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THE MACMILLAN COMPANY

NEW YORK CHICAGO

DAI I AS ATI ANTA SAN FRANCISCO

IONDON MANII A

THE MACMILLAN COMPANY
OF CANADA, LIMITED

TORONTO

GOVERNMENT
OrTHE UNITED STATES

THE GOVERNMENT
OF THE UNITED STATES

NATIONAL, STATE, AND LOCAL

BY WILLIAM BENNETT MUNRO

CALIFORNIA INSTITUTE OF TECHNOLOGY

FIFTH EDITION

WITH THE COLLABORATION OF ARNOLD J. ZURGHER,

NEW YORK UNIVERSITY, AND THE LATE

EDWARD M. SAIT, POMONA COLLEGE

THE MACMILLAN COMPANY - NEW YORK

Fifth Edition Copyrighted, 1946, by The Macmillan Company

without permission in writing from the publisher, except by a reviewer

who wishes to quote brief passages in connection with a review written

for inclusion in magazine or newspaper

PRINTED IN THE UNITED STATES OF AMERICA

PREVIOUS EDITIONS COPYRIGHTED 1919, 1925, 1931, 1936
BY THE MACMILLAN COMPANY

PREFACE

The purpose of this book is to provide a general survey of the prin
ciples and practice of American government. It endeavors to explain the
origin and purpose of American governmental institutions, to indicate
what they are expected to do, and to show how they do it. The govern-
ment of the United States is pictured in this volume as a going concern,
with merits and defects which have been developed by time and usage,
- - a government in which the actualities do not always conform to the
ideals professed, yet has preserved for its people a larger measure of real
democracy than can be found anywhere else in the present-day world.

The plan, scope, content, and temper of this book are in large meas-
ure the outgrowth of my experience as a teacher during the past forty-
five years. My students, by the drift of their questions and discussions,
have moulded my ideas as to what a textbook ought to be. This book is
theirs as much as it is mine. That may help to explain why the same
topic is sometimes taken up more than once, from different points of
approach, in different chapters. It is not unintended repetition but the
outcome of a desire to stamp on the reader's mind some things that are
more elusive than one might think.

For this fifth edition the text has been almost entirely rewritten.
Some new chapters have been added; a considerable amount of fresh
material has been incorporated, while the emphasis has been shifted in
keeping with the new political and economic orientation of recent years.
The lists of bibliographical references at the close of each chapter have
been rearranged and extended.

The one thing that has not undergone a change is my conception of
what a textbook ought to be. It is still my conviction that the history,
organization, and actual workings of a government are so closely inter-
woven that they should be studied together, not as independent and
dissociated matters. I also confess that I have tried, perhaps with in-
different success, to make this volume reasonably interesting, as text-
books go. For I have learned, during an active lifetime of contact with
college undergraduates, that there are many among them who do not
find the study of government an easy task even when its problems are

vi PREFACE

In my work of revision during its early stages I was greatly aided by
the late Edward M. Sait of Pomona College, and in its later stages the
collaboration of Arnold J. Zurcher of New York University has been
most helpful to me. Mrs. Ethel H. Rogers has faithfully assisted me in
preparing the manuscript for the press, checking the lists of references,
and making the index.

WILLIAM BENNETT MUNRO

CONTENTS

Introductory
I. THE STUDY OF GOVERNMENT: WHY AND HOW I

Background and Basis of American Government

II. THE BACKGROUND AND BEGINNINGS OF AMERICAN

GOVERNMENT 13

III. THE CONSTITUTION AND ITS MAKERS 34

iv. "THE SUPREME LAW OF THE LAND" 53

$1 HOW THE CONSTITUTION HAS CHANGED 66

Foundations of Political Power

VI. CITIZENSHIP AND CIVIL RIGHTS 8 1

VII. THE PRIVILEGE OF VOTING 98

The National Party System

VIII^ POLITICAL PARTIES IN NATIONAL GOVERNMENT:

/ WHAT THEY ARE AND WHY THEY EXIST 113

IX//POLITICAL PARTIES IN NATIONAL GOVERNMENT:

HOW THEY ARE ORGANIZED AND DO THEIR WORK 134

The National Executive

PRESIDENT 146

PRESIDENT IN RELATION TO CONGRESS 171

XII. ^PRESIDENTIAL POWERS AND DUTIES 1 86

xm THE CABINET: ITS PLACE IN THE SCHEME OF

GOVERNMENT 2OO

xrv. NATIONAL ADMINISTRATION: THE DEPARTMENTS 213

XV. THE ^DEPENDENT AND EMERGENCY ADMINISTRATIVE

SERVICES 233

XVI. THE CIVIL. SERVICE AND ADMINISTRATIVE PERSONNEL, 25 J

viii CONTENTS

The Organization of Congress,

xvn. THE SENATE: ITS ORGANIZATION 270

xvm. THE SENATE: ITS SPECIAL FUNCTIONS 287

XIX. THE HOUSE OF REPRESENTATIVES: ITS ORGANIZATION 305

XX. THE HOUSE OF REPRESENTATIVES AT WORK 321

XXI. SOME FEATURES OF CONGRESSIONAL PROCEDURE- 335

Congress in Action

XXII. THE GENERAL POWERS OF CONGRESS 347

XXIII. NATIONAL TAXATION AND REVENUES 365

XXIV. NATIONAL EXPENDITURES AND THE NATIONAL DEBT 381
XXV. THE GOVERNMENT AND COMMERCE 399

XXVI. MONEY, BANKING, AND CREDIT 422

XXVII. INDUSTRY, LABOR, AND SOCIAL SECURITY 438

KXVIII. AGRICULTURE AND CONSERVATION 461

XXIX. THE POSTAL AND MISCELLANEOUS NATIONAL POWERS 474

XXX. THE NATIONAL DEFENSE 487

XXXI. AMERICAN FOREIGN RELATIONS 503

XXXII. CONSTITUTIONAL LIMITATIONS 517

XXXIII. TERRITORIES, INSULAR POSSESSIONS, AND SPECIAL

AREAS 529

The National j/udiciary

XXXIV. THE JUDICIAL SYSTEM OF THE UNITED STATES 547
XXXV. THE SUPREME COURT AND THE OTHER FEDERAL

COURTS 567

State Government and Administration

XXXVI. THE PLACE OF THE STATES IN THE NATION:

PAST AND PRESENT 589

XXXVII. THE STATE CONSTITUTIONS 6ll

XXXVIII. STATE PARTIES AND PRACTICAL POLITICS 623

XXXIX. THE STATE LEGISLATURE 639

XL. DIRECT LEGISLATION AND THE RECALL 663

XLI. THE GOVERNOR 674

XLII. STATE ADMINISTRATION 692

CONTENTS ix

XLIII. STATE FINANCE 710

XLIV. THE STATE COURTS 728

XLV. THE REORGANIZATION OF STATE GOVERNMENT 744

Municipal and Local Government

XLVI. THE GOVERNMENT OF CITIES 757

XLVII. MUNICIPAL ADMINISTRATION 780

XLVIII. RURAL GOVERNMENT: COUNTIES, TOWNS, AND

TOWNSHIPS 799

Conclusion

XLIX. THE AMERICAN PHILOSOPHY OF GOVERNMENT 82O

Appendix

THE CONSTITUTION OF THE UNITED STATES 837

INDEX 853

THE GOVERNMENT
OF THE UNITED STATES

CHAPTER I
THE STUDY OF GOVERNMENT: WHY AND HOW

This study renders men acute, inquisitive, dexterous, prompt in attack, ready in
defence, full of resources Blackstone.

