Chapter IV: Part 4

As compared with this, the power of the President is insignificant. Of course, as everybody says, he is more powerful than the sovereign of Great Britain. If relative personal power were the principle of etiquette, Mr. Cleveland would certainly not have to lift his hat to the Queen, because the Queen is not the English executive. The prerogatives of the Crown are still much greater than the prerogatives of the presidency; they are exercised, however, not by the wearer of the crown, but by the ministry of the Crown.

As Sir Henry Maine rightly says, the framers of our Constitution, consciously or unconsciously, made the President’s office like the King’s office under the English constitution of their time,--the constitution, namely, of George III., who chose his advisers with or without the assent of Parliament. They took care, however, to pare down the model where it seemed out of measure with the exercise of the people’s liberty. They allowed the President to choose his ministers freely, as George then seemed to have established his right to do; but they made the confirmation of the Senate a necessary condition to his appointments. They vested in him the right of negotiating treaties with foreign governments; but he was not to sign and ratify treaties until he had obtained the sanction of the Senate. That oversight of executive action which Parliament had not yet had the spirit or the inclination to exert, and which it had forfeited its independence by not exerting, was forever secured to our federal upper chamber by the fundamental law. The conditions of mutual confidence and co-operation between executive and legislature now existing in England had not then been developed, and consequently could not be reproduced in this country. The posture and disposition of mutual wariness which were found existing there were made constitutional here by express written provision. In short, the transitional relations of the Crown and Parliament of that day were crystallized in our Constitution, such guarantees of executive good faith and legislative participation in the weightier determinations of government as were lacking in the model being sedulously added in the copy.

The really subordinate position of the presidency is hidden from view partly by that dignity which is imparted to the office by its conspicuous place at the front of a great government, and its security and definiteness of tenure; partly by the independence apparently secured to it by its erection into an entirely distinct and separate ‘branch’ of the government; and partly by those circumstances of our history which have thrust our Presidents forward, during one or two notable periods, as real originators of policy and leaders in affairs. The President has never been powerful, however, except at such times as he has had Congress at his back. While the new government was a-making--and principally because it was a-making--Washington and his secretaries were looked to by Congress for guidance; and during the presidencies of several of Washington’s immediate successors the continued prominence of questions of foreign policy and of financial management kept the officers of the government in a position of semi-leadership. Jackson was masterful with or without right. He entered upon his presidency as he entered upon his campaign in Florida, without asking too curiously for constitutional warrant for what he was to undertake. In the settlement of the southern question Congress went for a time on all-fours with the President. He was powerful because Congress was acquiescent.

But such cases prove rather the usefulness than the strength of the presidency. Congress has, at several very grave crises in national affairs, been seasonably supplied with an energetic leader or agent in the person of the President. At other times, when Congress was in earnest in pushing views not shared by the President, our executives have either been overwhelmed, as Johnson was, or have had to decline upon much humbler services. Their negotiations with foreign governments are as likely to be disapproved as approved; their budgets are cut down like a younger son’s portion; their appointments are censured and their administrations criticised without chance for a counter-hearing. They create nothing. Their veto is neither revisory nor corrective. It is merely obstructive. It is, as I have said, a simple blunt negation, oftentimes necessarily spoken without discrimination against a good bill because of a single bad clause in it. In such a contest between origination and negation origination must always win, or government must stand still.

In England the veto of the Crown has not passed out of use, as is commonly said. It has simply changed its form. It does not exist as an imperative, obstructive ‘No,’ uttered by the sovereign. It has passed over into the privilege of the ministers to throw their party weight, reinforced by their power to dissolve Parliament, against measures of which they disapprove. It is a much-tempered instrument, but for that reason all the more flexible and useful. The old, blunt, antagonistic veto is no longer needed. It is needed here, however, to preserve the presidency from the insignificance of merely administrative functions. Since executive and legislature cannot come into relations of mutual confidence and co-operation, the former must be put in a position to maintain a creditable competition for consideration and dignity.

A clear-headed, methodical, unimaginative President like Mr. Cleveland unaffectedly recognizes the fact that all creating, originating power rests with Congress, and that he can do no more than direct the details of such projects as he finds commended by its legislation. The suggestions of his message he acknowledges to be merely suggestions, which must depend upon public opinion for their weight. If Congress does not regard them, it must reckon with the people, not with him. It is his duty to tell Congress what he thinks concerning the pending questions of the day; it is not his duty to assume any responsibility for the effect produced on Congressmen.

