The national government of the United States

Preface

This book is a study of the national government of the United States. Many excellent texts have been issued upon state, city, and local government, and the presentation of these subjects in special courses gives the opportunity to devote an entire volume to the national government alone. The development of our national institutions has been discussed from many points of view : political, historical, and economic.

In discussing this theme I have endeavored to show the historical origins and the development of our national political institutions and to present an adequate picture of the actual workings of the government. But I have also attempted never to lose sight of the fact that the Constitution is the supreme law of the land, and its interpretation by the Supreme Court is, until altered, authoritative. The important fact is emphasized that in all phases of our national life the government is a government of law. To make this clear I have quoted freely from the opinions of the Supreme Court. There is a double advantage in so doing : the decisions of the court are authoritative, and the exact words show the process of arriving at conclusions or, in the case of minority opinions, at the reasons for dissent. This feature of the book gives it a twofold character, that of a textbook in which institutions are described and analyzed and that of a source book in which appear the actual words used by the court in expounding or limiting the powers of the government. To this end I have selected both historical cases and present problems, but rather by way of illustrating permanent principles than for the sake of discussing the merits of particular problems. It has seemed more important to explain a principle than to win a convert.

iii iv THE GOVERNMENT OF THE UNITED STATES

To my students of Smith College I owe a debt of gratitude for making it possible for me to develop the method I have used. In particular I wish to express my obligation to Professor G. H. Haynes, Professor E. D. Fite, and Professor E. J. Woodhouse, who have read portions of the manuscript and proof. Acknowledgment is also due to Honorable F. H. Gillett, Speaker of the House of Representatives, who most kindly read and criticized the chapters upon " Congress at Work.” But for all statements of opinion and fact I am alone responsible.

December i, 1919

EVERETT KIMBALL

Contents

CHAPTER PAGE

1. Constitutional Background i

II. The Evolution of the Constitution i8

Chapter I

The Constitution of the United States was the work of the convention of 1787. .This convention, called for "the sole purpose of revising the Articles of the Confederation," assembled at Philadelphia, and after nearly five months of painstaking labor produced, not a revision of the Articles of Confederation but an entirely new frame of government.

Although eighteen amendments have been added to this instrument, its form has been vitally altered but few times. The first ten of these amendments, expressing the wish of a large proportion of the members of the convention and the overwhelming desire of the people, may be considered a portion of the original document. The Twelfth Amendment was adopted to remedy the dangerous defect in the process of the election of the president revealed by the elections of 1800 and, while altering the legal process, did but sanction the methods made necessary by the growth of parties. The Thirteenth, Fourteenth, and Fifteenth Amendments were the result of. the long struggle over slavery culminating in the Civil War and the consequent readjustments. These amendments, in addition to settling these controversies, vitally alter and change the balance between the federal and state governments as planned by the convention. The Eleventh Amendment, adopted in 1798, and the Sixteenth (1913) were caused by decisions of the Supreme Court which ran counter to popular approval and settled points which were either unconsidered or which were doubtful in the minds of the framers. The Seventeenth (1913) represents the rising strength of democracy.

The Constitution of the United States not a revision of Articles of Confederation

Few changes from original form

I

Background of framers

Modifications by

(i) legislation

(2) judicial interpretation

(3) party practice

(4) political habit impatient of the checks and balances which the men of 1787 thought necessary. The Eighteenth (1919) is an attempt to regulate by national authority matters originally left to the states.

The form of the Constitution is thus emphatically the work of the convention of 1787. But nothing could be more false than to assume that the convention created de novo our present system of government. Among the fifty-five delegates who composed that body seven had served as governors of their respective states, twenty-eight had been delegates to the Continental Congress, many had had actual experience in the legislative assemblies of the colonies or states, and all were familiar with the problems of government which faced the nation. It was this practical experience gained in the successful working of the colonial and state constitutions and the bitter experience of .the unsuccessful operations of the Confederation, rather than any sudden inspiration, which produced the Constitution.

Furthermore, although the framework as designed by the convention has been but seldom altered, the actual working of the Constitution has been and is being greatly changed. Around the original document there is a mass of constantly changing legislation, adopted to give to the provisions of the instrument that effect desired at the particular moment. Hardly a clause or phrase of the instrument has escaped judicial review, which has almost invariably construed or interpreted them to meet such needs as have been demanded by the people. The whole far-reaching party system, little considered and less understood by the framers, has produced new processes of government and given new meanings to the system established by the framers. Finally, political habit and custom have erected limits and extended functions in a manner unthought of by the originators.