What is government and why should anyone study it? It is not easy to
answer the first half of that question to give a definition which will
include all that comes under the head of government and WHAT IS
exclude everything that does not. Nevertheless a definition GOVERN-
is an essential starting point in the scientific discussion of MENT *
any subject, for there is nothing more confusing than the use of undefined
terms which may mean different things to different people. Such terms,
for example, as government, politics, administration, and democracy
are sometimes so loosely used that they create no end of confusion.

Government is the mechanism through which the public will is ex-
pressed and made effective. Sometimes the public will is voiced by the
people directly, through the agency of the initiat ; ve and THE AOENCY
referendum, but more often it is made manifest by action OF PUBLIC
of their elected representatives in parliaments, legislatures ACriON *
and municipal councils. Constitutions, laws, and ordinances are the
formal records of the public will as expressed by these legislative bodies.
Presidents, governors, mayors, and other executive officials constitute
the channels through which this legislation is put into effect, while the
courts uphold their hands by providing the sanction of enforcement.

Government, accordingly, embraces three broad functions: namely,
the making of laws, the administration of laws, and the enforcement of
laws. Laws embody the mind of the people's representatives
on matters of public policy, declaring what shall be done SCOPE
and what shall not be done. But laws are not self-starting
devices; they have no momentum of their own. Hence administrators are
vested with the function of putting the laws into operation. The vast
majority of governmental officers are engaged in this work. And when
anyone shows a reluctance to obey the laws it is the courts that provide
the* machinery of enforcement. Legislative, executive, and judicial,

2 THE GOVERNMENT OF THE UNITED STATES

therefore, are the three great branches of government. The study of
government is equally concerned with all of them.

Such a study has several purposes. The first is to secure an acquaint-
ance with a highly important field of human activity. Government has
WHY STUDY become an all-pervading social enterprise. It reaches into
THIS SUBJECT? all phases of the citizen's everyday life. For it is government
THE STUDY OF ^^ S* vcs him his citizenship, protects him awake or asleep,
GOVERNMENT guards his health, provides him with education, limits his
GAiNn^A S N OF hours of labor, and regulates his conduct in an ever-
ACQUAINT- increasing variety of ways. There was a time, not so long
ANCE WITH A a g O w h en government was looked upon as a passive factor

GRZATDO- . ' t.p T r 1 111 i

MAIN OF m the common hie. Its functions were deemed to be largely

HUMAN protective. It defended its people against foreign enemies

and kept peace within the nation's borders. For the rest it
was supposed to laissez-faire, to let alone. But that concept of govern-
ment, which served well enough in earlier days, is wholly unsuited to the
complexities of modern industrial civilization. It has broken down in
the face of a thousand demands from the people for all sorts of new
governmental service ranging from the guarantee of bank deposits to
the enforcement of collective bargaining in labor disputes.

So today one should not think of government as an agency whose
function is mainly to protect and restrict. In normal times the civil
employees of the nation outnumber the army and navy twice over. Their
work covers a very wide range, but much of it is intended to promote
and construct, to encourage and stimulate, rather than to prevent or
prohibit. Thus government has ceased to be a political agency alone
and has developed into an economic and social force of tremendous
power.

In this sense government has become one of our great American
industries. It engages the full time of over three million people. One
EXTENT OF person in every twelve adults is on a government pay roll,
THIS national, state, or local. This huge army of public employees

ACTIVITY. includes not only congressmen, judges, governors, mayors,
and so forth but many thousands of postmen, policemen, and school
teachers. Government also absorbs the part-time energies of a great
many more persons in a nonofficial capacity if one includes members
of party committees, lobbyists and legislative agents, lawyers who appear
before the courts, and politicians of every stripe.

Government is also a great industry in the sense that it spends vast
amounts of money. The combined expenditures of the American national,
state, and local governments during certain years preceding the outbreak

THE STUDY OF GOVERNMENT: WHY AND HOW 3

of World War II totaled at least twelve billion dollars annually. In the
years since the war, federal expenditures alone have been more than
three times this pre-war total of all levels of government.
Despite the maintenance of a relatively low interest rate
(23- per cent), the interest charge on merely the federal debt
now requires an annual outlay of about five billion dollars. This must
be raised by taxation, in addition to all the other costs of government.
There is no alternative if a government desires to retain its solvency and
maintain its credit. During World War II taxes came close to taking
thirty-five cents of every dollar of national income and there has been
but a slight reduction in this ratio of taxes to national income since the
war. The rate of taxation may even rise should the volume of national
income decline. Surely an enterprise which takes so heavy a toll from
the earnings of the people ought to receive careful scrutiny on the part
of those who contribute the money. Government should be studied,
therefore, because of its intimate relationship to the pocketbook of every
citizen. In this connection it is well to bear in mind that it is not merely
the direct taxpayer who defrays the cost of government. Everyone is an
indirect taxpayer and hence contributes to it in the cost of living.

A second reason for the study of government is its value as a form of
training in the art of observing and evaluating social facts, weighing
arguments and detecting flaws in them, forming intelligent
opinions on public questions, and doing various other GOVERNMENT
things which every citizen in a democracy is supposed to do AS A FORM OF

TRAINING IN

but very often does not. The art of understanding a political THE AP .
problem does not come by intuition. It has to be acquired, ^RAISAL OF

, A , 1 f * u * J J -L FACTS AND

and the only way of acquiring it is by study and practice. THE

The data of political science are rarely exact, and hence ING OF ARGU-
have to be handled with discrimination. For if they are MENTS *
handled loosely they lead to false conclusions.

Two and two do not always make four in politics. They may make 22.
It all depends on the way you set the figures up. In other words the
organization and operations of a government are not for the most part
conducted on a basis of what is logical or rational. Government is an
affair of human contrivance. As such it must reckon with the limitations
of human nature. It rests on the caprice, as well as on the consent, of the
governed. It is guided by human emotion to an even greater extent than
by human reason. Hence the factors which influence the operations of a
government ae to a considerable degree uncertain, variable, and in-
capable of precise measurement.

Now it is well that somewhere in the process of education there should

4 THE GOVERNMENT OF THE UNITED STATES

be opportunity for training in the appraisal of these emotional forces.
In mathematics and in the natural sciences we deal with

THE ART OF . .

FORMING quantities and forces which can be accurately computed.

SOUND The student of physics or chemistry learns that a certain

OPINIONS. , . r ... , . .

cause or combination ol causes will produce a given result.

There are no emotional factors to be considered. So with the student of
languages and literature. He discovers that certain grammatical forms
must be used to build correct sentences; he deals with rules of grammar
which are absolute and with principles of composition which are
generally agreed upon.