The English have transformed their Crown into a Ministry, and in doing so have recognized both the supremacy of Parliament and the rôle of leadership in legislation properly belonging to a responsible executive. The result has been that they have kept a strong executive without abating either the power or the independence of the representative chamber in respect of its legislative function. We, on the contrary, have left our executive separate, as the Constitution made it; chiefly, it is to be suspected, because the explicit and confident gifts of function contained in that positive instrument have blinded us by their very positiveness to the real subordination of the executive resulting from such a separation. We have supposed that our President was great because his powers were specific, and that our Congress was not supreme because it could not lay its hands directly upon his office and turn him out. In fact, neither the dignity and power of the executive nor the importance of Congress is served by the arrangement. Being held off from authoritative suggestion in legislation, the President becomes, under ordinary circumstances, merely a ministerial officer; whilst Congress, on its part, deprived of such leadership, becomes a legislative mass meeting instead of a responsible co-operating member of a well-organized government. Being under the spell of the Constitution, we have been unable to see the facts which written documents can neither establish nor change.

Singularly enough, there is sharp opposition to the introduction into Congress of any such leadership on the part of the executive as the Ministers of the Crown enjoy in Parliament, on the ground of the increase of power which would accrue as a result to the legislature. It is said that such a change would, by centring party and personal responsibility in Congress, give too great a prominence to legislation; would make Congress the object of too excited an interest on the part of the people. Legislation in Parliament, instead of being piecemeal, tessellated work, such as is made up in Congress of the various fragments contributed by the standing committees, is, under each ministry, a continuous, consistent, coherent whole; and, instead of bearing the sanction of both national parties, is the peculiar policy of only one of them. It is thought that, if such coherence of plan, definiteness and continuity of aim, and sanction of party were to be given the work of Congress, the resulting concentration of popular interest and opinion would carry Congress over all the barriers of the Constitution to an undisputed throne of illimitable power. In short, the potential supremacy of Congress is thought to be kept within bounds, not by the constitutional power of the executive and the judiciary, its co-ordinate branches, but by the intrinsic dulness and confusion of its own proceedings. It cannot make itself interesting enough to be great.

But this is a two-edged argument, which one must needs handle with great caution. It is evidently calculated to destroy every argument constructed on the assumption that it is written laws which are effective to the salvation of our constitutional arrangements; for it is itself constructed on the opposite assumption, that it is the state of popular interest in the nation which balances the forces of the government. It would, too, serve with equal efficacy against any scheme whatever for reforming the present methods of legislation in Congress, with which almost everybody is dissatisfied. Any reform which should tend to give to national legislation that uniform, open, intelligent, and responsible character which it now lacks, would also create that popular interest in the proceedings of Congress which, it is said, would unhinge the Constitution. Democracy is so delicate a form of government that it must break down if given too great facility or efficacy of operation. No one body of men must be suffered to utter the voice of the people, lest that voice become, through it, directly supreme.

The fact of the overtopping power of Congress, however, remains. The houses create all governmental policy, with that wide latitude of ‘political discretion’ in the choice of means which the Supreme Court unstintingly accords them. Congress has often come into conflict with the Supreme Court by attempting to extend the province of the federal government as against the States; but it has seldom, I believe, been brought effectually to book for any alleged exercise of powers as against its directly competing branch, the executive. Having by constitutional grant the last word as to foreign relations, the control of the finances, and even the oversight of executive appointments, Congress exercises what powers of direction and management it pleases, as fulfilling, not as straining, the Constitution. Government lives in the origination, not in the defeat, of measures of government. The President obstructs by means of his ‘No;’ the houses govern by means of their ‘Yes.’ He has killed some policies that are dead; they have given birth to all policies that are alive.

But the measures born in Congress have no common lineage. They have not even a traceable kinship. They are fathered by a score or two of unrelated standing committees: and Congress stands godfather to them all, without discrimination. Congress, in effect, parcels out its great powers amongst groups of its members, and so confuses its plans and obscures all responsibility. It is a leading complaint of Sir Henry Maine’s against the system in England, which is just under his nose, that it confers the preliminary shaping and the initiation of all legislation upon the cabinet, a body which deliberates and resolves in strict secrecy,--and so reminds him, remotely enough, of the Spartan Ephors and the Venetian Council of Ten. He commends, by contrast, that constitution (our own, which he sees at a great distance) which reserves to the legislature itself the origination and drafting of its measures. It is hard for us, who have this commended constitution under our noses, to perceive wherein we have the advantage. British legislation is for the most part originated and shaped by a single committee, acting in secret, whose proposals, when produced, are eagerly debated and freely judged by the sovereign legislative body. Our legislation is framed and initiated by a great many committees, deliberating in secret, whose proposals are seldom debated and only perfunctorily judged by the sovereign legislative body. It is impossible to mistake the position and privileges of the Brutish cabinet, so great and conspicuous and much discussed are they. They simplify the whole British system for men’s comprehension by merely standing at the centre of it. But our own system is simple only in appearance. It is easy to see that our legislature and executive are separate, and that the legislature matures its own measures by means of committees of its own members. But it may readily escape superficial observation that our legislature, instead of being served, is ruled by its committees; that those committees prepare their measures in private; that their number renders their privacy a secure secrecy, by making them too many to be watched, and individually too insignificant to be worth watching; that their division of prerogatives results in a loss, through diffusion, of all actual responsibility; and that their co-ordination leads to such a competition among them for the attention of their respective houses that legislation is rushed, when it is not paralyzed.

