1. Trace the steps leading up to the meeting of the convention which framed the Constitution.
2. How were the delegates to the convention chosen? What, in general, was the nature of their instructions? Who was the oldest delegate? the youngest? the most distinguished? Who of them were signers of the Declaration of Independence? Who acted as president of the convention?
3. Name the members of the convention who refused to sign the Constitution.
4. Why did Hamilton, the author of the resolution calling the convention, take so little part in the work of making the Constitution?
5. Why did not New York send its ablest men to the convention?
6. Did the convention organize itself into committees for the transaction of business?
7. What was the attitude of some of the delegates from the Eastern states toward the West?
8. In general, what part of the country was in favor of the Constitution and what part opposed?
9. What were some of the objections urged against its adoption?
10. Why was the Constitution not submitted to a direct vote of the people as is the custom with state constitutions?
11. When the draft of the completed Constitution was laid before the Congress of the Confederation, did that body make any changes in it before submitting it to the states?
12. Might North Carolina and Rhode Island have remained permanently out of the Union? If so, what would have been their status?
13. Do you think the time has come when the best interests of the country require a new Constitution? What is your opinion of the proposition that the country has outgrown the Constitution?
14. What, in the light of more than a century's experience, do you consider some of the defects of the Constitution?
The House of Representatives.—The Constitution provides that the national house of representatives—the lower house of Congress—shall consist of members chosen every second year by popular election. Under the Articles of Confederation members of the old Congress were chosen annually, but that term was too short to enable them to acquire that familiarity with their duties which is essential to efficient legislation. The term of a representative begins on the 4th of March in the odd-numbered years, though Congress does not meet until the first Monday in December following, unless the President calls it together in extraordinary session earlier.
Sessions of Congress.—There are two regular sessions of every Congress; the long session which begins on the first Monday in December of the odd-numbered years and lasts until some time in the following spring or summer; and the short session which begins on the same date in the even-numbered years and lasts until the 4th of March following, when the terms of all representatives expire. Each Congress is numbered, beginning with the first, which began March 4th, 1789. The sixty-seventh Congress began March 4, 1921, and will end March 4, 1923. Extraordinary sessions are sometimes called by the President to consider matters of special importance which need to be acted upon before the meeting of the regular session. From 1789 to 1921 there were only nineteen such sessions, the last being that called by President Harding to meet in April, 1921, to consider tariff and revenue measures and readjustment of international relationships.
Number and Apportionment of Representatives.—The Constitution provided that the first house of representatives should consist of sixty-five members, but that as soon as a census of the inhabitants should be taken the number was to be apportioned among the several states on the basis of population, not exceeding one for every 30,000 of the inhabitants. After each decennial census is taken a new apportionment is made by Congress on the basis of the new population. The total number of representatives at present is 435,[25] being in the proportion of one member for every 211,877 inhabitants, which is known as the congressional ratio. The largest number from any one state is forty-three, the number from New York. Pennsylvania has thirty-six, Illinois twenty-seven, Ohio twenty-two, and so on down the list. Five states are entitled to but one member each, namely, Arizona, Delaware, Nevada, New Mexico, and Wyoming. As the population of several of these states is less than the congressional ratio, they might not be entitled to a single member but for the provision in the Constitution which declares that each state shall have at least one representative.
Election of Representatives.—The Constitution provides that representatives shall be chosen in each state by vote of such persons as are qualified to vote for members of the lower house of the legislature of that state. Thus it happens that the qualifications for participating in the choice of national representatives varies widely in the different states. But the choice must be made by the people, not by the legislature or by executive appointment, and, under the Fifteenth and Nineteenth Amendments to the Federal Constitution, the states cannot, in fixing the suffrage, discriminate against any class of persons because of their color, race, or sex. Subject to these restrictions the states are practically free to limit the right to vote for national representatives to such of their citizens as they may see fit. It is true that the Fourteenth Amendment declares that whenever a state shall limit the right of its adult male citizens to vote except for crime its representation in Congress shall be proportionately reduced, but this provision has never been enforced. Some statesmen hold that it was really superseded by the Fifteenth Amendment.
Manner of Choosing Representatives.—As in fixing the qualifications of the electors of representatives, so in the choosing of them, the states are left a free hand, subject to the provision of the Constitution which gives Congress power to alter the regulations of the states in regard to the manner and time of choosing members. For a long time Congress did not exercise its power in this respect and each state chose its representatives when it wished and in such manner as it pleased. Some states chose their representatives on general ticket from the state at large, while others chose theirs by districts; some chose by secret ballot, while others did not. To secure uniformity in regard to the method of choice, Congress enacted in 1842 that representatives should be chosen by districts of contiguous territory containing populations as nearly equal to the congressional ratio as possible. In 1871 it enacted that they should be chosen by written or printed ballots (later choice by voting machine was also permitted). In 1872 it enacted that representatives should be chosen on the same day throughout the Union, namely, Tuesday after the first Monday in November.[26]
"Gerrymandering."—When the number of representatives to which each state shall be entitled has been determined, after the decennial census, it devolves upon the legislature to divide the state into as many districts as it is entitled to representatives.[27] In the exercise of this power the political party in control of the legislature may arrange the districts in an unfair manner so as to make it possible for the party to elect a larger number of representatives than its voting strength entitles it to. This is done by putting counties in which the opposite party is in a large majority in the same districts so that it may choose a few members by large majorities, while the other party carries the remaining districts by small majorities. Thus the voting strength of the party in power is economized while that of the other party is massed in a few districts and made to count as little as possible. This practice is known as "gerrymandering" and has often been resorted to by both the two great political parties, sometimes in such a manner as to result in flagrant injustice to the minority party.
The requirement that the districts shall contain as nearly equal population as possible, is sometimes flagrantly violated. Thus one of the Republican districts in New York recently contained 165,701 inhabitants while one of the Democratic districts had a population of 450,000. In 1910 one of the Illinois districts contained 167,000 while another contained 349,000.
