CHAPTER I

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The Spirit of American Government

_A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION

TO DEMOCRACY_

BY

J. ALLEN SMITH, LL.B., PH.D.

PROFESSOR OF POLITICAL SCIENCE

UNIVERSITY OF WASHINGTON

[Illustration]

The Chautauqua Press

CHAUTAUQUA, NEW YORK

MCMXI

COPYRIGHT, 1907,

BY THE MACMILLAN COMPANY

Set up and electrotyped. Printed April, 1907. Reprinted March, 1911.

Norwood Press:

Berwick & Smith Co., Norwood, Mass., U.S.A.

PREFACE

It is the purpose of this volume to trace the influence of our

constitutional system upon the political conditions which exist in this

country to-day. This phase of our political problems has not received

adequate recognition at the hands of writers on American politics. Very

often indeed it has been entirely ignored, although in the short period

which has elapsed since our Constitution was framed and adopted, the

Western world has passed through a political as well as an industrial

revolution.

In the eighteenth century the majority was outside of the pale of

political rights. Government as a matter of course was the expression of

the will of a minority. Even in the United States, where hereditary rule

was overthrown by the Revolution, an effective and recognized minority

control still survived through the property qualifications for the

suffrage and for office-holding, which excluded a large proportion of

the people from participation in political affairs. Under such

conditions there could be but little of what is now known as democracy.

Moreover, slavery continued to exist upon a large scale for nearly

three-quarters of a century after the Constitution was adopted, and was

finally abolished only within the memory of many now living.

It could hardly be expected that a political system set up for a

community containing a large slave population and in which the suffrage

was restricted, even among the free whites, should in any large measure

embody the aims and ideas of present day democracy. In fact the American

Constitution did not recognize the now more or less generally accepted

principle of majority rule even as applying to the qualified voters.

Moreover, it was not until several decades after the Constitution was

adopted that the removal of property qualifications for voting allowed

the people generally to have a voice in political affairs.

The extension of the suffrage was a concession to the growing belief in

democracy, but it failed to give the masses an effective control over

the general government, owing to the checks in the Constitution on

majority rule. It had one important consequence, however, which should

not be overlooked. Possession of the suffrage by the people generally

led the undiscriminating to think that it made the opinion of the

majority a controlling factor in national politics.

Our political writers have for the most part passed lightly over the

undemocratic features of the Constitution and left the uncritical reader

with the impression that universal suffrage under our system of

government ensures the rule of the majority. It is this conservative

approval of the Constitution under the guise of sympathy with majority

rule, which has perhaps more than any thing else misled the people as to

the real spirit and purpose of that instrument. It was by constantly

representing it as the indispensable means of attaining the ends of

democracy, that it came to be so generally regarded as the source of all

that is democratic in our system of government. It is to call attention

to the spirit of the Constitution, its inherent opposition to democracy,

the obstacles which it has placed in the way of majority rule, that this

volume has been written.

The general recognition of the true character of the Constitution is

necessary before we can fully understand the nature and origin of our

political evils. It would also do much to strengthen and advance the

cause of popular government by bringing us to a realization of the fact

that the so-called evils of democracy are very largely the natural

results of those constitutional checks on popular rule which we have

inherited from the political system of the eighteenth century.

The author acknowledges his indebtedness to his colleague, Professor

William Savery, and to Professor Edward A. Ross of the University of

Wisconsin, for many pertinent criticisms and suggestions which he has

borne in mind while revising the manuscript of this work for

publication. He is also under obligation to Mr. Edward McMahon for

suggestions and for some illustrative material which he has made use of

in this volume.

J. ALLEN SMITH.

Seattle, Washington,

January, 1907.