But the study of government is not a matter of learning formulas and
applying them. One is expected, above all things, to avoid formulas.
It is a matter of detecting tendencies and sensing the interplay of popular
inclinations. In the study of government it is rarely possible to proceed
directly from cause to consequence, or to trace a consequence with
certainty back to its cause. Results are usually brought about by the
interaction of several causes and it is by no means easy to determine just
how much each has contributed to the outcome.

This does not mean, of course, that there arc nt) recognized principles

or laws in political science as in the natural sciences. There must be laws,

or fundamental forces, in politics, for laws are the most

THE SEPARA- i r 11 1 T-I 11

TION OF universal ol all phenomena. 1 his universe is governed by

KNOWLEDGE laws, and man is part of the universe. Slowly we learn what
these Iaws are * ^ e have J3ihlical assurance that "the wind

bloweth where it listcth," but the meteorologist of today
knows that it docs nothing of the kind. It blows from a high-pressure to a
low-pressure atmospheric area, always and everywhere thus obeying
a fundamental law. Once upon a time it was the universal belief that
epidemics of disease were scourges sent by the gods. Everyone who has
read Homer's Iliad, for example, will recall how the sun-god in anger
raised his terrible bow, and with every twang of the bowstring sent brave
men to their death by pestilence while their comrades offered prayers
and sacrifices to propitiate the enraged deity. Today we do not offer
sacrifices to the sun-god, but send health experts to find the major routes
of infection.

So in political science there are processes and tendencies which partake
^T^ , t, f th e character of natural laws. Every student of history has,

THE CYCLE OF

RADICALISM for example, noted the regularity with which radicalism and
AND REAC- reaction in government have followed on each other's heels
throughout the ages.

THE STUDY OF GOVERNMENT: WHY AND HOW 5

This is the moral of all human tales:

'Tis but the same rehearsal of the past,

First Freedom, and then Glory when that fails,

Wealth, vice, corruption barbarism at last !

And History, with all her volumes vast,

Hath but one page.

The road back from Freedom and Glory does not always descend to
Vice and Barbarism, as Lord Byron suggests, but the fairly regular
alternation of prosperity and depression, conservatism and liberalism,
high political ideals and low, democracy and dictatorship, militarism
and pacifism this alternation is one of history's outstanding phe-
nomena. And it can hardly be the outcome of chance, or even of human
perversity. May it not be that many of our political vicissitudes are
merely the workings out of forces which mankind does not yet sense or
understand? Is it possible that we are still being guided, in the realm of
government, too largely by formulas and superstitions which have no
rational basis?

It may be so, although the principles which government obeys (if there
are such) can never be so definite as are those of physics or chemistry
because of the emotional factors which are so largely TIIE NATURE
involved. Yet one should not lay too much stress upon the OF POLITICAL
eccentricities of political action due to the human equation, PRINCIPLES -
for human nature is after all a reasonably stabilized affair. We recognize
this in the saying that it is the same the world over. Men and women, in
the mass, respond to the same stimulus in much the same way every-
where. The political action and attitude of a single voter cannot easily
be forecast, but the action and attitude of a million voters can be pre-
dicted with reasonable accuracy when all the discoverable forces are
assembled and impartially weighed.

The study of government can be pursued in a scientific way even
though its principles are not always of universal application. The weather
displays strange vagaries at times and fails to perform as

,. , , r i r,,, CAN THEY BE

predicted; yet we have a science ol meteorology. 1 he eccen- EMBODIED
tricities of public opinion are no more striking than are * Nr oA

i r i i . u -ru * ^ SCIENCE?

those of the lower atmosphere. I he average citizen is too
much given to the habit of regarding his government as something that
functions according to neither rhyme nor reason: a huge network of
laws and regulations, personalities and activities, which possesses very
little coherence and is guided by the opportunism of partisan advantage.
He is inclined to look upon politics as neither a science nor an art but

6 THE GOVERNMENT OF THE UNITED STATES

merely as a game, played mostly in evasion of what are supposed to be
the rules. That point of view is unjust to an enterprise which, when one
considers the magnitude of its tasks, has maintained a high level of
efficiency.

There are certain principles of government upon which virtually all
students of the subject are agreed enough, perhaps, to form the
nucleus of a science. Hardly anyone, for example, now
RECOGNIZED disputes the proposition that if you desire expert skill in
PRINCIPLES OF any administrative office you should make the office
POLITICAL appointive, not elective. Likewise there is general agree-

SCIEN CE .

ment on the principle that administrative responsibility
should be centralized, not diffused. Every government should plan its
financial operations annually and embody this plan in a budget. Judges
should have reasonable security of tenure. Taxes should not be levied
without specific authorization by law. Many other examples could be
given. The science of government develops certain principles and the art
of government consists in successfully applying them.

Of course the greatest obstacle to the study of government in a sci-
entific spirit is the extreme difficulty of maintaining an impartial attitude.
This results from the content of the subject, from the nature

OBSTACLES TO p f . f . , . . _ , . , . . ,

IMPARTIAL of the questions which arise, and from the ease with which
STUDY IN the same data can be differently interpreted. Political issues

THIS FIELD. . . . . . . . .

come very close to human emotions and inherited preju-
dices. There are few individuals who can calmly, dispassionately, and in
a completely neutral spirit undertake an analysis of public ownership,
unemployment insurance, old-age pensions, collective bargaining, price
control, compulsory military service, federal aid to education in the
states, birth control, compulsory arbitration, collective security, or inter-
national organization for the preservation of peace. Opinions on such
matters are not reached with the intellectual neutrality which a natural
scientist displays towards his problems. There is nothing in the human
emotions which impels a chemist to favor alkalis as against acids. He
bears no inherited prejudice against the proposition that nature abhors
a Vacuum. He merely sets it down as one of the things that has to be.

But every student of American government has been born and brought
up in a sectional, social, economic, religious, and political environment,

the influences of which cling to him through life. His

observations and judgments will be affected by this fact,
PREJUDICES no matter how honestly he may strive t$ submerge his
OF THE inherent sympathies and aversions. Hence it is virtually

impossible for any citizen to give a thoroughly unbiased

THE STUDY OF GOVERNMENT: WHY AND HOW 7

portrayal of the structure and workings of his own government. The best
book ever written on the government of the United States is the work of
an Englishman; the best book ever written on the government of England
is the work of an American. 1 This is significant but not surprising. It
points to the advantages of emotional detachment on the part of those
who are on the outside.

Nor is the difficulty merely one of overcoming partialities that have
been inherited. Every citizen lives his whole life in an atmosphere that is
surcharged with partisanship. He is deluged with propa- THL ATMOS .
ganda, adroitly garbed as sound information. He is in daily PHERE OF
contact with people who look through colored glasses (rose BIAS *
or blue) upon every act of the public authorities His eyes are requisi-
tioned daily by the newspapers and his ears by the radio. He is impor-
tuned for support by politicians who believe that the science of govern-
ment originated at the last presidential election and that the art of
government is an ironclad monopoly in the hands of one political party.
All this befogs the atmosphere of scientific inquiry. It is rather humiliating
for any citizen to profess an uncertain opinion on a political issue when
everybody else seems to have reached a confident one.

