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Books by Woodrow Wilson
CONGRESSIONAL GOVERNMENT. A Study in
American Politics. 16mo, $1.25.
MERE LITERATURE, and Other Essays, 12mo,
$1.50.
HOUGHTON MIFFLIN COMPANY
BOSTON AND NEW YORK
CONGRESSIONAL GOVERNMENT
_A STUDY IN AMERICAN POLITICS_
BY
WOODROW WILSON
BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge
COPYRIGHT, 1885, BY WOODROW WILSON
ALL RIGHTS RESERVED
To
His Father,
THE PATIENT GUIDE OF HIS YOUTH,
THE GRACIOUS COMPANION OF HIS MANHOOD,
HIS BEST INSTRUCTOR AND MOST LENIENT CRITIC,
This Book
IS AFFECTIONATELY DEDICATED
BY
THE AUTHOR.
PREFACE TO FIFTEENTH EDITION.
I have been led by the publication of a French translation of this
little volume to read it through very carefully, for the first time
since its first appearance. The re-reading has convinced me that it
ought not to go to another impression without a word or two by way of
preface with regard to the changes which our singular system of
Congressional government has undergone since these pages were written.
I must ask those who read them now to remember that they were written
during the years 1883 and 1884, and that, inasmuch as they describe a
living system, like all other living things subject to constant subtle
modifications, alike of form and of function, their description of the
government of the United States is not as accurate now as I believe it
to have been at the time I wrote it.
This is, as might have been expected, more noticeable in matters of
detail than in matters of substance. There are now, for example, not
three hundred and twenty-five, but three hundred and fifty-seven members
in the House of Representatives; and that number will, no doubt, be
still further increased by the reapportionment which will follow the
census of the present year. The number of committees in both Senate and
House is constantly on the increase. It is now usually quite sixty in
the House, and in the Senate more than forty. There has been a still
further addition to the number of the "spending" committees in the House
of Representatives, by the subdivision of the powerful Committee on
Appropriations. Though the number of committees in nominal control of
the finances of the country is still as large as ever, the tendency is
now towards a concentration of all that is vital in the business into
the hands of a few of the more prominent, which are most often mentioned
in the text. The auditing committees on the several departments, for
example, have now for some time exercised little more than a merely
nominal oversight over executive expenditures.
Since the text was written, the Tenure of Office Act, which sought to
restrict the President's removal from office, has been repealed; and
even before its repeal it was, in fact, inoperative. After the time of
President Johnson, against whom it was aimed, the party in power in
Congress found little occasion to insist upon its enforcement; its
constitutionality was doubtful, and it fell into the background. I did
not make sufficient allowance for these facts in writing the one or two
sentences of the book which refer to the Act.
Neither did I give sufficient weight, I now believe, to the powers of
the Secretary of the Treasury. However minutely bound, guided,
restricted by statute, his power has proved at many a critical juncture
in our financial history--notably in our recent financial history--of
the utmost consequence. Several times since this book was written, the
country has been witness to his decisive influence upon the money
markets, in the use of his authority with regard to the bond issues of
the government and his right to control the disposition of the funds of
the Treasury. In these matters, however, he has exercised, not
political, but business power. He has helped the markets as a banker
would help them. He has altered no policy. He has merely made
arrangements which would release money for use and facilitate loan and
investment. The country feels safer when an experienced banker, like Mr.
Gage, is at the head of the Treasury, than when an experienced
politician is in charge of it.
All these, however, are matters of detail. There are matters of
substance to speak of also.
It is to be doubted whether I could say quite so confidently now as I
said in 1884 that the Senate of the United States faithfully represents
the several elements of the nation's makeup, and furnishes us with a
prudent and normally constituted moderating and revising chamber.
Certainly vested interests have now got a much more formidable hold upon
the Senate than they seemed to have sixteen years ago. Its political
character also has undergone a noticeable change. The tendency seems to
be to make of the Senate, instead of merely a smaller and more
deliberate House of Representatives, a body of successful party
managers. Still, these features of its life may be temporary, and may
easily be exaggerated. We do not yet know either whether they will
persist, or, should they persist, whither they will lead us.
