The Spirit of American Government: A Study of the Constitution: Its Origin, Influence and ...

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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 minoritv. 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. Undf^r 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

PREFACE

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 jirgsent 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 ConstituriotL.Pjijmajority 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 ^h the impression that universal suffrage under

vi

PREFACE

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 publi-

•.

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PREFACE

cation. He is also under obligation to Mr. Edward Mc Mahon for suggestions and for some illustrative material which he has made use of in this volume.

J. Allen Smith.

Seattle, Washington, January, 1907, yui

CHAPTER I Thb Engush 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 Qass influence as seen in statute and common law • 10

CHAPTER n

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 HI

The Constitution a Reactionary Document ^

Causes of political reaction ^7 .

The Constitution a product of eighteenth-century

thought 28

The framers' fear of democracy .... 29

Effort to limit the power of the majority ... 35

ix

CHAPTER IV

The Significance of the Amendment Feature of the

Constitution

PAGE

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

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 . in 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

X

CHAPTER VI the

The Checks and Balances of the Constitution

PAGE

A cure for the evils of democracy

Evolutionary classification of governments

Substitutes for king and aristocracy

Relation of the theory of checks and balances to hisses faire and anarchism

Purpose of indirect election ....

Subordination of the House of Representatives

Impeachment made difficult ....

Significance of the President's oath of office

The House of Representatives in relation to budget

Lack of adequate provision for publicity

Attitude of the framers toward criticism of public officials

Federal versus national government

Relation of the general to the state governments not clearly defined

Effort to lay the foundation of a national government

Origin and development of the doctrine of nullification

Calhoun's theory of the Constitution

The judiciary act of 1789

125 128 130

137 142

148 150

152 160

162 164

174 182

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

xi

CHAPTER VIII The Party System

PAGE

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 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

PAGE

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

home rule cities ....

Origin of the constitutional limitations of

indebtedness ....

Fear of municipal democracy Municipal ownership as a means of taxing

ertyless class ....

Why our state governments have not been

to municipal democracy Limitation of the power of the majority

cause of municipal corruption power of

. 272 municipal

. 273 . 277

the prop-

. 280

285 288 favorable the main

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 265

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

• • •

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J

CHAPTER XII Individual Liberty and the Economic System

^ PAGE

''^'^ 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 hisses 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

xiv

PAGE

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

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

Democrac/s attitude toward the doctrine of hisses faire . . , , , , . ' . .397

XV i

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. E very steo 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 f

( I i

I

SPII^IT OF AMERICAN GOVERNMENT

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 tfiS'^sfafeT^^Gvirwa^ 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, tEougli frequently referred to as the foundation of English liberty, was in reality a matter of but little immediate

impnrtanrfi in th^ rnmmnp P^^P^^ The benefit

ot Its provisions, while not limited to the nobility, extended, however, only to those classes without whose aid and support the tyrannical power of the

THE ENGLISH GOVERNMENT

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 chur di, the nobility and tha/freeme5) 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 o f the adult male populat ion in the vear lo^t; were below tlie rank of freemen?_ 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 "l^hich this charter assigned to

\ Sebohm, feriiah V^age Community, Ch. Ill ; Traill, Social Englanp^v^ol. t/p. 240; Ashley, English Econonuc History, VoL 1, p. 17,

I

I 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, iV composed of the greater nobility and the higher tv dignitaries of the church, and the House of Com- ^ mons, representing all other classes who enjoyed : political righ ts. 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 cons ent of two separate bodies was now necessar^^befo fe taxes could be Ifhposed. The development oflhese^ecks 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 centfire^^Jl the earlier VjX)nstitutional struggles. T^po«je^to tax was the one royal prerogative which was first limited.

A —

THE ENGLISH GOVERNMENT

In time Parliament extended its powers and succeeded in making its assent necessary to all governmental acts which vitally affected thejKglfare of the nation, whether they involved an exercise of the taxing power _oi^ttoL) The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growtjij^ 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 re-^ suited 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,i6sent \o legislation as a separate body, a four-craiiibere4^parliament, such as existed in

i

Sweden up to 1866 and still survives in Finland, ^ would have been the result^ ("^ 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 powier enjoyed by the King was broken down in England when the nobility compelled the signing ni Magn a 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 indus;: trial 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 jfiemocracy, and results from the effort to check and restrain, with-

^ Lowell, Governments and Parties iirContinestal Europe, Vol. I, Cb. I; Leckyi Democracy and Liberty, VoL I, p. 265.

