This would be true, however, only when the party in power had the requisite two-thirds majority in both houses of Congress, or at least controlled the legislatures in two-thirds of the states. Otherwise its control of the general government would not enable it to propose the desired constitutional amendment. With this qualification Calhoun's contention was correct. On the other hand the state could not defend itself against Federal aggression, since, belonging to the minority, it would have no means of compelling the submission of a constitutional amendment involving the point in dispute. The effect of a state veto on an act of Congress would be to compel the latter to choose between abandoning the law in question as unconstitutional and appealing to the constitution-making power in defense of its claim. If it chose the latter alternative and succeeded in having its authority supported by an appropriate constitutional amendment, there was nothing for the state to do but submit, provided that the amendment in question was one clearly within the scope of the amending power. If, as Calhoun assumed, it was the purpose of the Constitution to withhold from a mere majority in control of the general government the power to enact and enforce unconstitutional legislation, the veto of a state would seem to be the only means by which the constitutional rights of a minority of the states could be protected.
Calhoun did not question the right of the Supreme Court of the United States to declare an act of Congress null and void, or its right to pass judgment upon the Constitution or the laws of a state when they were attacked as in conflict with the Federal Constitution in a case before it. This right, he contended, belonged to all courts whether federal or state. A decision of the Supreme Court of the United States adverse to the constitution or law of a state was, however, he maintained, binding only on the general government itself and the parties to the suit. As against the state it had no power to enforce its decision.
His entire argument rests upon the assumption that the Federal and state governments are co-equal and not superior and subordinate. This line of argument naturally led to the conclusion that the Federal and state courts were coördinate. It was perfectly natural for the advocate of state rights to take this view of the matter. Moreover there was nothing in the Constitution which expressly contradicted it. The framers of that instrument, as hereinbefore shown, did not wish to make an open attack on the generally accepted doctrine of state sovereignty before the Constitution was adopted. Their purpose was fully disclosed only after they had obtained control of the new government under the Constitution. To carry out their plan of subordinating the states, it was necessary to establish the supremacy of the Federal judiciary. This was accomplished by an act of Congress[141] which provided that "a final judgment or decree in any suit in the highest court ... of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where is drawn in question the construction ... of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of said Constitution, treaty, statute, or Commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error."
This act, while expressly conferring upon the Supreme Court of the United States the power to veto a state law, at the same time denied to a state court the right to treat as unconstitutional a statute, treaty, or authority exercised under the general government. The question might properly be asked why this provision was not incorporated in the Constitution itself. Why did not the framers of that document clearly define the relation of the Federal to the state courts? To have included the substance of this act in the Constitution as submitted to the states, would have precluded the possibility of any future controversy concerning the relation of the Federal to the state courts. From the point of view of practical politics, however, there was one unanswerable argument against this plan. It would have clearly indicated the intention of the framers of the Constitution, but in doing so, it would for that very reason have aroused opposition which it would have been impossible to overcome. This is why the matter of defining the relation of the Federal to the state courts was deferred until after the Constitution had been ratified by the states. They chose the only practicable means of accomplishing their purpose. With all branches of the Federal government under their control, they were able to enact a law which virtually amended the Constitution. Calhoun argues that in passing this act Congress exceeded the powers granted to it by the Constitution. What he fails to recognize, however, is the fact that this measure, although at variance with the interpretation placed upon the Constitution by the people generally, was, nevertheless, in entire harmony with the general purpose of its framers and necessary to carry that purpose into effect.
The view of the American Constitution herein presented may not be familiar to the average reader of our political literature. For notwithstanding the overwhelming proof of the aristocratic origin of our constitutional arrangements accessible to the unbiassed student, the notion has been sedulously cultivated that our general government was based on the theory of majority rule. Unfounded as an analysis of our political institutions shows this belief to be, it has by dint of constant repetition come to be widely accepted. It is beyond question that the Constitution was not so regarded by the people at the beginning of our national life. How, then, was this change in the attitude of the public brought about? There has doubtless been more than one influence that has contributed to this result. The abundant natural resources of the country and the material prosperity of the people are a factor that cannot be ignored. To these must in a measure be ascribed the uncritical attitude of mind, the prevailing indifference to political conditions, and the almost universal optimism which have characterized the American people. This lack of general attention to and interest in the more serious and profound questions of government has been favorable to the inculcation and acceptance of ideas of the system utterly at variance with its true character. Still, with all due allowance for these favoring conditions, it is hard to find a satisfactory explanation of the process by which the worshipers of democracy came to deify an undemocratic constitution. The desire of the conservative classes to preserve and perpetuate the system by presenting it in the guise of democracy, and their influence upon the political thought of the people generally must be regarded as the chief factor in bringing about this extraordinary change in public opinion. Hostile criticism of the Constitution soon "gave place to an undiscriminating and almost blind worship of its principles ... and criticism was estopped.... The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system."[142]
It has been shown that the main purpose of the Constitution was to limit the power of the people. The recognition of this fact enables us to understand much of the subsequent development of our political institutions—a development for which the generally accepted theory of our system affords no adequate explanation. The erroneous view of the Constitution so generally inculcated has thus far misled the public as to the true source of our political evils. It would indeed be strange if some of the abuses incident to every form of minority rule had not made their appearance under the operation of a system such as has been described. Where the influence of public opinion has been so restricted, it would be but reasonable to expect that the practical working of the government would reflect something of the spirit of the Constitution itself. As a consequence of these limitations originally placed upon the power of the people, the development of our system has not been wholly in the direction of democracy. The constitutional authority conferred upon the minority has exerted a far-reaching influence upon the growth of our political institutions. The natural effect of subordinating the democratic element would be to render its influence more feeble as the system developed. That this has not been a purely imaginary danger may be easily shown.
