The failure of the Supreme Court to exercise the right to annul treaties is to be explained in part by the fact that the judicial veto was intended primarily as a check on democracy. From the point of view of the conservatives who framed the Const.i.tution it was a device for protecting the cla.s.ses which they represented against democratic "excesses" in both the state and Federal government. It was expected that this tendency would be manifested mainly in the legislation of the various states and possibly in some slight degree in Congressional legislation, since the President and Senate would occasionally find it expedient to yield too largely to the demands of the directly elected House. But in the case of treaties made by the President and Senate, both safely removed, as they thought, beyond the reach of popular influence, there was no obvious need of a conservative check. In developing the policy of the Federal courts in pursuance of the purpose of those who framed the Const.i.tution, it was perfectly natural that the judicial veto should not have been used to limit the treaty-making power.

But even if the Federal courts had felt inclined to extend their authority in this direction, the Const.i.tution did not as in the case of Congressional legislation confer upon them the means of self-protection.

In declaring null and void an act of Congress which did not have the support of at least two-thirds of the Senate, the Supreme Court is exercising a power which, if not expressly conferred upon it by the Const.i.tution, it can at any rate exercise with impunity, since the majority in the Senate which it thus overrides is not large enough to convict in case of impeachment. All treaties must have the approval of two-thirds of the Senate; and since the majority in this body required to ratify a treaty is the same as that required to convict in impeachment proceedings, it is readily seen that the Senate has the const.i.tutional power to prevent judicial annulment of treaties.

Two-thirds of the Senate could not overcome judicial opposition, however, unless supported by at least a majority in the House of Representatives. But inasmuch as the Supreme Court is pre-eminently the representative of conservatism and vested interests, it is likely to disapprove of the policy of the Senate only when that body yields to the demands of the people. In all such cases the House would naturally support the Senate as against the Supreme Court. It is not surprising, then, that the Federal courts have not attempted to limit the treaty-making power.

Before leaving the subject of the Federal courts one feature of the judicial negative deserves further notice. The fact that it is not exercised until a case involving the law in question is brought before the court in the ordinary course of litigation is often referred to by const.i.tutional writers as one of its chief merits. And yet until a competent court has actually declared a legislative act null and void, it is for all practical purposes the law of the land and must be recognized as such. It may vitally affect industry and commerce and require an elaborate readjustment of business relations. It may even be years after such an act is pa.s.sed before a decision is obtained from the court of last resort. And if the decision annuls the law, it does so not from the time that the judgment of the court is rendered, but from the time the act in question was originally pa.s.sed. This retroactive character of the judicial veto is strongly suggestive of the _ex post facto_ legislation which the Const.i.tution expressly forbids. By thus invalidating the law from the beginning it may leave a vast body of business contracts without legal protection or support. As a consequence, it is impossible for any one, be he ever so well informed, to know just what legislative acts are valid and what are not. The amount of uncertainty which this introduces into business relations is more easily imagined than described.

America can claim the rather questionable distinction of being the only important country in which we find this uncertainty as to the law, since it is the only one in which the courts have a negative on the acts of the legislature. That we have ourselves realized the disadvantages of the system is shown by the changes made in the const.i.tutions of several states with a view of diminishing the frequency of the judicial veto.

These provisions make it the duty of the judges of the supreme court of the state to give their opinion upon questions of law when required by the governor or other branch of the law-making authority.[102]

In so far as const.i.tutional provisions of this sort have been intended to prevent the evils resulting from a deferred exercise of the judicial veto, they have largely failed to accomplish their purpose. This has been due to the att.i.tude of the courts, which have held that an opinion thus given in compliance with a const.i.tutional requirement is not binding upon them when the question is raised again in the ordinary way in the trial of a case.

CHAPTER VI

THE CHECKS AND BALANCES OF THE CONSt.i.tUTION

Two features of this system, the difficulty of amendment and the extraordinary powers of the judiciary have been discussed at some length. Both, as we have seen, were designed to limit the power of the popular majority. This purpose is no less evident when we view the Const.i.tution as a whole.

