seen in the history of the policy of internal improvements. I need not
expound that policy here. It has been often enough mooted and long
enough understood to need no explanation. Its practice is plain and its
persistence unquestionable. But its bearings upon the status and the
policies of the States are not always clearly seen or often distinctly
pointed out. Its chief results, of course, have been that expansion of
national functions which was necessarily involved in the application of
national funds by national employees to the clearing of inland
water-courses and the improvement of harbors, and the establishment of
the very questionable precedent of expending in favored localities
moneys raised by taxation which bears with equal incidence upon the
people of all sections of the country; but these chief results by no
means constitute the sum of its influence. Hardly less significant and
real, for instance, are its moral effects in rendering state
administrations less self-reliant and efficient, less prudent and
thrifty, by accustoming them to accepting subsidies for internal
improvements from the federal coffers; to depending upon the national
revenues, rather than upon their own energy and enterprise, for means of
developing those resources which it should be the special province of
state administration to make available and profitable. There can, I
suppose, be little doubt that it is due to the moral influences of this
policy that the States are now turning to the common government for aid
in such things as education. Expecting to be helped, they will not help
themselves. Certain it is that there is more than one State which,
though abundantly able to pay for an educational system of the greatest
efficiency, fails to do so, and contents itself with imperfect temporary
makeshifts because there are immense surpluses every year in the
national treasury which, rumor and unauthorized promises say, may be
distributed amongst the States in aid of education. If the federal
government were more careful to keep apart from every strictly local
scheme of improvement, this culpable and demoralizing state policy could
scarcely live. States would cease to wish, because they would cease to
hope, to be stipendiaries of the government of the Union, and would
address themselves with diligence to their proper duties, with much
benefit both to themselves and to the federal system. This is not saying
that the policy of internal improvements was either avoidable,
unconstitutional, or unwise, but only that it has been carried too far;
and that, whether carried too far or not, it must in any case have been
what it is now seen to be, a big weight in the federal scale of the
balance.
Still other powers of the federal government, which have so grown beyond
their first proportions as to have marred very seriously the symmetry of
the "literary theory" of our federal system, have strengthened under the
shadow of the jurisdiction of Congress over commerce and the maintenance
of the postal service. For instance, the Supreme Court of the United
States has declared that the powers granted to Congress by the
Constitution to regulate commerce and to establish post-offices and
post-roads "keep pace with the progress of the country and adapt
themselves to new developments of times and circumstances. They extend
from the horse with its rider to the stage-coach, from the sailing
vessel to the steamer, from the coach and the steamer to the railroad,
and from the railroad to the telegraph, as these new agencies are
successively brought into use to meet the demands of increasing
population and wealth. They are intended for the government of the
business to which they relate, at all times and under all circumstances.
As they were intrusted to the general government for the good of the
nation, it is not only the right but the duty of Congress to see to it
that the intercourse between the States and the transmission of
intelligence are not obstructed or unnecessarily encumbered by state
legislation."[10] This emphatic decision was intended to sustain the
right of a telegraph company chartered by one State to run its line
along all post-roads in other States, without the consent of those
States, and even against their will; but it is manifest that many other
corporate companies might, under the sanction of this broad opinion,
claim similar privileges in despite of state resistance, and that such
decisions go far towards making state powers of incorporation of little
worth as compared with federal powers of control.
Keeping pace, too, with this growth of federal activity, there has been
from the first a steady and unmistakable growth of nationality of
sentiment. It was, of course, the weight of war which finally and
decisively disarranged the balance between state and federal powers; and
it is obvious that many of the most striking manifestations of the
tendency towards centralization have made themselves seen since the
war. But the history of the war is only a record of the triumph of the
principle of national sovereignty. The war was inevitable, because that
principle grew apace; and the war ended as it did, because that
principle had become predominant. Accepted at first simply because it
was imperatively necessary, the union of form and of law had become a
union of sentiment, and was destined to be a union of institutions. That
sense of national unity and community of destiny which Hamilton had
sought to foster, but which was feeble in his day of long distances and
tardy inter-communication, when the nation's pulse was as slow as the
stage-coach and the postman, had become strong enough to rule the
continent when Webster died. The war between the States was the supreme
and final struggle between those forces of disintegration which still
remained in the blood of the body politic and those other forces of
health, of union and amalgamation, which had been gradually building up
that body in vigor and strength as the system passed from youth to
maturity, and as its constitution hardened and ripened with advancing
age.