The Constitution expressly gave to the qualified voters of the various states the right to control the House of Representatives. It was because of this fact, as explained in the preceding chapter, that this body was subordinated in our scheme of government. Even the most perfect control over this branch would have given the people no positive control over the government as a whole. At the most, it conceded to them merely a negative on a part of the acts and policy of the government. Yet popular control over this branch of the government has become less and less effective as our political system has developed.
The Constitution provides that "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing senators."[143]
It also provides that "Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day."
It also requires that the members of the House of Representatives shall be elected every second year; but as originally adopted it does not specify when their term of office shall begin.
After the ratification of the Constitution the Congress of the Confederation on September 13, 1788, designated March 4, 1789, as the time for commencing proceedings under the new régime. This made the term of office of President, Senators, and Representatives begin on that date.
An act of Congress, March 1, 1792, provided that the term of office of President should "in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given."
This date was recognized as the beginning of the President's term of office by the Twelfth Amendment to the Constitution, which went into effect in 1804. By implication this amendment makes the term of representatives begin on the fourth of March of each odd year.
Congress, exercising the power vested in it by the Constitution to regulate Federal elections, enacted a law bearing date of February 2, 1872, which requires the election of representatives to be held on the Tuesday next after the first Monday in November of each even year, beginning with the year 1876. By act of March 3, 1875, this was modified so as not to apply to any state whose constitution would have to be amended before the day fixed for electing state officers could be changed in conformity with this provision.[144]
Congress has no power to change the date on which the term of office of a representative begins; but it does have authority to change the time of electing the House of Representatives, and also to determine when its own sessions shall begin, subject to the constitutional limitation that it shall meet at least once each year.
Under the law as it now stands the members of a newly elected House of Representatives do not meet in regular session until thirteen months after their election. Moreover, the second regular session does not begin until after the succeeding Congress has been elected.
The evils of this arrangement are thus described by a member of the House:
"The lower branch of Congress should at the earliest practicable time enact the principles of the majority of the people as expressed in the election of each Congress. That is why the Constitution requires the election of a new Congress every two years. If it were not to reflect the sentiments of the people then frequent elections would have no meaning or purpose. Any evasion of that rule is subversive of the fundamental principle of our government that the majority shall rule. No other government in the world has its legislative body convene so long after the expression of the people....
"As an election often changes the political complexion of a Congress, under the present law, many times we have the injustice of a Congress that has been repudiated by the people enacting laws for the people diametrically opposed to the last expression of the people. Such a condition is an outrage on the rights of the majority....
"Under the present law a representative in Congress who has been turned down by the people legislates for that people in the second regular session....
"A man who has been defeated for re-election is not in a fit frame of mind to legislate for his people. There is a sting in defeat that tends to engender the feeling of resentment which often finds expression in the vote of such members against wholesome legislation. That same feeling often produces such a want of interest in proceedings as to cause the members to be absent nearly all the second session....
"It is then that some are open to propositions which they would never think of entertaining if they were to go before the people for re-election. It is then that the attorneyship of some corporation is often tendered and a vote is afterward found in the record in favor of legislation of a general or special character favoring the corporation."[145]
To appreciate the magnitude of the evils above described, it is necessary to remember that upon the average only about one-half of the members of one Congress are elected to the succeeding Congress. This large number is, therefore, influenced during the second regular session neither by the hope of re-election nor the fear of defeat. Under these circumstances it is not surprising that the second regular session should be notoriously favorable to corporation measures.
That Congress has not attempted to remedy this evil is striking proof of its indifference to the wishes of the people. Otherwise it would have so employed the power which it possesses to perfect its organization, as to ensure the most prompt and complete expression of public opinion in legislation possible under our constitutional arrangements. Having the power to change both the time of electing a Congress and the beginning of its sessions, it could easily remedy the evils described. Both sessions of a Congress could be held before the succeeding Congress is elected. This could be accomplished by having Congress convene, as advocated by the writer of the article above mentioned, for the first regular session on the Monday following the fourth of March next after the election, and for the second regular session on the first Monday after January first of the following year. In this case the second regular session would doubtless come to an end before the fall election. Some such adjustment is required to give the people anything like adequate control over the House of Representatives during the second regular session.
