The first clear and unequivocal statement of the doctrine of nullification may be traced to Jefferson. In the original draft of the Kentucky resolutions of 1798, which he wrote, it is a.s.serted that where the Federal government a.s.sumes powers "which have not been delegated, a nullification of the act is the rightful remedy; that every state has a natural right in cases not within the compact (_casus non foederis_) to nullify of their own authority, all a.s.sumptions of power by others within their limits."[138] This was omitted, however, from the resolutions as finally adopted, although included in substance, as we have seen, in the Kentucky resolutions of 1799.

Jefferson's authorship of the original draft of the Kentucky resolutions of 1798 is made the basis of Von Holst's contention that he was the father of the doctrine of nullification. This, however, is something of an exaggeration. He is more accurate when he refers to the doctrine as being as old as the Const.i.tution itself and the outgrowth of the circ.u.mstances of the time. The prevalent conception of the state as a check upon the Federal government derived support, as we have seen, from the efforts of the framers of the Const.i.tution themselves to give it an interpretation that would remove as far as possible the obstacles to its ratification by allaying the fears and jealousy of the states. The idea that the state government could oppose and resist an unconst.i.tutional exercise of authority by the Federal government was widely accepted as a general principle, although little attention had been given to the practical application of the doctrine. Jefferson merely gave definite form to what had been a more or less vague conception by showing how the const.i.tutional checks upon the Federal government could be made effective.

The best statement of this doctrine, however, is to be found in the works of John C. Calhoun, whose Disquisition on Government and Discourse on the Const.i.tution of the United States are a masterly defense of the system of checks and balances. He had no sympathy with what would now be called popular government. His point of view was essentially aristocratic, and he frankly avowed it.

He recognized the fact that under the existing social organization the interests of all cla.s.ses are not the same; that there is a continual struggle between them; and that any interest or combination of interests obtaining control of the government will seek their own welfare at the expense of the rest. This, he claimed, made it necessary to so organize the government as to give the minority the means of self-protection. To give to the minority this const.i.tutional power would tend to prevent the selfish struggle to obtain possession of the government, since it would deprive the majority of all power to aggrandize themselves at the expense of the minority. The very essence of const.i.tutional government, according to his view, was the protection afforded to the minority through the limitation of the power of the majority. To accomplish the true end of const.i.tutional government, which is the limitation of the power of the numerical majority, it is necessary, he contended, that the various cla.s.ses or interests should be separately represented, and that each through its proper organ should have a veto on the acts of the others. In a government so organized no measure could be enacted into law and no policy enforced, unless it had received the a.s.sent of each element recognized in the Const.i.tution. This method of taking the sense of the community, which required the concurrence of its several parts, he termed that of the concurrent majority.

This principle of cla.s.s representation, he maintained, was fundamental in the American Const.i.tution, which recognized for certain purposes the numerical majority as one of its elements, but only for certain purposes. For he tells us, and correctly, that "the numerical majority is, strictly speaking, excluded, even as one of its elements."[139] In support of this statement he undertakes to show that the numerical majority could not even prevent the amendment of the Const.i.tution, since through a combination of the smaller states an amendment desired by the minority could be forced through in opposition to the wishes of the majority. He might have added that it was the intention of those who framed our government to allow the minority a free hand in amending by the method of const.i.tutional interpretation; and also that they intended to deny to the numerical majority a veto on treaties and appointments.

This refusal to recognize the numerical majority even as one of the coordinate elements in the government was as hereinbefore shown inconsistent with the doctrine of checks, and is to be explained on the theory that they wished to subordinate the democratic element in the Const.i.tution.

Calhoun argued that the growth of political parties had broken down our system of const.i.tutional checks. The Const.i.tution as originally adopted made no mention of, and allowed no place for these voluntary political organizations. In fact, the purpose of the political party was diametrically opposed to and subversive of all that was fundamental in the Const.i.tution itself, since it aimed at nothing less than the complete destruction of the system of checks by bringing every branch of the government under its control. To the extent that it had achieved its purpose, it had consolidated the powers of the general government and brought them, he contended, under the direct control of the numerical majority, which was the very thing that the framers of the Const.i.tution wished to guard against.

The complete control which the numerical majority had thus obtained over the Federal government made it supremely important that all const.i.tutional power vested in the several states to resist Federal aggression should be actively employed. That the states had the power under the Const.i.tution to check the general government when it attempted to overstep the limits set to its authority was necessarily implied in the fact that our system of government was federal and not national.