The members of the Federal Convention had little sympathy with the democratic trend of the Revolutionary movement. It was rapidly carrying the country, they thought, to anarchy and ruin. To guard against this impending evil was the purpose of the Const.i.tution which they framed. It was their aim to eliminate what they conceived to be the new and false and bring the government back to old and established principles which the Revolutionary movement had for the time being discredited. They believed in the theory of checks and balances in so far as the system implied the limitation of the right of popular control, and made the Const.i.tution to this extent as complete an embodiment of the theory as the circ.u.mstances of the time permitted.

In any evolutionary cla.s.sification of governments the American system occupies an intermediate position between the old type of absolute monarchy on the one hand and thoroughgoing democracy on the other.

Following in a general way the course of political development in England, we may say that there was an early stage in the growth of the state when the power of the king was predominant. Neither the n.o.bility nor the common people exercised any effective control over him. He was what we may call an absolute monarch. His power was unlimited in the sense that there were no recognized checks imposed upon it. He was irresponsible, since no one could call him to account for what he did.

The upper cla.s.ses, however, were anxious to share with the king the control of the state. Their efforts were directed first toward limiting his power by making their own consent necessary before he could enact any law, carry out any policy, or do any thing of a positive nature. But even after they had been admitted to this share in the government the negative power of the king remained unlimited. The veto power acquired by the upper cla.s.ses might prevent him from enacting a particular law, or enforcing a given policy, but no one had a veto on his inaction. He might be unable to do what the cla.s.ses having a voice in the management of the government forbade, but he could decline to do what they wished.

The appearance of a House of Commons did not change essentially the character of the scheme, nor would it have done so, had this body been truly representative of the people as a whole. It placed an additional check on both King and Lords by giving to the representative body the power to negative their positive acts. Both the King and the Lords retained, however, their negative authority unimpaired and could use it for the purpose of defeating any measure which the Commons desired. This is what we may call the check and balance stage of political development. Here all positive authority is limited, since its exercise may be prevented by the negative power lodged for this purpose in the other branches of the government. This negative power itself, however, is absolute and unlimited. The government is in no true sense responsible to the people, or any part of them, since they have no positive control over it.

This complex system of restrictions which is the outgrowth and expression of a cla.s.s struggle for the control of the government must necessarily disappear when the supremacy of the people is finally established. This brings us to the next and for our present purpose, at least, the last stage of political evolution.

Here the authority of the people is undisputed. Their will is law. The entire system of checks has been swept away. No irresponsible and insignificant minority is longer clothed with power to prevent reform.

The authority of the government is limited only by its direct and complete responsibility to the people.

Corresponding to these three stages of political evolution we have three general types of government:

1. Unlimited and irresponsible.

2. Positively limited, negatively unlimited and irresponsible.

3. Unlimited and responsible.

As shown in a previous chapter, the Revolutionary movement largely destroyed the system of checks. It abolished the veto power, centralized authority and made the government in a measure responsible to the electorate. The Const.i.tution, however, restored the old order in a modified form. In this sense it was reactionary and retrogressive. It went back to the old doctrine of the separation of powers, ostensibly to limit the authority of the government and thereby make it responsible to the people as Hamilton argued in _The Federalist_. That this could not have been the real object is evident to any one who has carefully studied the situation. The unthinking reader may accept Hamilton's contention that the system of checks and balances was incorporated in the Const.i.tution to make the government the servant and agent of the people; but the careful student of history can not be so easily misled.

He knows that the whole system was built up originally as a means of limiting monarchical and aristocratic power; that it was not designed to make government in any true sense responsible, but to abridge its powers because it was irresponsible. The very existence of the system implies the equal recognition in the Const.i.tution of antagonistic elements. As it could not possibly exist where monarchy or aristocracy was the only recognized source of authority in the state, so it is likewise impossible where all power is in the people. It is to be observed, then, that what originally commended the system to the people was the fact that it limited the positive power of the king and aristocracy, while the framers of the Const.i.tution adopted it with a view to limiting the power of the people themselves.