Sometimes districts are so constructed as to have fantastic shapes. Thus a district in Mississippi some years ago was dubbed the "shoe string" district from its long irregular shape. It followed the Mississippi River for the whole length of the state though in one place it was less than thirty miles wide.
Qualifications of Representatives.—To be eligible to the house of representatives, a person must have been a citizen of the United States for at least seven years, must have attained the age of twenty-five years, and must be an inhabitant of the state from which he is chosen. Residence in the particular district which the member represents is not required by the Constitution or laws of the United States, but is nearly always required by public opinion. A nonresident, however able and distinguished he might be as a statesman, would have little chance of election.
Objections to the Residence Requirement.—This custom of insisting upon residence in the district has frequently been criticized, especially by foreign writers, as being a serious defect in our system of representation. It contrasts widely with the practice in Great Britain, where members of Parliament are very often chosen from other districts than those in which they reside. London barristers of promise are not infrequently chosen to represent country districts in which they are practically strangers. The late William E. Gladstone, a resident of Wales, represented for a long time a Scotch district. When an important leader of any party in the House of Commons happens to be defeated in his home district, it is a common practice for him to be made a candidate in some district in which his party has a safe majority. In the United States, in such a case, the man's service in Congress would probably be ended.
Finally, one of the worst evils of the district system is that it tends to make the member feel that he is the representative, not of the United States as a whole, but of the locality which chooses him. Instead of entertaining broad views upon purely national questions his views tend to become narrow and he votes and acts with reference to the welfare of his own district rather than with reference to the good of the whole country. On the other hand, it may be said in favor of the district system that it is better adapted to secure local representation and makes responsibility to the member's constituency more effective.
The Senate.—Purposes.—Regarding the desirability of creating a national legislature of two houses there was little difference of opinion among the members of the convention. Experience with a single-chambered congress during the period of the Confederation had revealed certain defects in such an organization. Moreover, all the state legislatures except two were composed of two houses and these exceptions were destined soon to disappear. If a state legislature ought to consist of two houses, it was all the more important that the national congress should be bicameral in organization, because, the union being composed of states, it was desirable to provide a separate house in which they could be represented as constituent political units just as the other house was to be a body representing the people without regard to political divisions. Aside from considerations growing out of the character of the federal system, there were the usual advantages which we associate with the bicameral system, such as protection against hasty and ill-considered legislation, insurance against the possible despotism of a single chamber, and the like. Having decided that Congress should consist of two houses, the convention felt that if the upper house was to exert an effective restraining influence on the lower house it ought not to be a mere duplication of the latter but should be differently composed. It should to a certain extent be a more conservative body than the lower house, which, being elected by the people, would incline toward radicalism; it should, therefore, be smaller in size, its members should be chosen for a longer term and by a different method, higher age and residence qualifications should be required, and it should be given certain powers which were not conferred on the lower house, such as a share in the appointing, treaty making, and judicial powers.
Term.—As already stated, the Constitution provides that the states shall be represented equally in the senate. It also provides that each state shall elect two senators and that each senator shall have one vote. Under the Articles of Confederation, each state had one vote in Congress, and the vote of the state could not be divided; but under the Constitution the two senators from a state frequently vote on opposite sides of a question, especially if they belong to different political parties. On the question of the term of senators there was much difference of opinion among the members of the convention. Some favored a two-year tenure, some four years, some six, some nine, while Alexander Hamilton favored a life tenure. The term finally agreed upon was six years, which seemed to be long enough to give the senate an element of permanence and independence, and yet short enough to secure responsibility to the people.
Classification of Senators.—The Constitution provided that immediately upon the assembling of the senators after the first election they should be divided into three classes and that the seats of those in the first class should be vacated at the end of the second year, those of the second class at the expiration of the fourth year, and those of the third class at the expiration of the sixth year, so that thereafter one third might be chosen every second year. The purpose of this provision is to avoid having the entire senate renewed at the same time. As a result, not more than one third are new and inexperienced members at any particular time. When a new state is admitted to the Union, its first two senators draw lots to see which class each shall fall in. In 1921 there were thirty-two senators in the first class, and their terms expire March 4, 1923; thirty-two in the second class, and their terms expire March 4, 1925; and thirty-two in the third class, and their terms expire March 4, 1927. The three classes are kept as nearly equal as possible.
Reëlection of Senators.—While the term of a senator is six years, he may be reëlected as often as his state may see fit to honor him, and in practice reëlections have been frequent. Justin S. Morrill of Vermont, John Sherman of Ohio, and William B. Allison of Iowa, each served continuously for a period of thirty-two years. Nearly one third of the senators in 1911 had served twenty years or more. Thus the senate is an assembly of elder statesmen and is a more conservative and stable body than the house of representatives.
Mode of Election of Senators.—In regard to the mode of election of senators there was a wide difference of opinion among the members of the convention. Some favored choice by the people; others favored election by the lower house of Congress; some proposed appointment by the President from persons nominated by the state legislatures; while others proposed election by the state legislatures, which was the method finally agreed upon. Choice by the legislature, it was felt, would be the means of forming a connecting link between the state governments and the national government and would thereby tend to attach the former to the latter—an important consideration then, in view of the prevailing jealousy of the state governments toward the national government. Finally, it was believed that choice by the legislature would tend to secure the election of senators of greater ability since the members of the legislature would be more familiar with the qualifications of candidates than the masses of the people could hope to be.
Objections to the Method of Choice by the Legislature.—One of the practical objections to the original method of choosing senators was that it frequently led to long and stubborn contests which sometimes ended in deadlocks. Not infrequently the legislature failed to elect a senator and the state was left with a vacancy in the senate. In such cases the governor could not fill the vacancy by appointment as he did when a senator died or resigned; the seat remained vacant until a senator was chosen by the legislature. From 1890 to 1912 not less than eleven states at one time or another were represented in the senate by one member only, and in 1901 Delaware, on account of repeated deadlocks, had no senator at all at Washington to speak for the state. Not infrequently such contests were broken through the selection of a second-rate man or by an alliance between the members of the minority party and certain members of the majority.