The history of that trenchant policy of "reconstruction," which followed
close upon the termination of the war, as at once its logical result and
significant commentary, contains a vivid picture of the altered
balances of the constitutional system which is a sort of exaggerated
miniature, falling very little short of being a caricature, of previous
constitutional tendencies and federal policies. The tide of federal
aggression probably reached its highest shore in the legislation which
put it into the power of the federal courts to punish a state judge for
refusing, in the exercise of his official discretion, to impanel negroes
in the juries of his court,[11] and in those statutes which gave the
federal courts jurisdiction over offenses against state laws by state
officers.[12] But that tide has often run very high, and, however
fluctuating at times, has long been well-nigh irresistible by any dykes
of constitutional state privilege; so that Judge Cooley can say without
fear of contradiction that "The effectual checks upon the encroachments
of federal upon state power must be looked for, not in state power of
resistance, but in the choice of representatives, senators, and
presidents holding just constitutional views, and in a federal supreme
court with competent power to restrain all departments and all officers
within the limits of their just authority, so far as their acts may
become the subject of judicial cognizance."[13]
Indeed it is quite evident that if federal power be not altogether
irresponsible, it is the federal judiciary which is the only effectual
balance-wheel of the whole system. The federal judges hold in their
hands the fate of state powers, and theirs is the only authority that
can draw effective rein on the career of Congress. If their power, then,
be not efficient, the time must seem sadly out of joint to those who
hold to the "literary theory" of our Constitution. By the word of the
Supreme Court must all legislation stand or fall, so long as law is
respected. But, as I have already pointed out, there is at least one
large province of jurisdiction upon which, though invited, and possibly
privileged to appropriate it, the Supreme Court has, nevertheless,
refused to enter, and by refusing to enter which it has given over all
attempt to guard one of the principal, easiest, and most obvious roads
to federal supremacy. It has declared itself without authority to
interfere with the _political discretion_ of either Congress or the
President, and has declined all effort to constrain these its coordinate
departments to the performance of any, even the most constitutionally
imperative act.[14] "When, indeed, the President exceeds his authority,
or usurps that which belongs to one of the other departments, his
orders, commands, or warrants protect no one, and his agents become
personally responsible for their acts. The check of the courts,
therefore, consists in their ability to keep the executive within the
sphere of his authority by refusing to give the sanction of law to
whatever he may do beyond it, and by holding the agents or instruments
of his unlawful action to strict accountability."[15] But such
punishment, inflicted not directly upon the chief offender but
vicariously upon his agents, can come only after all the harm has been
done. The courts cannot forestall the President and prevent the doing of
mischief. They have no power of initiative; they must wait until the law
has been broken and voluntary litigants have made up their pleadings;
must wait nowadays many months, often many years, until those pleadings
are reached in the regular course of clearing a crowded docket.
Besides, in ordinary times it is not from the executive that the most
dangerous encroachments are to be apprehended. The legislature is the
aggressive spirit. It is the motive power of the government, and unless
the judiciary can check it, the courts are of comparatively little worth
as balance-wheels in the system. It is the subtile, stealthy, almost
imperceptible encroachments of policy, of political action, which
constitute the precedents upon which additional prerogatives are
generally reared; and yet these are the very encroachments with which it
is hardest for the courts to deal, and concerning which, accordingly,
the federal courts have declared themselves unauthorized to hold any
opinions. They have naught to say upon questions of policy. Congress
must itself judge what measures may legitimately be used to supplement
or make effectual its acknowledged jurisdiction, what are the laws
"necessary and proper for carrying into execution" its own peculiar
powers, "and all other powers vested by" the "Constitution in the
government of the United States, or in any department or officer
thereof." The courts are very quick and keen-eyed, too, to discern
prerogatives of political discretion in legislative acts, and
exceedingly slow to undertake to discriminate between what is and what
is not a violation of the spirit of the Constitution. Congress must
wantonly go very far outside of the plain and unquestionable meaning of
the Constitution, must bump its head directly against all right and
precedent, must kick against the very pricks of all well-established
rulings and interpretations, before the Supreme Court will offer it any
distinct rebuke.
Then, too, the Supreme Court itself, however upright and irreproachable
its members, has generally had and will undoubtedly continue to have a
distinct political complexion, taken from the color of the times during
which its majority was chosen. The bench over which John Marshall
presided was, as everybody knows, staunchly and avowedly federalist in
its views; but during the ten years which followed 1835 federalist
justices were rapidly displaced by Democrats, and the views of the Court
changed accordingly. Indeed it may truthfully be said that, taking our
political history "by and large," the constitutional interpretations of
the Supreme Court have changed, slowly but none the less surely, with
the altered relations of power between the national parties. The
Federalists were backed by a federalist judiciary; the period of
democratic supremacy witnessed the triumph of democratic principles in
the courts; and republican predominance has driven from the highest
tribunal of the land all but one representative of democratic doctrines.