The present arrangement which makes the House of Representatives largely an irresponsible body, while not provided for or perhaps even contemplated by the framers of the Constitution, is nevertheless the logical outcome of their plan to throttle the power of the majority. But although in harmony with the general purpose and spirit of the Constitution, it is a flagrant violation of the basic principle of popular government.[146]
This tendency may be still more clearly seen in the growth of the committee system by which the division of power and its consequence, political irresponsibility, have been carried much farther than the Constitution contemplated, especially in the organization of the House, of Representatives. No standing committees were provided for by the Constitution and few were established by the House during the early years of its existence. The system once introduced, however, has gradually developed until the House now has more than fifty-five of these committees.
Every legislative proposal must under the rules after its second reading be referred to the committee having jurisdiction over that particular branch of legislation. Theoretically, any member has a right to introduce any bill whatever. But as it must be referred to the proper committee and be reported by it to the House before the latter can discuss and adopt or reject it, it is evident that the right to initiate legislation has in effect been taken from the individual members and vested in the various standing committees. Under this method of procedure no proposed legislation can be enacted by the House without the consent of the committee having that particular branch of legislation in charge. The fact that a measure must be referred to a committee does not imply that that committee is obliged to report it back to the House. This the committee will, of course, do if the proposed bill is one which it wishes to have passed. But if it views the proposed legislation with disfavor, it may revise it so as to make it conform to its own wishes, or it may report it so late in the session as to prevent its consideration by the House, or it may neglect to report it altogether. This virtually gives a small body of men constituting a committee a veto on every legislative proposal. The extent to which this system diminishes the responsibility of the House can not be fully appreciated without bearing in mind the manner of appointment and composition of the committees. The Constitution provides that "the House of Representatives shall choose their speaker and other officers,"[147] but it makes no mention of the speaker's powers. The right to appoint the committees is not conferred on the speaker by the Constitution. The extent and character of the powers exercised by that official are determined very largely by the rules and usages of the House. This is the source of his power to appoint the chairman and other members of the various standing committees.
The speaker is elected at the beginning of each Congress and retains his office during the life of that body. The same is now true of the standing committees which he appoints, though previous to 1861 they were appointed for the session only.
The speaker is, of course, a member of the dominant party in the House, and is expected to use the powers and prerogatives of his office to advance in all reasonable ways the interests of the party which he represents. The selection of committees which he makes is naturally enough influenced by various considerations of a political and personal nature. It is largely determined by the influences to which he owes his elevation to the speakership. In return for the support of influential members in his own party certain important chairmanships have been promised in advance. And even where no definite pledges have been made he must use the appointive power in a manner that will be acceptable to his party. This does not always prevent him, however, from exercising enough freedom in making up the committees to insure him a large measure of control over legislation.
All the chairmanships and a majority of the places on each committee are given to the members of his own party. As the speaker's right to appoint does not carry with it the power to remove, he has no control over a committee after it is appointed. The committees, as a matter of fact, are in no true sense responsible either to the speaker or to the House itself, since once appointed they can do as they please. They are in fact just so many small, independent, irresponsible bodies, each controlling in its own way and from motives known only to itself the particular branch of legislation assigned to it. The only semblance of responsibility attaching to the committee is found in the party affiliation of the majority of its members with the majority in the House. But ineffectual and intangible as this is, it is rendered even more so by the fact that the opposition party is also represented on each committee. This allows the dominant party to escape responsibility, since it can claim that its failure to satisfy the popular demand has been due to the opposition of the minority in the various committees, which has made concession and compromise necessary.
"The deliberations of committees," as Bryce says, "are usually secret. Evidence is frequently taken with open doors, but the newspapers do not report it, unless the matter excite public interest; and even the decisions arrived at are often noticed in the briefest way. It is out of order to canvass the proceedings of a committee in the House until they have been formally reported to it; and the report submitted does not usually state how the members have voted, or contain more than a very curt outline of what has passed. No member speaking in the House is entitled to reveal anything further."[148]
A system better adapted to the purposes of the lobbyist could not be devised. "It gives facilities for the exercise of underhand and even corrupt influence. In a small committee the voice of each member is well worth securing, and may be secured with little danger of a public scandal. The press can not, even when the doors of committee rooms stand open, report the proceedings of fifty bodies; the eye of the nation can not follow and mark what goes on within them; while the subsequent proceedings in the House are too hurried to permit a ripping up there of suspicious bargains struck in the purlieus of the Capital, and fulfilled by votes given in a committee."[149]
A system which puts the power to control legislation in the hands of these small independent bodies and at the same time shields them so largely against publicity affords ample opportunity for railway and other corporate interests to exercise a controlling influence upon legislation.
This subdivision of the legislative power of the House and its distribution among many small, irresponsible bodies precludes the possibility of any effective party control over legislation. And since the majority in the House can not control its own agents there can be no effective party responsibility. To ensure responsibility the party in the majority must act as a unit and be opposed by an active and united minority. But our committee system disintegrates both the majority and the minority.