A more important matter--at any rate, a thing more concrete and
visible--is the gradual integration of the organization of the House of
Representatives. The power of the Speaker has of late years taken on new
phases. He is now, more than ever, expected to guide and control the
whole course of business in the House,--if not alone, at any rate
through the instrumentality of the small Committee on Rules, of which he
is chairman. That committee is expected not only to reformulate and
revise from time to time the permanent Rules of the House, but also to
look closely to the course of its business from day to day, make its
programme, and virtually control its use of its time. The committee
consists of five members; but the Speaker and the two other members of
the committee who represent the majority in the House determine its
action; and its action is allowed to govern the House. It in effect
regulates the precedence of measures. Whenever occasion requires, it
determines what shall, and what shall not, be undertaken. It is like a
steering ministry,--without a ministry's public responsibility, and
without a ministry's right to speak for both houses. It is a private
piece of party machinery within the single chamber for which it acts.
The Speaker himself--not as a member of the Committee on Rules, but by
the exercise of his right to "recognize" on the floor--undertakes to
determine very absolutely what bills individual members shall be allowed
to bring to a vote, out of the regular order fixed by the rules or
arranged by the Committee on Rules.
This obviously creates, in germ at least, a recognized and sufficiently
concentrated leadership within the House. The country is beginning to
know that the Speaker and the Committee on Rules must be held
responsible in all ordinary seasons for the success or failure of the
session, so far as the House is concerned. The congressional caucus has
fallen a little into the background. It is not often necessary to call
it together, except when the majority is impatient or recalcitrant under
the guidance of the Committee on Rules. To this new leadership,
however, as to everything else connected with committee government, the
taint of privacy attaches. It is not leadership upon the open floor,
avowed, defended in public debate, set before the view and criticism of
the country. It integrates the House alone, not the Senate; does not
unite the two houses in policy; affects only the chamber in which there
is the least opportunity for debate, the least chance that
responsibility may be properly and effectively lodged and avowed. It has
only a very remote and partial resemblance to genuine party leadership.
Much the most important change to be noticed is the result of the war
with Spain upon the lodgment and exercise of power within our federal
system: the greatly increased power and opportunity for constructive
statesmanship given the President, by the plunge into international
politics and into the administration of distant dependencies, which has
been that war's most striking and momentous consequence. When foreign
affairs play a prominent part in the politics and policy of a nation,
its Executive must of necessity be its guide: must utter every initial
judgment, take every first step of action, supply the information upon
which it is to act, suggest and in large measure control its conduct.
The President of the United States is now, as of course, at the front of
affairs, as no president, except Lincoln, has been since the first
quarter of the nineteenth century, when the foreign relations of the new
nation had first to be adjusted. There is no trouble now about getting
the President's speeches printed and read, every word. Upon his choice,
his character, his experience hang some of the most weighty issues of
the future. The government of dependencies must be largely in his hands.
Interesting things may come out of the singular change.
For one thing, new prizes in public service may attract a new order of
talent. The nation may get a better civil service, because of the sheer
necessity we shall be under of organizing a service capable of carrying
the novel burdens we have shouldered.
It may be, too, that the new leadership of the Executive, inasmuch as it
is likely to last, will have a very far-reaching effect upon our whole
method of government. It may give the heads of the executive departments
a new influence upon the action of Congress. It may bring about, as a
consequence, an integration which will substitute statesmanship for
government by mass meeting. It may put this whole volume hopelessly out
of date.
WOODROW WILSON.
PRINCETON UNIVERSITY, 15 _August_, 1900.
PREFACE
The object of these essays is not to exhaust criticism of the government
of the United States, but only to point out the most characteristic
practical features of the federal system. Taking Congress as the central
and predominant power of the system, their object is to illustrate
everything Congressional. Everybody has seen, and critics without number
have said, that our form of national government is singular, possessing
a character altogether its own; but there is abundant evidence that very
few have seen just wherein it differs most essentially from the other
governments of the world. There have been and are other federal systems
quite similar, and scarcely any legislative or administrative principle
of our Constitution was young even when that Constitution was framed. It
is our legislative and administrative _machinery_ which makes our
government essentially different from all other great governmental
systems. The most striking contrast in modern politics is not between
presidential and monarchical governments, but between Congressional and
Parliamentary governments. Congressional government is Committee
government; Parliamentary government is government by a responsible
Cabinet Ministry. These are the two principal types which present
themselves for the instruction of the modern student of the practical in
politics: administration by semi-independent executive agents who obey
the dictation of a legislature to which they are not responsible, and
administration by executive agents who are the accredited leaders and
accountable servants of a legislature virtually supreme in all things.
My chief aim in these essays has been, therefore, an adequate
illustrative contrast of these two types of government, with a view to
making as plain as possible the actual conditions of federal
administration. In short, I offer, not a commentary, but an outspoken
presentation of such cardinal facts as may be sources of practical
suggestion.