It is thus that, whilst all real power is in the hands of Congress, that power is often thrown out of gear and its exercise brought almost to a standstill. The competition of the committees is the clog. Their reports stand in the way of each other, and so the complaint is warranted that Congress can get nothing done. Interests which press for attention in the nation are reported upon by the appropriate committee, perhaps, but the report gets pushed to the wall. Or they are not reported upon. They are brought to the notice of Congress, but they go to a committee which is unfavorable. The progress of legislation depends both upon the fortunes of competing reports and upon the opinions held by particular committees.

The same system of committee government prevails in our state legislatures, and has led to some notable results, which have recently been pointed out in a pamphlet entitled _American Constitutions_, contributed to the Johns Hopkins series of Studies in History and Political Science by Mr. Horace Davis. In the state legislatures, as in Congress, the origination and control of legislation by standing committees has led to haphazard, incoherent, irresponsible law-making, and to a universal difficulty about getting anything done. The result has been that state legislatures have been falling into disrepute in all quarters. They are despised and mistrusted, and many States have revised their constitutions in order to curtail legislative powers and limit the number and length of legislative sessions. There is in some States an apparent inclination to allow legislators barely time enough to provide moneys for the maintenance of the governments. In some instances necessary powers have been transferred from the legislatures to the courts; in others to the governors. The intent of all such changes is manifest. It is thought safer to entrust power to a law court, performing definite functions under clear laws and in accordance with strict judicial standards, or to a single conspicuous magistrate, who can be watched and cannot escape responsibility for his official acts, than to entrust it to a numerous body which burrows toward its ends in committee-rooms, getting its light through lobbies; and which has a thousand devices for juggling away responsibility, as well as scores of antagonisms wherewith to paralyze itself.

Like fear and distrust have often been felt and expressed of late years concerning Congress, for like reasons. But so far no attempt has been made to restrict either the powers or the time of Congress. Amendments to the Constitution are difficult almost to the point of impossibility, and the few definite schemes nowadays put forward for a revision of the Constitution involve extensions rather than limitations of the powers of Congress. The fact is that, though often quite as exasperating to sober public opinion as any state legislature, Congress is neither so much distrusted nor so deserving of distrust. Its high place and vast sphere in the government of the nation cause its members to be more carefully chosen, and its proceedings to be more closely watched, and frequently controlled by criticism. The whole country has its eyes on Congress, and Congress is aware of the fact. It has both the will and the incentive to be judicious and patriotic. Newspaper editors have constantly to be saying to their readers, ‘Look what our state legislators are doing;’ they seldom have to urge, ‘Look what Congress is doing.’ It cannot, indeed, be watched easily, or to much advantage. It requires a distinct effort to watch it. It has no dramatic contests of party leaders to attract notice. Its methods are so much after the fashion of the game of hide-and-seek that the eye of the ordinary man is quite baffled in trying to understand or follow them, if he try only at leisure moments. But, at the same time, the interests handled by Congress are so vast that at least the newspapers and the business men, if no others, must watch its legislation as best they may. However hard it may be to observe, it is too influential in great affairs to make it safe for the country to give over trying to observe it.

But though Congress may always be watched, and so in a measure controlled, despite its clandestine and confusing methods, those methods must tend to increase the distrust with which Congress is widely regarded; and distrust cannot but enervate, belittle, and corrupt this will-centre of the Constitution. The question is not merely, How shall the methods of Congress be clarified and its ways made purposeful and responsible? There is this greater question at stake: How shall the essential arrangements of the Constitution be preserved? Congress is the purposing, designing, aggressive power of the national government. Disturbing and demoralizing influences in the organism, if there be any, come out from its restless energies. Damaging encroachments upon ground forbidden to the federal government generally originate in measures of its planning. So long as it continues to be governed by unrelated standing committees, and to take its resolves in accordance with no clear plan, no single, definite purpose, so long as what it does continues to be neither evident nor interesting, so long must all its exertions of power be invidious; so long must its competition with the executive or the judiciary seem merely jealous and always underhand: so long must it remain virtually impossible to control it through public opinion. As well ask the stranger in the gallery of the New York Stock Exchange to judge of the proceedings on the floor. As well ask a man who has not time to read all the newspapers in the Union to judge of passing sentiment in all parts of the country. Congress in its composition is the country in miniature. It realizes Hobbes’s definition of liberty as political power divided into small fragments. The standing committees typify the individuals of the nation. Congress is better fitted for counsel than the voters simply because its members are less than four hundred instead of more than ten millions.