Another practice which has augmented the authority and at the same time diminished the responsibility of the committees is the hurried manner in which the House disposes of the various measures that come before it. The late Senator Hoar has estimated that the entire time which the House allows for this purpose during the two sessions which make up the life of a Congress "gives an average of no more than two hours apiece to the committees of the House to report upon, debate, and dispose of all the subjects of general legislation committed to their charge. From this time is taken the time consumed in reading the bill, and in calling the yeas and nays, which may be ordered by one-fifth of the members present, and which require forty minutes for a single roll-call."[150]
Moreover, the member "who reports the bill dictates how long the debate shall last, who shall speak on each side, and whether any and what amendments shall be offered. Any member fit to be intrusted with the charge of an important measure would be deemed guilty of an inexcusable blunder if he surrendered the floor which the usages of the House assign to his control for an hour, without demanding the previous question."[151]
Nothing more would seem to be necessary to give the committee control of the situation. True the House may reject the bill which it submits, but the committee may easily prevent the House from voting upon a measure which a majority of that body desires to enact.
As there are many committees and the time which the House can give to the consideration of their reports is limited, it naturally follows that each committee is anxious to get all other business out of the way in order that it may have an opportunity to bring the measures which it has prepared to the attention of the House. This struggle between the various committees for an opportunity to report the bills which they have framed and have them considered by the House explains the acquiescence of that body in a system that so greatly restricts the freedom of debate. Very rarely will a committee encounter any formidable opposition in bringing the discussion of its measures to a close.
The speaker's power of recognition is another check upon the majority in the House. This power which he freely uses in an arbitrary manner enables him to prevent the introduction of an obnoxious bill by refusing to recognize a member who wishes to obtain the floor for that purpose.[152] Moreover, as chairman of the Committee on Rules he virtually has the power to determine the order in which the various measures shall be considered by the House. In this way he can secure an opportunity for those bills which he wishes the House to pass and ensure the defeat of those to which he is opposed by giving so many other matters the preference that they can not be reached before the close of the second session.
The power thus exercised by the speaker, coupled with that of the committees, imposes an effectual restraint not only on the individual members, but on the majority as well. A large majority of the bills introduced are vetoed by the committees or "killed" by simply not reporting them back to the House. There is no way in which the House can override the veto of a committee or that of the speaker, since even when the rules are suspended no measure can be considered that has not been previously reported by a committee, while the speaker can enforce his veto through his power of recognition. Both the committees and the speaker have what is for all practical purposes an absolute veto on legislation.
A motion to suspend the rules and pass any bill that has been reported to the House may be made on the first and third Mondays of each month or during the last six days of each session. "In this way, if two-thirds of the body agree, a bill is by a single vote, without discussion and without change, passed through all the necessary stages, and made law so far as the consent of the House can accomplish it. And in this mode hundreds of measures of vital importance receive, near the close of exhausting sessions, without being debated, amended, printed, or understood, the constitutional assent of the representatives of the American people."[153]
This system which so effectually restricts the power of the majority in the House affords no safeguard against local or class legislation. By making it difficult for any bill however worthy of consideration to receive a hearing on its own merits, it naturally leads to the practice known as log-rolling. The advocates of a particular measure may find that it can not be passed unless they agree to support various other measures of which they disapprove. It thus happens that many of the bills passed by the House are the result of this bargaining between the supporters of various measures. Certain members in order to secure the passage of a bill in which they are especially interested will support and vote for other bills which they would prefer to vote against. In this way many bills secure a favorable vote in the House when a majority of that body are really opposed to their enactment. It is entirely within the bounds of possibility that no important measure desired by the people at large and which would be supported by a majority of the House, can be passed, since any powerful private interest opposed to such legislation may be able to have the measure in question quietly killed in committee or otherwise prevented from coming to a final vote in the House. But while legislation in the interest of the people generally may be defeated through the silent but effective opposition of powerful private interests, many other measures which ought to be defeated are allowed to pass. A system which makes it possible to defeat the will of the majority in the House by preventing on the one hand the enactment of laws which that majority favors, and by permitting on the other hand the enactment of laws to which it is opposed, certainly does not allow public opinion to exercise an effective control over the proceedings of the House.
As a foreign critic observes, "the House has ceased to be a debating assembly: it is only an instrument for hasty voting on the proposals which fifty small committees have prepared behind closed doors.... At the present time it is very much farther from representing the people than if, instead of going as far as universal suffrage, it had kept to an infinitely narrower franchise, but had preserved at the same time the freedom, fullness, and majesty of its debates."[154]
The political party is a voluntary association which seeks to enlist a majority of voters under its banner and thereby gain control of the government. As the means employed by the majority to make its will effective, it is irreconcilably opposed to all restraints upon its authority. Party government in this sense is the outcome of the efforts of the masses to establish their complete and untrammeled control of the state.