CONTENTS

CHAPTER I

THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY

PAGE

Struggle between the many and the few 3

The Great Charter 4

Development of a bicameral parliament 6

Limited and irresponsible government 8

Class influence as seen in statute and common law 10

CHAPTER II

THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD

Conditions favoring growth of democratic ideas 12

The Declaration of Independence 13

Numerical strength and character of the conservatives 14

Democracy in the early state constitutions 16

Supremacy of the legislature 20

The Articles of Confederation 22

CHAPTER III

THE CONSTITUTION A REACTIONARY DOCUMENT

Causes of political reaction 27

The Constitution a product of eighteenth-century

thought 28

The framers' fear of democracy 29

Effort to limit the power of the majority 35

CHAPTER IV

THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE

CONSTITUTION

Amendment of democratic and undemocratic constitutions 40

Reasons for making amendment difficult 41

Patrick Henry's objection to the amendment feature

of the Constitution 44

The amendments to the Constitution 52

Amendment of the Articles of Confederation 57

Amendment of the early state constitutions 58

Amendment in other countries 62

CHAPTER V

THE FEDERAL JUDICIARY

Relation of the judicial to the other checks 65

The constitutional status of judges in England 67

The American was not a copy of the English judicial

system 68

Hamilton's defense of the Federal judiciary 73

His desire to limit the power of the people 82

Relation of the judicial to the executive veto 85

Revival of the judicial veto in the state governments 87

The judicial veto was not mentioned in the Constitution 90

The Federalist appointments to the Supreme Bench 94

Significance of the veto power of the Supreme Court 97

A monarchical survival 103

Political and judicial powers 107

Power to veto laws not judicial 108

Character of the laws vetoed by the Supreme Court 111

Decline of the belief in judicial infallibility 113

Government by injunction 116

The judicial veto in relation to treaties 119

The disadvantages of a deferred veto 123

CHAPTER VI

THE CHECKS AND BALANCES OF THE CONSTITUTION

A cure for the evils of democracy 125

Evolutionary classification of governments 128

Substitutes for king and aristocracy 130

Relation of the theory of checks and balances to

_laissez faire_ and anarchism 131

Purpose of indirect election 134

Subordination of the House of Representatives 137

Impeachment made difficult 142

Significance of the President's oath of office 146

The House of Representatives in relation to the

budget 148

Lack of adequate provision for publicity 150

Attitude of the framers toward criticism of public

officials 152

Federal versus national government 160

Relation of the general to the state governments not

clearly defined 162

Effort to lay the foundation of a national government 164

Origin and development of the doctrine of nullification 168

Calhoun's theory of the Constitution 174

The judiciary act of 1789 182

CHAPTER VII

UNDEMOCRATIC DEVELOPMENT

The influence of checks upon the development of

our political institutions 186

The House of Representatives an irresponsible body

during the second regular session 189

Congress has power to remedy the evil 191

The committee system a check on the majority 193

The speaker's power to thwart legislation 199

The system encourages log-rolling 200

CHAPTER VIII

THE PARTY SYSTEM

Conservative opposition to party government in the

eighteenth century 203

The effort of the framers to guard against the possibility

of responsible party government 205

Difference between the English and the American

party system 208

Influence of the Constitution upon the party system

not generally recognized 210

The evils of our party system attributed by conservative

writers to majority rule 212

Character of our party platforms 218

True party government impossible under our constitutional

system 226

CHAPTER IX

CHANGES IN THE STATE CONSTITUTIONS AFTER 1787

Development of the judicial veto 230

Limitation of the power to impeach 231

Extension of the term of office of governor and members

of the legislature 232

Amendment of the constitution made more difficult 235

Influence of democracy upon the state constitutions 239

Division of authority in the state government 243

Lack of effective responsibility 245

CHAPTER X

MUNICIPAL GOVERNMENT

Municipal government at the time of the Revolution 249

Changes in municipal government after the adoption

of the Constitution 250

The municipality a creature of the state legislature 252

Hostility of the courts to municipal self-government 254

The attitude of the courts made state interference

necessary 255

Abuses of legislative interference 256

Constitutional provisions limiting the power of the

legislature to interfere 261

Effort to establish municipal self-government 265

Limitation of the power of the majority in constitutions

granting municipal self-government 266

The object of home rule provisions largely defeated

by judicial interpretation 268

Limitation of the taxing and borrowing power of

home rule cities 272

Origin of the constitutional limitations of municipal

indebtedness 273

Fear of municipal democracy 277

Municipal ownership as a means of taxing the propertyless

class 280

Why our state governments have not been favorable

to municipal democracy 285

Limitation of the power of the majority the main

cause of municipal corruption 288

CHAPTER XI

INDIVIDUAL LIBERTY AND THE CONSTITUTION

The eighteenth-century conception of liberty negative 291

Influence of the Revolution upon the conception of

liberty 293

Why present-day conservatives advocate the eighteenth

century view of liberty 295

Liberty to the framers meant the limitation of the

power of the majority 297

The doctrine of vested rights 299

Survival of the old view of liberty in our legal

literature 301

CHAPTER XII

INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM

The economic conditions under which the old view

of liberty originated 304

Influence of the industrial revolution upon the liberty

of the worker 306

The _laissez faire_ policy 308

Protection has been maintained as a class policy 312

The need of protection to labor 316

Limitation of governmental powers in the interest

of the capitalist 318

The policy of the Supreme Court a factor in corrupting

the state governments 325

CHAPTER XIII

THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION

Modification of the system as originally set up 331

The extension of the suffrage 333