It is perhaps worth remarking that the average citizen assumes no
such cocksureness of opinion in fields of knowledge other than public

affairs. If you ask him, for example, what is meant by polar-

, t . , , .,, r . ~ , THE CITIZEN'S

ized light, he will refer you to a scientist for the answer. READINESS TO

If you ask him whether courts of equity should have power FORM SNAP
to issue writs of mandamus, he will explain that he is not a JU NTS *
lawyer. In such things he will exhibit a decent respect for the limitations
of his own competence. But turn to the realm of government and ask him
whether the national tax system ought to be revised and how; whether
the powers of the Supreme Court ought to be curbed; whether the
national labor relations law is a success or a failure; whether the federal
government should adopt a sales tax, or reduce the tariff; whether we
should have health insurance and who should pay for it ask the plain
citizen any of these questions and he will rarely hesitate to give you a
definite opinion straight from a closed mind. He will not reply that -he
has made no study of taxation, jurisprudence, industrial economics,
national finance, or social policy which would be the proper answer
in most instances.

There is only one way to correct this situation; that is by the spread of
properly organized instruction in the schools and colleges. There the

1 James Bryce, The American Commonwealth and A. Lawrence Lowell, The Government oj
England.

8 THE GOVERNMENT OF THE UNITED STATES

oncoming citizenry can be brought to realize that facts, however awk-
ward, are of controlling importance in government as in everything else;
that the same facts may be subjected to differences in in-

CAN THIS . 7 f J . , ...

PROPENSITY terpretation; that there arc at least two sides to every politi-
BE COR- ca j question, and sometimes more than two; that it takes

RECFED? . 1-1 11 r i i

patience and industry to get to the bottom of tough prob-
lems; that a scientific neutrality on any issue of political policy or social
conduct is extremely hard to maintain; and that problems of government
are inherently as difficult as are those of science or engineering. They
demand the same concentration of thought. They cannot be understood
except by the same process of diligent study. If the problems of govern-
ment were as simple 33 most citizens seem to think they are, we should
have found solutions for them a long time ago. v

Glance through the index of this book, or any other book, on American
government. Administration, agriculture, ambassadors, anarchism,

appointments, appropriations, assessments, attainder, bal-

' ots > banks, bankruptcy, bimetallism, bonds, boroughs,
AS THE BASIS bosses, budgets, cabinets, campaign funds, carpetbaggers,
FORMNG N " cau cuses, censorship, charters, child labor, citizenship, city

planning, civil service, coinage, common law, constitutions,
contracts, copyrights, credit, courts and so on for a dozen or more
closely packed pages. These words, every one of them, point to policies
and problems which are very far from simple in their implications.
Sometimes the idea involved in one of these terms is simple enough, but
in the domain of government an idea is sometimes so greatly at variance
with the actualities that the one becomes almost the negation of the
other. This means that the student of government must not let himself be
misled by the ostensible relation between things but should look below
the surface and scrutinize facts as with a microscope, for the most im-
portant political forces are sometimes the ones with the least visibility.
There is a third reason for the study of government. It is to be found
in the relation of citizenship to patriotism. A free government demands
THE STUDY OF obedience from its people, yet there can be no intelligent
ooycRNMENi obedience unless the citizen knows what it is that he obeys.

AS AN AID TO A . r . t l

CONSTRUC- A government requires the cooperation ot its people, but
TIVE CITIZEN- there can be no effective cooperation unless it be based upon
SHIP ' understanding. A government feels itself entitled to the

confidence and respect of the people, but no genuine political confidence
can ever be founded on civic ignorance. Good intentions do not suffice
to make a good citizen; and in a free government there is no synthetic

THE STUDY OF GOVERNMENT: WHY AND HOW 9

substitute for the national unity which rests upon a wise, informed, and
judiciously tolerant citizenry.

When men and women pledge allegiance to the flag, and to the Re-
public for which it stands, they should at least know what kind of republic
it stands for. When they repeat their formula of "one nation, indivisible,
with liberty and justice for all," they should at least have some general
idea as to how it came to be one nation, why it has remained indivisible,
how liberty was achieved, by what means it is preserved, and through
what instrumentalities of government the ideal of evenhanded justice is
sought. When the citizen, on taking public office, swears to uphold the
Constitution of the United States he may reasonably be presumed to
have read it; but this oath has been taken by many a man who has not.

The American philosophy of government endows the citizen with
ultimate sovereignly. It places in his hands the power to determine what
kind of government he shall have. It is for him to say,

,. -i , , i , i . i , THE CITIZEN

directly or through his elected representatives, what shall IN H is
be enacted in the constitutions and laws of the nation and SOVEREIGN

, , i 11 i 11 i- CAPACITY.

the states, what taxes shall be imposed, what expenditures
made, and what policies pursued. This is a vast responsibility. It is a
responsibility that cannot properly be met by the citizen unless he has
at least a general knowledge of what his government is and what it is
supposed to do. The promotion of an intelligent and responsible civic
interest, therefore, is the third object in the study of government.

The Constitution and the government of the United States are entitled
to respect. The more study one gives to them, the greater is that respect
likely to be. Not only is it likely to be greater, but it will HOW IM _
rest on a surer foundation. This is not to suggest, how- PROVEMENT
ever, that there arc no flaws in the nation's fundamental COMES -
law or in its frame of government. There are plenty in both. And govern-
ment, whether in the nation, the states, or the local areas, can only be
improved by changing it. What man does not transform for the better,
time will alter for the worse. A constructive citizen, accordingly, is one
who knows enough about his government to discern its weak spots and
who deems it his obligation to help strengthen them, to the end that h*
government may more fully command the obedience and respect of f
people. It is only by increasing the number of such men and women
either the Constitution or the government of the United States c
made to endure.

Now a wordas to the methods of study. In approaching tb
one of the first essentials is to get rid of the notion that the

10 THE GOVERNMENT OF THE UNITED STATES

of the American people is a simple affair, easy to understand without

concentrated effort. It is, in fact, anything but simple. It is the most

complicated government on earth, and the most difficult to

METHODS OF , . , r^ , . . ., f

STUDY: understand. Irue enough, one can imbibe a smattering of

i. THE it without systematic study and every native-born Ameri-

APPROACH can does so as he & oes along. But the information that he
gets in this way is fragmentary, often only half accurate, and
always tinged with partisanship. In this field, as in so many others, a
little knowledge often proves a dangerous thing, for men act upon it
without realizing its inadequacy.

Government as a science is not an easy subject. To become even

reasonably conversant with the structure and functions of American

government in nation, state, and municipality is an undcr-

A RECOGNI- ^ , . r , , , .

TION THAT taking of larger proportions than most people imagine. To
THE SUBJECT secure a clear picture of the relations which exist between
ONE DIFFICULT t ' ie var i us organs of government, the limitations under
which they work, and the forms of pressure that are put
upon them let no one imagine that this can be achieved with less
intellectual effort than is required for the study df higher algebra or solid
geometry. There is only one way in which the study of government can
be made easy for the average man or woman: namely, by omitting or
glossing over everything that is difficult. If, therefore, the reader of this
book finds the subject easy, he may make up his mind to one of two things
either that he has an uncommon genius for the study of public affairs
or that he is missing most of the points.

The study of a government involves not only careful reading but study

and reflection as well. It should be done with pen in hand and a notebook

on the table/ Good note-taking is a real accomplishment.