There is no essential difference between the viewpoint of the framers of the American Const.i.tution and that of their English contemporaries.

Lecky says: "It is curious to observe how closely the aims and standard of the men who framed the memorable Const.i.tution of 1787 and 1788 corresponded with those of the English statesmen of the eighteenth century. It is true that the framework adopted was very different....

The United States did not contain the materials for founding a const.i.tutional monarchy or a powerful aristocracy.... It was necessary to adopt other means, but the ends that were aimed at were much the same. To divide and restrict power; to secure property; to check the appet.i.te for organic change; to guard individual liberty against the tyranny of the mult.i.tude...."[103]

Our Const.i.tution was modeled in a general way after the English government of the eighteenth century. But while the English system of const.i.tutional checks was a natural growth, the American system was a purely artificial contrivance. James Monroe called attention to this fact in the Virginia convention. He observed that the division of power in all other governments ancient and modern owed its existence to a mixture of monarchy, aristocracy, and democracy.[104] This artificial division of power provided for in the Const.i.tution of the United States was intended as a subst.i.tute for the natural checks upon the people which the existence of king and n.o.bility then supplied in England.

This idea of government carried out to its logical conclusion would require that every cla.s.s and every interest should have a veto on the political action of all the others. No such extended application of the theory has ever been made in the actual working of government, nor is it practicable, since no cla.s.s can acquire, or having acquired, retain a veto on the action of the government unless it is large and powerful enough to enforce its demands. The attempt on the part of a small cla.s.s to acquire a const.i.tutional right of this character must of necessity fail. This is why the system which theoretically tends toward a high degree of complexity has not in practice resulted in any very complex const.i.tutional arrangements.

Poland is the best example of the practical working of a system of checks carried to an absurd extreme. The political disintegration and final part.i.tion of that once powerful country by its neighbors was due in no small degree to its form of government, which invited anarchy through the great power which it conferred upon an insignificant minority.

The fact that this system can not be carried far enough in practice to confer upon every distinct interest or cla.s.s the veto power as a means of self defence, has given rise to the doctrine of _laissez faire_. No cla.s.s in control of the government, or even in possession of the power to negative its acts, has any motive for advocating the let-alone theory. Its veto power affords it adequate protection against any harmful exercise of political authority. But such is not the case with those smaller or less fortunate cla.s.ses or interests which lack this means of self-protection. Since they do not have even a negative control over the government, they naturally desire to limit the scope of its authority. Viewed in this light we may regard the _laissez faire_ doctrine as merely supplementary to the political theory of checks and balances.

It is easy to see that if the idea of checks were carried out in practice to its extreme limits, it would lead inevitably to the destruction of all positive authority by vesting a veto in each cla.s.s and ultimately in each individual. In fact, John C. Calhoun, the ablest and most consistent expounder of this doctrine, defines a perfect popular government as "one which would embrace the consent of every citizen or member of the community."[105] When this last stage is reached we would have no government in any proper sense; for each individual would be clothed with const.i.tutional power to arrest its action. Indeed the theory of checks and balances, if taken without any qualification and followed out consistently, leads naturally to the acceptance of anarchy as the only scientific system.

The absence of king and aristocracy did not deter the members of the Convention from seeking to follow the English model. In doing this, however, it was necessary to find subst.i.tutes for the materials which were lacking. The const.i.tutional devices adopted to accomplish this purpose form the system of checks and are the most original and interesting feature of our government.