THE ENGLISH GOVERNMENT

out 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 ^ b^ 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 absolutej^eto the King still retain ed. 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 wrfti democracy "it is"7)^^osed to and can not be reconciled with the theory of pop ular government. While involving a denial of the figntoT 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

I 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 n"5!fowyTimiteasim 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 Avas 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 thjB jghacw, show the spirit of the

THE ENGLISH GOVERNMENT

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."^

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 ^ourtshas been influenced by an evident disposition to favor the possessing as against the non-possessing classes. Both the common \ and "file* statute iaw"tJf"ErTgland reflected in the eighteenth century the political supremacy of the 1/ well-to-do minority.

*Work and Wages, p. 398.

IZ

I

Chapter II The American Government Of The Revolutionary Period

The American colonists inherited the common law and the political institutions of the mother country. The British form of government, with its King, Lords and Commons and its checks upon the people, they accepted as a matter of course.

^-itt-their^ political thinking they were not consciously more democratic than tlTetr;"'Hnimen

^across the_Atlantic. Many of them, it is true, had left England to escape what they regarded as tyranny and oppression. ^^Hl^^^^^2n!L2l A g

Rtip-IiqIi {ynvernment ag si^f-h t^^y had n O obj(

tion. The evils which they experienced were attributed solely to the selfish spirit in which the government was administered.

The conditions, however, were more favorable for the development of a democratic spirit here than in the mother country. The immigrants to America represented the more active, enterprising and dissatisfied elements of the English people. Moreover, there was no hereditary aristocratic class in the colonies and less inequality in the distribution of wealth. This approach to industrial and social equality prepared the mind for the ideas of political equality which needed only the stimulus of a favorable opportunity to ensure their speedy development.

This opportunity came with the outbreak of the American Revolution which at the outset was merely an organized and armed protest against what the colonies regarded as an arbitrary and unconstitutional exercise of the taxing power^ As there was no widespread or general dissatisfaction with the form of the English government, there is scarcely room for doubt that if England had shown a more prudent and conciliatory spirit toward the colonies, the American Revolution would have been averted. No sooner, however, had the controversy with the mother country reached the acute revolutionary stage, than the forces which had been silently and unconsciously working toward democracy, found an opportunity ioj^^^^ojiti^iie^ri^ion. The spirit of resistance to what was regarded as unconstitutional taxation rapidly assumed the form of avowed opposition to the English Constitution itself. The people were ) \ ready for a larger measure of political democracy than the English Constitution of the eighteenth century permitted. To this new and popular view of government the Declaration of Independence gave expression. It contained an emphatic, formal and solemn disavowal of the political theory embodied in the English Constitution; affirmed that "all men are created equal;" that

J3 governments derive "their just powers from the consent of the governed ;" and declared the right of the people to alter or to abolish the form of the government "and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." This was a complete and sweeping repudiation of the English political system, which recognized the right of monarchy and aristocracy to thwart the will of the people.

To what extent the Declaration of Independence voiced the general sentiment of the colonies is largely a matter of conjecture. It is probable, however, that its specification of grievances and its vigorous arraignment of the colonial policy of the English government appealed to many who had little sympathy with its express and implied advocacy of democracy. It is doubtless true that many were carried along with the revolutionary movement who by temperament and education were strongly attached to English political traditions. It is safe to conclude that a large proportion of those who desired to see American independence established did not believe in thorough-going political democracy.

Besides those who desired independence without being in sympathy with the political views expressed in the Declaration of Independence, there were many others who were opposed to the whole Revolutionary movement The numerical strength of the Tories can not be accurately estimated; but it is certain that a large proportion, probably not less t han one-third of the total population of the colonies, did not approve of flie war.^

"In the first place, there was, prior to 1776, the official class ; that is, the men holding various positions in the civil and military and naval services of the government, their immediate families, and their social connections. All such persons may be described as inclining to the LxDyalist view in consequence of official bias.

"Next were certain colonial politiciang^who, it may be admitted, took a ratRer selfishand an unprincipled view of the whole dispute, and who, counting on the probable, if not inevitable, success of the British arms in such a conflict, adopted the Loyalist side, not for conscience' sake, but for profit's sake, and in the exgecjation of being j;ewarded for their fidelity by' offices and titles, and especially by the confiscated estates olthe rebelT after the rebels themselves should have been defeated, and their leaders hanged or sent into exile.

"As composing still another class of Tories, may be mentioned probably a vast majority of those wlnjDLj^tood for the^ commercial intgiests, for the capital arid tangible property of the cootitry, and who, with the instincts natural to persons who

* Tyler, The Literary History of the American Revolution, VoL I, p. 300.

y have something considerable to lose, disapproved of all measures for pushing the dispute to the point of disorder, riot and civil war.