TAKING. Many young men and women go all the way through college

without becoming even moderately proficient at it. What

the student should aim at is not a mere condensation of the reading,

but a recasting of the principal ideas in his own language, adapted to his

own point of view. He should devise, if he can, an arrangement of the

^aterial which is clearer and more logical than the one followed in the

^k. It can often be done and there is nothing more serviceable in

Clarification of any subject. Careful and orderly note-taking, more*

affords opportunity for practice in the art of concise writing, and

f ery of this useful art is largely a matter of practice. Hence it is

vrite one page of thoughtful summary than to dash off several

punctuated scrawl and call it a day.

se of study is to incite one's mind into self-propelled activity.

THE STUDY OF GOVERNMENT: WHY AND HOW 11

Education ought to stimulate one's intellectual curiosity. It is not of
enduring value unless it does. The study of government, in THE
particular, should develop this habit of self-questioning. QUESTIONING
Many political institutions and practices continue to exist ATTITUDE -
for the mere reason that they have become traditional. They suggest a
challenging of their merits. One man's opinion on most political questions
is about as good as another's; provided, however, that both opinions are
based on equal thoroughness of study. On the other hand, no man has a
moral right to hold an opinion without a reason for it, a reason that is
valid to his own mind. But if he has such a reason his own opinion is more
useful, in the educational process, than a ready-made one borrowed
from somebody's book.

Hence it is better to maintain a scrutinizing attitude in the study of
government than to be content with the memorizing of facts and the
unquestioning acceptance of traditional principles. On the
other hand there is no particular virtue in being a con- AVOIDANCE
genital iconoclast. What is, for the most part, is right. OF UNDUE

Tr . ~~ ... t1 T i t i ICONOCLASM.

If it were not right, it would not exist. Remember that the
law of natural selection is at work among governmental institutions and
methods. It eliminates the unfit, although rather slowly at times. Hence
the benefit of the doubt, when one is in doubt, should be given to what
we have, rather than to something that might with some possible ad-
vantage be put in its place. This is not to argue against the practice of
trying experiments in government but only to suggest that they should
not be tried unless there are reasonable prospects of success, for when
experiments fail there is a weakening of the people's confidence in their
government. Then they call for a general reconstruction, with results
that arc sometimes disastrous. Dictatorships have, on more than one
occasion, grown out of unwise and unsuccessful experimentation by
governments, especially in the domain of economic affairs. The history
of Europe during the past twenty years is replete with illustrations of
this.

Government, as Emerson once said, is "the greatest science and service
of mankind." The world is giving more thought to it nowadays than ever
before. And rightly so, for never have the foundations of THE GREAT .
democratic government been so violently assailed.' Man's EST OF ALL
rulership over nature has become more successful year by THE SCIENCES.
year; but man's rulership over man is making no such advance. The
human race has been far more successful in controlling the relations
between man and his environment than in establishing satisfactory
relations between man and his fellow men. Surely there is need for

12 THE GOVERNMENT OF THE UNITED STATES

thought in a situation where human progress is being made so rapidly
in all the sciences except the one that ought to be the most important.

REFERENCES

TEXTBOOKS. Many excellent textbooks are available for the study of Ameri-
can government in all its branches. Among these are F. A. Ogg and P. O. Ray,
Introduction to American Government (8th edition, New York, 1945) and Essentials
of American Government (4th edition, New York, 1943), Charles A. Beard, American
Government and Politics (gth edition, New York, 1944), S. P. Orth and R. E.
Cushman, American National Government (New York, 1931), William Anderson,
American Government (New York, 1938) and Fundamentals of American Government
(New York, 1940), James T. Young, The New American Government and Its Work
(4th edition, New York, 1940), Arnold J. Lien and Merle Fainsod, The American
People and Their Government (New York, 1934), R. K. Gooch, Manual of Government
in the United States (New York, 1939), L. Vaughn Howard and Hugh A. Bone,
Current American Government (New York, 1943), C. G. Maxey, The American
Problem of Government (4th edition, New York, 1943), C. O. Johnson, Government
in the United States (3rd edition, New York, 1944), Robert Phillir/s, American
Government and Its Problems (revised edition, New York, 1941), D. W Brogan,
Government of the People (new edition, New York, 1944), Edward E. Walker,
W. G. Beach, and O. G. Jamieson, Government of "the United States (New York,
1943), W. R. West, American Government (New York, 1940) and The Federal
Government of the United States (New York, 1941)? an d Harold Zink, Government and
Politics in the United States (New York, 1942).

SELECTED READINGS. Selections from the source materials may be found in
J. M. Mathews and C. A. Berdahl, Documents and Readings in American Government
(revised edition, New York, 1940), Robert S. Rankin, Readings in American
Government (New York, 1939), C. A. M. Ewing and R. J. Dangerfield, Docu-
mentary Source Book in American Government and Politics (New York, 1931), J. Catron
Jones and A. Vandenbosch, Readings in Citizenship (New York, 1932), and Henry
S. Commager, Documents of American History (New York, 1934). An excellent
compilation of articles on various aspects of American government and politics
may be found in A. N. Ghristensen and E. M. Kirkpatrick (editors), People,
Politics and the Politician (New York, 1941).

BIBLIOGRAPHICAL AIDS. The most useful general book of this nature is Laverne
Burchfield, Student's Guide to Materials in Political Science (New York, 1935). ^ n
1924 the Library of Congress, Division of Bibliography, issued a List of Books on
the Government and Administration of the United States, In 1929 and 1934 this was sup-
plemented by lists of Recent Books on American Government and Politics.

The Encyclopaedia of the Social Sciences (15 vois., New York, 1930-1935) contains
bibliographical references on all phases of governmental organization and ac-
tivities and authoritative articles on major concepts of government and politics.
Brief definitions of terms used in American political science can be found in E. C.
Smith and A. J. Zurcher (editors), A Dictionary of American Politics (New York,
1944). Current bibliographical lists are included in each is^ue of the American
Political Science Review.

CHAPTER II

THE BACKGROUND AND BEGINNINGS OF
AMERICAN GOVERNMENT

It is not the least debt that we owe unto history that it hath made us acquainted with
our dead ancestors; and out of the depth and darkness of the earth delivered us their
memory and fame. Sir Walter Raleigh.

The government of the United States deserves to be studied for a num-
ber of reasons. For one thing it is responsible for the welfare of more than
140,000,000 people. It represents one of the oldest, most WHY
elaborate, and most successful efforts to combine central AMERICAN

,U ' + U 1 1 IT 4. T^ * r GOVERNMENT

authority with local sell-government, it is true, of course, DFSLRVES
that there were federal governments long before the Con- SPECIAL
stitution of the United States was framed: the Achaean STUDY -
League in ancient Greece, for example. But until the rise of the American
Republic there was a world-wide belief that the federal form of govern-
ment was suitable for small states only, and that it was inevitably a weak
form of government because it parceled power into too many hands.
Both philosophers and statesmen shared the general conviction that no
federalism on a large scale could long endure. A house divided within
itself could not stand when the rains descended and the floods came
when internal dissension and the shock of war put its stability to the test.
Down to the close of the eighteenth century the world believed that the
security of life, liberty, and property demanded the centralization of
governmental powers in relatively few hands.

