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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.