3. Intelligent legislation based upon expert advice may be expected in course of time to bring some remedy for the third of the defects that I have mentioned: lack of principle. By principle I understand the permanent and nonpartisan policy of justice in legislation, the observance of the limits of the attainable, the due proportion of means to ends, and moderation in the exercise of powers which by long experience has been shown to be wise and prudent, though it may be temporarily inconvenient or disappointing in the production of immediate results. 341. The powers of Congress in the United States. The following specific powers are granted to Congress by the Constitution. Much difference of opinion has existed regarding their strict or liberal construction. The Congress shall have power: 1. To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States; 2. To borrow money on the credit of the United States; 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; 4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; 5. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures; 6. To provide for the punishment of counterfeiting the securities and current coin of the United States; 7. To establish post offices and post roads; 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 9. To constitute tribunals inferior to the Supreme Court; 10. To define and punish felonies committed on the high seas, and offenses against the law of nations; 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years; 13. To provide and maintain a navy; 14. To make rules for the government and regulation of land and naval forces; 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; 16. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; 17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; and, 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. 342. Functions of the German "Bundesrath." Wilson outlines the wide range of services performed by the upper House in Germany. The Bundesrath occupies a position in the German system in some respects not unlike that which the Roman Senate held in the government of Rome. It is, so to say, the residuary legatee of the constitution. All functions not specifically intrusted to any other constitutional authority remain with it, and no power is in principle foreign to its jurisdiction. It has a composite character, and is the presiding organ of the Empire. It is at one and the same time an administrative, a legislative, and a judicial body. In its legislative capacity, it presides over the whole course of lawmaking. The Reichstag has the right to originate measures, but, as a matter of practice, originates very few. Most bills first pass the Bundesrath and go with its sanction to the Reichstag. If passed by the people's house, they are returned to the Bundesrath and there once more adopted. All the more important legislation, moreover, is framed by the imperial officials and presented to the Bundesrath by the Chancellor, who is not only president of the federal chamber but also chief of the Prussian delegation. . . . The administrative function of the federal chamber may be summed up in the word oversight. It considers all defects or needs which discover themselves in the administrative arrangements of the Empire in the course of the execution of the laws, and may, in all cases where that duty has not been otherwise bestowed, formulate the necessary regulation to cure such defects and meet such needs. It has, moreover, a voice in the choice of some of the most important officers of the imperial service. The judicial functions of the Bundesrath spring in part out of its character as the chief administrative council of the Empire. When acting as such a council, many of its conclusions partake of the nature of decisions of a supreme administrative court of appeal. 343. Danger of overlegislation in the United States. The following extract from a series of lectures delivered recently at Columbia University suggests an important problem. Many causes tend to multiply local and private bills in the United States, and an enormous amount of lawmaking results. A chief danger in a democratic country like the United States is overlegislation. Our legislators are naturally ambitious to make a record before their constituents. Many individuals, corporations, or localities desire certain special privileges which may appear to be in their own interest but which may well be opposed to the general interest. There seems to be difficulty in placing a sufficient check upon the efforts of interested parties. On the other hand, however, we need to keep in mind the danger of general regulations, which tend to check individual initiative. Possibly nowhere else in the world, with the exception of some of the British colonies, are the conditions so favorable for securing individual initiative, for encouraging independent thinking and action, as in the United States. Indeed this may be looked upon as one of the chief excellencies, if not even the chief excellence of our political system. We need, therefore, to be extremely cautious about making laws which may restrict individual activity further than is necessary to protect the general public. 344. Impeachment. A peculiar function of legislatures, developed in England to meet conditions there and imitated later in other states, is that of impeachment. The method of impeachment seems to have been necessary in England because the English law did not allow a civil or criminal suit to be brought against the highest officers of state except with extreme difficulty. It was thus developed mainly to fill up a gap in the judicial control. A further reason for its development is to be found in the impossibility of obtaining a conviction of the great nobles before the ordinary courts and in the necessity of some means of legislative control in the days when the principle of the parliamentary responsibility of the ministers had not been developed. Since its development in England it has been adopted to some extent in almost all constitutional countries, and in some cases is made use of against not only the ministers but also all civil officers of the government. CHAPTER XIX THE EXECUTIVE I. THE EXECUTIVE HEAD 345. Forms of executive organization. The main types of executive - hereditary and elective, actual and nominal — and the basis of this classification are concisely described in the following :1 From what has been said it will be seen that the divisions of executive into hereditary and elective, nominal and actual, lie crosswise of each other. A hereditary sovereign may be nominal, as in the case of the British king, or he may be an actual ruler, as is the king of Prussia. Similarly an elected executive such as the President of the United States is actual, while the president of the French Republic is only nominal. The distinction between nominal and virtual executives leads to the consideration of the most fundamental of all questions in regard to the executive, namely, its connection with the legislature. . . . The governments of modern states are divided between two rival systems of operation. Of these the one is commonly termed "parliamentary," "responsible," or "cabinet" government; the other, for which no satisfactory designation can be found, has been variously styled "nonresponsible," "presidential," or "congressional" government. In a parliamentary government the tenure of office of the virtual executive is dependent on the will of the legislature; in a presidential government the tenure of office of the executive is independent of the will of the legislature. Parliamentary government is always found in connection with the presence of a nominal executive. But it is to be remembered that this nominal executive need not be a hereditary titular sovereign. In France the government is parliamentary, but the nominal head of the state is an elected officer. Similarly the presidential system is always found in connection with a real or virtual executive; but this real executive need not be an elected president, as the instance of Prussia clearly shows. 1 By permission of Houghton Mifflin Company. |