8. In general, what part of the country was in favor of the Const.i.tution and what part opposed?

9. What were some of the objections urged against its adoption?

10. Why was the Const.i.tution not submitted to a direct vote of the people as is the custom with state const.i.tutions?

11. When the draft of the completed Const.i.tution was laid before the Congress of the Confederation, did that body make any changes in it before submitting it to the states?

12. Might North Carolina and Rhode Island have remained permanently out of the Union? If so, what would have been their status?

13. Do you think the time has come when the best interests of the country require a new Const.i.tution? What is your opinion of the proposition that the country has outgrown the Const.i.tution?

14. What, in the light of more than a century's experience, do you consider some of the defects of the Const.i.tution?

CHAPTER X

THE TWO HOUSES OF CONGRESS

=The House of Representatives.=--The Const.i.tution provides that the national house of representatives--the lower house of Congress--shall consist of members chosen every second year by popular election. Under the Articles of Confederation members of the old Congress were chosen annually, but that term was too short to enable them to acquire that familiarity with their duties which is essential to efficient legislation. The term of a representative begins on the 4th of March in the odd-numbered years, though Congress does not meet until the first Monday in December following, unless the President calls it together in extraordinary session earlier.

=Sessions of Congress.=--There are two regular sessions of every Congress; the long session which begins on the first Monday in December of the odd-numbered years and lasts until some time in the following spring or summer; and the short session which begins on the same date in the even-numbered years and lasts until the 4th of March following, when the terms of all representatives expire. Each Congress is numbered, beginning with the first, which began March 4th, 1789. The sixty-seventh Congress began March 4, 1921, and will end March 4, 1923. Extraordinary sessions are sometimes called by the President to consider matters of special importance which need to be acted upon before the meeting of the regular session. From 1789 to 1921 there were only nineteen such sessions, the last being that called by President Harding to meet in April, 1921, to consider tariff and revenue measures and readjustment of international relationships.

=Number and Apportionment of Representatives.=--The Const.i.tution provided that the first house of representatives should consist of sixty-five members, but that as soon as a census of the inhabitants should be taken the number was to be apportioned among the several states on the basis of population, not exceeding one for every 30,000 of the inhabitants. After each decennial census is taken a new apportionment is made by Congress on the basis of the new population.

The total number of representatives at present is 435,[25] being in the proportion of one member for every 211,877 inhabitants, which is known as the congressional ratio. The largest number from any one state is forty-three, the number from New York. Pennsylvania has thirty-six, Illinois twenty-seven, Ohio twenty-two, and so on down the list. Five states are ent.i.tled to but one member each, namely, Arizona, Delaware, Nevada, New Mexico, and Wyoming. As the population of several of these states is less than the congressional ratio, they might not be ent.i.tled to a single member but for the provision in the Const.i.tution which declares that each state shall have at least one representative.

[25] Each of the Territories is represented in Congress by a delegate who is allowed to serve on certain committees and to take part in debate but not to vote. The Philippine Islands are represented by two Resident Commissioners, and Porto Rico by one. By courtesy they are allowed seats in the house of representatives, like territorial delegates, and may serve on committees.

The numbers of representatives after each census have been as follows: 1790, 105; 1800, 141; 1810, 181; 1820, 212; 1830, 240; 1840, 223; 1850, 234; 1860, 241; 1870, 292; 1880, 325; 1890, 356; 1900, 386; 1910, 435.

=Election of Representatives.=--The Const.i.tution provides that representatives shall be chosen in each state by vote of such persons as are qualified to vote for members of the lower house of the legislature of that state. Thus it happens that the qualifications for partic.i.p.ating in the choice of national representatives varies widely in the different states. But the choice must be made by the people, not by the legislature or by executive appointment, and, under the Fifteenth and Nineteenth Amendments to the Federal Const.i.tution, the states cannot, in fixing the suffrage, discriminate against any cla.s.s of persons because of their color, race, or s.e.x. Subject to these restrictions the states are practically free to limit the right to vote for national representatives to such of their citizens as they may see fit. It is true that the Fourteenth Amendment declares that whenever a state shall limit the right of its adult male citizens to vote except for crime its representation in Congress shall be proportionately reduced, but this provision has never been enforced. Some statesmen hold that it was really superseded by the Fifteenth Amendment.

