« PreviousContinue »
ical organizations of the states. A great deal of severe criticism has been launched at the Senate on this account; it has been named by journalists, "the millionaire's club." As a matter of fact, many of the Senators are wealthy, but no discriminating or intelligent critic believes that any considerable number of them are corrupt or men whose ideal is the use of their office for the purpose of augmenting their personal riches. However, the Senators, as corporation lawyers and leaders in state politics, are necessarily brought into close touch with great corporate interests, and as the hand is subdued to the dye in which it works, their views of government are colored by the economic environment in which they move. “It is natural,” says Professor Reinsch, "that the Senators should look upon political matters from the vantage ground of their special experience and of the interests with which they have been connected. There need be in this no suspicion of direct corruption; there may, in fact, often exist a conviction of absolute impartiality. Yet their attitude of mind and of temper is nevertheless characterized by that conservatism — often exaggerated — of the man to whom is intrusted the management of great economic interests. . . There are Senators whose controlling purpose seems to be to protect and advance the interests of particular combinations of capital without any regard to the broader principles of statesmanship or even to their plain duty as representatives of the commonwealth.” 2 On the other hand, President Woodrow Wilson believes that the Senate "represents the country, as distinct from the accumulated populations of the country, much more fully and much more truly than the House of Representatives does." 3
Whatever may be the conclusion on this point, there can be no doubt that the Senate is assuming an ever larger share in shaping federal legislation. The unlimited debate in the Senate enables each member to hold up legislation, and especially appropriation bills, in favor of any particular interest which he may represent. Though the Constitution provides that revenue bills shall originate in the House of Representatives, as a matter of fact the Senate, as we shall see, has an equal, and in many instances a
See Goodnow, Politics and Administration, pp. 251 ff.
far greater, power. As a matter of practice, also, the Senate usually increases the House appropriations, thus violating the ancient principle that burdens should be laid by those who are nearest to the tax-payers. The technical skill of the Senators, their long experience, and their superior legal talents frequently enable them to overshadow the House as a law-making body. Furthermore, owing to their relatively small number, they are able to give to measures more careful consideration; and for this reason some of the best of our legislation, at least on the technical side, comes from the Senate rather than from the House.
THE POWERS OF CONGRESS
THE Congress of the United States is limited to the exercise of the powers enumerated in the Constitution and the use of the means necessary and proper to carry them into execution. In this regard, it stands in sharp contrast to the English Parliament - King, Lords, and Commons. The power and jurisdiction of that great assembly, as Blackstone tersely puts it, “is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . . It hath sovereign and uncontrolled authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal. . . . It can regulate or new model the succession to the crown, as was done in the reign of Henry VIII and William III. It can alter the established religion of the land, as was done in a variety of instances in the reigns of Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves, as was done by the act of Union and the several statutes for triennial and septennial elections. It can in short do everything that is not naturally impossible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what Parliament doth, no authority upon earth can undo."
Compared with this omnipotence, the powers conferred upon Congress by the Constitution seem few indeed; and, as a matter of fact, most of the great questions which have agitated Great Britain during the last century - the extension of the suffrage,
the regulation of factories and labor, the provision of popular education, the establishment of old-age pensions - do not come within the range of federal authority at all, but are consigned to state legislatures and constitutional conventions. Nevertheless, Congress enjoys no slight power, and the swiftly multiplying interstate relations, over which it has a wide authority, are rapidly extending its control to social and economic matters of the most fundamental character.
This restriction of legislative power by written law has a profound influence on the debates and deliberations of Congress, because every important controverted measure before that body is sure to be declared unconstitutional by some one. A measure may be wise, expedient, and even necessary, but if it is clearly outside the powers of the legislature, it is useless to discuss it. If, however, there is any doubt as to the constitutionality of a measure, it is sure to be the subject of searching inquiry and exposition on the part of the skilled lawyers in Congress. Some of the greatest legislative discussions in our national history, including the celebrated Webster-Hayne debate on Foote's Resolution, have been over questions of constitutionality. It often happens that the original proposal itself is lost sight of in the tortuous windings of historico-legal speculations, as was indeed the case in the controversy just mentioned. The tendency to lengthy constitutional disquisition is especially marked in the Senate, where debate is less restricted, and there are more lawyers of distinction than in the House. These discussions are often of a high order and of undoubted value in expounding the terms of the Constitution, but they are also quite as often mere displays of black-letter lore or personal vanity. More than once the country has been impatient at these diffuse lucubrations, rightly suspecting that many opposing members had first come to their conclusions on the merits of the bill under consideration, and then sought constitutional objections to it. More than once, also, these debates have only added confusion to what seemed perfectly clear and simple. "If we must wait until the great constitutional lawyers agree upon any subject,” exclaimed Mr. Bourke Cockran in the House, “it is plain that we would never take a step in any direction. We would stand paralyzed at the threshold of every legislative enterprise, amazed and bewildered - puzzled to distinguish amid the din of their vociferation how much of it is advice to us and how much of it is denunciation of each other. I defy any man to define Congress itself according to the constitutional lawyers, after he has read three of their speeches.” 1
Broadly speaking, there are three views of the Constitution which may be taken by any member of Congress in deciding upon a controverted constitutional question. The first of these is known as “strict construction,”. a view which would restrict the powers of Congress to the bare letter of the written instrument, and confine the means of carrying its powers into execution to those absolutely and imperatively necessary. This theory of interpretation was applied by Jefferson in his opinion on the constitutionality of a federal bank, and was later used with great acumen by his party as the moral justification for their opposition to the Federalists. During the long controversy over slavery, it was the chief reliance of southern statesmen in resisting the northern pressure on Congress to use its powers as fully as possible in restricting the spread of slavery to the territories. With the disappearance of the old party antagonisms since the Civil War, there have not been many occasions to call the strict construction view into party services. The Democratic party, it is true, occasionally appears to oppose the encroachments of federal authority, but its concrete legislative proposals can hardly be regarded as consonant with a narrow conception of the Constitution.
The second view of the powers of Congress, originally assumed by the Federalist party and taken on various occasions by all parties, as their interests have required, is that of "liberal construction." The adherents to this doctrine deny that there is any warrant in the Constitution for taking the narrow view, and they lay great stress on that clause of the Constitution which authorizes Congress to make all laws necessary and proper for carrying into execution the powers expressly enumerated. They accordingly take a generous view of the enumerated powers, and then interpret the words "necessary and proper” to mean "highly useful and expedient." 3 Under this construction, a national bank was created, American industries have been protected, national highways built, paper money issued, and irrigation, reclamation, and other large schemes of public improvement undertaken. Only under this conception of the Constitution has the federal government been made in any way adequate to the exigencies of a national system of economy. * Readings, p. 237.
Ibid., p. 93.
* Ibid., pp. 66 and 241.
3 Ibid., p. 240.