His argument proceeded on the theory encouraged by the framers of the Const.i.tution that the general government and the state governments were coordinate. "The idea of coordinates," he tells us, "excludes that of superior and subordinate, and necessarily implies that of equality. But to give either the right, not only to judge of the extent of its own powers, but, also, of that of its coordinate, and to enforce its decision against it, would be, not only to destroy the equality between them, but to deprive one of an attribute--appertaining to all governments--to judge, in the first instance, of the extent of its powers. The effect would be to raise one from an equal to a superior, and to reduce the other from an equal to a subordinate."[140]

From this it would follow that neither should have the exclusive right to judge of its own powers--that each should have a negative on the acts of the others. That this was the intention of the framers of the Const.i.tution he argues from the fact that all efforts in the Convention to give the general government a negative on the acts of the states were unsuccessful. The efforts to confer this power, he contends, were made because it was seen that in the absence of such a provision the states would have a negative on the acts of the general government. The failure of these efforts in the Convention was due, he claims, to the fact that the members of that body wished to make the general government and the state governments coordinate, instead of subordinating the latter to the former as the advocates of a national government desired. The fact upon which Calhoun based this contention would seem to justify his conclusion; but if we consult the debates which took place in that body, it is easily seen that the refusal of the Convention to incorporate such a provision in the Const.i.tution can not be ascribed to any hostility on the part of that body to national government. In fact, as hereinbefore shown, it was for purely practical reasons that they rejected all proposals which contemplated the recognition in the Const.i.tution itself of the supremacy of the general government. While declining to allow a provision of this character to be incorporated in the Const.i.tution, they by no means disapproved of a strong supreme central government, but merely adopted a less direct and therefore easier method of attaining their end.

While Calhoun maintained that in order to make the limitations on the authority of the general government effective it was necessary that a state should have a veto on Federal laws, he did not contend that the verdict of a state should be final. It would still be possible for the general government to override the veto of a state by procuring a const.i.tutional amendment which would remove all doubt as to its right to exercise the power in question. This method of appeal, he argued, was always open to the general government, since it represented and was in the hands of the numerical majority. This would be true, however, only when the party in power had the requisite two-thirds majority in both houses of Congress, or at least controlled the legislatures in two-thirds of the states. Otherwise its control of the general government would not enable it to propose the desired const.i.tutional amendment. With this qualification Calhoun's contention was correct. On the other hand the state could not defend itself against Federal aggression, since, belonging to the minority, it would have no means of compelling the submission of a const.i.tutional amendment involving the point in dispute. The effect of a state veto on an act of Congress would be to compel the latter to choose between abandoning the law in question as unconst.i.tutional and appealing to the const.i.tution-making power in defense of its claim. If it chose the latter alternative and succeeded in having its authority supported by an appropriate const.i.tutional amendment, there was nothing for the state to do but submit, provided that the amendment in question was one clearly within the scope of the amending power. If, as Calhoun a.s.sumed, it was the purpose of the Const.i.tution to withhold from a mere majority in control of the general government the power to enact and enforce unconst.i.tutional legislation, the veto of a state would seem to be the only means by which the const.i.tutional rights of a minority of the states could be protected.

Calhoun did not question the right of the Supreme Court of the United States to declare an act of Congress null and void, or its right to pa.s.s judgment upon the Const.i.tution or the laws of a state when they were attacked as in conflict with the Federal Const.i.tution in a case before it. This right, he contended, belonged to all courts whether federal or state. A decision of the Supreme Court of the United States adverse to the const.i.tution or law of a state was, however, he maintained, binding only on the general government itself and the parties to the suit. As against the state it had no power to enforce its decision.

His entire argument rests upon the a.s.sumption that the Federal and state governments are co-equal and not superior and subordinate. This line of argument naturally led to the conclusion that the Federal and state courts were coordinate. It was perfectly natural for the advocate of state rights to take this view of the matter. Moreover there was nothing in the Const.i.tution which expressly contradicted it. The framers of that instrument, as hereinbefore shown, did not wish to make an open attack on the generally accepted doctrine of state sovereignty before the Const.i.tution was adopted. Their purpose was fully disclosed only after they had obtained control of the new government under the Const.i.tution.

To carry out their plan of subordinating the states, it was necessary to establish the supremacy of the Federal judiciary. This was accomplished by an act of Congress[141] which provided that "a final judgment or decree in any suit in the highest court ... of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Const.i.tution, treaties, or laws of the United States, and the decision is in favor of their validity; or where is drawn in question the construction ... of a treaty, or statute of, or commission held under, the United States, and the decision is against the t.i.tle, right, privilege, or exemption specially set up or claimed by either party, under such clause of said Const.i.tution, treaty, statute, or Commission, may be re-examined, and reversed or affirmed in the Supreme Court of the United States upon a writ of error."