But in due course the United States proved the fallacy of this convic-
tion. America, during the nineteenth century, demonstrated to the
world that federalism did not necessarily mean weak gov-
ernment, but was quite reconcilable with a strong national
administration. American federalism survived the strain MENT IN
and stress of the Civil War, spread from the thirteen states FLDE ** L ^

, , DEMOCRAC x .

tocjbrty-eight,) and proved itself amenable to both the spirit

and practice of democracy. 1 American governmental experience has

1 When the Civil War began, many Europeans looked upon this struggle as the logical
outcome of a futile aitempt to keep federalism functioning on a large scale. The English his-

14 THE GOVERNMENT OF THE UNITED STATES

proved to the world that a republican system, organized on a federal
basis, can serve the political needs of a vast population scattered over a
whole half continent. It has demonstrated anew the truth that a federal
system of government, if properly organized, can meet emergencies as
well as any other form of government, and perhaps better.

For more than a hundred years the United States has been serving as

a great laboratory of political experimentation. In the nation, in the

several states, and in the thousands of local areas, almost

A SYSTEM

THAT HAS every conceivable experiment in the art of ruling people has

DEVELOPED been given a trial. By this process of experimentation we

PROCESS OF have developed some of the best, and some of the worst,

TRIAL, governmental procedures that have been evolved anywhere.

ERROR, AND , rj^ Am c ri can system of government is largely a homemade

CORRECTION.

product. It is not something planned and created in accord-
ance with an ideology, as totalitarian governments arc, but a continually
changing organism which has been matured by the unending process of
trial, error, and correction. This means, incidentally, that no one can
really understand American government without knowing American
history, at least in a general way. For example, how can one talk intelli-
gently about the present-day powers of the President, or of Congress,
without some knowledge of the way in which these powers have grown,
step by step, during the past hundred and fifty years, with each accretion
made possible by the special needs or circumstances of its time?

The federal Constitution is, in a sense, the starting point. With its
adoption the evolution of American federation got vigorously under way;
THE and before long a half continent was welded into a single

AMERICAN nation. For this accomplishment, the main credit has

REVOLUTION, ,, , ,, r , 1^1

A CLIMAX usually been given to the group of men who sweltered
NOT A START- through the summer of 1787 at Philadelphia to produce
ING POINT. thc Constitution of the United States, and it is true that a
great deal of credit belongs to them. But national unity, with all that it
implied, was not created out of hand by these makers of the Constitution.
One must not forget that the thirteen separate colonies had fought a
war unitedly, won their independence together, created a makeshift
confederation, and learned to feel a community of interest all this
before the men who devised the Constitution began their work. They had
been traveling along the inevitable road to union. They were ripe for
some such plan as the one which they finally adopted in 1787-1788.

torian, Edward Freeman, published in 1 863 a History of Federal Government from the Foundation of
the Achaean League to the Disruption of the United States. It was his belief that, no matter what the
outcome of the Civ/1 War, the old federal union could never be re/ived.

BACKGROUND AND BEGINNINGS 15

So the work which was done by the Philadelphia Convention should be
looked upon as the consolidating and strengthening of what had already
been gained by the thirteen newly independent commonwealths rather
than as the launching of a new set of political ideals embodied in a new
constitution. The new Constitution was largely the expression of old
ideals.

In a broad sense, the American Revolution was not a revolution at all.
It was not a complete overturn like the French Revolution of the
eighteenth century, or the Russian Revolution in the IT DID NOT
twentieth; it did not sweep away fundamental institutions, BREAK CON-
or bring in a new set of political ideals, or shift the weight of TINUITY -
political power from one class among the people to another. It merely
changed the resting place of sovereignty. The sovereign power had
hitherto been vested in the British crown and had been exercised through
instructions sent by the home authorities to the colonial governors.
Henceforth it was to rest in the people of the thirteen commonwealths,
to be exercised by them through their own constitutions and laws. In the
continuity of American political institutions, therefore, the Revolution
marks a break of no great violence. Nevertheless, it did swing political
evolution into a new channel and greatly speeded up the march of
democracy in the New World. l

It is natural that writers who deal with revolutions should be tempted
to exaggerate their revolutionary aspects. This has been true of the
American Revolution, and it has induced historians to make UTC OV UAC

' rlIbHJK.1 rlAo

a sharp break between two periods of American history, FEW SHARP
with the Revolution as the dividing line. They have written BREAKSINIT -
as though the political institutions of the later period owed nothing, or at
any rate very little, to those of the earlier. But the fact is that American
history, during more than three centuries, has very few sharp breaks in it.
The law of continuity runs through it like the reinforcing rods of a con-
crete wall. 2 .The Revolution retained far mor^

are very fevv political institutions whose birth date can be definitely set
down as A.D. 1 776. Elections, trial by jury, freedom from arbitrary arrest,
freedom of speech they are all much older. American ,
not begin with^the Declaration of Independence^^but
courageous document gave it new impetus.^
~"*'~"To~find the true foundations of the American political system one
must look beyond the Constitution, beyond the Declaration of 1776,

1 The extent to which the Revolution affected the general life of the people is set forth in
J. F. Jameson, The Afner&an Revolution Considered as a Social Movement (Princeton, 1926).

2 For an interesting discussion of the "laws" of history, including the "law of continuity,"
see E. P. Cheyney, Law i% History (New York, 1927), especially pp. 12-15.

16 THE GOVERNMENT OF THE UNITED STATES

even beyond the coming of the Mayflower to Plymouth. The principles

of civil liberty on which American government rests had their birth

on the soil of the Old World. Their beginnings go back

T^r^Axr to the days of the Saxon folkmote and the Curia Regis of

AMEIvIdAN * *-*

POLITICAL Norman England. The rights of free citizens, as estab-

DEVELQP-

]ishcd b Magna Carta, the Bill of Rights, the Habeas

MENT BEGINS. 7 & 5 t> >

Corpus Act, and by the whole fabric of the common law in
England, were the heritage of the American colonists from the outset.
They brought these privileges across the Atlantic with them, just as they
did the English language. The right to a share in the making of laws, the
right of self-taxation, the right to trial by ju^y, the right of petition, the
right of assembly, the right of all men to be dealt with equally before the
law no one believes that any of these civil rights originated in America.
They have traditionally belonged to the whole English-speaking race for
nearly half a millennium. The American Revolution preserved them at a
time when they were in clanger of being trampled underfoot; and the
new American constitutions, both state and national, ensured their safety
for the future.

Observe the landmarks which stand out in the course of this progress,
all the way from the earliest migrations to the 'attainment of national

unity. The thirteen colonies which formed the nucleus of the
COMPANIES United States were themselves the outgrowth of small
AND settlements planted along the Atlantic seaboard during the

COLONIAL course of the seventeenth century. When the first settlers

came, it was not with the idea of founding new states; so
they were organized as trading companies, with company charters. Soon,
however, the colonists found that something more than this was neces-
sary. Hence the company charters gave way in some cases to colony
charters or embryo constitutions; in other cases the people went ahead
without formal authority, establishing their own local and general
governments.