Thus, in order to understand the Constitution and the system of government it establishes it is necessary to appreciate the experience at the command of the framers, to examine the legislation of Congress, to study most carefully the judicial interpretation by which the Supreme Court has extended or limited the powers of Congress and the functions and powers of the government. Above all, it is necessary to understand the workings of that vast extra-legal institution, the political party system, which exists outside of the formal document but which alone makes possible the operations of the government. And finally must be considered the traditions and customs which so often condition the working of the party system and the process of legislation and even the interpretation given by the courts. From this point of view the study of the Constitution is not merely the study of a formal document drawn up in the last years of the eighteenth century but the interpretation of the political life and practices of ever-changing institutions.

Colonial Traditions and Experience

Although different motives were operative in the founding of the thirteen colonies, and although different systems of government were tried at various times, there was a general tendency to develop institutions which were practically alike. The minor local divergences from these institutions, although interesting, are not of as much importance as the general agreement found in the essentials. In all but Georgia the fundamentals of the colonial institutions had been in operation for nearly a century, while Virginia had had over one hundred and fifty years of political experience under substantially the same system of government. This common political experience gained from generations of life under similar institutions was of the greatest importance to the makers of the Constitution.

From their foundation to the Revolution the colonies had been accustomed to written constitutions. These were expressed in a grant, a charter, or in royal instructions, but in whatever form found they had the nature of a fundamental law. They were unchangeable by the ordinary process of legislation and dependent solely upon the legal sovereign of England, which, after 1689, was Parliament.^ Acts of the colonial assemblies contrary to these fundamental charters, or constitutions, were void in theory, as being tiUra vires, and in practice were generally disallowed by the Crown. In those colonies where the charter provided for a periodical submission of colonial acts the review of legislations was automatic. In other colonies, since the right of appeals

1 Campbell v. Hall, J. B. Thayer, Cases in Constitutional Law, Vol. I, p. 40.

Similarity of political exrerience and institutions

Written constitutions and colonial legislations veto

Representative assemblies

The council to the king in council was insisted upon, -colonial legislation might possibly have to pass the scrutiny of the law officers of the Crown. Thus long experience had accustomed the colonists to written constitutions, beyond the competency of their legislatures to change, and also to a semijudicial review of their legislation with the possibility of the annulment of their acts.

In the majority of the colonies, moreover, all colonial legislation was subject to the executive veto of the governor. In the royal provinces, which numbered eight at the time of the Revolution, the laws to be valid must receive the approval of the Crown. In the proprietary provinces ^ the assent of the proprietor was in theory required, and, in the case of Delaware and Pennsylvania, the laws were also submitted to the Crown. In Rhode Island and Connecticut alone legislation was unhampered by executive control.

Almost from their foundation the majority of the colonies had been accustomed to representative assemblies. Whatever may have been the original differences in their composition and powers, by the era of the Revolution they approximated a common type. In all the colonies, except Pennsylvania, the legislature consisted of two houses, a representative assembly more or less popularly chosen and a council.

In Massachusetts, Rhode Island, and Connecticut the council was elected. Thus it closely reflected the sentiments of the colonists, which in Massachusetts were often in opposition to the appointed royal governor. In the other colonies the council was appointed either by the Crown or by the proprietor on the nomination of the governor, who also had the power of removal. Thus the council was usually found on the side of the governor in a dispute with the representatives. The council, except in Pennsylvania, possessed the usual functions of a second chamber in legislation and discussed, amended, and voted the measures sent to it from the representatives. Moreover, in all the colonies the council advised the governor in matters of administration, in many cases shared with him the responsibility of appointments, and with him formed the highest court of appeal in the colony. It thus performed the dual function

1 Maryland, Delaware, Pennsylvania.

of the upper house of a legislative assembly and the advisory council of the executive.

The representative assembly in every colony was chosen by popular vote, and everywhere the qualifications for suffrage were vexatious and restrictive. In every colony a property qualification was required. In Massachusetts, by the charter of 1691, which continued until the Revolution, the franchise was restricted to forty-shilling freeholders or possessors of other property to the value of forty pounds. New York had a somewhat similar qualification, but also granted the suffrage to all members of the municipal corporations of Albany and New York. Pennsylvania granted the franchise to all who possessed fifty acres of land or fifty pounds of lawful money. Virginia required fifty acres without a house, or twenty-five acres with a house at least twelve feet square, or in towns a lot or part of a lot with a house twelve feet square thereon. The effect of these restrictions upon the voting population was striking. It is difficult to obtain exact figures, but Dr. A. E. McKinley brings forward the following significant facts and conclusions :