Bribery.—The breaking of deadlocks was sometimes accomplished by bribery or other improper influences. Indeed charges of bribery and corruption in connection with the election of senators came to be very common, and there is little doubt that between 1895 and 1910 a number of wealthy men found their way into the senate through the votes of legislators who were liberally paid for their support. Under these circumstances it was frequently said that the senate was no longer truly representative of the interests of the people.
Interference with Legislative Business.—A prolonged senatorial contest also interfered too much with the regular business of the state legislature. Where the session is limited to two or three months, as it frequently is, the inroads upon the time at the disposal of the legislature for looking after the needs of the state were considerable.[28] Members were badgered by candidates, passions and animosities were engendered, a party coloring was given non-partisan measures, and the votes of members on legislative measures were sometimes determined by the senatorial contest, rather than by the merits of the measure on which they were called to vote.
Popular Election of Senators.—The dissatisfaction with the old method of choosing senators led to a movement to secure an amendment to the Constitution providing for the election of senators by the people. But the senate itself for a long time blocked every attempt of this kind. Five different times between 1893 and 1911 the national house of representatives by a large majority proposed an amendment for this purpose, but each time the senate refused its concurrence. In one form or another the legislatures of thirty-one states approved of the method of popular election and wherever a referendum was taken on the proposition, as was done in California, Nevada, and Illinois, the popular indorsement was overwhelming. Finally, in 1912, the senate yielded, and both houses of Congress adopted a resolution proposing an amendment providing for the popular election of senators, which was ratified by the necessary number of states during the following year. Under this seventeenth amendment the senators of each state are elected by vote of such persons as are entitled to vote for members of the lower house of the legislature.
The seventeenth amendment provides that whenever a vacancy occurs in the senate the governor of the state in which the vacancy occurs shall issue a writ of election for the filling of such vacancy, but that the legislature may authorize the governor to fill the vacancy by a temporary appointment, the appointee to hold until a senator may be chosen by popular election. In practice special elections are rarely called for filling vacancies. In most states the governor makes a temporary appointment, the appointee holding until the next regular election when the people elect his successor.
Qualifications of Senators.—The qualifications prescribed for eligibility to the senate are the same in principle as those required of representatives, though a little different in degree. Thus a senator must be at least thirty years of age, must have been a citizen of the United States for nine years and must be a resident of the state at the time of his election. It was thought that the longer term and higher qualifications would tend to give greater dignity and strength to the upper chamber than would be found in the lower house, and at the same time a higher average of ability.
There is no provision of the Constitution which requires a senator to be a resident of a particular part of the state, but in some states there is a custom that the two senators shall be taken from different sections. Thus in Vermont custom requires that one senator shall come from the section of the state east of the Green Mountains and the other from the west side. Sometimes when there is a large city in the state it is the custom to choose one of the senators from the city and the other from the country. For a long time Maryland did not trust this matter to custom but by law enacted that one of the senators should be an inhabitant of the eastern shore and the other of the western shore.
Character of the Senate.—In the early days when the states were generally regarded as sovereign communities, senators were looked upon somewhat as ambassadors to the national government, and the right to instruct them as to how they should vote on important questions was sometimes claimed and asserted by the legislatures. Sometimes the senators obeyed the instructions, sometimes they refused; and in the latter case there were no means of enforcing obedience. Not infrequently senators are "requested" by the legislature of the state which they represent to vote for or against a particular bill.
The Senate undoubtedly possesses elements of strength and efficiency which are not to be found in the lower house. As it is a much smaller body, debate there can be carried on with more effectiveness, and the individual member has greater opportunity to make his influence felt upon legislation. The efficiency of the Senate is further increased by the fact that its members are generally men of more mature age and larger legislative experience, many of them having already served their apprenticeship in the lower house. Moreover, owing to the longer term, they are more independent of the popular opinion of the moment and, therefore, under less temptation to yield to popular clamor and vote for measures which their better judgment condemns. These facts, it may be added, have tended to increase the attractiveness of the Senate as a legislative body and to draw into it statesmen of larger ability than the lower house has been able to attract.
At the same time, these elements of strength have to some extent been sources of weakness. The attractions of the Senate have stimulated the ambitions of rich men who have few other qualifications than the possession of great wealth, and so it came to pass that a considerable proportion of the members of the upper house were representatives of great corporations and of other forms of wealth. This was not necessarily an evil, but it was often said that the senators were irresponsive to public opinion. Moreover, the Senate has been criticized for usurping to a considerable extent the powers of the executive department in regard to appointments and the conduct of foreign affairs, and has encroached upon the powers of the lower house in respect to the initiation of revenue bills. Finally, the tradition of senatorial courtesy, which makes it possible for a single senator to deadlock indefinitely the proceedings of the Senate, has been criticized as being quite out of harmony with reasonable notions of legislative procedure. All these charges, however, have been vigorously denied by many defenders of the Senate. Some of them are well founded, but all in all, the Senate compares favorably with the best upper chambers of other countries.
Decisions as to Congressional Elections and Membership.—Each house of Congress is the judge of the election, qualifications, and returns of its own members, that is, it is empowered to determine whether a member who claims to have been elected has been legally chosen and whether he really possesses the qualifications prescribed by the Constitution for membership in the house. It seems to be admitted that either house may also refuse to admit a member for other reasons than those prescribed by the Constitution, as, for example, for having been convicted of a crime or because he is insane or suffering with a dangerous contagious disease. Thus in 1900 the house of representatives refused to allow a member from Utah to take his seat because he was living in violation of the anti-polygamy laws, and in 1919 it excluded a Socialist member from Wisconsin for disloyalty during the war.
Contested Elections.—Frequently there is a contested election from a state or district, that is, two men claim to have been elected to the same seat, in which case the house must decide which one is entitled to the seat. In such a case the claims of the contestant and the contestee are heard by the committee on privileges and elections, which makes a report to the house with a recommendation as to which shall be given the seat. Unfortunately, contested election cases are not always settled on their merits, the seat being usually given to the claimant who belongs to the party which has a majority in the house. In England this source of party favoritism is removed by vesting the settlement of cases of contested elections in the courts, which are more apt to decide such contests on their merits.