[Ill.u.s.tration: UNITED STATES SENATE CHAMBER]

[Ill.u.s.tration: UNITED STATES HOUSE OF REPRESENTATIVES]

_Manner of Choosing Representatives._--As in fixing the qualifications of the electors of representatives, so in the choosing of them, the states are left a free hand, subject to the provision of the Const.i.tution which gives Congress power to alter the regulations of the states in regard to the manner and time of choosing members. For a long time Congress did not exercise its power in this respect and each state chose its representatives when it wished and in such manner as it pleased. Some states chose their representatives on general ticket from the state at large, while others chose theirs by districts; some chose by secret ballot, while others did not. To secure uniformity in regard to the method of choice, Congress enacted in 1842 that representatives should be chosen by districts of contiguous territory containing populations as nearly equal to the congressional ratio as possible.

In 1871 it enacted that they should be chosen by written or printed ballots (later choice by voting machine was also permitted). In 1872 it enacted that representatives should be chosen on the same day throughout the Union, namely, Tuesday after the first Monday in November.[26]

[26] By a subsequent act, those states whose const.i.tutions provided a different day for choosing representatives were exempted from the provisions of this law. In pursuance of this act, elections for members of Congress in Maine are held in September.

"_Gerrymandering._"--When the number of representatives to which each state shall be ent.i.tled has been determined, after the decennial census, it devolves upon the legislature to divide the state into as many districts as it is ent.i.tled to representatives.[27] In the exercise of this power the political party in control of the legislature may arrange the districts in an unfair manner so as to make it possible for the party to elect a larger number of representatives than its voting strength ent.i.tles it to. This is done by putting counties in which the opposite party is in a large majority in the same districts so that it may choose a few members by large majorities, while the other party carries the remaining districts by small majorities. Thus the voting strength of the party in power is economized while that of the other party is ma.s.sed in a few districts and made to count as little as possible. This practice is known as "gerrymandering" and has often been resorted to by both the two great political parties, sometimes in such a manner as to result in flagrant injustice to the minority party.

[27] In case the legislature neglects to redistrict the state when additional representatives have been a.s.signed to it, the latter are chosen from the state at large. In 1916, for example, Pennsylvania elected four such representatives; Illinois, Texas, Montana, and Idaho, two each; Alabama and West Virginia, one each.

The requirement that the districts shall contain as nearly equal population as possible, is sometimes flagrantly violated. Thus one of the Republican districts in New York recently contained 165,701 inhabitants while one of the Democratic districts had a population of 450,000. In 1910 one of the Illinois districts contained 167,000 while another contained 349,000.

Sometimes districts are so constructed as to have fantastic shapes. Thus a district in Mississippi some years ago was dubbed the "shoe string"

district from its long irregular shape. It followed the Mississippi River for the whole length of the state though in one place it was less than thirty miles wide.

=Qualifications of Representatives.=--To be eligible to the house of representatives, a person must have been a citizen of the United States for at least seven years, must have attained the age of twenty-five years, and must be an inhabitant of the state from which he is chosen.

Residence in the particular district which the member represents is not required by the Const.i.tution or laws of the United States, but is nearly always required by public opinion. A nonresident, however able and distinguished he might be as a statesman, would have little chance of election.

_Objections to the Residence Requirement._--This custom of insisting upon residence in the district has frequently been criticized, especially by foreign writers, as being a serious defect in our system of representation. It contrasts widely with the practice in Great Britain, where members of Parliament are very often chosen from other districts than those in which they reside. London barristers of promise are not infrequently chosen to represent country districts in which they are practically strangers. The late William E. Gladstone, a resident of Wales, represented for a long time a Scotch district. When an important leader of any party in the House of Commons happens to be defeated in his home district, it is a common practice for him to be made a candidate in some district in which his party has a safe majority. In the United States, in such a case, the man's service in Congress would probably be ended.

