countries, but a constitution which is perfectly definite and which
is preserved by very formidable difficulties of amendment against
inconsiderate change. The difference between our own case and that
of Great Britain upon which we have most reason to congratulate
ourselves is that here public opinion has definite _criteria_ for its
conservatism; whereas in England it has only shifting and uncertain
precedent. In both countries there is the same respect for law. But
there is not in England the same certainty as to what the law of the
constitution is. We have a fundamental law which is written, and which
in its main points is read by all alike in a single accepted sense.
There is no more quarrel about its main intent than there is in England
about the meaning of Magna Charta. Much of the British constitution, on
the contrary, has not the support of even a common statute. It may, in
respect of many vital parts of it, be interpreted or understood in half
a dozen different ways, _and amended by the prevalent understanding_.
We are not more free than the English; we are only more secure.
The definiteness of our Constitution, nevertheless, apart from its
outline of structural arrangements and of the division of functions
among the several departments of the government, is negative rather
than affirmative. Its very enumeration of the powers of Congress is
but a means of indicating very plainly what Congress can _not_ do.
It is significant that one of the most important and most highly
esteemed of the many legal commentaries on our government should be
entitled ‘Constitutional Limitations.’ In expounding the restrictions
imposed by fundamental law upon state and federal action, Judge
Cooley is allowed to have laid bare the most essential parts of our
constitutional system. It was a prime necessity in so complex a
structure that bounds should be set to authority. The ‘may-nots’ and
the ‘shall-nots’ of our constitutions, consequently, give them their
distinctive form and character. The strength which preserves the system
is the strength of self-restraint.
And yet here again it must be understood that mere definiteness of
legal provision has no saving efficacy of its own. These distinct lines
run between power and power will not of their own virtue maintain
themselves. It is not in having such a constitution but in obeying
it that our advantage lies. The vitality of such provisions consists
wholly in the fact that they receive our acquiescence. They rest
upon the legal conscience, upon what Mr. Grote would have called the
‘constitutional morality,’ of our race. They are efficient because we
are above all things law-abiding. The prohibitions of the law do not
assert themselves as taskmasters set over us by some external power.
They are of our own devising. We are self-restrained.
This legal conscience manifestly constitutes the only guarantee, for
example, of the division of powers between the state and federal
governments, that chief arrangement of our constitutional system. The
integrity of the powers possessed by the States has from the first
depended solely upon the conservatism of the federal courts. State
functions have certainly not decayed; but they have been preserved, not
by virtue of any forces of self-defence of their own, but because the
national government has been vouchsafed the grace of self-restraint.
What curtailment their province might suffer has been illustrated
in several notable cases in which the Supreme Court of the United
States has confirmed to the general government extensive powers of
punishing state judicial and executive officers for disobedience to
state laws. Although the federal courts have generally held Congress
back from aggressions upon the States, they have nevertheless once
and again countenanced serious encroachments upon state powers; and
their occasional laxity of principle on such points is sufficiently
significant of the fact that there is no _balance_ between the state
and federal governments, but only the safeguard of a customary
‘constitutional morality’ on the part of the federal courts. The actual
encroachments upon state rights which those courts have permitted,
under the pressure of strong political interests at critical periods,
were not, however, needed to prove the potential supremacy of the
federal government. They only showed how that potential supremacy would
on occasion become actual supremacy. There is no guarantee but that of
conscience that justice will be accorded a suitor when his adversary is
both court and opposing litigant. So strong is the instinct of those
who administer our governments to keep within the sanction of the law,
that even when the last three amendments to the Constitution were being
forced upon the southern states by means which were revolutionary the
outward forms of the Constitution were observed. It was none the less
obvious, however, with what sovereign impunity the national government
might act in stripping those forms of their genuineness. As there are
times of sorrow or of peril which try men’s souls and lay bare the
inner secrets of their characters, so there are times of revolution
which act as fire in burning away all but the basic elements of
constitutions. It is then, too, that dormant powers awake which are not
afterward readily lulled to sleep again.
Such was certainly the effect of the civil war upon the Constitution of
the Union. The implying of powers, once cautious, is now become bold
and confident. In the discussions now going forward with reference to
federal regulation of great corporations, and with reference to federal
aid to education, there are scores of writers and speakers who tacitly
assume the power of the federal government to act in such matters, for
one that urges a constitutional objection. Constitutional objections,
before the war habitual, have, it would seem, permanently lost their
prominence.