Power of Expulsion.—When a member has once been admitted to his seat, he can be deprived of it only by expulsion, and to prevent the employment of this power for party purposes, the Constitution provides that the concurrence of two thirds of the members shall be necessary to expel a member. Several instances of expulsion have occurred in the past. Senator Blount of Tennessee was expelled from the senate in 1797, and a number of other cases occurred in each house during the Civil War.
Compensation of Members of Congress.—The Constitution declares that senators and representatives shall receive a compensation for their services, the same to be paid out of the treasury of the United States. Under the Articles of Confederation, each state paid its own members of Congress, and there was no uniformity in respect to the scale of compensation. Some states paid much smaller salaries than others and in order to reduce the burden of maintaining their representatives, the states generally sent to Congress the fewest number of representatives required, and as each state had only one vote, nothing was lost by having a minimum number present. One other objection to the method of state payment was that it tended to make the representative dependent upon his state and caused him to feel that he was the representative of a state rather than of the country as a whole.
In fixing the amount of the compensation of its members, Congress is subject to no restrictions. It may fix the salary at any amount it pleases, may make it retroactive in effect or may increase the amount at any time during the term for which the members are chosen. The present salary of senators and representatives is $7,500 per year, but the Speaker of the house receives $12,000 per year. In addition, each member receives an allowance for a secretary, a small sum for stationery, and mileage of twenty cents per mile going and coming by the nearest route between his home and the national capital. This mileage is intended to cover the traveling expenses of the member and his family.
In some of the countries of Europe until recently members of Parliament did not receive any compensation from the public treasury unless they happened to be members of the cabinet; this was the rule in Great Britain prior to 1911. Sometimes, however, members who represented the socialist or labor party were paid by voluntary contributions by the members of their party. The advantage of paying members of Congress a reasonable compensation is that it enables competent men without private incomes to serve the state equally with the well-to-do, who are not dependent upon their public salaries for a livelihood.
The Franking Privilege.—Another privilege which Congress allows its members is to send their mail through the post office without the payment of postage. The spirit of the law restricts the privilege to the official correspondence of members, but the privilege is generally abused. Thus a senator from South Carolina was recently criticized by the post-office department for franking his typewriter through the mails. President Taft in his annual message to Congress in December, 1910, dwelt upon the abuses of this privilege by members of Congress and other government officials. The postmaster general in 1914 called attention to a recent instance in which more than 300,000 pamphlets were circulated under the frank of a member of Congress, the postage on which would have amounted to $57,000. They related not to public business but to the interest of a certain industry in which he was concerned.
Rights and Privileges of Members of Congress.—The Constitution provides that members shall not be arrested in any case except treason, felony, and breach of the peace, during their attendance at the sessions of their respective houses and in going to and from the same; and for any speech or debate in either house, they cannot be questioned in any other place. The purpose of the first provision is to prevent interference with members in the discharge of their high and responsible duties, through arrest for trivial offenses or trumped-up charges. If a member, however, commits an offense amounting to a breach of the peace, his immunity from arrest ceases and he may be dealt with by the courts as any other offender. The object of the second provision is to secure to members absolute freedom of speech on the floor of Congress by relieving them from the liability to prosecution for slander for anything they may say in the course of debate.
Disqualifications.—On the other hand, the Constitution provides that no person holding any office under the United States shall be a member of either house of Congress during his continuance in office. This provision was adopted in pursuance of the view that the executive and legislative departments should, as far as practicable, be kept separate. Moreover, no senator or representative may, during the time for which he is elected, be appointed to any civil office which shall have been created or the emoluments of which shall have been increased during such time. The purpose of this provision is to prevent Congress from creating new offices or increasing the salaries of existing offices for the benefit of members who might desire to be appointed to them.
Special Functions of the Senate.—The senate is not only a coequal branch of the national legislature but it possesses in addition certain powers not enjoyed by the lower house.
Share in the Appointing Power.—First of all, it shares with the President the power of appointment to federal offices. The Constitution makes its approval necessary to the validity of all appointments made by the executive, the idea being that the participation of the senate would serve as a restraint upon the errors or abuses of the President and thus insure the appointment of honest and capable men to office. But it was never intended to give the senate anything more than the negative power of rejecting the nominations of the President. It is his power to nominate and that of the senate to approve or disapprove the nomination. Nevertheless, there has grown up in the senate a practice by which the senators from a particular state in which an appointment to a federal office is to be made, claim the right to select the appointee themselves and when they have agreed upon him to present his name to the President for appointment; provided, of course, that they are of the same party as the President. If the President refuses to comply with the request of the senators from a particular state, and nominates an official who is unacceptable to them, the custom of "senatorial courtesy," which has become one of the traditions of the senate, requires that the senators from the other states shall stand by their associates in question and reject the nomination of the President. In this way the senate has, in effect, assumed the power of dictating to the President appointments to many federal offices in the states, such as those of postmaster, federal judge, attorney, revenue collector, and the like. If the two senators from a state belong to different political parties, the one with whom the President is in political sympathy controls the federal patronage in the state.
Share in the Treaty-Making Power.—The senate also shares with the President the power of making treaties with foreign countries. The ordinary procedure is for the President, through the Department of State, to negotiate the treaty, after which it is laid before the senate for its approval. Approval by a two-thirds vote of the senators is necessary to the validity of the treaty. The purpose of giving the senate a share in the treaty-making power was to provide a check or restraint upon the possible abuses or errors of the executive. The extraordinary majority required for the approval of the treaty, however, has frequently proved a handicap and led to the defeat of a number of valuable treaties. Thus a small political minority can prevent the ratification of a treaty and sometimes does so when it sees an opportunity to reap political advantage thereby.
The Constitution speaks of the "advice and consent" of the senate, but in practice all the senate does is to give its consent. In the early days, however, the President not infrequently requested the "advice" of the senate before starting the negotiation of a treaty, and if the advice was unfavorable the proposed negotiations were abandoned. Even now if the President has doubts as to whether a proposed treaty would receive the approval of two thirds of the senate he will sometimes consult with the members of the senate committee on foreign relations and with other influential members, before beginning the negotiations.