This is the reason why conservative statesmen of the eighteenth century regarded the tendency towards party government as the greatest political evil of the time. Far-sighted men saw clearly that its purpose was revolutionary; that if accomplished, monarchy and aristocracy would be shorn of all power; that the checks upon the masses would be swept away and the popular element made supreme. This would lead inevitably to the overthrow of the entire system of special privilege which centuries of class rule had carefully built up and protected.
When our Constitution was framed responsible party government had not been established in England. In theory the Constitution of Great Britain recognized three coördinate powers, the King, the Lords, and the Commons. But as a matter of fact the government of England was predominantly aristocratic. The landed interests exerted a controlling influence even in the House of Commons. The rapidly growing importance of capital had not yet seriously impaired the constitutional authority of the landlord class. Land had been until recently the only important form of wealth; and the right to a voice in the management of the government was still an incident of land ownership. Men as such were not entitled to representation. The property-owning classes made the laws and administered them, officered the army and navy, and controlled the policy of the government in every direction.
"According to a table prepared about 1815, the House of Commons contained 471 members who owed their seats to the goodwill and pleasure of 144 Peers and 123 Commoners, 16 government nominees, and only 171 members elected by popular suffrages."[155]
As the real power behind the government was the aristocracy of wealth, the English system, though nominally one of checks and balances, closely resembled in its practical working an unlimited aristocracy.
The framers of our Constitution, as shown in previous chapters, took the English government for their model and sought to establish the supremacy of the well-to-do classes. Like the English conservatives of that time they deplored the existence of political parties and consequently made no provision for them in the system which they established. Indeed, their chief purpose was to prevent the very thing which the responsible political party aimed to establish, viz., majority rule.
"Among the numerous advantages promised by a well-constructed union," wrote Madison in defense of the Constitution, "none deserves to be more accurately developed than its tendency to break and control the violence of faction....
"By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community....
" ... But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes actuated by different sentiments and views....
"If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by a regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."[156]
The very existence of political parties would endanger the system which they set up, since in their efforts to strengthen and perpetuate their rule they would inevitably advocate extensions of the suffrage, and thus in the end competition between parties for popular support would be destructive of all those property qualifications for voting and holding office which had up to that time excluded the propertyless classes from any participation in public affairs. Hence Washington though a staunch Federalist himself saw nothing inconsistent in trying to blend the extremes of political opinion by giving both Hamilton and Jefferson a place in his Cabinet.
In England the party by the Reform bill of 1832 accomplished its purpose, broke through the barriers erected against it, divested the Crown of all real authority, subordinated the House of Lords, and established the undisputed rule of the majority in the House of Commons. This accomplished, it was inevitable that the rivalry between political parties should result in extensions of the suffrage until the House should come to represent, as it does in practice to-day, the sentiment of the English people.
The framers of the American Constitution, however, succeeded in erecting barriers which democracy has found it more difficult to overcome. For more than a century the constitutional bulwarks which they raised against the rule of the numerical majority have obstructed and retarded the progress of the democratic movement. The force of public sentiment soon compelled, it is true, the adoption of the Twelfth Amendment, which in effect recognized the existence of political parties and made provision for the party candidate for President and Vice-President. At most, however, it merely allowed the party to name the executive without giving it any effective control over him after he was elected, since in other respects the general plan of the Constitution remained unchanged.
The political party, it is true, has come to play an important role under our constitutional system; but its power and influence are of a negative rather than a positive character. It professes, of course, to stand for the principle of majority rule, but in practice it has become an additional and one of the most potent checks on the majority.
To understand the peculiar features of the American party system one must bear in mind the constitutional arrangements under which it has developed. The party is simply a voluntary political association through which the people seek to formulate the policy of the government, select the officials who are to carry it out in the actual administration of public affairs, and hold them to strict accountability for so doing. Under any government which makes full provision for the political party, as in the English system of to-day, the party has not only the power to elect but the power to remove those who are entrusted with the execution of its policies. Having this complete control of the government, it can not escape responsibility for failure to carry out the promises by which it secured a majority at the polls. This is the essential difference between the English system on the one hand and the party under the American constitutional system on the other. The one well knows that if it carries the election it will be expected to make its promises good. The other makes certain promises with the knowledge that after the election is over it will probably have no power to carry them out.
It is this lack of power to shape the entire policy of the government which, more than anything else, has given form and character to the party system of the United States. To the extent that the Constitution has deprived the majority of the power to mold the policy of the government through voluntary political associations, it has defeated the main purpose for which the party should exist.
The fact that under the American form of government the party can not be held accountable for failure to carry out its ante-election pledges has had the natural and inevitable result. When, as in England, the party which carries the election obtains complete and undisputed control of the government, the sense of responsibility is ever present in those who direct it. If in the event of its success it is certain to be called upon to carry out its promises, it can not afford for the sake of obtaining votes to make promises which it has no intention of keeping. But when the party, even though successful at the polls may lack the power to enforce its policy, it can not be controlled by a sense of direct responsibility to the people. Promises may be recklessly and extravagantly made merely for the sake of getting votes. The party platform from the point of view of the party managers ceases to be a serious declaration of political principles. It comes to be regarded as a means of winning elections rather than a statement of what the party is obligated to accomplish.