WOODROW WILSON
JOHNS HOPKINS UNIVERSITY, _October_ 7, 1884.
CONTENTS.
I. INTRODUCTORY 1
II. THE HOUSE OF REPRESENTATIVES 58
III. THE HOUSE OF REPRESENTATIVES. REVENUE AND SUPPLY 130
IV. THE SENATE 193
V. THE EXECUTIVE 242
VI. CONCLUSION 294
CONGRESSIONAL GOVERNMENT:
A STUDY IN AMERICAN POLITICS.
I.
INTRODUCTORY.
The laws reach but a very little way. Constitute government how you
please, infinitely the greater part of it must depend upon the
exercise of powers, which are left at large to the prudence and
uprightness of ministers of state. Even all the use and potency of
the laws depends upon them. Without them your commonwealth is no
better than a scheme upon paper; and not a living, active,
effective organization.--BURKE.
The great fault of political writers is their too close adherence
to the forms of the system of state which they happen to be
expounding or examining. They stop short at the anatomy of
institutions, and do not penetrate to the secret of their
functions.--JOHN MORLEY.
It would seem as if a very wayward fortune had presided over the history
of the Constitution of the United States, inasmuch as that great federal
charter has been alternately violated by its friends and defended by its
enemies. It came hard by its establishment in the first place,
prevailing with difficulty over the strenuous forces of dissent which
were banded against it. While its adoption was under discussion the
voices of criticism were many and authoritative, the voices of
opposition loud in tone and ominous in volume, and the Federalists
finally triumphed only by dint of hard battle against foes, formidable
both in numbers and in skill. But the victory was complete,--astonishingly
complete. Once established, the new government had only the zeal of its
friends to fear. Indeed, after its organization very little more is
heard of the party of opposition; they disappear so entirely from
politics that one is inclined to think, in looking back at the party
history of that time, that they must have been not only conquered but
converted as well. There was well-nigh universal acquiescence in the new
order of things. Not everybody, indeed, professed himself a Federalist,
but everybody conformed to federalist practice. There were jealousies
and bickerings, of course, in the new Congress of the Union, but no
party lines, and the differences which caused the constant brewing and
breaking of storms in Washington's first cabinet were of personal rather
than of political import. Hamilton and Jefferson did not draw apart
because the one had been an ardent and the other only a lukewarm friend
of the Constitution, so much as because they were so different in
natural bent and temper that they would have been like to disagree and
come to drawn points wherever or however brought into contact. The one
had inherited warm blood and a bold sagacity, while in the other a
negative philosophy ran suitably through cool veins. They had not been
meant for yoke-fellows.
There was less antagonism in Congress, however, than in the cabinet; and
in none of the controversies that did arise was there shown any serious
disposition to quarrel with the Constitution itself; the contention was
as to the obedience to be rendered to its provisions. No one threatened
to withhold his allegiance, though there soon began to be some
exhibition of a disposition to confine obedience to the letter of the
new commandments, and to discountenance all attempts to do what was not
plainly written in the tables of the law. It was recognized as no longer
fashionable to say aught against the principles of the Constitution; but
all men could not be of one mind, and political parties began to take
form in antagonistic schools of constitutional construction. There
straightway arose two rival sects of political Pharisees, each
professing a more perfect conformity and affecting greater "ceremonial
cleanliness" than the other. The very men who had resisted with might
and main the adoption of the Constitution became, under the new division
of parties, its champions, as sticklers for a strict, a rigid, and
literal construction.
They were consistent enough in this, because it was quite natural that
their one-time fear of a strong central government should pass into a
dread of the still further expansion of the power of that government, by
a too loose construction of its charter; but what I would emphasize here
is not the motives or the policy of the conduct of parties in our early
national politics, but the fact that opposition to the Constitution as a
constitution, and even hostile criticism of its provisions, ceased
almost immediately upon its adoption; and not only ceased, but gave
place to an undiscriminating and almost blind worship of its principles,
and of that delicate dual system of sovereignty, and that complicated
scheme of double administration which it established. Admiration of that
one-time so much traversed body of law became suddenly all the vogue,
and criticism was estopped. From the first, even down to the time
immediately preceding the war, the general scheme of the Constitution
went unchallenged; nullification itself did not always wear its true
garb of independent state sovereignty, but often masqueraded as a
constitutional right; and the most violent policies took care to make
show of at least formal deference to the worshipful fundamental law. The
divine right of kings never ran a more prosperous course than did this
unquestioned prerogative of the Constitution to receive universal
homage. The conviction that our institutions were the best in the
world, nay more, the model to which all civilized states must sooner or
later conform, could not be laughed out of us by foreign critics, nor
shaken out of us by the roughest jars of the system.