The English model was followed, however, only so far as it served their purpose. In the case of the judiciary, for instance, they declined to follow it; but the reason for this as explained in the preceding chapter was their desire to establish a more effective check on the people. They showed no special preference for the English form where some other method would better accomplish the desired purpose. Hence in many instances they deliberately rejected English precedent, but always with the view of providing something that would impose a more effective check on the public will. An apparent exception to this may be found in the limited term of President and United States senators. But these were the very instances in which lack of king and n.o.bility made departure from the English model a matter of necessity. Moreover, any avowed attempt to provide an effective subst.i.tute for the hereditary branches of the English model would have been distasteful to the people generally and for that reason would have ensured the rejection of the Const.i.tution.

Theoretically, the nearest approach to the English system possible would have been life tenure, and there were not wanting those who, like Hamilton, contended for it; but the certainty of popular disapproval was an unanswerable argument against it.

It was thought that substantially the same result could be obtained by indirect election for moderately long periods. Hence we notice a marked departure from the practice of the state const.i.tutions in term of office and mode of election. In every state the governor was elected either by the legislature or directly by the voters, usually for one year and nowhere for as long a period as four years.[106] With only two exceptions[107] the members of the upper legislative chamber were directly elected by the qualified voters, generally for one year and in no state for as long a term as six years.[108]

The desire of the Convention to secure to the President and United States Senators more freedom from popular control than was enjoyed by the corresponding state officials is most clearly seen in the mode of election prescribed.[109] They adopted what Madison called "the policy of refining popular appointments by successive filtrations." They provided that the President should be chosen by an electoral college, the members of which were not required to be elected by the people.

This, it was thought, would guard against the choice of a mere popular favorite and ensure the election of a President acceptable to the conservative and well-to-do cla.s.ses. It was taken for granted that the indirect method would enable the minority to control the choice. For a like reason they provided that United States senators should be chosen by the legislatures instead of by the people of the several states.

The system as originally adopted did not contemplate, and made no provision for the selection of candidates in advance of a popular election. But this is not surprising when we reflect that it was the very thing they were trying to prevent. They intended that the electoral college should be such in fact as well as in name, that it should have and exercise the power of independent choice instead of merely registering a popular selection already made as if has come in practice to do. They recognized very clearly that there was a distinct line of cleavage separating the rich from the poor. They believed with Hamilton that in this respect "all communities divide themselves into the few and the many,"[110] that the latter will tend to combine for the purpose of obtaining control of the government; and having secured it, will pa.s.s laws for their own advantage. This, they believed, was the chief danger of democracy--a danger so real and imminent that it behooved the few to organize and bring about, if possible, such changes in the government as would "protect the minority of the opulent against the majority."[111]

This was the purpose of the system of checks by which they sought to give the former a veto on the acts of the latter. In thus depriving the ma.s.ses of the power to advance their interests through combination, they thought that the organization of a political party representing the many as opposed to the few would be discouraged. On the other hand, the few while co-operating for a common purpose, could best accomplish it without any visible party organization or any appearance of concerted action. Hence the Const.i.tution as originally adopted made no provision for the party candidate.

In view of the fact that the Const.i.tution was intended to limit the power of the majority, it is perfectly natural that it should have attempted to a.s.sign to the popular branch of the government a position of minor importance. This was, of course, in direct opposition to what had been the uniform tendency during the Revolutionary period in the various states. In the latter the lower house had been raised to coordinate rank with the upper and in Ma.s.sachusetts, Gerry tells us, the people were for abolishing the senate and giving all the powers of government to the other branch of the legislature.[112]