This act, while expressly conferring upon the Supreme Court of the United States the power to veto a state law, at the same time denied to a state court the right to treat as unconst.i.tutional a statute, treaty, or authority exercised under the general government. The question might properly be asked why this provision was not incorporated in the Const.i.tution itself. Why did not the framers of that doc.u.ment clearly define the relation of the Federal to the state courts? To have included the substance of this act in the Const.i.tution as submitted to the states, would have precluded the possibility of any future controversy concerning the relation of the Federal to the state courts. From the point of view of practical politics, however, there was one unanswerable argument against this plan. It would have clearly indicated the intention of the framers of the Const.i.tution, but in doing so, it would for that very reason have aroused opposition which it would have been impossible to overcome. This is why the matter of defining the relation of the Federal to the state courts was deferred until after the Const.i.tution had been ratified by the states. They chose the only practicable means of accomplishing their purpose. With all branches of the Federal government under their control, they were able to enact a law which virtually amended the Const.i.tution. Calhoun argues that in pa.s.sing this act Congress exceeded the powers granted to it by the Const.i.tution. What he fails to recognize, however, is the fact that this measure, although at variance with the interpretation placed upon the Const.i.tution by the people generally, was, nevertheless, in entire harmony with the general purpose of its framers and necessary to carry that purpose into effect.

The view of the American Const.i.tution herein presented may not be familiar to the average reader of our political literature. For notwithstanding the overwhelming proof of the aristocratic origin of our const.i.tutional arrangements accessible to the unbia.s.sed student, the notion has been sedulously cultivated that our general government was based on the theory of majority rule. Unfounded as an a.n.a.lysis of our political inst.i.tutions shows this belief to be, it has by dint of constant repet.i.tion come to be widely accepted. It is beyond question that the Const.i.tution was not so regarded by the people at the beginning of our national life. How, then, was this change in the att.i.tude of the public brought about? There has doubtless been more than one influence that has contributed to this result. The abundant natural resources of the country and the material prosperity of the people are a factor that cannot be ignored. To these must in a measure be ascribed the uncritical att.i.tude of mind, the prevailing indifference to political conditions, and the almost universal optimism which have characterized the American people. This lack of general attention to and interest in the more serious and profound questions of government has been favorable to the inculcation and acceptance of ideas of the system utterly at variance with its true character. Still, with all due allowance for these favoring conditions, it is hard to find a satisfactory explanation of the process by which the worshipers of democracy came to deify an undemocratic const.i.tution. The desire of the conservative cla.s.ses to preserve and perpetuate the system by presenting it in the guise of democracy, and their influence upon the political thought of the people generally must be regarded as the chief factor in bringing about this extraordinary change in public opinion. Hostile criticism of the Const.i.tution soon "gave place to an undiscriminating and almost blind worship of its principles ... and criticism was estopped.... The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Const.i.tution to receive universal homage. The conviction that our inst.i.tutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system."[142]

CHAPTER VII

UNDEMOCRATIC DEVELOPMENT

It has been shown that the main purpose of the Const.i.tution was to limit the power of the people. The recognition of this fact enables us to understand much of the subsequent development of our political inst.i.tutions--a development for which the generally accepted theory of our system affords no adequate explanation. The erroneous view of the Const.i.tution so generally inculcated has thus far misled the public as to the true source of our political evils. It would indeed be strange if some of the abuses incident to every form of minority rule had not made their appearance under the operation of a system such as has been described. Where the influence of public opinion has been so restricted, it would be but reasonable to expect that the practical working of the government would reflect something of the spirit of the Const.i.tution itself. As a consequence of these limitations originally placed upon the power of the people, the development of our system has not been wholly in the direction of democracy. The const.i.tutional authority conferred upon the minority has exerted a far-reaching influence upon the growth of our political inst.i.tutions. The natural effect of subordinating the democratic element would be to render its influence more feeble as the system developed. That this has not been a purely imaginary danger may be easily shown.

The Const.i.tution expressly gave to the qualified voters of the various states the right to control the House of Representatives. It was because of this fact, as explained in the preceding chapter, that this body was subordinated in our scheme of government. Even the most perfect control over this branch would have given the people no positive control over the government as a whole. At the most, it conceded to them merely a negative on a part of the acts and policy of the government. Yet popular control over this branch of the government has become less and less effective as our political system has developed.