The senate may reject a treaty in toto, and has done so in many instances, or it may amend a treaty laid before it, in which case it must be sent back to the government of the other country which is a party thereto for concurrence in the amendments. After the senate has consented to the ratification of a treaty, the President may ratify it or not as he likes.
The Senate as a Court of Impeachment.—Another special function of the senate is that of acting as a court for the trial of impeachment cases. The Constitution declares that the President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. Military and naval officers are tried by court-martial and are not therefore liable to impeachment.[29] To impeach an officer is to bring charges against him. So far as federal officers are concerned this power belongs exclusively to the house of representatives, which acts somewhat as a grand jury does in finding indictments against ordinary criminals. When sitting as a court of impeachment the senators are under a special oath, and when the President is on trial the chief justice of the Supreme Court is the presiding officer instead of the Vice President, who, in such a case, would be directly interested in the outcome of the trial, since in the event of the conviction and removal of the President he would succeed to the office. Managers appointed by the house of representatives appear at the bar of the senate to prosecute the charges preferred by the house, witnesses are examined, evidence presented, and the accused is defended by counsel of his own choosing. In order to prevent the employment of the impeachment power for party purposes, the Constitution provides that the concurrence of two thirds of the senators shall be necessary to convict.
The punishment which the senate may inflict in case of conviction is limited to removal from office and disqualification from holding office in the future. The Constitution makes it mandatory upon the senate to remove the convicted official, but whether he shall forever be disqualified from holding office in the future is left to the discretion of the senate. In England the House of Lords, which tries impeachment cases, is not limited in the extent of punishment which it may inflict, but may, at its discretion, sentence the convicted official to imprisonment or the payment of a fine. While the senate of the United States cannot do this, the person convicted and removed may, nevertheless, be indicted and tried by the courts as any other criminal may.
The procedure of removing an officer by impeachment is so cumbersome and unwieldy that it has rarely been resorted to. During our entire history there have been only eight impeachment trials of federal officers, and of these there were convictions in but three cases.[30] If this were the only method of removal it would be difficult to get rid of corrupt and incompetent officials, but it must be remembered that any federal official except the judges may be removed from office by the President for any reason that to him seems fit and proper; and the power is frequently exercised.
References.—Andrews, Manual of the Constitution, pp. 47-68. Beard, American Government and Politics, chs. xii-xiii. Bryce, The American Commonwealth (abridged edition), chs. ix-xii. Harrison, This Country of Ours, ch. ii. Hart, Actual Government, ch. xiii. Hinsdale, American Government, chs. xvii-xxiii. Wilson, Congressional Government, secs. 1273-1293.
Documentary and Illustrative Material.—1. Copy of the Congressional Directory. 2. Copies of the Congressional Record. 3. A map showing the Congressional districts of the state.
1. How many representatives in Congress has your state?
2. Is there any evidence that your state is "gerrymandered"?
3. In what congressional district do you live? How many counties are there in the district? What is its population? How much does the population vary from the congressional ratio? Who is your representative? How many terms has he served? What is his party? By how large a majority was he elected?
4. Who is the senior senator from your state? The junior senator? How many terms has each served? To which of the three classes does each belong?
5. If the first congressional ratio of one member for 30,000 inhabitants were now in force, what would be the number of representatives in the house? Give arguments for and against the proposition that a house of 435 members is too large.
6. Is the present salary of members of Congress sufficiently large to attract the best men? Do you think the European custom of not paying salaries to members of Parliament a wise one?
7. Do you think members of Congress are morally entitled to "constructive" mileage, that is, for mileage not actually traveled, as where one session merges into another?
8. Members of the British Parliament are elected for a term of five years, those of the German Reichstag for five years, those of the French Chamber of Deputies for four years. In view of these rather long terms, do you think a two-year term for American representatives is too short?
9. Do you think the practice of members of Congress of distributing large quantities of garden seed among their constituents at public expense a wise or a vicious one?
10. Do you think public documents printed by authority of Congress should be distributed free of cost to all who desire them?
11. What is your opinion of the practice of members of Congress of printing in the Congressional Record long speeches never delivered in Congress?
12. Would the nomination of members of Congress by direct primary be a better method than nomination by convention?
13. What would be the advantage in requiring a newly elected Congress to assemble shortly after the election instead of about thirteen months thereafter, as is the present rule?
14. Ought the qualifications for voting for representatives in Congress to be determined by national authority instead of by the states?
15. Ought a representative to be required to be a resident of the district from which he is elected?
16. Do you think the states should be equally represented in the senate?
Organization of the Two Houses.—Officers.—Each house of Congress is free to organize itself in such a manner as it pleases, and to choose its own officers, except that the Vice President of the United States is, by the Constitution, made the presiding officer of the senate. The presiding officer of the house of representatives is called the speaker; that of the senate, the president. Each house has one or more clerks who keep the journals, call rolls, read bills, and have custody of all bills, resolutions, petitions, and memorials; a sergeant-at-arms who preserves order, has charge of the halls, pays members their salaries, and performs various other duties[31]; a postmaster; a doorkeeper; a chaplain; and other minor officials.
Opening of a New Congress.—When a new Congress assembles, the house of representatives is called to order by the clerk of the preceding house. He then calls the roll of the members whose credentials or certificates of election have been filed with him, and if a quorum is present the house proceeds to the election of a speaker. The members of each political party represented in the house have already in caucus agreed upon their candidates, and they are now put in nomination before the house by some member representing each party. Usually the action of the caucus of the majority party is equivalent to an election, and the house has only to ratify its choice. In several instances, however, the election of the speaker involved long and bitter contests. Thus in 1849, 63 ballots were taken, and again in 1855-1856, 133 ballots were necessary, and in each case a special rule was adopted permitting a plurality to elect.