Finally, one of the worst evils of the district system is that it tends to make the member feel that he is the representative, not of the United States as a whole, but of the locality which chooses him. Instead of entertaining broad views upon purely national questions his views tend to become narrow and he votes and acts with reference to the welfare of his own district rather than with reference to the good of the whole country. On the other hand, it may be said in favor of the district system that it is better adapted to secure local representation and makes responsibility to the member's const.i.tuency more effective.

=The Senate.=--_Purposes._--Regarding the desirability of creating a national legislature of two houses there was little difference of opinion among the members of the convention. Experience with a single-chambered congress during the period of the Confederation had revealed certain defects in such an organization. Moreover, all the state legislatures except two were composed of two houses and these exceptions were destined soon to disappear. If a state legislature ought to consist of two houses, it was all the more important that the national congress should be bicameral in organization, because, the union being composed of states, it was desirable to provide a separate house in which they could be represented as const.i.tuent political units just as the other house was to be a body representing the people without regard to political divisions. Aside from considerations growing out of the character of the federal system, there were the usual advantages which we a.s.sociate with the bicameral system, such as protection against hasty and ill-considered legislation, insurance against the possible despotism of a single chamber, and the like. Having decided that Congress should consist of two houses, the convention felt that if the upper house was to exert an effective restraining influence on the lower house it ought not to be a mere duplication of the latter but should be differently composed. It should to a certain extent be a more conservative body than the lower house, which, being elected by the people, would incline toward radicalism; it should, therefore, be smaller in size, its members should be chosen for a longer term and by a different method, higher age and residence qualifications should be required, and it should be given certain powers which were not conferred on the lower house, such as a share in the appointing, treaty making, and judicial powers.

_Term._--As already stated, the Const.i.tution provides that the states shall be represented equally in the senate. It also provides that each state shall elect two senators and that each senator shall have one vote. Under the Articles of Confederation, each state had one vote in Congress, and the vote of the state could not be divided; but under the Const.i.tution the two senators from a state frequently vote on opposite sides of a question, especially if they belong to different political parties. On the question of the term of senators there was much difference of opinion among the members of the convention. Some favored a two-year tenure, some four years, some six, some nine, while Alexander Hamilton favored a life tenure. The term finally agreed upon was six years, which seemed to be long enough to give the senate an element of permanence and independence, and yet short enough to secure responsibility to the people.

_Cla.s.sification of Senators._--The Const.i.tution provided that immediately upon the a.s.sembling of the senators after the first election they should be divided into three cla.s.ses and that the seats of those in the first cla.s.s should be vacated at the end of the second year, those of the second cla.s.s at the expiration of the fourth year, and those of the third cla.s.s at the expiration of the sixth year, so that thereafter one third might be chosen every second year. The purpose of this provision is to avoid having the entire senate renewed at the same time.

As a result, not more than one third are new and inexperienced members at any particular time. When a new state is admitted to the Union, its first two senators draw lots to see which cla.s.s each shall fall in. In 1921 there were thirty-two senators in the first cla.s.s, and their terms expire March 4, 1923; thirty-two in the second cla.s.s, and their terms expire March 4, 1925; and thirty-two in the third cla.s.s, and their terms expire March 4, 1927. The three cla.s.ses are kept as nearly equal as possible.

_Reelection of Senators._--While the term of a senator is six years, he may be reelected as often as his state may see fit to honor him, and in practice reelections have been frequent. Justin S. Morrill of Vermont, John Sherman of Ohio, and William B. Allison of Iowa, each served continuously for a period of thirty-two years. Nearly one third of the senators in 1911 had served twenty years or more. Thus the senate is an a.s.sembly of elder statesmen and is a more conservative and stable body than the house of representatives.