But the lines of this political development were not ^everywhere
parallel. Naturally so, because in point of time there was a wide spread
between the founding of the first colony (Virginia) in 1607 and the last
one (Georgia) in 1732. Much had happened in the mother country
during this interval. The arrangements under which the different
colonies were founded also varied considerably. Maryland and Pennsyl-
vania, for example, were established by individuals, not by trading
companies. Differences in the occupations of the people also led to de-
partures from uniformity in the systems of government which were set up
by these various communities.

BACKGROUND AND BEGINNINGS 17

On the surface, accordingly, there was a great deal of variety ir the
government of the American colonies. Some had charters, some did not.
In some the basic area of local government was the county, COLONIAL
in others the town. But these differences in organization and DIVERSITY
procedure were not of fundamental consequence. Of vastly AND KINSHIP -
greater importance is the fact that all the colonies were fundamentally
alike in their love of civil liberty and their adherence to the institutions
of free government.! The differences among them are of slight account
when weighed against the broad and deep resemblances. For it should
be remembered that all these colonies had been founded by Englishmen
or had passed under English control. The bond of kinship encircled
them all. They possessed, moreover, a geographical unity in that they
occupied a virtually unbroken strip of territory extending from Georgia
to Maine and from the Appalachians to the sea. The inhabitants were
overwhelmingly of the Protestant faith and nearly all claimed English
as their mother tongue. The common law of England formed the basis of
the legal system. Finally, the people adhered to a common political
philosophy. Their general conception of sound rulcrship was the system
of representation which had been developed by their forefathers in
England. Thus there was su^tajntmlj^ij^j'^ Inngnagf^ In law,, and jn
political conceptions and io all ages these ka^e been the great magnets
that draw neighboring communities together.^

The basis of colonial government in each colony was the supremacy of
the crown. Explorers and traders went out under royal auspices; they
took possession of new lands in the name of the crown, and
the territories which they gained became royal property, sus PARLIA-

This occurred because the English constitution made no MENTARY
. . ~ .. ... , POWER AS

provision lor the parliamentary acquisition and government TH L BASIS OF

of territories outside the realm. It gave parliament no juris- COLONIAL

, . . , , , r r i T> i T i c* i r GOVERNMENT.

diction beyond the confines ol the British Isles. So the nrst

company charters were obtained from the crown, which also gave

colonial charters to replace these earlier grants.

As a matter of constitutional theory, therefore, the crown was supreme
in the colonies even though limited by the growing control of parliament
at home. The English parliament granted no colonial charters, appointed
no governors, and rarely passed laws that extended to the colonies. It
seldom interfered with the process of colonial administration; and when-
ever it did, there were vigorous protests from America that it was ex-
ceeding its powerg.

"America is not part of the dominions of England," argued Benjamin
Franklin, "but part, of the king's dominions. 53 "All members of the

18 THE GOVERNMENT OF THE UNITED STATES

British Empire are distinct states, independent of each other but under
the same sovereign," wrote James Wilson, one of the makers of the Con-
now THE stitution. This point of view was accepted by virtually all
COLONISTS the colonial leaders. The colonies, they held, were equal
VIEWED IT. members with each other and with England in a political
aggregation which had a single executive (the crown), but each unit of
which was entitled to its own legislature. That explains why the colonists
were willing to give allegiance to the crown, but unwilling to give local
jurisdiction to a parliament across the seas. It explains also why they
took the oath of allegiance, but resisted the acts of parliament. There
was no incpnsistency in their so doing. Exactly the same attitude is
assumed by the British dominions such as Canada and Australia today.
The Statute of Westminster, passed by the British parliament in 1931,
formally conceded the principle that allegiance to the crown does not
carry with it any legislative control over the dominions.

The English crown, of course, did not exercise its powers directly
It controlled the American colonies through various administrative
agencies. Broadly speaking, it left to the Board of Trade l

HOW THE f t i i ii.,

CROWN EX- all matters relating to colonial commerce, and during the
ERTED ITS eighteenth century the general supervision of colonial gov-

CONTROL. it T i 111

ernment as well. But the crown could take any matter
directly into its own hands and sometimes did so. In any event, all in-
structions went to the colonial governors in the name of the crown, and
the crown could disallow any law passed by a colonial legislature. This
power of royal disallowance was frequently used, but the colonial
assemblies sometimes managed to get around it by reenacting the dis-
allowed law.

Let us take a glance at the American political system as it existed
before 1776. This is desirable because the states of the Union, and even
the national government, still retain many attributes that
came to them from these early governments along the
GOVERNMENT Atlantic seaboard. The state governor of today, for example,
THE j g t j ie lengthened shadow of the colonial governor, for each

GOVERNOR.

of the thirteen colonies had a governor as its chief executive.
In the eight roy^l provinces he was appointed by the crown; in the others

1 Its full title was the "Board of Commissioners for Trade and Plantations." It was or-
ganized in 1696 and originally had eight members. The commissioners were commonly
called the Lords of Trade although most of them were commoners. A general statement of
the Board's functions may be found in Edward Channing, History of the United States, Vol. II
(1908), pp. 231-235. The relations between the colonies and the home Authorities are described
in George L. Beer, Origins of the British Colonial System, 1578-1660 (New York, 1922) and his
British Colonial Policy, 1754-1763 (New York, 1922); also in L. W. Larabee, Royal Goiernment m
America (New Haven, 1930).

BACKGROUND AND BEGINNINGS 19

he was cither elected by the people (in the two charter colonies) or named
by the proprietor (in the three proprietary colonies) . The position of the
colonial governor was something like that of the king at home; he sum-
moned the colonial assembly and could dissolve it when he chose. In some
respects his authority was wider than that of the crown, for he had the
to veto the assembly's acts, whereajdn England the crown had

virtually lost this power in relation to acts 01 parliament. The appointing
authority of the colonial governor was also extensive, and he was the
head of the militia in each of the colonies.

Historians have been rather hard on these colonial governors, and it
is true that they were not, for the most part, men of conspicuous ability
or tact. Moreover, they held an anomalous office which no DIFFICULTIES
man could ever hope to fill acceptably a double responsi- OF HIS
bility, one half of which was often in conflict with the other. POSITION -
On the one hand, the colonial governor was the overseas representative
of the crown. In this capacity he was expected to carry out specific orders
and instructions issued from London by kings and ministers who knew
little or nothing about colonial conditions. On the other hand, he was
the head of the local administration, responsible for the general oversight
of colonial affairs, yet dependent upon the colonial legislature for money
with which to carry on the administration. Thus the colonial governor
had to serve two masters; one gave him his orders, the other gave him his
pay. And there is good authority for the proposition that "no man can
serve two masters"; at any rate, no man can serve two masters and hope
that both will be equally pleased with his work.

It would be inappropriate to set down in these pages a list of the prin-
cipal powers exercised by the colonial governor, were it not for the fact
that many of them have continued to be vested in the chief

r ^ *. A .1 ^U ^ T^U HIS GENERAL

executive of the states and the nation. The governor POWERS AND
summoned the colonial legislature and could veto laws THE LIMITA-
passed by it. He could also dissolve it at will, a power which TIONS UPON
no state governor possesses. Likewise he enforced the laws,
made various appointments, and was responsible for the colonial defense.
He represented his colony in its relations with the home government and
with other colonies. He had the power of pardon. He was head of the
colonial militia. He issued charters to cities. But in the exercise of all
these powers he was somewhat restrained by the assembly's control of
the colonial treasury. There was little that any governor could do with-
out funds, and he had no way of getting money unless the assembly voted
it. He could not draw his own salary, in fact, until the representatives of
the people had authorized it.