The franchise was more widely exercised, if not more widely conferred, in Virginia than in the more northern colonies. . . . [In New England] the potential voters vary from one sixth to one fiftieth of the population, and the actual number of voters shows almost an equal variation ; Massachusetts and Connecticut showing at times only two per cent of actual voters apiong the population, where perhaps sixteen per cent were qualified electors, and New York City and Virginia showing the far larger proportion of eight per cent of the population as actual voters.^

Contrary to English practice the colonial idea of apportionment was to grant representatives by general law and roughly according to population. In general, towns, villages, or parishes were entitled to one or more representatives either singly or in combination, and there was some attempt made to add to the number from larger communities. There were obvious exceptions to this rule, especially in South Carolina and Pennsylvania. In South Carolina the representatives were apportioned according

1 A. E. McKinley, The Suffrage Franchise in the Thirteen English Colonies, University of Pennsylvania Pziblications, p. 487.

The suffrage

Apportionment of representatives

Claims and powers of assemblies to the parishes, which were of most unequal population, while in Pennsylvania the Quaker counties of the east, although in the minority, had twice the number of representatives, apportioned to the western counties. These and other inequalities in apportionment were increasing from the natural growth of the country and because of the instructions of the British government, which sought to limit the incorporation of towns with the right of representation. The colonists, furthermore, had departed from the English practice in another way, in that, generally, only residents of the districts were chosen as representatives. In fact, it may be said that if the colonists had been allowed to develop their own ideas without English restrictions, they would have probably developed a system of apportionment and representation still further differing from the English practice and more nearly approaching the present system.

The colonial assemblies thus chosen claimed full power to regulate their domestic affairs. In legislation the assent of the Crown was necessary, but by means of delays and the passage of temporary acts the assemblies frequently succeeded in accomplishing their ends in spite of royal disapproval. In finance the assemblies claimed exclusive- power and maintained their right to lay all taxes levied within the colonies and to make appropriations. This control of taxation and appropriation gave the authorities in England the greatest trouble. Again and again the assemblies successfully resisted the demands of the royal governors, even though they were supported by instructions from the Crown. Not only did the assemblies maintain this right but they utilized it to obtain other concessions. Because of the right to make appropriations they claimed the right to pass upon the necessity of the object for which the appropriations were desired and in some instances vested the expenditure of the money and the auditing of the accounts in officers of their own appointment. By threatening to withhold or by actually refusing to make appropriations, unless some grievance was redressed or privilege guaranteed, the assemblies won for themselves constitutional and legal rights which were invaluable to the colonists. In short, the assemblies regarded themselves as possessed of the same rights as the House of Commons, and.

quoting precedents from the struggle between the Commons and the Crown, they sought to place themselves in a similar position. It was this legislative experience in the assemblies which taught the colonists the lessons of self-government and gave their leaders the necessary training in practical politics.

In the eight royal provinces the provincial governor was appointed by the Crown and occupied the dual position of the representative of the British government and the highest colonial executive. In this last position his powers are significant in showing the result of colonial experience. The royal governor was charged with the supervision and the enforcement of the laws and the maintenance of peace and order. He was commander in chief of the colonial militia and commissioned the higher military officers. He had, with his council, the power to appoint and remove the civil officers and, except in Massachusetts, could remove the members of his council. As chancellor he had important judicial duties in hearing appeals from the lower courts, and he also had the power to grant reprieves and pardons. In addition to his executive powers he had wide power in legislation. Except in Massachusetts he nominated the council, and in all the royal provinces he had the right to summon, prorogue, and dissolve the assembly. He attempted to influence legislation by messages and addresses to the assembly and by debate in the oouncil, over which he presided. Through his veto power he could check any bill after it had passed both the house of representatives and the council.

These powers, however, were both extended and limited by the political influence of the governor, by his instructions from England, and by the political development of the province. Through his power of appointing the returning officers for elections to the assembly the governor sometimes succeeded in packing the house of representatives with his adherents, but more often he utilized his social position for whatever political influence he might possess. His influence and popularity, however, were seriously diminished by his instructions from the English government. His powers were under close scrutiny and supervision, and he was frequently forced to urge upon the province a policy which, however wise it might be for

The provincial governor

Actual powers and influence of the governor

The governor in proprietary colonies

The governor in Connecticut and Rhode Island

Influence on state constitutions

The colonial

judicial

system

Appeals to the Crown the interests of the empire, aroused local dissatisfaction and opposition. Finally, the assemblies, through the power to make or withhold appropriations, developed such political skill that they were able to check the designs and many times to gain the compliance of the stiffest provincial governors.