The influence thus exerted by the Constitution upon our party system, though generally overlooked by students and critics of American politics, has had profound and far-reaching results. That the conduct of individuals is determined largely by the conditions under which they live is as well established as any axiom of political science. This must be borne in mind if we would fully understand the prevailing apathy—the seeming indifference to corruption and ring rule which has so long characterized a large class of intelligent and well-meaning American citizens. To ascribe the evils of our party system to their lack of interest in public questions and their selfish disregard of civic duties, is to ignore an important phase of the problem—the influence of the system itself. In the long run an active general interest can be maintained only in those institutions from which the people derive some real or fancied benefit. This benefit in the case of the political party can come about only through the control which it enables those who compose it to exercise over the government. And where, as under the American system, control of the party does not ensure control of the government, the chief motive for an alert and unflagging interest in political questions is lacking. If the majority can not make an effective use of the party system for the attainment of political ends, they can not be expected to maintain an active interest in party affairs.
But although our constitutional arrangements are such as to deprive the people of effective control over the party, it has offices at its disposal and sufficient power to grant or revoke legislative favors to make control of its organization a matter of supreme importance to office seekers and various corporate interests. Thus while the system discourages an unselfish and public-spirited interest in party politics, it does appeal directly to those interests which wish to use the party for purely selfish ends. Hence the ascendency of the professional politician who, claiming to represent the masses, really owes his preferment to those who subsidize the party machine.
The misrepresentative character of the American political party seems to be generally recognized by those who have investigated the subject. It is only when we look for an explanation of this fact that there is much difference of opinion. The chief difficulty encountered by those who have given attention to this problem has been the point of view from which they have approached it. The unwarranted assumption almost universally made that the principle of majority rule is fundamental in our scheme of government has been a serious obstacle to any adequate investigation of the question. Blind to the most patent defects of the Constitution, they have ignored entirely its influence upon the development and character of the political party. Taking it for granted that our general scheme of government was especially designed to facilitate the rule of the majority, they have found it difficult to account for the failure of the majority to control the party machine. Why is it that under a system which recognizes the right and makes it the duty of the majority to control the policy of the government, that control has in practice passed into the hands of a small minority who exercise it often in utter disregard of and even in direct opposition to the wishes and interests of the majority? On the assumption that we have a Constitution favorable in the highest degree to democracy, how are we to explain the absence of popular control over the party itself? Ignoring the obstacles which the Constitution has placed in the way of majority rule, American political writers have almost invariably sought to lay the blame for corruption and machine methods upon the people. They would have us believe that if such evils are more pronounced here than elsewhere it is because in this country the masses control the government.
If the assumption thus made concerning the nature of our political system were true, we would be forced to accept one of two conclusions: either that popular government inevitably results in the despotism of a corrupt and selfish oligarchy, or if such is not a necessary consequence, then at any rate the standard of citizenship in this country intellectually and morally is not high enough to make democracy practicable. That the ignorance, selfishness and incapacity of the people are the real source of the evils mentioned is diligently inculcated by all those who wish to discredit the theory of popular government. No one knows better than the machine politician and his allies in the great corporate industries of the country how little control the people generally do or can exercise over the party under our present political arrangements. To disclose this fact to the people generally, however, might arouse a popular movement of such magnitude as to sweep away the constitutional checks which are the source of their power. But as this is the very thing which they wish to prevent, the democratic character of the Constitution must be taken for granted; for by so doing the people are made to assume the entire responsibility for the evils which result from the practical operation of the system. And since the alleged democratic character of our political arrangements is, it is maintained, the real source of the evils complained of, the only effective remedy would be the restriction of the power of the people. This might take the form of additional constitutional checks which would thereby diminish the influence of a general election upon the policy of the government without disturbing the present basis of the suffrage; or it might be accomplished by excluding from the suffrage those classes deemed to be least fit to exercise that right. Either method would still further diminish the influence of the majority, and instead of providing a remedy for the evils of our system, would only intensify them, since it would augment the power of the minority which is, as we have seen, the main source from which they proceed.
A government which limits the power of the majority might promote the general interests of society more effectually than one controlled by the majority, if the checks were in the hands of a class of superior wisdom and virtue. But in practice such a government, instead of being better than those for whom it exists, is almost invariably worse. The complex and confusing system of checks, with the consequent diffusion of power and absence of direct and definite responsibility, is much better adapted to the purposes of a self-seeking, corrupt minority than to the ends of good government. The evils of such a system which are mainly those of minority domination must be carefully distinguished from those which result from majority control. The critics of American political institutions have as a rule ignored the former or constitutional aspect of our political evils, and have held majority rule accountable for much that our system of checks has made the majority powerless to prevent. The evils of our party system, having their roots in the lack of popular control over the party machine, are thus largely a consequence of the checks on the power of the majority contained in the Constitution itself. In other words, they are the outcome, not of too much, but of too little democracy.