The whole energy of origination under our system rests with Congress.
It stands at the front of all government among us; it is the single
affirmative voice in national policy. First or last, it determines what
is to be done. The President, indeed, appoints officers and negotiates
treaties, but he does so subject to the ‘yes’ of the Senate. Congress
organizes the executive departments, organizes the army, organizes the
navy. It audits, approves, and pays expenses. It conceives and directs
all comprehensive policy. All else is negation. The President says
‘no’ in his vetoes; the Supreme Court says ‘no’ in its restraining
decisions. And it is as much the law of public opinion as the law of
the Constitution that restrains the action of Congress.
It is the habit both of English and American writers to speak of the
constitution of Great Britain as if it were ‘writ in water,’ because
nothing but the will of Parliament stands between it and revolutionary
change. But is there nothing back of the will of Parliament? Parliament
dare not go faster than the public thought. There are vast barriers
of conservative public opinion to be overrun before a ruinous speed
in revolutionary change can be attained. In the last analysis, our
own Constitution has no better safeguard. We have, as I have already
pointed out, the salient advantage of knowing just what the standards
of our Constitution are. They are formulated in a written code, wherein
all men may look and read; whereas many of the designs of the British
system are to be sought only in a cloud-land of varying individual
readings of affairs. From the constitutional student’s point of view,
there are, for instance, as many different Houses of Lords as there
are writers upon the historical functions of that upper chamber. But
the public opinion of Great Britain is no more a juggler of precedents
than is the public opinion of this country. Perhaps the absence
of a written constitution makes it even less a fancier of logical
refinements. The arrangements of the British constitution have, for all
their theoretical instability, a very firm and definite standing in the
political habit of Englishmen: and the greatest of those arrangements
can be done away with only by the extraordinary force of conscious
revolution.
It is wholesome to observe how much of our own institutions rests upon
the same basis, upon no other foundations than those that are laid in
the opinions of the people. It is within the undoubted constitutional
power of Congress, for example, to overwhelm the opposition of the
Supreme Court upon any question by increasing the number of justices
and refusing to confirm any appointments to the new places which do
not promise to change the opinion of the court. Once, at least, it
was believed that a plan of this sort had been carried deliberately
into effect. But we do not think of such a violation of the spirit of
the Constitution as possible, simply because we share and contribute
to that public opinion which makes such outrages upon constitutional
morality impossible by standing ready to curse them. There is a close
analogy between this virtual inviolability of the Supreme Court and the
integrity hitherto vouchsafed to the English House of Lords. There may
be an indefinite creation of peers at any time that a strong ministry
chooses to give the sovereign its imperative advice in favor of such
a course. It was, doubtless, fear of the final impression that would
be made upon public opinion by action so extraordinary, as much as the
timely yielding of the Lords upon the question at issue, that held the
ministry back from such a measure, on one notable occasion. Hitherto
that ancient upper chamber has had in this regard the same protection
that shields our federal judiciary.
It is not essentially a different case as between Congress and the
Executive. Here, too, at the very centre of the Constitution, Congress
stands almost supreme, restrained by public opinion rather than by law.
What with the covetous admiration of the presidency recently manifested
by some alarmed theorists in England, and the renewed prestige lately
given that office by the prominence of the question of civil service
reform, it is just now particularly difficult to apply political facts
to an analysis of the President’s power. But a clear conception of his
real position is for that very reason all the more desirable. While
he is a dominant figure in politics would seem to be the best time to
scrutinize and understand him.
It is clearly misleading to use the ascendant influence of the
President in effecting the objects of civil service reform as an
illustration of the constitutional size and weight of his office.
The principal part in making administration pure, business-like, and
efficient must always, under any conceivable system of government,
be taken by the executive. It was certainly taken by the executive
in England thirty years ago; and that much in opposition to the will
of Parliament. The prominence of our President in administrative
reform furnishes no sufficient ground for attributing a singularity of
executive influence to the government of this country.