Defect in the method of electing the President 333

Three reforms needed in the case of the Senate 338

Possibility of controlling the Supreme Court 341

Power of two-thirds of the states to call a constitutional

convention 346

Effort to secure the responsibility of public officials 349

Direct versus representative democracy 351

Reliance of the conservative classes on the courts 355

Election of United States senators by the legislature

incompatible with its other functions 357

CHAPTER XIV

EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY

RULE UPON MORALITY

Higher standards of morality 361

The growth of publicity in relation to immorality 363

Decline in the efficacy of old restraints 364

The conflict between two opposing political systems 367

The need of more publicity 372

Corporate control of the organs of public opinion 375

Lack of respect for law 377

CHAPTER XV

DEMOCRACY OF THE FUTURE

The progress of democratic thought 379

Influence of printing upon the growth of democracy 380

The immediate aim of democracy political 383

Relation of scientific and industrial progress to democracy 384

Democracy would make government a science 386

Dependence of man's industrial activities on the social

environment 388

Necessity for equality of opportunity ignored by conservative

writers 390

The scientific justification of democracy's hostility

to privilege 394

Democracy's attitude toward the doctrine of _laissez

faire_ 397

THE SPIRIT OF AMERICAN GOVERNMENT

CHAPTER I

THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY

Constitutional government is not necessarily democratic. Usually it is a

compromise in which monarchical and aristocratic features are retained.

The proportion in which the old and the new are blended depends, of

course, upon the progress the democratic movement has made. Every step

toward democracy has been stubbornly opposed by the few, who have

yielded to the popular demand, from time to time, only what necessity

required. The constitution of the present day is the outcome of this

long-continued and incessant struggle. It reflects in its form and

character the existing distribution of political power within the state.

If we go back far enough we find government nearly everywhere in the

hands of a King and privileged class. In its earlier stages the

constitutional struggle was between monarchy and aristocracy, the King

seeking to make his authority supreme and the nobility seeking to limit

and circumscribe it. Accordingly, government oscillated between monarchy

and aristocracy, a strong and ambitious King getting the reins of

government largely in his own hands, while the aristocracy encroached

upon the power and prerogatives of a weak and incompetent one. Thus

democracy played no part in the earlier constitutional struggles. The

all-important question was whether the King or the nobility should

control the state. Civil wars were waged to decide it, and government

gravitated toward monarchy or aristocracy according as the monarchical

or aristocratic party prevailed.

Under William the Conqueror and his immediate successors the government

of England was practically an absolute monarchy. Only the highest class

was consulted in the Great Council and the advice of these the King was

not obliged to follow. Later, as a result of the memorable controversy

between King John and his feudal barons, the Great Council regained the

power which it had lost. Against the King were arrayed the nobility, the

church as represented by its official hierarchy, and the freemen of the

realm, all together constituting but a small minority of the English

people. The Great Charter extorted from the King on this occasion,

though frequently referred to as the foundation of English liberty, was

in reality a matter of but little immediate importance to the common

people. The benefit of its provisions, while not limited to the

nobility, extended, however, only to those classes without whose aid and

support the tyrannical power of the King could not be successfully

opposed. The church, by reason of the great wealth which it controlled

and the powerful influence which it exerted in a superstitious age over

the minds of the people, was a factor that could not be ignored. The

freemen also played an important part in the constitutional struggles,

since they carried the sword and formed the rank and file of the

fighting class. The important provisions of the Great Charter relate

exclusively to the rights of the church, the nobility and the freemen.

The serfs, while not included within the benefit of its provisions, were

an overwhelming majority of the English people. This conclusion is

irresistible in view of the fact that the Domesday Survey shows that

about four-fifths of the adult male population in the year 1085 were

below the rank of freemen.[1]

The Great Charter was, it is true, an important step in the direction of

constitutional government, but it contained no element of democracy. It

merely converted the government from one in which monarchy was the

predominant feature, to one in which the aristocratic element was

equally important. The classes represented in the Great Council became a

constitutional check on the power of the King, inasmuch as he could not

levy taxes without their consent. The important constitutional position

which this charter assigned to the nobility was not maintained,

however, without repeated struggles under succeeding Kings; but it laid

the foundation for the subsequent development which limited and finally

abolished the power of the monarch.

In the course of time the Great Council split up into two separate

bodies, the House of Lords, composed of the greater nobility and the

higher dignitaries of the church, and the House of Commons, representing

all other classes who enjoyed political rights. When the House of

Commons thus assumed a definite and permanent form as a separate body, a

new check upon the power of the King appeared. The consent of two

separate bodies was now necessary before taxes could be imposed. The

development of these checks was hastened by the fact that the King found

it easier and safer to get the assent of these bodies to measures which

involved an exercise of the taxing power, than to attempt the collection

of taxes without their support. In this way the right of assenting to

all measures of taxation came in time to be recognized as belonging to

the two houses of Parliament. But this was a right not easily

established. It was claimed and fought for a long time before it finally

became a firmly established principle of the English Constitution.