The senate, on the other hand, is always an organized body. The presiding officer—the Vice President—at the opening of a new Congress calls the senate to order, and the other officers, who hold during the pleasure of the senate, resume their duties. The senate elects one of its own members as president pro tempore to preside over its deliberations during the absence of the Vice President or in case there is no Vice President, as has often happened.
The Oath of Office is usually administered to the speaker by the oldest member in point of service,—called "the Father of the House,"—after which the speaker calls the other members to the front—usually by state delegations—and administers the oath to them. Newly elected senators are escorted to the Vice President's desk, usually each by his state colleague, and are sworn in individually.
Adoption of the Rules.—After the administering of the oaths of office, the house adopts the rules of the preceding Congress for regulating its procedure pending the adoption of new rules. Usually this is a perfunctory performance and is carried through without opposition. At the opening of the sixty-first Congress, however, strong opposition was manifested toward the old rules and they were not readopted until important amendments had been made in them.
After the adoption of the rules each house appoints a committee to notify the other of its readiness for business, and the two then appoint a joint committee to inform the President of the United States that Congress is ready to receive any communication that he may be pleased to make. The message of the President is then laid before each house and the business of Congress proceeds.
Quorum.—The Constitution provides that a majority of each house shall constitute a quorum for the transaction of business, but that a smaller number may compel the attendance of absent members in such manner and under such penalties as each house may prescribe.
Old Method of Counting a Quorum.—For a long time the method of ascertaining whether a quorum was present was by a roll call. If the roll call failed to show the presence of a majority, the speaker ruled that no quorum was present, even though every member of the house was actually in his seat. In the course of time this rule came to be frequently abused by the minority for the purpose of preventing consideration of measures to which it was opposed. Thus in January, 1890, when the Republicans had only a slight majority in the house of representatives, the Democrats were able, owing to the absence of a few Republican members, to break a quorum and prevent consideration of important measures, by refusing to answer to the roll call. On a notable occasion in January, 1890, the roll call showed 161 yeas, 2 nays, and not voting 165, the 165 who refused to vote being Democrats who were opposed to the taking up of a certain measure which the Republicans desired to pass. Under the rules the roll call did not show a quorum present, though more than two thirds of the members were actually in their seats.
The New Method.—The Republican majority therefore adopted a new rule, that members who were actually in their seats were to be counted by the speaker as present, no matter whether they voted or not. The action of Speaker Reed in enforcing this rule raised a storm of protest by the minority, but he courageously stood his ground. The new rule was readopted by the next Congress though the Democrats were then in the majority, and it has been continued ever since with the exception of one or two Congresses when the old rule was reverted to. Much of the business of Congress is really done, however, when there is no quorum present, this being permissible so long as the point of "no quorum" is not raised by any member.
Open Sessions.—The ordinary sessions of both houses are open to the public, though until 1794 the senate held its sessions in secret. When the senate goes into executive session, as it may do when it is considering nominations of the President to public office or is engaged in considering treaties, the galleries are cleared, the doors closed, and its deliberations are conducted in secret, though, the results of its transactions usually leak out in some way.
Seating of Members.—Until 1913 each member of each house was provided with a seat and a desk, but in that year the desks were removed from the house of representatives in order to bring the members nearer together. Prior to that date, seats were assigned to members by lot at the opening of Congress, but the leader of the minority party and one or two other members of long service were usually allowed to select their seats without resort to the lot. The Democrats are seated on the right of the speaker and the Republicans on the left. In the senate, each seat as it becomes vacant is assigned to the member who first makes application for it to the presiding officer. The house chamber is so large that members in the rear seats are at a disadvantage, and speech making is carried on with difficulty. In 1913, however, this inconvenience was diminished by a reduction in the size of the hall by about one third of the floor space.[32] The senate chamber is less spacious, and debate can be conducted with much greater satisfaction and effectiveness. It would be a great advantage if the number of representatives could be reduced to 250 or 300 so as to make the house less unwieldy, but there is little probability that such a reform will ever be effected. If smaller in size, the house could transact its business with more dispatch, give more careful consideration to bills, and allow members a greater opportunity for discussion.
Committees.—Obviously an assembly of more than 400 members cannot legislate effectively as a whole; its work must be done largely by committees. To some committee every measure and every petition is referred, as are also the various recommendations of the President. In the sixty-seventh Congress (1921-1923) there were thirty-four standing committees in the senate and sixty in the house. Usually there are also several select committees, and occasionally a few joint committees. In the senate, the committees vary in size from three to sixteen members; in the house from three to thirty-five.
The most important committees in the senate are those on appropriations, commerce, finance, foreign relations, interstate commerce, judiciary, military affairs, naval affairs, and public expenditures. The least important are those on disposition of useless papers, University of the United States, and Revolutionary claims, since there is little or no business referred to them. The most important committees in the house are those on ways and means, appropriations, banking and currency, public expenditures, foreign affairs, interstate and foreign commerce, judiciary, military affairs, naval affairs, public buildings and grounds, rivers and harbors, and rules (twelve members now, formerly five). The least important is that on the disposition of useless papers.[33]
Method of Choosing Committees.—In the senate committee assignments are nominally made by the senate itself, but in reality they are made by two committees on committees selected by a caucus of the members of each party, the recommendations of the two committees usually being accepted by the senate without debate. Both parties are represented on each committee, the dominant party, of course, being given a majority of the places. Thus on a committee of thirteen members, the majority party is usually represented by eight members and the minority by five; on a committee of seventeen, the numbers are eleven and six respectively, and so on.
In the house of representatives, from the beginning until very recently, all the committees were appointed by the speaker, a power which gave him great influence in shaping and determining the course of legislation, since he might constitute the committees with reference to their friendliness or unfriendliness toward legislative measures that were referred to them for investigation and report. In making committee assignments, however, the speaker was not entirely free to follow his own individual preferences. Thus the tradition of the house required that he must take into consideration the claims of members whose service had been long and distinguished, while political gratitude led him to reward with desirable committee assignments those to whom he was especially indebted for his election as speaker. Seniority of committee service was also taken into account when the chairmanship of an important committee became vacant, the next ranking member of the committee having a strong claim to be promoted to the vacancy. In 1911, however, the house, then controlled by the Democrats, adopted a rule providing for the election of all standing committees by the house; thus making the method of choosing committees the same as in the senate.