It has been only during comparatively short periods of transition, when
public opinion was passing over from one political creed to another,
that the decisions of the federal judiciary have been distinctly opposed
to the principles of the ruling political party.
But, besides and above all this, the national courts are for the most
part in the power of Congress. Even the Supreme Court is not beyond its
control; for it is the legislative privilege to increase, whenever the
legislative will so pleases, the number of the judges upon the supreme
bench,--to "dilute the Constitution," as Webster once put it, "by
creating a court which shall construe away its provisions;" and this on
one memorable occasion it did choose to do. In December, 1869, the
Supreme Court decided against the constitutionality of Congress's pet
Legal Tender Acts; and in the following March a vacancy on the bench
opportunely occurring, and a new justiceship having been created to meet
the emergency, the Senate gave the President to understand that no
nominee unfavorable to the debated acts would be confirmed, two justices
of the predominant party's way of thinking were appointed, the hostile
majority of the court was outvoted, and the obnoxious decision
reversed.[16]
The creation of additional justiceships is not, however, the only means
by which Congress can coerce and control the Supreme Court. It may
forestall an adverse decision by summarily depriving the court of
jurisdiction over the case in which such a decision was threatened,[17]
and that even while the case is pending; for only a very small part of
the jurisdiction of even the Supreme Court is derived directly from the
Constitution. Most of it is founded upon the Judiciary Act of 1789,
which, being a mere act of Congress, may be repealed at any time that
Congress chooses to repeal it. Upon this Judiciary Act, too, depend not
only the powers but also the very existence of the inferior courts of
the United States, the Circuit and District Courts; and their possible
fate, in case of a conflict with Congress, is significantly foreshadowed
in that Act of 1802 by which a democratic Congress swept away, root and
branch, the system of circuit courts which had been created in the
previous year, but which was hateful to the newly-successful Democrats
because it had been officered with Federalists in the last hours of John
Adams's administration.
This balance of judiciary against legislature and executive would seem,
therefore, to be another of those ideal balances which are to be found
in the books rather than in the rough realities of actual practice; for
manifestly the power of the courts is safe only during seasons of
political peace, when parties are not aroused to passion or tempted by
the command of irresistible majorities.
As for some of the other constitutional balances enumerated in that
passage of the letter to John Taylor which I have taken as a text, their
present inefficacy is quite too plain to need proof. The constituencies
may have been balanced against their representatives in Mr. Adams's day,
for that was not a day of primaries and of strict caucus discipline. The
legislatures of the States, too, may have been able to exercise some
appreciable influence upon the action of the Senate, if those were days
when policy was the predominant consideration which determined elections
to the Senate, and the legislative choice was not always a matter of
astute management, of mere personal weight, or party expediency; and the
presidential electors undoubtedly did have at one time some freedom of
choice in naming the chief magistrate, but before the third presidential
election some of them were pledged, before Adams wrote this letter the
majority of them were wont to obey the dictates of a congressional
caucus, and for the last fifty years they have simply registered the
will of party conventions.
It is noteworthy that Mr. Adams, possibly because he had himself been
President, describes the executive as constituting only "_in some
degree_" a check upon Congress, though he puts no such limitation upon
the other balances of the system. Independently of experience, however,
it might reasonably have been expected that the prerogatives of the
President would have been one of the most effectual restraints upon the
power of Congress. He was constituted one of the three great coordinate
branches of the government; his functions were made of the highest
dignity; his privileges many and substantial--so great, indeed, that it
has pleased the fancy of some writers to parade them as exceeding those
of the British crown; and there can be little doubt that, had the
presidential chair always been filled by men of commanding character, of
acknowledged ability, and of thorough political training, it would have
continued to be a seat of the highest authority and consideration, the
true centre of the federal structure, the real throne of administration,
and the frequent source of policies. Washington and his Cabinet
commanded the ear of Congress, and gave shape to its deliberations;
Adams, though often crossed and thwarted, gave character to the
government; and Jefferson, as President no less than as Secretary of
State, was the real leader of his party. But the prestige of the
presidential office has declined with the character of the Presidents.