Now there is, of course, nothing in all this that is inexplicable, or
even remarkable; any one can see the reasons for it and the benefits of
it without going far out of his way; but the point which it is
interesting to note is that we of the present generation are in the
first season of free, outspoken, unrestrained constitutional criticism.
We are the first Americans to hear our own countrymen ask whether the
Constitution is still adapted to serve the purposes for which it was
intended; the first to entertain any serious doubts about the
superiority of our own institutions as compared with the systems of
Europe; the first to think of remodeling the administrative machinery of
the federal government, and of forcing new forms of responsibility upon
Congress.
The evident explanation of this change of attitude towards the
Constitution is that we have been made conscious by the rude shock of
the war and by subsequent developments of policy, that there has been a
vast alteration in the conditions of government; that the checks and
balances which once obtained are no longer effective; and that we are
really living under a constitution essentially different from that which
we have been so long worshiping as our own peculiar and incomparable
possession. In short, this model government is no longer conformable
with its own original pattern. While we have been shielding it from
criticism it has slipped away from us. The noble charter of fundamental
law given us by the Convention of 1787 is still our Constitution; but it
is now our _form of government_ rather in name than in reality, the form
of the Constitution being one of nicely adjusted, ideal balances, whilst
the actual form of our present government is simply a scheme of
congressional supremacy. National legislation, of course, takes force
now as at first from the authority of the Constitution; but it would be
easy to reckon by the score acts of Congress which can by no means be
squared with that great instrument's evident theory. We continue to
think, indeed, according to long-accepted constitutional formulae, and
it is still politically unorthodox to depart from old-time phraseology
in grave discussions of affairs; but it is plain to those who look about
them that most of the commonly received opinions concerning federal
constitutional balances and administrative arrangements are many years
behind the actual practices of the government at Washington, and that
we are farther than most of us realize from the times and the policy of
the framers of the Constitution. It is a commonplace observation of
historians that, in the development of constitutions, names are much
more persistent than the functions upon which they were originally
bestowed; that institutions constantly undergo essential alterations of
character, whilst retaining the names conferred upon them in their first
estate; and the history of our own Constitution is but another
illustration of this universal principle of institutional change. There
has been a constant growth of legislative and administrative practice,
and a steady accretion of precedent in the management of federal
affairs, which have broadened the sphere and altered the functions of
the government without perceptibly affecting the vocabulary of our
constitutional language. Ours is, scarcely less than the British, a
living and fecund system. It does not, indeed, find its rootage so
widely in the hidden soil of unwritten law; its tap-root at least is the
Constitution; but the Constitution is now, like Magna Carta and the Bill
of Rights, only the sap-centre of a system of government vastly larger
than the stock from which it has branched,--a system some of whose forms
have only very indistinct and rudimental beginnings in the simple
substance of the Constitution, and which exercises many functions
apparently quite foreign to the primitive properties contained in the
fundamental law.
The Constitution itself is not a complete system; it takes none but the
first steps in organization. It does little more than lay a foundation
of principles. It provides with all possible brevity for the
establishment of a government having, in several distinct branches,
executive, legislative, and judicial powers. It vests executive power in
a single chief magistrate, for whose election and inauguration it makes
carefully definite provision, and whose privileges and prerogatives it
defines with succinct clearness; it grants specifically enumerated
powers of legislation to a representative Congress, outlining the
organization of the two houses of that body and definitely providing for
the election of its members, whose number it regulates and the
conditions of whose choice it names; and it establishes a Supreme Court
with ample authority of constitutional interpretation, prescribing the
manner in which its judges shall be appointed and the conditions of
their official tenure. Here the Constitution's work of organization
ends, and the fact that it attempts nothing more is its chief strength.
For it to go beyond elementary provisions would be to lose elasticity
and adaptability. The growth of the nation and the consequent
development of the governmental system would snap asunder a
constitution which could not adapt itself to the new conditions of an
advancing society. If it could not stretch itself to the measure of the
times, it must be thrown off and left behind, as a by-gone device; and
there can, therefore, be no question that our Constitution has proved
lasting because of its simplicity. It is a corner-stone, not a complete
building; or, rather, to return to the old figure, it is a root, not a
perfect vine.