In the house, the chairmanship of every committee, whether important or unimportant, is given to a member of the dominant party, and of course also a majority of the other places on the committee, the proportion between the representation of the two parties being about the same as on the senate committees.
Introduction and Reference of Bills.—After the appointment of the committees the house is ready for the transaction of legislative business. Bills are introduced by sending them, indorsed with the name of the introducer, to the presiding officer's desk, where the fact of presentation is entered on the journal and the bill is given a number.[34] Thus the first bill introduced at the beginning of a new Congress is designated as "S. 1," if presented in the senate, and "H. R. 1," if presented in the house of representatives.
Reference to Committees.—The next step is to refer the bill to a committee for consideration, and in the meantime it is printed and placed on the desks of members. Reference to the appropriate committee is usually made by the presiding officer, though the house may direct that it shall be referred to a particular committee.
Some idea of the mass of legislative projects referred to the committees may be gained from the fact that in the sixtieth Congress 27,114 bills and resolutions were introduced into the two houses, and that of these, 7,839 were reported by the committees to which they were referred. We have here a good illustration of the necessity of the committee system, since it would have been a physical impossibility for either house as a whole to have considered even slightly so many bills. The committees sift out of the mass of proposed legislation such measures as they think worthy of enacting into law, and report their recommendations to the house as a whole.
Committee Hearings.—Committees charged with the consideration of important bills frequently hold public hearings at which interested parties may appear and present arguments for and against the measures under consideration. Thus the ways and means committee of the house in 1909 held public hearings at Washington for many weeks on the tariff bill, and scores of persons appeared to advocate lower or higher rates on various articles on which duties were to be imposed. Frequently members who introduce bills appear before committees and urge favorable action. The more important committees in each house have a regular day in each week for meeting, and a few of those in the house of representatives meet twice a week. Most of the committees, however, have no regular meeting day, being called together by their chairmen as occasion requires.
Forms of Committee Action.—The committee to which a bill is referred may pursue any one of the following courses: (1) It may report the bill back to the house with a recommendation that it be passed; (2) it may amend the bill and recommend that it be passed as amended; (3) it may throw the bill aside and report an entirely new one in its place; (4) it may report the bill unfavorably with a recommendation that it do not pass; (5) it may "pigeonhole" the bill, that is, take no action on it at all, or report it so late in the session that no opportunity is allowed for its consideration. The latter method of disposal, sometimes called "smothering," is the fate that awaits the great majority of bills introduced into Congress. The "smothering" of bills became the subject of so much complaint among members recently that the rules were amended so as to allow members to demand that their bills be reported to the house for consideration. The house, of course, may at any time instruct a committee to report a bill for its action, but this is rarely done.
The report to the house is usually made by the chairman of the committee, or some one designated by him. Not infrequently the minority members of the committee also make a report opposing the recommendation of the majority. The committee system of legislation is so thoroughly established in Congress that a bill favorably reported stands an excellent chance of being passed, while one adversely reported hardly ever passes.
Rules of Procedure.—The Constitution provides that each house may frame its own rules of procedure, though it requires certain things to be done in the interest of publicity and to insure a reasonable degree of careful deliberation. Thus each house is required to keep and publish a journal which must show how motions are disposed of and the vote for and against measures voted on. It also requires that on demand of one fifth of the members present the yeas and nays upon a measure shall be entered upon the journal. The purpose of this provision is to enable a small number of members to put the house on record so that the people may know how their representatives have voted on important measures.
Filibustering.—This requirement serves a useful purpose, but it is sometimes taken advantage of by the minority in "filibustering," that is, in obstructing and delaying legislative proceedings. Thus a member may move to adjourn or to take a recess and ask that the roll be called and the yeas and nays on the question be entered upon the journal. If one fifth of the members join in the demand, the roll must be called and the process may be repeated indefinitely. On one occasion in the fiftieth Congress the house remained in session eight days and nights, during which time there were over one hundred roll calls on motions of this kind.
The Rules of the House of Representatives have evolved gradually out of the experience of the house during its long existence, and have come to be so complex and elaborate that they are really understood by only a few of the members, principally those who have had long experience in administering them. They have been revised from time to time, but except in a few particulars they are essentially what they were in 1880. They prescribe a certain order of business for each day's work, which, however, may be departed from by unanimous consent of all the members or by the adoption of a "special order" reported by the committee on rules.
Committee of the Whole.—Revenue and appropriation bills are considered by the house of representatives in committee of the whole. When the house goes into committee of the whole, the speaker leaves the chair and calls some one else to preside in his place, and the presence of 100 members constitutes a quorum. Debate in committee of the whole is conducted rather informally, and greater freedom of discussion is allowed. It is when in committee of the whole that many of the lengthy speeches printed in the Congressional Record are supposed to be delivered. In reality, however, only a small portion of these speeches are actually delivered, for members after addressing the house a few minutes often secure leave to print the remainder of their remarks. Under this leave, members frequently print long speeches which have little or no relation to the subject under consideration but are intended for campaign purposes or for effect upon their constituents. They are then franked through the mails to the voters throughout the district which the member represents.
If the bill is a private bill, it is called up for consideration on Friday, which is private bill day. Most of the private bills are reported from the committees on claims and on pensions. Six or seven thousand such bills are passed by each Congress, and they constitute about nine tenths of the entire number enacted.
Suspension of the Rules.—The regular order of business may be departed from at any time on the demand of privileged committees like those on ways and means, appropriations, elections, rules, and a few others which have a sort of right of way in the house, because of the urgent character of the matters with which they deal. Furthermore, by unanimous consent, often granted, a particular member is allowed to bring up a bill for consideration outside the regular order. Finally, on two Mondays in every month and during the last six days of the session, the rules may be suspended by a two-thirds vote and measures to which there is little objection may be quickly passed and thus the business of the house expedited.