It has been impossible to carry out the programme of the Constitution; and, without careful reform, the national legislature will even more dangerously approach the perilous model of a mass meeting. There are several ways in which Congress can be so integrated as to impart to its proceedings system and party responsibility. That may be done by entrusting the preparation and initiation of legislation to a single committee in each house, composed of the leading men of the majority in that house. Such a change would not necessarily affect the present precedents as to the relations between the executive and the legislature. They might still stand stiffly apart. Congress would be integrated and invigorated, however, though the whole system of the government would not be. To integrate that, some common meeting-ground of public consultation must be provided for the executive and the houses. That can be accomplished only by the admission to Congress, in whatever capacity,--whether simply to answer proper questions and to engage in debate, or with the full privileges of membership,--of official representatives of the executive who understand the administration and are interested and able to defend it. Let the tenure of ministers have what disconnection from legislative responsibility may seem necessary to the preservation of the equality of House and Senate, and the separation of administration from legislation; light would at least be thrown upon administration; it would be given the same advantages of public suggestion and unhampered self-defence that Congress, its competitor, has; and Congress would be constrained to apply system and party responsibility to its proceedings.

The establishment in the United States of what is known as ‘ministerial responsibility’ would unquestionably involve some important changes in our constitutional system. I am strongly of the opinion that such changes would not be too great a price to pay for the advantages secured us by such a government. Ministerial responsibility supplies the only conditions which have yet proved efficacious, in the political experience of the world, for vesting recognized leadership in men chosen for their abilities by a natural selection of debate in a sovereign assembly of whose contests the whole country is witness. Such survival of the ablest in debate seems the only process available for selecting leaders under a popular government. The mere fact that such a contest proceeds with such a result is the strongest possible incentive to men of first-rate powers to enter legislative service; and popular governments, more than any other governments, need leaders so placed that, by direct contact with both the legislative and the executive departments of the government, they shall see the problems of government at first hand; and so trained that they shall at the same time be, not mere administrators, but also men of tact and eloquence, fitted to persuade masses of men and to draw about themselves a loyal following.

If we borrowed ministerial responsibility from England, we should, too, unquestionably enjoy an infinite advantage over the English in the use of it. We should sacrifice by its adoption none of that great benefit and security which our federal system derives from a clear enumeration of powers and an inflexible difficulty of amendment. If anything would be definite under cabinet government, responsibility would be definite; and, unless I am totally mistaken in my estimate of the legal conscience of the people of this country,--which seems to me to be the heart of our whole system,--definite responsibility will establish rather than shake those arrangements of our Constitution which are really our own, and to which our national pride properly attaches, namely, the distinct division of powers between the state and federal governments, the slow and solemn formalities of constitutional change, and the interpretative functions of the federal courts. If we are really attached to these principles, the concentration of responsibility in government will doubly insure their preservation. If we are not, they are in danger of destruction in any case.

But we cannot have ministerial responsibility in its fulness under the Constitution as it stands. The most that we can have is distinct legislative responsibility, with or without any connection of co-operation or of mutual confidence between the executive and Congress. To have so much would be an immense gain. Changes made to this end would leave the federal system still an unwieldy mechanism of counteracting forces, still without unity or flexibility; but we should at least have made the very great advance of fastening upon Congress an even more positive form of accountability than now rests upon the President and the courts. Questions of vast importance and infinite delicacy have constantly to be dealt with by Congress; and there is an evident tendency to widen the range of those questions. The grave social and economic problems now thrusting themselves forward, as the result of the tremendous growth and concentration of our population, and the consequent sharp competition for the means of livelihood, indicate that our system is already aging, and that any clumsiness, looseness, or irresponsibility in governmental action must prove a source of grave and increasing peril. There are already commercial heats and political distempers in our body politic which warn of an early necessity for carefully prescribed physic. Under such circumstances, some measure of legislative reform is clearly indispensable. We cannot afford to put up any longer with such legislation as we may happen upon. We must look and plan ahead. We must have legislation which has been definitely forecast in party programmes and explicitly sanctioned by the public voice. Instead of the present arrangements for compromise, piecemeal legislation, we must have coherent plans from recognized party leaders, and means for holding those leaders to a faithful execution of their plans in clear-cut Acts of Congress.

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Transcriber’s Notes

Punctuation, hyphenation, and spelling were made consistent when a predominant preference was found in the original book; otherwise they were not changed.

Simple typographical errors were corrected; unbalanced quotation marks were remedied when the change was obvious, and otherwise left unbalanced.

Transcriber removed duplicate hemi-title pages preceding each essay.

Illustrations in this eBook are decorative, used as filler in the advertisements.