The chief fact, therefore, of our national history is that from this
vigorous tap-root has grown a vast constitutional system,--a system
branching and expanding in statutes and judicial decisions, as well as
in unwritten precedent; and one of the most striking facts, as it seems
to me, in the history of our politics is, that that system has never
received complete and competent critical treatment at the hands of any,
even the most acute, of our constitutional writers. They view it, as it
were, from behind. Their thoughts are dominated, it would seem, by those
incomparable papers of the "Federalist," which, though they were written
to influence only the voters of 1788, still, with a strange, persistent
longevity of power, shape the constitutional criticism of the present
day, obscuring much of that development of constitutional practice which
has since taken place. The Constitution in operation is manifestly a
very different thing from the Constitution of the books. "An observer
who looks at the living reality will wonder at the contrast to the paper
description. He will see in the life much which is not in the books; and
he will not find in the rough practice many refinements of the literary
theory."[1] It is, therefore, the difficult task of one who would now
write at once practically and critically of our national government to
escape from theories and attach himself to facts, not allowing himself
to be confused by a knowledge of what that government was intended to
be, or led away into conjectures as to what it may one day become, but
striving to catch its present phases and to photograph the delicate
organism in all its characteristic parts exactly as it is to-day; an
undertaking all the more arduous and doubtful of issue because it has to
be entered upon without guidance from writers of acknowledged authority.
The leading inquiry in the examination of any system of government must,
of course, concern primarily the real depositaries and the essential
machinery of power. There is always a centre of power: where in this
system is that centre? in whose hands is self-sufficient authority
lodged, and through what agencies does that authority speak and act?
The answers one gets to these and kindred questions from authoritative
manuals of constitutional exposition are not satisfactory, chiefly
because they are contradicted by self-evident facts. It is said that
there is no single or central force in our federal _scheme_; and so
there is not in the federal scheme, but only a balance of powers and a
nice adjustment of interactive checks, as all the books say. How is it,
however, in the practical conduct of the federal government? In that,
unquestionably, the predominant and controlling force, the centre and
source of all motive and of all regulative power, is Congress. All
niceties of constitutional restriction and even many broad principles of
constitutional limitation have been overridden, and a thoroughly
organized system of congressional control set up which gives a very rude
negative to some theories of balance and some schemes for distributed
powers, but which suits well with convenience, and does violence to none
of the principles of self-government contained in the Constitution.
This fact, however, though evident enough, is not on the surface. It
does not obtrude itself upon the observation of the world. It runs
through the undercurrents of government, and takes shape only in the
inner channels of legislation and administration which are not open to
the common view. It can be discerned most readily by comparing the
"literary theory" of the Constitution with the actual machinery of
legislation, especially at those points where that machinery regulates
the relations of Congress with the executive departments, and with the
attitude of the houses towards the Supreme Court on those occasions,
happily not numerous, when legislature and judiciary have come face to
face in direct antagonism. The "literary theory" is distinct enough;
every American is familiar with the paper pictures of the Constitution.
Most prominent in such pictures are the ideal checks and balances of the
federal system, which may be found described, even in the most recent
books, in terms substantially the same as those used in 1814 by John
Adams in his letter to John Taylor. "Is there," says Mr. Adams, "a
constitution upon record more complicated with balances than ours? In
the first place, eighteen states and some territories are balanced
against the national government.... In the second place, the House of
Representatives is balanced against the Senate, the Senate against the
House. In the third place, the executive authority is, in some degree,
balanced against the legislative. In the fourth place, the judicial
power is balanced against the House, the Senate, the executive power,
and the state governments. In the fifth place, the Senate is balanced
against the President in all appointments to office, and in all
treaties.... In the sixth place, the people hold in their hands the
balance against their own representatives, by biennial ... elections. In
the seventh place, the legislatures of the several states are balanced
against the Senate by sextennial elections. In the eighth place, the
electors are balanced against the people in the choice of the President.