In the Federal Const.i.tution we see a strong reaction against this policy of enlarging the authority of the lower, and what was a.s.sumed to be the more popular branch of the legislative body. The House of Representatives was, it is true, given equal power with the Senate in the matter of ordinary legislation. But here its equality ends. The treaty-making and the appointing power were given to the President and Senate, where, it was thought, they would be safe from popular interference. The effect of this was to make the influence of these two branches of the government greatly preponderate over that of the directly elected House. Through the treaty-making power the President and Senate could in a most important sense legislate without the consent of the popular branch of Congress. They could enter into agreements with foreign countries which would have all the force and effect of laws regularly enacted and which might influence profoundly our whole social, political, and industrial life. The only semblance of a popular check on the exercise of this power was to be found in those cases where appropriations were required to carry treaties into effect. Here the House of Representatives, in theory at least, could defeat the treaty by refusing its a.s.sent to the necessary appropriation. In practice, however, the House has surrendered this power. A treaty is at no stage "submitted to or referred to the House of Representatives, which has no more right to be informed about it than ordinary citizens. The President and the Senate may, for example, cede or annex territories, and yet nothing of the fact will appear in the discussions of the House of Representatives unless the cession involves expenditure or receipt of money. Besides, I must add that even if the treaty contains clauses imposing a charge on the public revenue, it is the rule, since Washington's time, that the House of Representatives should not discuss the terms of the treaty adopted by the Senate, but accept it in silence as an accomplished fact, and simply vote the necessary funds."[113]

The appointing power was in many respects even more important. It meant the right to select those who were to interpret and enforce the laws, and this really involved the power to mold the spirit and character of the government. That this was fully appreciated by those who framed the Const.i.tution we saw in the preceding chapter.

The statement contained in the Const.i.tution that all legislative authority is vested in Congress is far from accurate, not only for the reason above indicated that a portion of it under the guise of treaty-making power is conferred on the President and Senate, and the further reason that the Supreme Court exercises legislative authority of great importance, but for the additional reason that the President, aside from his control over treaties, possesses legislative power co-extensive and co-equal with that of either house. He has been expressly given by the Const.i.tution only a qualified veto, but it is so difficult for Congress to override it by the necessary two-thirds majority that it is in most cases as effective as an absolute negative.[114] Attention has been called to the fact that a two-thirds majority is difficult to secure even under the most favorable circ.u.mstances; but here the situation is such as to place practically insurmountable obstacles in the way of its attainment. As an ill.u.s.tration let us suppose that each state is solidly for or against the measure which the President has vetoed and that both Senators and Representatives accurately reflect the sentiment of their respective states. Then taking the population of the forty-five states in 1900 as the basis of our calculation, the smallest popular majority which would ensure the required two-thirds vote in both houses would be obtained by taking enough of the smaller states to make the necessary majority in the House. But this would mean a popular majority of over 65 per cent.

and an eight-ninths majority in the Senate. To obtain the necessary vote in both houses by taking the larger states would require a popular majority of over 93 per cent. and a nine-tenths majority in the House.

This gives us some, but by no means an adequate, idea of the President's control over legislation. He may use in support of his veto all the other powers which the Const.i.tution has placed in his hands; and when we consider the immense influence which he can bring to bear upon Congress, especially through his control over appointments, we can readily see the practical impossibility of enacting any measure which he opposes with all the powers at his command. Moreover, the President and Senate would, it was expected, belong to the same cla.s.s, represent the same interests, and be equally faithful in guarding the rights of the well-to-do. They were to be, therefore, not so much a check on each other, as a double check on the democratic House; and as against the latter, it was the intention that the qualified negative of the President should, in all important matters concerning which the radical and conservative cla.s.ses disagreed, be fully equivalent to an absolute veto. This follows from the fact that the Senate would in such cases sympathize with the action of the President and refuse to co-operate with the House in overriding it.

It was believed by the framers of the Const.i.tution that the veto power of the President would be seldom used. This was true until after the Civil War. Washington used the power only twice; John Adams, Jefferson, J.Q. Adams, Van Buren, Taylor, and Fillmore did not make use of it at all. During the first seventy-six years of our history under the Const.i.tution the power was exercised only fifty-two times. Andrew Johnson was the first President to use it freely, vetoing as many acts as were vetoed by the first eight Presidents. The largest use of the veto power was by President Cleveland who, during his first term, exercised it three hundred and one times.[115]