=Mode of Election of Senators.=--In regard to the mode of election of senators there was a wide difference of opinion among the members of the convention. Some favored choice by the people; others favored election by the lower house of Congress; some proposed appointment by the President from persons nominated by the state legislatures; while others proposed election by the state legislatures, which was the method finally agreed upon. Choice by the legislature, it was felt, would be the means of forming a connecting link between the state governments and the national government and would thereby tend to attach the former to the latter--an important consideration then, in view of the prevailing jealousy of the state governments toward the national government.

Finally, it was believed that choice by the legislature would tend to secure the election of senators of greater ability since the members of the legislature would be more familiar with the qualifications of candidates than the ma.s.ses of the people could hope to be.

=Objections to the Method of Choice by the Legislature.=--One of the practical objections to the original method of choosing senators was that it frequently led to long and stubborn contests which sometimes ended in deadlocks. Not infrequently the legislature failed to elect a senator and the state was left with a vacancy in the senate. In such cases the governor could not fill the vacancy by appointment as he did when a senator died or resigned; the seat remained vacant until a senator was chosen by the legislature. From 1890 to 1912 not less than eleven states at one time or another were represented in the senate by one member only, and in 1901 Delaware, on account of repeated deadlocks, had no senator at all at Washington to speak for the state. Not infrequently such contests were broken through the selection of a second-rate man or by an alliance between the members of the minority party and certain members of the majority.

_Bribery._--The breaking of deadlocks was sometimes accomplished by bribery or other improper influences. Indeed charges of bribery and corruption in connection with the election of senators came to be very common, and there is little doubt that between 1895 and 1910 a number of wealthy men found their way into the senate through the votes of legislators who were liberally paid for their support. Under these circ.u.mstances it was frequently said that the senate was no longer truly representative of the interests of the people.

_Interference with Legislative Business._--A prolonged senatorial contest also interfered too much with the regular business of the state legislature. Where the session is limited to two or three months, as it frequently is, the inroads upon the time at the disposal of the legislature for looking after the needs of the state were considerable.[28] Members were badgered by candidates, pa.s.sions and animosities were engendered, a party coloring was given non-partisan measures, and the votes of members on legislative measures were sometimes determined by the senatorial contest, rather than by the merits of the measure on which they were called to vote.

[28] In 1897 the business of the legislature of Oregon was completely tied up for months because a sufficient number of members of the lower house, in order to prevent the election of a certain senator, absented themselves from the chamber and prevented a quorum. Not a bill could be pa.s.sed or a dollar of money appropriated for meeting the current expenses of the state.

=Popular Election of Senators.=--The dissatisfaction with the old method of choosing senators led to a movement to secure an amendment to the Const.i.tution providing for the election of senators by the people. But the senate itself for a long time blocked every attempt of this kind.

Five different times between 1893 and 1911 the national house of representatives by a large majority proposed an amendment for this purpose, but each time the senate refused its concurrence. In one form or another the legislatures of thirty-one states approved of the method of popular election and wherever a referendum was taken on the proposition, as was done in California, Nevada, and Illinois, the popular indors.e.m.e.nt was overwhelming. Finally, in 1912, the senate yielded, and both houses of Congress adopted a resolution proposing an amendment providing for the popular election of senators, which was ratified by the necessary number of states during the following year.

Under this seventeenth amendment the senators of each state are elected by vote of such persons as are ent.i.tled to vote for members of the lower house of the legislature.

The seventeenth amendment provides that whenever a vacancy occurs in the senate the governor of the state in which the vacancy occurs shall issue a writ of election for the filling of such vacancy, but that the legislature may authorize the governor to fill the vacancy by a temporary appointment, the appointee to hold until a senator may be chosen by popular election. In practice special elections are rarely called for filling vacancies. In most states the governor makes a temporary appointment, the appointee holding until the next regular election when the people elect his successor.

=Qualifications of Senators.=--The qualifications prescribed for eligibility to the senate are the same in principle as those required of representatives, though a little different in degree. Thus a senator must be at least thirty years of age, must have been a citizen of the United States for nine years and must be a resident of the state at the time of his election. It was thought that the longer term and higher qualifications would tend to give greater dignity and strength to the upper chamber than would be found in the lower house, and at the same time a higher average of ability.