Here is a complicated refinement of balances, which, for anything I
recollect, is an invention of our own and peculiar to us."[2]
All of these balances are reckoned essential in the theory of the
Constitution; but none is so quintessential as that between the national
and the state governments; it is the pivotal quality of the system,
indicating its principal, which is its federal characteristic. The
object of this balance of thirty-eight States "and some territories"
against the powers of the federal government, as also of several of the
other balances enumerated, is not, it should be observed, to prevent the
invasion by the national authorities of those provinces of legislation
by plain expression or implication reserved to the States,--such as the
regulation of municipal institutions, the punishment of ordinary crimes,
the enactment of laws of inheritance and of contract, the erection and
maintenance of the common machinery of education, and the control of
other such like matters of social economy and every-day
administration,--but to check and trim national policy on national
questions, to turn Congress back from paths of dangerous encroachment on
middle or doubtful grounds of jurisdiction, to keep sharp, when it was
like to become dim, the line of demarcation between state and federal
privilege, to readjust the weights of jurisdiction whenever either state
or federal scale threatened to kick the beam. There never was any great
likelihood that the national government would care to take from the
States their plainer prerogatives, but there was always a violent
probability that it would here and there steal a march over the borders
where territory like its own invited it to appropriation; and it was for
a mutual defense of such border-land that the two governments were given
the right to call a halt upon one another. It was purposed to guard not
against revolution, but against unrestrained exercise of questionable
powers.
The extent to which the restraining power of the States was relied upon
in the days of the Convention, and of the adoption of the Constitution,
is strikingly illustrated in several of the best known papers of the
"Federalist;" and there is no better means of realizing the difference
between the actual and the ideal constitutions than this of placing
one's self at the point of view of the public men of 1787-89. They were
disgusted with the impotent and pitiable Confederation, which could do
nothing but beg and deliberate; they longed to get away from the selfish
feuds of "States dissevered, discordant, belligerent," and their hopes
were centred in the establishment of a strong and lasting union, such as
could secure that concert and facility of common action in which alone
there could be security and amity. They were, however, by no means sure
of being able to realize their hopes, contrive how they might to bring
the States together into a more perfect confederation. The late colonies
had but recently become compactly organized, self-governing States, and
were standing somewhat stiffly apart, a group of consequential
sovereignties, jealous to maintain their blood-bought prerogatives, and
quick to distrust any power set above them, or arrogating to itself the
control of their restive wills. It was not to be expected that the
sturdy, self-reliant, masterful men who had won independence for their
native colonies, by passing through the flames of battle, and through
the equally fierce fires of bereavement and financial ruin, would
readily transfer their affection and allegiance from the new-made
States, which were their homes, to the federal government, which was to
be a mere artificial creation, and which could be to no man as his home
government. As things looked then, it seemed idle to apprehend a too
great diminution of state rights: there was every reason, on the
contrary, to fear that any union that could be agreed upon would lack
both vitality and the ability to hold its ground against the jealous
self-assertion of the sovereign commonwealths of its membership.
Hamilton but spoke the common belief of all thinking men of the time
when he said: "It will always be far more easy for the state governments
to encroach upon the national authorities than for the national
government to encroach upon the state authorities;" and he seemed to
furnish abundant support for the opinion, when he added, that "the proof
of this proposition turns upon the greater degree of influence which the
state governments, if they administer their affairs uprightly and
prudently, will generally possess over the people; a circumstance which,
at the same time, teaches us that there is an inherent and intrinsic
weakness in all federal constitutions, and that too much pains cannot
be taken in their organization to give them all the force that is
compatible with the principles of liberty."[3]
Read in the light of the present day, such views constitute the most
striking of all commentaries upon our constitutional history. Manifestly
the powers reserved to the States were expected to serve as a very real
and potent check upon the federal government; and yet we can see plainly
enough now that this balance of state against national authorities has
proved, of all constitutional checks, the least effectual. The proof of
the pudding is the eating thereof, and we can nowadays detect in it none
of that strong flavor of state sovereignty which its cooks thought they
were giving it. It smacks, rather, of federal omnipotence, which they
thought to mix in only in very small and judicious quantities. "From the
nature of the case," as Judge Cooley says, "it was impossible that the
powers reserved to the States should constitute a restraint upon the
increase of federal power, to the extent that was at first expected. The
federal government was necessarily made the final judge of its own
authority, and the executor of its own will, and any effectual check to
the gradual amplification of its jurisdiction must therefore be found
in the construction put by those administering it upon the grants of the
Constitution, and in their own sense of constitutional obligation. And
as the true line of division between federal and state powers has, from
the very beginning, been the subject of contention and of honest
differences of opinion, it must often happen that to advance and occupy
some disputed ground will seem to the party having the power to do so a
mere matter of constitutional duty."[4]
During the early years of the new national government there was,