The advocates of political reform have directed their attention mainly to the party machine. They have assumed that control of the party organization by the people would give them control of the government. If this view were correct, the evils which exist could be attributed only to the ignorance, want of public spirit and lack of capacity for effective political co-operation on the part of the people. But as a matter of fact this method of dealing with the problem is open to the objection that it mistakes the effect for the cause. It should be clearly seen that a system of constitutional checks, which hedges about the power of the majority on every side, is incompatible with majority rule; and that even if the majority controlled the party organization, it could control the policy of the government only by breaking down and sweeping away the barriers which the Constitution has erected against it. It follows that all attempts to establish the majority in power by merely reforming the party must be futile.
Under any political system which recognizes the right of the majority to rule, responsibility of the government to the people is the end and aim of all that the party stands for. Party platforms and popular elections are not ends in themselves, but only means by which the people seek to make the government responsive to public opinion. Any arrangement of constitutional checks, then, which defeats popular control, strikes down what is most vital and fundamental in party government. And since the party under our system can not enforce public opinion, it is but natural that the people should lose interest in party affairs. This furnishes an explanation of much that is peculiar to the American party system. It accounts for that seeming indifference and inactivity on the part of the people generally, which have allowed a small selfish minority to seize the party machinery and use it for private ends.
The party, though claiming to represent the people, is not in reality a popular organ. Its chief object has come to be the perpetuation of minority control, which makes possible the protection and advancement of those powerful private interests to whose co-operation and support the party boss is indebted for his continuance in power.[157] To accomplish these ends it is necessary to give the party an internal organization adapted to its real, though not avowed, purpose. The people must not be allowed to use the party as a means of giving clear and definite expression to public opinion concerning the questions wherein the interests of the general public are opposed to the various private interests which support the party machine. For a strong popular sentiment well organized and unequivocally expressed could not be lightly disregarded, even though without constitutional authority to enforce its decrees. To ensure successful minority rule that minority must control those agencies to which the people in all free countries are accustomed to look for an authoritative expression of the public will. The party machine can not serve the purpose of those interests which give it financial support and at the same time allow the people to nominate its candidates and formulate its political creed. Nevertheless, the semblance of popular control must be preserved. The outward appearance of the party organization, the external forms which catch the popular eye, must not reveal too clearly the secret methods and cunningly devised arrangements by which an effective minority control is maintained over the nomination of candidates and the framing of party platforms. The test of fitness for office is not fidelity to the rank and file of the people who vote the party ticket, but subserviency to those interests which dominate the party machine. The choice of candidates is largely made in the secret councils of the ruling minority and the party conventions under color of making a popular choice of candidates merely ratify the minority choice already made. Popular elections under such a system do not necessarily mean that the people have any real power of selecting public officials. They merely have the privilege of voting for one or the other of two lists of candidates neither of which may be in any true sense representative of the people or their interests.
But in nothing is the lack of popular control over the party more clearly seen than in the party platforms. These are supposed to provide a medium for the expression of public opinion upon the important questions with which the government has to deal. Under a political system which recognized the right of the majority to rule, a party platform would be constructed with a view to ascertaining the sense of that majority. Does the platform of the American political party serve this purpose? Does it seek to crystallize and secure a definite expression of public opinion at the polls, or is it so constructed as to prevent it? This question can best be answered by an examination of our party platforms.
The Constitution, as we have seen, was a reaction against and a repudiation of the theory of government expressed in the Declaration of Independence, although this fact was persistently denied by those who framed it and urged its adoption. The high regard in which popular government was held by the masses did not permit any open and avowed attempt to discredit it. The democracy of the people, however, was a matter of faith rather than knowledge, a mere belief in the right of the masses to rule rather than an intelligent appreciation of the political agencies and constitutional forms through which the ends of popular government were to be attained. Unless this is borne in mind, it is impossible to understand how the Constitution, which was regarded at first with distrust, soon came to be reverenced by the people generally as the very embodiment of democratic doctrines. In order to bring about this change in the attitude of the people, the Constitution was represented by those who sought to advance it in popular esteem as the embodiment of those principles of popular government to which the Declaration of Independence gave expression. The diligence with which this view of the Constitution was inculcated by those who were in a position to aid in molding public opinion soon secured for it universal acceptance. Even the political parties which professed to stand for majority rule and which should therefore have sought to enlighten the people have not only not exposed but actually aided in perpetuating this delusion.
In the Democratic platform of 1840 we find the following:
"Resolved, That the liberal principles embodied by Jefferson in the Declaration of Independence, and sanctioned in the Constitution, which makes ours a land of liberty and the asylum of the oppressed of every nation, have ever been cardinal principles in the Democratic faith." This was reaffirmed in the Democratic platforms of 1844, 1848, 1852, and 1856.
Finding its advocacy of the Declaration of Independence somewhat embarrassing in view of its attitude on the slavery question, the Democratic party omitted from its platform all reference to that document until 1884, when it ventured to reaffirm its faith in the liberal principles which it embodied. Again, in its platform of 1900, it referred to the Declaration of Independence as "the spirit of our government" and the Constitution as its "form and letter."