The Const.i.tution provides that "the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing senators."[143]

It also provides that "Congress shall a.s.semble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day."

It also requires that the members of the House of Representatives shall be elected every second year; but as originally adopted it does not specify when their term of office shall begin.

After the ratification of the Const.i.tution the Congress of the Confederation on September 13, 1788, designated March 4, 1789, as the time for commencing proceedings under the new regime. This made the term of office of President, Senators, and Representatives begin on that date.

An act of Congress, March 1, 1792, provided that the term of office of President should "in all cases, commence on the fourth day of March next succeeding the day on which the votes of the electors shall have been given."

This date was recognized as the beginning of the President's term of office by the Twelfth Amendment to the Const.i.tution, which went into effect in 1804. By implication this amendment makes the term of representatives begin on the fourth of March of each odd year.

Congress, exercising the power vested in it by the Const.i.tution to regulate Federal elections, enacted a law bearing date of February 2, 1872, which requires the election of representatives to be held on the Tuesday next after the first Monday in November of each even year, beginning with the year 1876. By act of March 3, 1875, this was modified so as not to apply to any state whose const.i.tution would have to be amended before the day fixed for electing state officers could be changed in conformity with this provision.[144]

Congress has no power to change the date on which the term of office of a representative begins; but it does have authority to change the time of electing the House of Representatives, and also to determine when its own sessions shall begin, subject to the const.i.tutional limitation that it shall meet at least once each year.

Under the law as it now stands the members of a newly elected House of Representatives do not meet in regular session until thirteen months after their election. Moreover, the second regular session does not begin until after the succeeding Congress has been elected.

The evils of this arrangement are thus described by a member of the House:

"The lower branch of Congress should at the earliest practicable time enact the principles of the majority of the people as expressed in the election of each Congress. That is why the Const.i.tution requires the election of a new Congress every two years. If it were not to reflect the sentiments of the people then frequent elections would have no meaning or purpose. Any evasion of that rule is subversive of the fundamental principle of our government that the majority shall rule.

No other government in the world has its legislative body convene so long after the expression of the people....

"As an election often changes the political complexion of a Congress, under the present law, many times we have the injustice of a Congress that has been repudiated by the people enacting laws for the people diametrically opposed to the last expression of the people. Such a condition is an outrage on the rights of the majority....

"Under the present law a representative in Congress who has been turned down by the people legislates for that people in the second regular session....

"A man who has been defeated for re-election is not in a fit frame of mind to legislate for his people. There is a sting in defeat that tends to engender the feeling of resentment which often finds expression in the vote of such members against wholesome legislation. That same feeling often produces such a want of interest in proceedings as to cause the members to be absent nearly all the second session....

"It is then that some are open to propositions which they would never think of entertaining if they were to go before the people for re-election. It is then that the attorneyship of some corporation is often tendered and a vote is afterward found in the record in favor of legislation of a general or special character favoring the corporation."[145]

To appreciate the magnitude of the evils above described, it is necessary to remember that upon the average only about one-half of the members of one Congress are elected to the succeeding Congress. This large number is, therefore, influenced during the second regular session neither by the hope of re-election nor the fear of defeat. Under these circ.u.mstances it is not surprising that the second regular session should be notoriously favorable to corporation measures.

That Congress has not attempted to remedy this evil is striking proof of its indifference to the wishes of the people. Otherwise it would have so employed the power which it possesses to perfect its organization, as to ensure the most prompt and complete expression of public opinion in legislation possible under our const.i.tutional arrangements. Having the power to change both the time of electing a Congress and the beginning of its sessions, it could easily remedy the evils described. Both sessions of a Congress could be held before the succeeding Congress is elected. This could be accomplished by having Congress convene, as advocated by the writer of the article above mentioned, for the first regular session on the Monday following the fourth of March next after the election, and for the second regular session on the first Monday after January first of the following year. In this case the second regular session would doubtless come to an end before the fall election.

Some such adjustment is required to give the people anything like adequate control over the House of Representatives during the second regular session.

The present arrangement which makes the House of Representatives largely an irresponsible body, while not provided for or perhaps even contemplated by the framers of the Const.i.tution, is nevertheless the logical outcome of their plan to throttle the power of the majority. But although in harmony with the general purpose and spirit of the Const.i.tution, it is a flagrant violation of the basic principle of popular government.[146]

This tendency may be still more clearly seen in the growth of the committee system by which the division of power and its consequence, political irresponsibility, have been carried much farther than the Const.i.tution contemplated, especially in the organization of the House, of Representatives. No standing committees were provided for by the Const.i.tution and few were established by the House during the early years of its existence. The system once introduced, however, has gradually developed until the House now has more than fifty-five of these committees.