doubtless, much potency in state will; and had federal and state powers
then come face to face, before Congress and the President had had time
to overcome their first awkwardness and timidity, and to discover the
safest walks of their authority and the most effectual means of
exercising their power, it is probable that state prerogatives would
have prevailed. The central government, as every one remembers, did not
at first give promise of a very great career. It had inherited some of
the contempt which had attached to the weak Congress of the
Confederation. Two of the thirteen States held aloof from the Union
until they could be assured of its stability and success; many of the
other States had come into it reluctantly, all with a keen sense of
sacrifice, and there could not be said to be any very wide-spread or
undoubting belief in its ultimate survival. The members of the first
Congress, too, came together very tardily, and in no very cordial or
confident spirit of cooperation; and after they had assembled they were
for many months painfully embarrassed, how and upon what subjects to
exercise their new and untried functions. The President was denied
formal precedence in dignity by the Governor of New York, and must
himself have felt inclined to question the consequence of his official
station, when he found that amongst the principal questions with which
he had to deal were some which concerned no greater things than petty
points of etiquette and ceremonial; as, for example, whether one day in
the week would be sufficient to receive visits of compliment, "and what
would be said if he were sometimes to be seen at quiet tea-parties."[5]
But this first weakness of the new government was only a transient phase
in its history, and the federal authorities did not invite a direct
issue with the States until they had had time to reckon their resources
and to learn facility of action. Before Washington left the presidential
chair the federal government had been thoroughly organized, and it fast
gathered strength and confidence as it addressed itself year after year
to the adjustment of foreign relations, to the defense of the western
frontiers, and to the maintenance of domestic peace. For twenty-five
years it had no chance to think of those questions of internal policy
which, in later days, were to tempt it to stretch its constitutional
jurisdiction. The establishment of the public credit, the revival of
commerce, and the encouragement of industry; the conduct, first, of a
heated controversy, and finally of an unequal war with England; the
avoidance, first, of too much love, and afterwards of too violent hatred
of France; these and other like questions of great pith and moment gave
it too much to do to leave it time to think of nice points of
constitutional theory affecting its relations with the States.
But still, even in those busy times of international controversy, when
the lurid light of the French Revolution outshone all others, and when
men's minds were full of those ghosts of '76, which took the shape of
British aggressions, and could not be laid by any charm known to
diplomacy,--even in those times, busy about other things, there had been
premonitions of the unequal contest between state and federal
authorities. The purchase of Louisiana had given new form and startling
significance to the assertion of national sovereignty, the Alien and
Sedition Laws had provoked the plain-spoken and emphatic protests of
Kentucky and Virginia, and the Embargo had exasperated New England to
threats of secession.
Nor were these open assumptions of questionable prerogatives on the part
of the national government the most significant or unequivocal
indications of an assured increase of federal power. Hamilton, as
Secretary of the Treasury, had taken care at the very beginning to set
the national policy in ways which would unavoidably lead to an almost
indefinite expansion of the sphere of federal legislation. Sensible of
its need of guidance in those matters of financial administration which
evidently demanded its immediate attention, the first Congress of the
Union promptly put itself under the direction of Hamilton. "It is not a
little amusing," says Mr. Lodge, "to note how eagerly Congress, which
had been ably and honestly struggling with the revenue, with commerce,
and with a thousand details, fettered in all things by the awkwardness
inherent in a legislative body, turned for relief to the new
secretary."[6] His advice was asked and taken in almost everything, and
his skill as a party leader made easy many of the more difficult paths
of the new government. But no sooner had the powers of that government
begun to be exercised under his guidance than they began to grow. In his
famous Report on Manufactures were laid the foundations of that system
of protective duties which was destined to hang all the industries of
the country upon the skirts of the federal power, and to make every
trade and craft in the land sensitive to every wind of party that might
blow at Washington; and in his equally celebrated Report in favor of the
establishment of a National Bank, there was called into requisition, for
the first time, that puissant doctrine of the "implied powers" of the
Constitution which has ever since been the chief dynamic principle in
our constitutional history. "This great doctrine, embodying the
principle of liberal construction, was," in the language of Mr. Lodge,
"the most formidable weapon in the armory of the Constitution; and when
Hamilton grasped it he knew, and his opponents felt, that here was
something capable of conferring on the federal government powers of
almost any extent."[7] It served first as a sanction for the charter of
the United States Bank,--an institution which was the central pillar of
Hamilton's wonderful financial administration, and around which
afterwards, as then, played so many of the lightnings of party strife.
But the Bank of the United States, though great, was not the greatest
of the creations of that lusty and seductive doctrine. Given out, at
length, with the sanction of the federal Supreme Court,[8] and
containing, as it did, in its manifest character as a doctrine of
legislative prerogative, a very vigorous principle of constitutional
growth, it quickly constituted Congress the dominant, nay, the
irresistible, power of the federal system, relegating some of the chief
balances of the Constitution to an insignificant role in the "literary
theory" of our institutions.