Around the question of taxation centered all the earlier constitutional

struggles. The power to tax was the one royal prerogative which was

first limited. In time Parliament extended its powers and succeeded in

making its assent necessary to all governmental acts which vitally

affected the welfare of the nation, whether they involved an exercise of

the taxing power or not. The law-making power, however, as we understand

it now was seldom employed, the idea of social readjustment through

general legislation being a recent growth. But as revenues were

necessary, the taxing power was the one legislative function that was

constantly exercised. It is not strange then that the earlier

constitutional development should have turned mainly upon the relation

of the various political classes to the exercise of this power.

That English constitutional development resulted in a parliament

composed of two houses may be regarded as accidental. Instead of this

double check upon the King there might conceivably have been more than

two, or there might, as originally was the case, have been only one. Two

distinct elements, the secular nobility and the dignitaries of the

church, combined to form the House of Lords. The House of Commons was

also made up of two distinct constituencies, one urban and the other

rural. If each of these classes had deliberated apart and acquired the

right to assent to legislation as a separate body, a four-chambered

parliament, such as existed in Sweden up to 1866 and still survives in

Finland, would have been the result.[2]

The essential fact, everywhere to be observed in the development of

constitutional government, is the rise to political power of classes

which compete with the King and with each other for the control of the

state. The monopoly of political power enjoyed by the King was broken

down in England when the nobility compelled the signing of Magna Charta.

This change in the English Constitution involved the placing of a check

upon the King in the interest of the aristocracy. Later, with the

development of the House of Commons as a separate institution, the power

of the King was still further limited, this time in the interest of what

we may call the commercial and industrial aristocracy.

At this stage of its development the English government contained a

system of checks and balances. The King still retained legislative

power, but could not use it without the consent of both Lords and

Commons. Each branch of the government possessed the means of defending

itself, since it had what was in effect an absolute veto on legislation.

This is a stage in political evolution through which governments

naturally pass. It is a form of political organization intermediate

between monarchy and democracy, and results from the effort to check and

restrain, without destroying, the power of the King. When this system

of checks was fully developed the King, Lords and Commons were three

coordinate branches of the English government. As the concurrence of all

three was necessary to enact laws, each of these could defeat

legislation desired by the other two.

The development of this system of checks limited the irresponsible power

of the King only on its positive side. The negative power of absolute

veto the King still retained. While he could not enact laws without the

consent of the other two coordinate branches of the government, he still

had the power to prevent legislation. The same was true of the Lords and

Commons. As each branch of government had the power to block reform, the

system was one which made legislation difficult.

The system of checks and balances must not be confused with democracy;

it is opposed to and can not be reconciled with the theory of popular

government. While involving a denial of the right of the King or of any

class to a free hand in political matters, it at the same time denies

the right of the masses to direct the policy of the state This would be

the case even if one branch of the government had the broadest possible

basis. If the House of Commons had been a truly popular body in the

eighteenth century, that fact would not of itself have made the English

government as a whole popular in form. While it would have constituted a

popular check on the King and the House of Lords, it would have been

powerless to express the popular will in legislation.

The House of Commons was not, however, a popular body in the eighteenth

century. In theory, of course, as a part of Parliament it represented

the whole English people. But this was a mere political fiction, since

by reason of the narrowly limited suffrage, a large part of the English

people had no voice in parliamentary elections. Probably not one-fifth

of the adult male population was entitled to vote for members of

Parliament. As the right to vote was an incident of land ownership, the

House of Commons was largely representative of the same interests that

controlled the House of Lords.

That the House of Commons was not democratic in spirit is clearly seen

in the character of parliamentary legislation. The laws enacted during

this period were distinctly undemocratic. While the interests of the

land-holding aristocracy were carefully guarded, the well-being of the

laboring population received scant consideration. The poor laws, the

enclosure acts and the corn laws, which had in view the prosperity of

the landlord, and the laws against combination, which sought to advance

the interests of the capitalist at the expense of the laborer, show the

spirit of the English government prior to the parliamentary reform of

1832. The landlord and capitalist classes controlled the government and,

as Professor Rogers observes, their aim was to increase rents and

profits by grinding the English workman down to the lowest pittance. "I

contend," he says, "that from 1563 to 1824, a conspiracy, concocted by

the law and carried out by parties interested in its success, was

entered into, to cheat the English workman of his wages, to tie him to

the soil, to deprive him of hope, and to degrade him into irremediable

poverty."[3]

But it is not in statute law alone that this tendency is seen. English

common law shows the same bias in favor of the classes which then

controlled the state. There is no mistaking the influences which left

their impress upon the development of English law at the hands of the

courts. The effect of wealth and political privilege is seen here as

well as in statutory enactment. Granting all that can justly be said in

behalf of the wisdom and reasonableness of the common law, the fact

nevertheless remains, that its development by the courts has been

influenced by an evident disposition to favor the possessing as against

the non-possessing classes. Both the common and the statute law of

England reflected in the eighteenth century the political supremacy of

the well-to-do minority.

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