Every legislative proposal must under the rules after its second reading be referred to the committee having jurisdiction over that particular branch of legislation. Theoretically, any member has a right to introduce any bill whatever. But as it must be referred to the proper committee and be reported by it to the House before the latter can discuss and adopt or reject it, it is evident that the right to initiate legislation has in effect been taken from the individual members and vested in the various standing committees. Under this method of procedure no proposed legislation can be enacted by the House without the consent of the committee having that particular branch of legislation in charge. The fact that a measure must be referred to a committee does not imply that that committee is obliged to report it back to the House. This the committee will, of course, do if the proposed bill is one which it wishes to have pa.s.sed. But if it views the proposed legislation with disfavor, it may revise it so as to make it conform to its own wishes, or it may report it so late in the session as to prevent its consideration by the House, or it may neglect to report it altogether. This virtually gives a small body of men const.i.tuting a committee a veto on every legislative proposal. The extent to which this system diminishes the responsibility of the House can not be fully appreciated without bearing in mind the manner of appointment and composition of the committees. The Const.i.tution provides that "the House of Representatives shall choose their speaker and other officers,"[147]

but it makes no mention of the speaker's powers. The right to appoint the committees is not conferred on the speaker by the Const.i.tution. The extent and character of the powers exercised by that official are determined very largely by the rules and usages of the House. This is the source of his power to appoint the chairman and other members of the various standing committees.

The speaker is elected at the beginning of each Congress and retains his office during the life of that body. The same is now true of the standing committees which he appoints, though previous to 1861 they were appointed for the session only.

The speaker is, of course, a member of the dominant party in the House, and is expected to use the powers and prerogatives of his office to advance in all reasonable ways the interests of the party which he represents. The selection of committees which he makes is naturally enough influenced by various considerations of a political and personal nature. It is largely determined by the influences to which he owes his elevation to the speakership. In return for the support of influential members in his own party certain important chairmanships have been promised in advance. And even where no definite pledges have been made he must use the appointive power in a manner that will be acceptable to his party. This does not always prevent him, however, from exercising enough freedom in making up the committees to insure him a large measure of control over legislation.

All the chairmanships and a majority of the places on each committee are given to the members of his own party. As the speaker's right to appoint does not carry with it the power to remove, he has no control over a committee after it is appointed. The committees, as a matter of fact, are in no true sense responsible either to the speaker or to the House itself, since once appointed they can do as they please. They are in fact just so many small, independent, irresponsible bodies, each controlling in its own way and from motives known only to itself the particular branch of legislation a.s.signed to it. The only semblance of responsibility attaching to the committee is found in the party affiliation of the majority of its members with the majority in the House. But ineffectual and intangible as this is, it is rendered even more so by the fact that the opposition party is also represented on each committee. This allows the dominant party to escape responsibility, since it can claim that its failure to satisfy the popular demand has been due to the opposition of the minority in the various committees, which has made concession and compromise necessary.

"The deliberations of committees," as Bryce says, "are usually secret.

Evidence is frequently taken with open doors, but the newspapers do not report it, unless the matter excite public interest; and even the decisions arrived at are often noticed in the briefest way. It is out of order to canva.s.s the proceedings of a committee in the House until they have been formally reported to it; and the report submitted does not usually state how the members have voted, or contain more than a very curt outline of what has pa.s.sed. No member speaking in the House is ent.i.tled to reveal anything further."[148]

A system better adapted to the purposes of the lobbyist could not be devised. "It gives facilities for the exercise of underhand and even corrupt influence. In a small committee the voice of each member is well worth securing, and may be secured with little danger of a public scandal. The press can not, even when the doors of committee rooms stand open, report the proceedings of fifty bodies; the eye of the nation can not follow and mark what goes on within them; while the subsequent proceedings in the House are too hurried to permit a ripping up there of suspicious bargains struck in the purlieus of the Capital, and fulfilled by votes given in a committee."[149]

A system which puts the power to control legislation in the hands of these small independent bodies and at the same time shields them so largely against publicity affords ample opportunity for railway and other corporate interests to exercise a controlling influence upon legislation.

This subdivision of the legislative power of the House and its distribution among many small, irresponsible bodies precludes the possibility of any effective party control over legislation. And since the majority in the House can not control its own agents there can be no effective party responsibility. To ensure responsibility the party in the majority must act as a unit and be opposed by an active and united minority. But our committee system disintegrates both the majority and the minority.