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.
[Illustration]
_LIST OF VOLUMES OF ESSAYS ON LITERATURE, ART, MUSIC, ETC., PUBLISHED
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