In the proprietary provinces the proprietor, when in the colony, assumed most of the functions of the governor ; in his absence they were performed by a deputy of his appointment. These prerogatives varied greatly from Maryland, where the power of the governor was most far-reaching, to Pennsylvania, where the assembly sat as a single chamber without the council and was almost free from executive control. By the charters of Connecticut and Rhode Island the governors were elected annually by the respective assemblies and were not distinct officials, but acted only in conjunction with the council, which was likewise chosen by the assembly. In neither of these colonies did the governor have the power of veto over the acts of assembly.

There were other minor variations in the powers of the governor in the different colonies. But in general the theoretical and, to a large extent, the actual powers of the royal governors were great enough to cause the framers of the first state constitutions to limit them decidedly. Thus the new executive approached the type of the Connecticut governor rather than that of the provincial governor.

The courts of the different colonies had many features in common and all enforced English common law, the colonial statutes, and the acts of Parliament which applied to the colonies. In every colony there was a threefold organization — justices of the peace for petty cases, county courts for all but capital cases, and a court of appeal. From the colonial court of appeal appeals could be carried to the king in council. Early in colonial history this claim had been resisted. Massachusetts, for example, passed acts to forbid such appeals, and throughout the colonial period it could be used only in important cases. The English government, however, was insistent, and appeals were carried to England not only from the royal provinces but from Connecticut and Rhode Island, the most independent of the colonies. The procedure was complicated, costly, and tedious.

but in time the right of appeal came to be regarded by the colonists as a safeguard against local injustice. From a constitutional point of view it served to keep colonial legislation within the limits set by the charters and to accustom the assemblies to an occasional judicial review of their acts as well as to give an opportunity for correcting faulty judicial decisions.

Neither the political nor the social life of the colonists was democratic. In every colony except Rhode Island and Connecticut there was an ever-increasing number of appointed officials— governors, members of the councils, judges, and officials who owed their positions neither to the electorate nor to the representatives in the assemblies. They constituted the governing class, which monopolized the offices and rewards both social and material and occupied the highest rank both in society and in government.

In the Southern colonies and in New York and, to a lesser degree, in Pennsylvania certain families and their connections held vast estates and constituted a landed aristocracy above and beyond the possible ambitions of the slaves, indented servants, and tenants who cultivated the land. The rich merchants of Philadelphia, New York, Charleston, and Boston represented the moneyed interests and usually were allied in purpose and feeling with the landed class. In New England the clergy and the colleges furnished an element which ranked in influence and prerogatives above the majority of the people. Even the representatives to the assemblies stood for property, since the qualiflcation for the franchise was so high that only the well to do could vote.

Resistance to England has often been mistaken for a desire for equality. But there is little evidence to show that until the era of the Revolution the majority of the well-to-do colonists were greatly dissatisfled with their institutions. The leaders still held a view of democracy which was not unlike that of John Winthrop who wrote of " the unwarrantableness ... of referring matters of counsel or judicature to the body of the people, quia the best part is always the least, and of that best part the wiser part is always the lesser.” ^

^ Life and Letters of John Winthrop, Vol. II, p. 237 ; quoted by Edward Channing, History of the United States, Vol. I, p. 348.

The political and social life of the colonies not democratic

The revolution presented two problems and produced two governments

Committees of correspondence

Revolutionary Experiments

The separation from Great Britain involved a double task — military and constitutional. By force of arms it was necessary to put an end to the authority of England. To maintain the revolutionary army it was necessary to establish some system of government capable of supplying money and directing the movements of the forces. It was equally necessary that this government should possess the confidence of the people and be able to preserve peace and order within the states. This twofold task was performed by two sets of governments — the Continental Congress, which represented the union of the states, directed the military operations, and conducted the foreign policy ; and the . state governments, which grudgingly responded to the requisitions of Congress for men and money, but which preserved order and furnished the sole legal authority within the United States until the adoption of the Articles of the Confederation in 1781. Thus, although the Continental Congress conducted the greater part of the war, accepted great responsibilities, and was tacitly accepted by the different states, it was a revolutionary body without legal authority. The states, rather than Congress, first established a legal, in contradistinction to a revolutionary, system of government.

