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choose their own Speaker." This statement throws as much light on our federal government as the observation that the prime minister for the time being is the First Lord of the Treasury throws on the British cabinet system. Surely no commentator on the British constitution would leave out of account the entire cabinet system and its vital relation to party practices.
Indeed, the most complete revolution in our political system has not been brought about by amendments or by statutes, but by the customs of political parties in operating the machinery of the government.' So radical is this transformation in the letter and spirit of the system of 1789, and so completely does it extend to the utmost extremities of that system, that it seems necessary to devote special chapters to an examination of its diverse aspects. A few examples, however, will be given here to illustrate concretely the ways in which party practices transform the written law.
1. The Constitution tells us that the President is elected by electors chosen as the legislatures of the states shall see fit. In practice a few candidates are selected at national party conventions, institutions wholly unknown to federal law; the electors are figureheads selected by the parties and bound to obey party commands; and the voters merely have the right to choose between the candidates nominated.
2. The Constitution informs us that the Senators are elected by the legislatures of the states. In practice they are chosen. at legislative caucuses of majority parties, or, in some commonwealths, through a system of direct nomination.
3. The Constitution states that the Speaker is chosen by the House of Representatives. In fact, he is selected by a caucus of the majority members of the House.
4. In the view of the Constitution the Speaker is the impartial presiding officer of the House. In fact, he is the leader of the majority party in that body.
5. The Constitution informs us that revenue bills must originate in the lower House. In plain fact, revenue bills originate in the Senate quite as much as in the House, although the latter body nominally exercises its prerogative.3
1 On this important subject, see Goodnow, Politics and Administration.
Chaps. vi, vii, and xxx, and Readings, chaps. vi, vii, and xxx. 3 See below, chap. xviii.
6. The Constitution says very little about legislative procedure, but the whole spirit and operation of Congress depend upon the rules, organization of committees, and agreements among the leaders of the majority party.
Closely related to the alterations introduced into the original system by party methods are the changes wrought in the presidential office by the exigencies of party leadership. This aspect of our constitutional evolution is regarded by some as an apparently fortuitous contingency dependent upon the personality of the President and the circumstances under which he carries on his administration, but by others it is considered as a permanent and salutary outcome of our political development. It would be interesting to know, at all events, the feelings that would be entertained by a member of the federal convention of 1787 if he could compare the deliberate and austere administration of Washington with that of Mr. Roosevelt, who was preeminently a party leader. Through his personal representative he participated in the gubernatorial campaign in New York in 1906; he aided Congressman Burton in his contest with Mr. Johnson for the mayoralty of Cleveland; he constantly engaged in multifarious party operations; and finally he was chiefly instrumental in selecting his own successor. Mr. Taft has likewise declared his belief in the duty of the President to act as party leader and assume party responsibilities.' It requires no far stretch of the imagination to believe that the original framers would regard the recent developments as entirely beyond their intentions. This is not meant to imply any criticism of Mr. Roosevelt or his policies, but it shows how the American people are actually not very much hampered by constitutional theories in the presence of the concrete interests and problems of our time.
Judicial Expansion of the Constitution
While there is a large and eminently respectable school of thinkers who maintain that the courts do not make law, it nevertheless remains a fact that the Supreme Court of the United States has on several occasions expanded the written instrument under the guise of an interpretation. Indisputable evidence of this fact is offered by the reversals of opinion showing that 1 See below, chap. x.