In the Republican platform of 1856 we read "That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution is essential to the preservation of our republican institutions." This was repeated in the Republican platform of 1860, and the principles of the Declaration of Independence alleged to be embodied in the Constitution were specified, viz., "That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." The authority of the Declaration of Independence was recognized by the Republican party in its platform of 1868, and again in its platform of 1876.[158]
Both parties have during recent years expressed their disapproval of monopolies and trusts, though neither when in power has shown any disposition to enact radical anti-monopoly legislation.
The Democratic party which favored "honest money" in 1880 and 1884 and demanded the repeal of the Sherman Act in 1892 stood for free coinage of silver at 16 to 1 in 1896 and 1900. The Republican party which advocated international bimetallism in 1884, condemned the Democratic party in 1888 for trying to demonetize silver and endorsed bimetallism in 1892, favored "sound money" and international bimetallism in 1896 and renewed its "allegiance to the principle of the gold standard" in 1900.
The Republican platform of 1860 branded "the recent reopening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity." The Democratic party in its platform of 1896 expressed its disapproval of the Income Tax decision of the United States Supreme Court and in both 1896 and 1900 condemned "government by injunction." With these exceptions neither party has ever expressed its disapproval of any exercise of authority by the Federal judiciary.
Neither of the great parties has ever taken a stand in favor of an income tax, government ownership of the railroads or the telegraph, or, if we except the declaration in favor of direct election of United States senators in the Democratic platforms of 1900 and 1904, advocated any important change in our system of government.
Let us now inquire how far the results of a general election can be regarded as an expression of public opinion upon the questions raised in the party platforms. Does a popular majority for a party mean that the majority approve of the policies for which that party professes to stand? It is generally assumed by the unthinking that this is the case. But such a conclusion by no means follows. If there were but one question at issue between the parties and every vote was for principle, not for particular candidates, the policy of the successful party would have the approval of the majority. But when the party defines its position on a number of issues this is no longer true. Take, for instance, the Democratic and Republican platforms of 1900, the former containing twenty-five and the latter twenty-nine separate articles in its party creed. Does a majority vote for a party indicate that the majority approve of the entire platform of that party? No thoughtful person would maintain for a moment that all who support a party approve of its entire platform. In the case of the Republican party in 1900, one large class of its supporters who believed the money question to be paramount and who feared the consequences of free coinage of silver voted the Republican ticket, though opposed to the attitude of that party on expansion and also on protection. The ardent protectionist may have given the party his support on the strength of its tariff plank alone. He may even have been opposed to the party's position on the silver question and on expansion. Another class who may have disapproved of both gold monometallism and protection, but who regarded expansion as the all-important question, supported the Republican party because of its attitude in this matter. It is certain that some who voted the Republican ticket did not approve its expansion policy; some did not approve of its extreme protectionist policy; and some did not approve of its attitude on the money question. Every man who voted the Republican ticket is assumed to have endorsed the entire policy of the party, though, as a matter of fact, the party may have secured his vote by reason of its position on the one question which he deemed to be of supreme importance. It is, to say the least, extremely probable that every intelligent man who supported the party disapproved of its attitude on one or more questions. Each plank in the platform was put there for the purpose of catching votes. Some gave their vote for one reason, some for another and some for still other reasons. And when, as in our present day party platforms, many separate and distinct bids are made for votes, it is not only possible but highly probable that no single plank in that party's creed was approved by all who voted the party ticket. If the various issues could be segregated and each voted upon separately, it is conceivable that not one of them would command a majority of the entire vote; and yet, by lumping them all together and skilfully pushing to the front and emphasizing each article of its creed before the class or in the region where it would find most support, the party may secure a popular majority for its platform as a whole. Both parties in their platforms of 1900 stood for the admission as states of Arizona, New Mexico, and Oklahoma; both declared in favor of legislation against monopolies and trusts; both favored liberal pensions, the construction of an Isthmian canal, irrigation of arid lands, reduction of war taxes and protection of American workmen against cheap foreign labor. Yet it does not by any means follow that a majority of the people voting really endorsed even these planks which were common to both platforms.
Moreover the party does not always state its position in a clear and unequivocal manner. The Democratic platform while opposing Republican expansion did so with some important reservation. While denouncing the recent expansion policy of the Republican party it made a bid for the support of those who believed in a moderate and conservative expansion policy. The same is true of its attitude on protection. It did not condemn the principle of protection, but merely the abuse of the system through which monopolies and trusts had been fostered. The vague and ambiguous manner in which the party defines its attitude, together with the highly composite character of its platform, largely defeats the end for which it should be framed. As a means of arriving at a definite and authoritative expression of public opinion concerning the political questions of the day it is far from satisfactory. It is conceivable that a party may under this system carry an election and yet not a single principle for which it professes to stand would, if separately submitted, command the approval of a majority of the voters.