Its effect upon the status of the States in the federal system was
several-fold. In the first place, it clearly put the constitutions of
the States at a great disadvantage, inasmuch as there was in them no
like principle of growth. Their stationary sovereignty could by no means
keep pace with the nimble progress of federal influence in the new
spheres thus opened up to it. The doctrine of implied powers was
evidently both facile and irresistible. It concerned the political
discretion of the national legislative power, and could, therefore,
elude all obstacles of judicial interference; for the Supreme Court very
early declared itself without authority to question the legislature's
privilege of determining the nature and extent of its own powers in the
choice of means for giving effect to its constitutional prerogatives,
and it has long stood as an accepted canon of judicial action, that
judges should be very slow to oppose their opinions to the legislative
will in cases in which it is not made demonstrably clear that there has
been a plain violation of some unquestionable constitutional principle,
or some explicit constitutional provision. Of encroachments upon state
as well as of encroachments upon federal powers, the federal authorities
are, however, in most cases the only, and in all cases the final,
judges. The States are absolutely debarred even from any effective
defense of their plain prerogatives, because not they, but the national
authorities, are commissioned to determine with decisive and
unchallenged authoritativeness what state powers shall be recognized in
each case of contest or of conflict. In short, one of the privileges
which the States have resigned into the hands of the federal government
is the all-inclusive privilege of determining what they themselves can
do. Federal courts can annul state action, but state courts cannot
arrest the growth of congressional power.[9]
But this is only the doctrinal side of the case, simply its statement
with an "if" and a "but." Its practical issue illustrates still more
forcibly the altered and declining status of the States in the
constitutional system. One very practical issue has been to bring the
power of the federal government home to every man's door, as, no less
than his own state government, his immediate over-lord. Of course every
new province into which Congress has been allured by the principle of
implied powers has required for its administration a greater or less
enlargement of the national civil service, which now, through its
hundred thousand officers, carries into every community of the land a
sense of federal power, as the power of powers, and fixes the federal
authority, as it were, in the very habits of society. That is not a
foreign but a familiar and domestic government whose officer is your
next-door neighbor, whose representatives you deal with every day at the
post-office and the custom-house, whose courts sit in your own State,
and send their own marshals into your own county to arrest your own
fellow-townsman, or to call you yourself by writ to their
witness-stands. And who can help respecting officials whom he knows to
be backed by the authority and even, by the power of the whole nation,
in the performance of the duties in which he sees them every day
engaged? Who does not feel that the marshal represents a greater power
than the sheriff does, and that it is more dangerous to molest a
mail-carrier than to knock down a policeman? This personal contact of
every citizen with the federal government,--a contact which makes him
feel himself a citizen of a greater state than that which controls his
every-day contracts and probates his father's will,--more than offsets
his sense of dependent loyalty to local authorities by creating a
sensible bond of allegiance to what presents itself unmistakably as the
greater and more sovereign power.
In most things this bond of allegiance does not bind him oppressively
nor chafe him distressingly; but in some things it is drawn rather
painfully tight. Whilst federal postmasters are valued and federal
judges unhesitatingly obeyed, and whilst very few people realize the
weight of customs-duties, and as few, perhaps, begrudge license taxes on
whiskey and tobacco, everybody eyes rather uneasily the federal
supervisors at the polls. This is preeminently a country of frequent
elections, and few States care to increase the frequency by separating
elections of state from elections of national functionaries. The federal
supervisor, consequently, who oversees the balloting for congressmen,
practically superintends the election of state officers also; for state
officers and congressmen are usually voted for at one and the same time
and place, by ballots bearing in common an entire "party ticket;" and
any authoritative scrutiny of these ballots after they have been cast,
or any peremptory power of challenging those who offer to cast them,
must operate as an interference with state no less than with federal
elections. The authority of Congress to regulate the manner of choosing
federal representatives pinches when it is made thus to include also the
supervision of those state elections which are, by no implied power
even, within the sphere of federal prerogative. The supervisor
represents the very ugliest side of federal supremacy; he belongs to
the least liked branch of the civil service; but his existence speaks
very clearly as to the present balance of powers, and his rather hateful
privileges must, under the present system of mixed elections, result in
impairing the self-respect of state officers of election by bringing
home to them a vivid sense of subordination to the powers at Washington.