The Speaker and the Committee on Rules.—No discussion of the procedure of the house of representatives would be adequate without a consideration of the part played by the speaker and the committee on rules in determining the course and character of legislation.
The English Speaker.—The speakership is an ancient office inherited from England, where it originated in the fourteenth century, and is an outgrowth of the practical necessities of legislative procedure. The American speakership, however, differs widely from its English prototype. The speaker of the House of Commons has no such power in shaping legislation and controlling debate as does the American speaker. He is in fact little more than a moderator with power to put motions, state questions, and preserve order and decorum in debate. He is entirely impartial, with no party prejudices.
Powers of the American Speaker.—The American speaker, on the contrary, is not merely the presiding officer of the house, but he is an active party leader who seldom hesitates to give members of his own party every possible advantage in the course of debate. His right to appoint the committees of the house until 1911 gave him increased power over the shaping of legislation, because of the fact that the legislation of the house has come to be legislation largely by its committees. As has already been said, he gave the members of his own party all the chairmanships of committees, as well as a majority of the places on every committee, so that they easily controlled the work of the committees and hence of the house itself.
Recognition.—Moreover, his power of recognition, especially before 1910, that is, the power to grant or withhold the right of discussion, enabled him to a large degree to prevent consideration of measures to which he was opposed and to cut off debate by members of the minority party, joined with the Democrats and brought about several amendments to the rules, one of which is designed to do away with the chief source of complaint in regard to the power of recognition.
Committee on Rules.—Still another source of the speaker's power until 1910 was his control of the committee on rules. The committee consisted of five members, two from the majority, two from the minority, and the speaker, who was the fifth member. The speaker appointed his four associates on the committee and thereby controlled its decisions. If he wished at any time to have the house take up a bill at the bottom of the calendar instead of one at the top, or in any other respect depart from the established order of procedure, he could call the committee together (it was the one committee that had the right to meet when the house was in session) and have it report what was called a "special order," to that effect—an order which the house usually adopted. The opposition to the power of this committee and more especially to its domination by the speaker led in 1910 to the adoption of a rule depriving the speaker of membership on the committee, increasing its size from five to eleven, and taking the appointment of the committee out of his hands. Since then it has been elected by the house, and is, it is asserted, a more representative committee.
Caucus Methods.—It is a common practice for the representatives of each party to hold a caucus before the beginning of the debate upon an important measure, especially one of a political character, for the purpose of deciding what shall be the policy of the party toward the measure. Sometimes a rule is adopted by the caucus binding the members of the party to vote for or against the bill on the floor. Thus in 1913 caucuses of Democratic and representatives declared the tariff and currency bills to be party measures and pledged the members to vote for the bills without amendment. This practice has been criticized on the ground that where members have bound themselves to vote for a bill before it has been discussed on the floor, debate is useless since their minds are no longer open to argument. Perhaps a better procedure would be to hold the caucus after the discussion has terminated but before the final vote is taken.
Final Stages of Procedure.—The rules of the house of representatives restrict the time which may be occupied by any member in debating a measure to one hour, and this cannot be exceeded except by unanimous consent. If he chooses, he may yield a portion of his time to some other member. The chairman who reports the bill usually opens the discussion. He is followed by the ranking member of the minority on the committee, and these are followed by other members of the committee in their turn.
The Previous Question.—After the discussion has proceeded for a time, debate may be terminated and the house brought to a vote by means of the previous question, which is moved in the form, "Shall the main question now be put?" When ordered by the house it ends debate and brings the house directly to a vote. This is an effective method for putting an end to useless discussion of a measure and taking the sense of the house on its passage. It is a common form of procedure in legislative bodies, though the senate, until 1917, had no way of limiting debate.
Voting on Bills.—Questions on the passage of bills are put by the speaker as follows: "As many as are in favor say aye"; "As many as are opposed say no"; the speaker determining the result by the sound of the voices. If there is a doubt as to which side has prevailed, a "division" is called for, in which case those in favor rise and are counted after which those who are opposed rise and are counted. If there is still doubt as to the result, "tellers" may be appointed to determine the vote, in which case those in favor of the measure file between the two tellers, who make a careful count, after which those opposed pass between them and are similarly counted. If one fifth of the members demand that a yea and nay vote be taken, the clerk must call the roll and record each member's vote, and the result is published in the journal so that the way in which a member votes may be known to his constituents and all others who may be interested.
Passage by the Second House.—When a bill is passed by one house, it is signed by the presiding officer, after which it is transmitted to the other house, where it goes through practically the same stages of procedure as described above. If the bill is passed by the other house without amendment it is "enrolled," after which it is ready for the signature of the President. If, however, a bill as passed by one house is amended by the other, it is customary to appoint a conference committee, consisting usually of three members from each house, to discuss the differences and suggest a basis of compromise. The committee usually recommends that each house recede from its position on certain points, and the result is reported to each house, which usually accepts the agreement and the bill is passed. Many important bills are finally passed in this way, though occasionally the two houses fail to reach an agreement and the bill fails.
Approval of the President.—When the bill is presented to the President he is allowed ten days to make up his mind as to whether he will sign or disapprove it. If he refuses to sign it, he usually returns it to the house in which it originated, with a statement of his objections, after which the house must proceed to reconsider it, and if it is passed by a two-thirds vote it is sent to the other chamber and if repassed by it by a two-thirds vote it becomes a law notwithstanding the veto of the President. But in such cases the yeas and nays must be entered on the journal of each house so that the record may show that the bill was properly passed. In case the President does not approve the bill and neglects to return it within ten days to the house in which it originated, it becomes law in the same manner as if he had signed it, unless Congress should adjourn in the meantime so that it cannot be returned, in which case it does not become law. As a large number of bills are usually sent to the President during the last ten days of the session, an opportunity is thus afforded him for defeating bills by neither signing nor vetoing them. This method of defeating bills is popularly described by the term "pocket veto," a procedure sometimes resorted to where the President does not approve a bill and yet does not wish to take the responsibility for positively vetoing it.