In conferring the veto power on the President the members of the Convention were actuated by the desire to strengthen a conservative branch of the government rather than by any desire to copy the English Const.i.tution, or the const.i.tutions of the American states. As a matter of fact, the veto power of the Crown was then obsolete, Hamilton himself remarking in the Convention that it had not been used since the Revolution of 1688,[116] while in all but two states the last vestige of it had been destroyed.[117]

The position of the President was still further strengthened by discarding the executive council which then existed in every state as a check upon the governor and which was a prominent feature of the English government of that time. In England this council, forming the Ministry or Cabinet, had not, it is true, definitely a.s.sumed the form which characterizes it now; but it had deprived the King of all power to act except through ministers who were responsible and could be impeached by Parliament. This, of course, had greatly weakened the executive, a fact which fully explains why the framers of the Const.i.tution rejected it and went back to the earlier English king whose veto power was unimpaired for their model.

As their plan contemplated a strong independent executive who would not hesitate to use the far-reaching powers placed in his hands to defeat measures which he disapproved of, it was necessary to guarantee him against popular removal. In this respect again we see both English and American const.i.tutional practice disregarded, since neither afforded the desired security of tenure. In the various states the governor was liable to be impeached by the lower branch of the legislature and expelled from office when convicted by the senate, which was usually the court before which impeachment cases were tried. A mere majority in each house was usually sufficient to convict,[118] and as both houses were directly elected,[119] it virtually gave the majority of the voters the power to remove. This was simply an adaptation of the English practice which allowed a majority of the Commons to impeach and a majority of the Lords to convict. That this had a strong tendency to make the legislative body supreme is evident, since the power, if freely used, would overcome all opposition on the part of either the executive or the judiciary. Any combination of interests that could command a majority in both houses of Parliament could thus enforce its policy.

This practically destroyed the executive check in the English Const.i.tution and for that very reason the founders of our government rejected it. They clearly saw that to make the President's veto effective, he would have to be protected in its exercise. To have adopted the English practice and allowed a mere majority of the Senate to convict in impeachment cases would have given Congress power to destroy the President's veto by impeaching and removing from office any executive who dared to use it. This was guarded against by making, a two-thirds majority in the Senate necessary to convict any official impeached by the House. And since this two-thirds majority is one which in practice can not be obtained, the power to impeach may be regarded, like the power to amend, as practically non-existent. Only two convictions have been obtained since the Const.i.tution was adopted. John Pickering, a Federal district judge, was convicted March 12, 1803, and removed from office, and at the outbreak of the Civil War a Federal district judge of Tennessee, West H. Humphreys, who joined the Confederacy without resigning, was convicted. William Blount was acquitted in 1798 on the ground that, as a United States senator, he was not a "civil officer" within the meaning of the impeachment provision of the Const.i.tution, and so not liable to impeachment. Samuel Chase, a.s.sociate Justice of the United States Supreme Court, President Andrew Johnson, and Secretary of War, William W. Belknap, would have been convicted but for the extraordinary majority required in the Senate.

The practical impossibility of removing a public official by means of impeachment proceedings has made the executive and the judicial veto thoroughly effective, since it has deprived Congress of all power to punish by removing from office those officials who thwart its purpose.

It has made the President and the Supreme Court much stronger than the House of Representatives--a result which the framers of the Const.i.tution no doubt desired.

In addition to the President's qualified veto on laws about to be pa.s.sed, which, as we have seen, amounts in practice to an unlimited negative, he has what may be called an absolute veto on their execution.

This is the necessary consequence of his complete independence, taken in connection with his power of appointment and removal. Controlling the administrative arm of the government, he can execute the laws of Congress or not as he may see fit. He may even fail to enforce an act which he himself signed, inasmuch as his approval in a legislative capacity does not bar his subsequent disapproval as an executive. Of course, it does not follow that this power is openly and avowedly exercised. Usually it is not. An easier and more effective method is the one which obscures the real intention of the executive by a sham attempt at enforcement.