either in one case or the other the Court had read into the document ideas which it did not contain. Furthermore, the numerous dissenting opinions, often by the considerable minority of four to five, lend the weight of eminent authority to the contention raised in many quarters that certain decisions are not mere applications of the letter and spirit of the Constitution to specific circumstances, but positive additions to the venerable fabric which the convention constructed. This, of course, is controversial ground, but a few illustrations will make clear what is meant by those who maintain, without any intention of adverse criticism, that the Supreme Court makes constitutional law from time to time to meet the demands of new circumstances, or to express the opinion of the Court as to what ought to be the law.1
A notable instance is the case of Chisholm v. Georgia, mentioned above, in which the Court took jurisdiction over a suit against a state by a citizen. That it was not the intention of the states at the time of the ratification to confer such jurisdiction is evidenced by the general protest which went up against it and the facility with which an amendment was provided. Furthermore, Hamilton in The Federalist had expressed his belief that no such power was given by the Constitution, and the general principles of law up to that time seem to have been contrary to the ruling of the Court; but the Court, desiring to make the Constitution a broadly national instrument, assumed jurisdiction over the suit against Georgia. A more notable case was that of Marbury v. Madison, in which the Court decided for the first time that it had power to declare invalid statutes of Congress which it deemed contrary to the Constitution. Whether the majority in the convention intended to bestow such high prerogative on the federal tribunal is a matter of controversy. Certain it is that some of the members, notably Hamilton, ascribed such a power to the Court; but no express warrant was conveyed by the document itself, and there is some reason for holding that such might not have been the general intention of those who ratified the instrument. Later the Court extended the clause forbidding any state to pass a law impairing the obligation of contract to cover even agreements made by
1 Readings, p. 62.
the states themselves in the form of charters and concessions, a ruling which, however expedient from the standpoint of the protection of private rights, certainly widened the meaning of the term "contract," as generally understood at the time. To cite a more recent example: until the acquisition of our insular dependencies, an achievement as far beyond the range of the vision of the convention of 1787 as any imaginable, the Court had uniformly ruled that the provisions safeguarding individual liberty, laid down in the first ten amendments, restricted the federal authorities everywhere, in the government of territories as well as in the districts organized into states; but when it became apparent that such practices of Anglo-Saxon peoples as indictment and trial by jury were not applicable to peoples in other stages of culture and with diverse historical antecedents, the Court, by a process more subtle than logical, found a way of freeing the administration of the island dependencies from some limitations that had hitherto applied in the government of territories.2
The pages that follow describing the organization and operation of our system of government, federal and state, are in a large part but a commentary on the ways in which the Constitution "the solemn determination of the people enacting a fundamental law" has been transformed in the hands of those who from generation to generation have exercised political power. Over and over the plain record of political practices and official operations will bear eloquent testimony to the truth of the measured summary by Judge Cooley so often quoted: "We may think that we have the Constitution all before us; but for practical purposes the Constitution is that which the government in its several departments and the people in the performance of their duties as citizens, recognize and respect as such; and nothing else is. . . . Cervantes says: 'Every one is the son of his own works.' This is more emphatically true of an instrument of government than it can possibly be of a natural person. What it takes to itself, though at first unwarrantable, helps to make it over into a new instrument of government, and it represents at last the acts done under it."
1 See below, chap. xxii.
Readings, p. 375.
THE EVOLUTION OF STATE CONSTITUTIONS
THE facility with which our political system may be divided into the state and federal branches naturally leads to the separation of them for the purpose of convenient treatment; but the student should never lose sight of the fact that, after all, our political system is a unit because the operations of both branches interlock at many points, and the developments of each affect the letter and spirit of the other. The framers of the federal Constitution, for example, did not contemplate the adoption of general manhood suffrage or the direct election of the President, and yet state action and party practice have accomplished this. It surely was not the intention of the states which ratified the Constitution that the outcome was to be the reduction of each commonwealth to the position of little more than a local government through the increase of federal power; and yet such has been the case. It was not dreamed that national politics would overshadow state politics; but the growth of huge national party organizations in connection with the operations of the federal government has made the state a tight-working cog in a national mechanism. A complete survey of American constitutional evolution must, therefore, take into account the tendencies in the evolution of state institutions.
An examination of the principal features of the early state constitutions reveals certain striking characteristics. They show, in the first place, an unlimited faith in the legislature, because they contain practically no limitations on the powers and procedure of that body. At the same time, they reveal a distrust of the executive by providing in many instances that the governor shall be elected by the legislature, and under all circumstances restricted to the exercise of a very limited authority.
1 The constitutions of the American states are to be found in Thorpe, The Federal and State Constitutions, published by the federal government in 1909.