Beginnings of State Government

The preliminary work of spreading revolutionary doctrines and molding public opinion was accomplished by unofficial means. Individuals or groups of men under the infiuence of some more advanced agitators formed unofficial groups where opposition to Great Britain was discussed. The next step was to get some quasi-official authorization for their action, and this was sought either from the town meeting or from the colonial . assembly. Thus, in Boston, the Town Meeting in 1772 resolved, on the motion of Samuel Adams, to appoint a committee of twenty-one ''to state the Rights of the Colonists ... to communicate and publish the same to the several Towns ... as the sense of this Town. . . . Also requesting from each Town a free communication of their sentiments on this subject.” Throughout the

CONSTITUTIONAL BACKGROUND II

Province there was a hearty response, and in almost every town either a self-constituted group or a committee appointed by the town meeting began to correspond with similar committees in other towns and in particular with the committee in Boston. In Virginia the House of Burgesses, by a resolution, March 12, 1773, established a committee of eleven to keep up and maintain a correspondence and communication with our sister colonies, ...” thus pointing the way to extra-legal methods of intercolonial communication and union. Both the Massachusetts and Virginia plans were adopted by the other colonies, and before hostilities began or the authority of England was seriously questioned there existed a framework of revolutionary government. In some colonies this organization was of an advanced type. New Jersey, for example, had town, county, and colonial committees, directly chosen in the first instance and by delegation from the lower to the higher committees.

It should be remembered, however, that this apparent wide representation was representation of one party only. ” Honest men ” — in other words, revolutionists — were alone chosen for these committees. Loyalists and those whose opposition to Great Britain was lukewarm had little influence and received scant consideration. Nevertheless, faulty as these committees were in origin and composition, they were extremely powerful and by means of influence, intimidation, and sometimes violence enforced their opinions. Moreover, as the authority of the royal governments weakened and finally disappeared, these committees and the conventions they summoned became the only form of organized government within the provinces. Obedience and submission to their acts gave a semilegal sanction to their revolutionary power until the state constitutions could be framed and adopted. In another way these committees contributed to the ease with which the colonists established the new governments. Either by the choice of delegates to the provincial congresses or by means of letters, these bodies conveyed to the central revolutionary body in each colony the sentiments and ideas of the people far more quickly than an election would have done, had such been possible in the presence of the British forces. Thus, of the fourteen constitutions which were adopted between 1776 and 1783 only two were

The influence of the committees of correspondence formally submitted to the people for ratification, while four were informally published before final action was taken upon them. Eight of the new constitutions, however, were adopted by these purely revolutionary bodies without consultation and without giving the people an opportunity to express criticism or approval. Irregular as this method seems, it was not seriously questioned at the time, but recognized as the most effective method to reestablish some form of government.

Formation of State Constitutions state consti tutions framed cn the advice of Co'hgress

The alteration of the Massachusetts charter brought about the first step in the legal development of the state constitutions. The new royally appointed councilors were forced to resign, but the towns elected their representatives to the assembly, while committees of safety and county conventions urged that a provincial congress should be called. General Gage, the last provincial governor, attempted to prevent the meeting of the assembly he had summoned, but the representatives gathered at Salem and voted that they and such others as might be elected should become a provincial congress. Meeting at Concord, this body took up the double task of resistance and government and applied to the Continental Congress for advice. The answer of Congress concerning the form of government to be adopted was in the resolution of June 9, 1775. It advised the Massachusetts convention to write to the towns having representation, asking them to choose representatives as under the old charter, and that the representatives so chosen should elect a council which should, together with the representatives, form an assembly and exercise the power of government.^ This advice was followed, and Massachusetts continued until 1780 to operate under her old system of government minus the royal governor. A year later Congress took a bolder tone, and in response to the repeated requests from the states recommended that " where no government sufficient to the exigencies of their affairs has been hitherto established, [the states] adopt such government as shall, in the opinion of the representatives of the people, best

^ Join’uals of the Co7iimental Congress, Vol. II, pp. 83-84.

conduce to the happiness and safety of their constituents in particular, and America in general.” ^

Following this advice all the colonies, except Connecticut and Rhode Island, whose charters needed scarcely any alteration, framed constitutions in the representative assemblies, which had displaced the colonial legislatures. In the case of Virginia and South Carolina these constitutions were adopted, like any other legislative act, in the assemblies chosen for general purposes. Most of the other constitutions, however, were accepted by delegates chosen with the question of framing a government clearly in mind. In Maryland, Pennsylvania, North Carolina, and South Carolina, in 1778, the work of the assemblies was informally submitted to the people, while in Massachusetts in 1779 and in New Hampshire in 1783 special constitutional conventions were called to frame the documents, and the results were submitted to the people for ratification, a method which has been followed with varying fidelity ever since.

The constitutions produced by these bodies reflect both the colonial experience and the revolutionary theories. In seven of the documents a Bill of Rights precedes the actual frame of ^ government, and in many of the others sections and clauses are inserted which in a less formal degree indicate the political philosophy of the framers.

In general the frame of the government continued the institutions with which the people were familiar, for all but Pennsylvania provided for a single executive and a bicameral legislature and a system of courts.^ In all cases the separation of these departments was decreed in theory if not in actual terms.