In estimating the actual powers of the President it is no doubt best
to begin, as almost all writers in England and America now habitually
begin, with a comparison between the executives of the two kindred
countries. Whilst Mr. Bagehot has done more than any other thinker
to clear up the facts of English constitutional practice, he has
also, there is reason to believe, done something toward obscuring
those facts. Everybody, for instance, has accepted as wholly true
his description of the ministry of the Crown as merely an executive
committee of the House of Commons; and yet that description is only
partially true. An English cabinet represents, not the Commons only,
but also the Crown. Indeed, it is itself ‘the Crown.’ All executive
prerogatives are prerogatives which it is within the discretion of the
cabinet itself to make free use of. The fact that it is generally the
disposition of ministers to defer to the opinion of Parliament in the
use of the prerogative, does not make that use the less a privilege
strictly beyond the sphere of direct parliamentary control, to be
exercised independently of its sanction, even secretly on occasion,
when ministers see their way clear to serving the state thereby. “The
ministry of the day,” says a perspicacious expounder of the English
system,[E] “appears in Parliament, on the one hand, as personating the
Crown in the legitimate exercise of its recognized prerogatives; and
on the other hand, as the mere agent of Parliament itself, in the
discharge of the executive and administrative functions of government
cast upon them by law.” Within the province of the prerogative “lie the
stirring topics of foreign negotiations, the management of the army
and navy, public finance, and, in some important respects, colonial
administration.” Very recent English history furnishes abundant and
striking evidence of the vitality of the prerogative in these fields
in the hands of the gentlemen who “personate the Crown” in Parliament.
“No subject has been more eagerly discussed of late,” declares Mr.
Amos (page 187), “than that of the province of Parliament in respect
of the making of treaties and the declaration of war. No prerogative
of the Crown is more undisputed than that of taking the initiative in
all negotiations with foreign governments, conducting them throughout,
and finally completing them by the signature and ratification of a
treaty.... It is a bare fact that during the progress of the British
diplomatic movements which terminated in the Treaty of Berlin of 1878,
or more properly in the Afghan war of that year,”--including the
secret treaty by which Turkey ceded Cyprus to England, and England
assumed the protectorate of Asia Minor,--“Parliament never had an
opportunity of expressing its mind on any one of the important and
complicated engagements to which the country was being committed, or
upon the policy of the war upon the northwest frontier of India. The
subjects were, indeed, over and over again discussed in Parliament,
but always subsequent to irreparable action having been taken by the
government” (page 188). Had Mr. Amos lived to take his narrative
of constitutional affairs beyond 1880, he would have had equally
significant instances of ministerial initiative to adduce in the cases
of Egypt and Burmah.
[E] Mr. Sheldon Amos: Fifty Years of the English Constitution,
page 338.
The unfortunate campaign in the Soudan was the direct outcome of the
purchase of the Suez Canal shares by the British government in 1875.
The result of that purchase was that “England became pledged in a
wholly new and peculiar way to the support of the existing Turkish and
Egyptian dominion in Egypt; that large English political interests
were rendered subservient to the decisions of local tribunals in a
foreign country; and that English diplomatic and political action in
Egypt, and indeed in Europe, was trammelled, or at least indirectly
influenced, by a narrow commercial interest which could not but weigh,
however slightly, upon the apparent purity and simplicity of the
motives of the English government.” And yet the binding engagements
which involved all this were entered into “despite the absence of all
assistance from, or consent of, Parliament.”[F] Such exercises of the
prerogatives of the Crown receive additional weight from “the almost
recognized right of evolving an army of almost any size from the Indian
seed-plot, of using reserve forces without communication to Parliament
in advance, and of obtaining large votes of credit for prospective
military operations of an indefinite character, the nature of which
Parliament is allowed only dimly to surmise” (page 392). The latest
evidence of the “almost recognized” character of such rights was the
war preparations made by England against Russia in 1885. If to such
powers of committing the country irrevocably to far-reaching foreign
policies, of inviting or precipitating war, and of using Indian troops
without embarrassment from the trammels of the Mutiny Act, there be
added the great discretionary functions involved in the administration
of colonial affairs, some measure may be obtained of the power wielded
by ministers, not as the mere agents of Parliament, but as personating
the Crown. Such is in England the independence of action possible to
the executive.
[F] Amos, page 384.
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.