There is no provision of the Const.i.tution which requires a senator to be a resident of a particular part of the state, but in some states there is a custom that the two senators shall be taken from different sections. Thus in Vermont custom requires that one senator shall come from the section of the state east of the Green Mountains and the other from the west side. Sometimes when there is a large city in the state it is the custom to choose one of the senators from the city and the other from the country. For a long time Maryland did not trust this matter to custom but by law enacted that one of the senators should be an inhabitant of the eastern sh.o.r.e and the other of the western sh.o.r.e.

=Character of the Senate.=--In the early days when the states were generally regarded as sovereign communities, senators were looked upon somewhat as amba.s.sadors to the national government, and the right to instruct them as to how they should vote on important questions was sometimes claimed and a.s.serted by the legislatures. Sometimes the senators obeyed the instructions, sometimes they refused; and in the latter case there were no means of enforcing obedience. Not infrequently senators are "requested" by the legislature of the state which they represent to vote for or against a particular bill.

The Senate undoubtedly possesses elements of strength and efficiency which are not to be found in the lower house. As it is a much smaller body, debate there can be carried on with more effectiveness, and the individual member has greater opportunity to make his influence felt upon legislation. The efficiency of the Senate is further increased by the fact that its members are generally men of more mature age and larger legislative experience, many of them having already served their apprenticeship in the lower house. Moreover, owing to the longer term, they are more independent of the popular opinion of the moment and, therefore, under less temptation to yield to popular clamor and vote for measures which their better judgment condemns. These facts, it may be added, have tended to increase the attractiveness of the Senate as a legislative body and to draw into it statesmen of larger ability than the lower house has been able to attract.

At the same time, these elements of strength have to some extent been sources of weakness. The attractions of the Senate have stimulated the ambitions of rich men who have few other qualifications than the possession of great wealth, and so it came to pa.s.s that a considerable proportion of the members of the upper house were representatives of great corporations and of other forms of wealth. This was not necessarily an evil, but it was often said that the senators were irresponsive to public opinion. Moreover, the Senate has been criticized for usurping to a considerable extent the powers of the executive department in regard to appointments and the conduct of foreign affairs, and has encroached upon the powers of the lower house in respect to the initiation of revenue bills. Finally, the tradition of senatorial courtesy, which makes it possible for a single senator to deadlock indefinitely the proceedings of the Senate, has been criticized as being quite out of harmony with reasonable notions of legislative procedure.

All these charges, however, have been vigorously denied by many defenders of the Senate. Some of them are well founded, but all in all, the Senate compares favorably with the best upper chambers of other countries.

=Decisions as to Congressional Elections and Membership.=--Each house of Congress is the judge of the election, qualifications, and returns of its own members, that is, it is empowered to determine whether a member who claims to have been elected has been legally chosen and whether he really possesses the qualifications prescribed by the Const.i.tution for membership in the house. It seems to be admitted that either house may also refuse to admit a member for other reasons than those prescribed by the Const.i.tution, as, for example, for having been convicted of a crime or because he is insane or suffering with a dangerous contagious disease. Thus in 1900 the house of representatives refused to allow a member from Utah to take his seat because he was living in violation of the anti-polygamy laws, and in 1919 it excluded a Socialist member from Wisconsin for disloyalty during the war.

_Contested Elections._--Frequently there is a contested election from a state or district, that is, two men claim to have been elected to the same seat, in which case the house must decide which one is ent.i.tled to the seat. In such a case the claims of the contestant and the contestee are heard by the committee on privileges and elections, which makes a report to the house with a recommendation as to which shall be given the seat. Unfortunately, contested election cases are not always settled on their merits, the seat being usually given to the claimant who belongs to the party which has a majority in the house. In England this source of party favoritism is removed by vesting the settlement of cases of contested elections in the courts, which are more apt to decide such contests on their merits.