And the character of the Presidents has declined as the perfection of
selfish party tactics has advanced.
It was inevitable that it should be so. After independence of choice on
the part of the presidential electors had given place to the choice of
presidential candidates by party conventions, it became absolutely
necessary, in the eyes of politicians, and more and more necessary as
time went on, to make expediency and availability the only rules of
selection. As each party, when in convention assembled, spoke only those
opinions which seemed to have received the sanction of the general
voice, carefully suppressing in its "platform" all unpopular political
tenets, and scrupulously omitting mention of every doctrine that might
be looked upon as characteristic and as part of a peculiar and original
programme, so, when the presidential candidate came to be chosen, it was
recognized as imperatively necessary that he should have as short a
political record as possible, and that he should wear a clean and
irreproachable insignificance. "Gentlemen," said a distinguished
American public man, "I would make an excellent President, but a very
poor candidate." A decisive career which gives a man a well-understood
place in public estimation constitutes a positive disability for the
presidency; because candidacy must precede election, and the shoals of
candidacy can be passed only by a light boat which carries little
freight and can be turned readily about to suit the intricacies of the
passage.
I am disposed to think, however, that the decline in the character of
the Presidents is not the cause, but only the accompanying
manifestation, of the declining prestige of the presidential office.
That high office has fallen from its first estate of dignity because its
power has waned; and its power has waned because the power of Congress
has become predominant. The early Presidents were, as I have said, men
of such a stamp that they would under any circumstances have made their
influence felt; but their opportunities were exceptional. What with
quarreling and fighting with England, buying Louisiana and Florida,
building dykes to keep out the flood of the French Revolution, and
extricating the country from ceaseless broils with the South American
Republics, the government was, as has been pointed out, constantly busy,
during the first quarter century of its existence, with the adjustment
of foreign relations; and with foreign relations, of course, the
Presidents had everything to do, since theirs was the office of
negotiation.
Moreover, as regards home policy also those times were not like ours.
Congress was somewhat awkward in exercising its untried powers, and its
machinery was new, and without that fine adjustment which has since made
it perfect of its kind. Not having as yet learned the art of governing
itself to the best advantage, and being without that facility of
legislation which it afterwards acquired, the Legislature was glad to
get guidance and suggestions of policy from the Executive.
But this state of things did not last long. Congress was very quick and
apt in learning what it could do and in getting into thoroughly good
trim to do it. It very early divided itself into standing committees
which it equipped with very comprehensive and thorough-going privileges
of legislative initiative and control, and set itself through these to
administer the government. Congress is (to adopt Mr. Bagehot's
description of Parliament) "nothing less than a big meeting of more or
less idle people. In proportion as you give it power it will inquire
into everything, settle everything, meddle in everything. In an ordinary
despotism the powers of the despot are limited by his bodily capacity,
and by the calls of pleasure; he is but one man; there are but twelve
hours in his day, and he is not disposed to employ more than a small
part in dull business: he keeps the rest for the court, or the harem,
or for society." But Congress "is a despot who has unlimited time,--who
has unlimited vanity,--who has, or believes he has, unlimited
comprehension,--whose pleasure is in action, whose life is work."
Accordingly it has entered more and more into the details of
administration, until it has virtually taken into its own hands all the
substantial powers of government. It does not domineer over the
President himself, but it makes the Secretaries its humble servants. Not
that it would hesitate, upon occasion, to deal directly with the chief
magistrate himself; but it has few calls to do so, because our
latter-day Presidents live by proxy; they are the executive in theory,
but the Secretaries are the executive in fact. At the very first session
of Congress steps were taken towards parceling out executive work
amongst several departments, according to a then sufficiently thorough
division of labor; and if the President of that day was not able to
direct administrative details, of course the President of to-day is
infinitely less able to do so, and must content himself with such
general supervision as he may find time to exercise. He is in all
every-day concerns shielded by the responsibility of his subordinates.
It cannot be said that this change has raised the cabinet in dignity or
power; it has only altered their relations to the scheme of government.
The members of the President's cabinet have always been prominent in
administration; and certainly the early cabinets were no less strong in
political influence than are the cabinets of our own day; but they were
then only the President's advisers, whereas they are now rather the
President's colleagues. The President is now scarcely the executive; he
is the head of the administration; he appoints the executive. Of course
this is not a legal principle; it is only a fact. In legal theory the
President can control every operation of every department of the
executive branch of the government; but in fact it is not practicable
for him to do so, and a limitation of fact is as potent as a prohibition
of law.