20 THE GOVERNMENT OF THE UNITED STATES

In each colony there was also a legislature, usually of two branches.
The lower chamber, or assembly, was elected by the people, but each

colony had its own qualifications for voting, the ownership
COLONIAL of real or personal property being nearly always required.,
LLGISLA- with religious tests sometimes imposed as well. 1 But, on the

whole, the suffrage was more democratic than in England.
The difficulties of travel in the colonies were so great, however, that only
a small fraction of those who were entitled to vote usually took part in
the elections. The proportion was higher in the New England colonies,
where members of the legislature were elected by towns, than in the
middle and southern colonies where they were chosen by counties.

In all except three of the colonies the legislature also had an upper
chamber. These upper chambers were primarily executive bodies; in

most cases the members were named either by the crown

THE UPPER . '

CHAMBER IN on~ the recommendation ol the royal governor, or by the
THESE LEG- proprietor. In addition to being the upper house of the
colonial legislature, this body served as the governor's
council, advising him and sometimes controlling his appointments. Its
principal functions, in fact, were executive and judicial rather than
legislative. Here originated, by the way, our present-day practice of
giving executive duties to the upper chamber of the state legislature
for example, the power to confirm the governor's appointments.

In general, the colonial legislatures controlled the purse strings and
claimed the sole right to legislate on any matter which concerned the
THE IEGIS- colony's internal affairs. They did not deny the governor's
LATURE'S right of veto, but they objected to having their colonial

AUTHORITY. \ aw $ di sa u owec i by the authorities in London. 2 The colonial
legislatures had full power over the levying of taxes, and this was the
chief source of their influence upon executive action. Holding the purse
strings, they held the whip hand. Moreover, it is a general principle of
government that when you once se up an elective chamber, its powers
are bound to grow, no matter what charters or constitutions may say.
That is the course which political progress took in colonial America. The
powers of the colonial legislatures were growing steadily when the eve
of the Revolution approached.

In all the colonies the groundwork of jurisprudence was the common
law of England. It was not established in the colonies by any definite
enactment, but like other Anglo-Saxon institutions it migrated with

1 For a full survey see A. E. McKinley, The Suffrage Franchise in the Thirteen English Colonies
(Philadelphia, 1905), and Kirk H. Porter, History of Suffrage in the Umttd States (Chicago, 1918).

2 E. B. Russell, The Review oj American Colonial Legislation by the King in Council (New York,

BACKGROUND AND BEGINNINGS 21

the flag. As for the judicial organization, some differences existed among
the several colonies, but here again the general lines were uniform.
All of the colonies had local courts, intermediate courts, LAWANDTHE
and a highest court, which in some cases consisted of the COLONIAL
governor and his council, but which in others was a sopa- GOURTS -
rate body made up of regularly appointed judges. From these highest
colonial courts, appeals might be carried to England where they were
decided by the Privy Council. The Privy Council was not a court in the
ordinary sense; its right to confirm or reject the judgments of the colonial
courts was merely one phase of its authority to advise the king, who in
turn was the final arbiter in all matters affecting the colonies. Appeals
to the Privy Council were not frequent until after 1750, when they
steadily became more common. All the colonial courts followed English
legal procedure; the right of trial by jury and the other privileges whicli
Blackstone calls "the liberties of Englishmen" were everywhere given
recognition. The colonists thus became schooled by actual experience
in the doctrine that men had "unalieiiablc rights. 55

It was in the field of local government that the greatest diversity of
governmental practices appeared. In the New England colonies the unit
of local administration was the town, with its town meeting

, . LOCAL GOV-

of citizens and its elective local officers. The town raised its ERNMENT:
own taxes and spent them, made its own bylaws, elected its l - IN NEW

, , nr , ' i ENGLAND.

own local officers, and sent its representative each year to
the colonial legislature. It was a miniature republic, rarely interfcred-
with from above. This was practicable because the New England colo-
nists for the most part lived close together, on relatively small farms.

The southern colonies, on the other hand, established the count} as
their chief unit of local administration. They used this larger unit because
the plantation system of agriculture caused the population 2 IK THE
to be more widely scattered. County officers, such as the SOUTHERN
sheriff and the coroner, were appointed by the governor, COLONIES -
and there was no general meeting of the inhabitants to vote the taxes
or to determine matters of local policy. As in the English counties of the
day, much of the work was performed by "justices of the peace, 5 ' who,
despite their name, were administrative as well as judicial officers. They,
also, were appointed by the governor.

Finally, in the middle colonies, particularly in New York and Pennsyl-
vania, there was a mixed type of local government: a combination of the
town and county sysiems, which bridged the gap between 3 IN THE
the extremes of New England and the South. Yet the differ- MIDDLE
ences in local government throughout the thirteen colonies COLONIts '

22 THE GOVERNMENT OF THE UNITED STATES

were not greater than those which one can discover in that of the several
states today. Such differences did not impair the political solidarity of
the people. Everywhere the conditions favored democracy. A new
country, remote from the social traditions of the Old World, a hardy
population engaged in the grueling task of hewing homes out of a wilder-
ness the stage was all set for an era in which liberty, democracy, and
union were to be achieved.

With such a general approach to uniformity in race, religion, language,
and law, with such marked similarities in political organization and
temperament, with common problems arising from the
O pressure of outside enemies, one might suppose that the
UNITE THE various colonies would have drawn more closely together
THIRTEEN anc j ^at even before the Revolution they would have
devised some form of federal union. It is true that there were

some steps in this direction. As early as 1643, ^ e f ur New England

settlements of Plymouth, Massachusetts Bay, Connecticut, and New

Haven united in a leaenae of friendship, particularly for

I. THE NEW t - \> ,- i , , ,

ENGLAND mutual support against Indian attacks, and arranged that

CONFEDERA- each should send two delegates to a joint conference every

TION (1643). -~ i r i i i r

year. But the existence 01 this league came to an end after
the Indian dangers, against which it had been organized, had passed
away. From time to time during the next hundred years, other leagues
2 PENN'S an< ^ unions were proposed. William Penn made such a
PROPOSAL suggestion in 1696, with a scheme of union under a royal
(1696). commissioner and a congress composed of two deputies

from each colony. But the clash of diverse interests always proved a
stumbling block, and it required a serious common danger to impress
on all the colonies their essential unity and their need of cooperation.

Finally a proposal came from England. At the suggestion of the Lords
of Trade, a congress was called at Albany in 1 754, to form a confedera-

tion for mutual defense and especially to devise a plan for

keeping the Iroquois Indians from joining with the French
AND THE in Canada. At this gathering Benjamin Franklin brought

PLANET? ) forward a plan of union which the congress, after making

some changes, adopted unanimously. Franklin's plan,
commonly known as the Albany Plan of Union, contemplated a grand
council or congress in which each colony would be represented on the
basis of its financial contribution; this council to determine the means of
common defense, the number of troops to be supplied by each colony,
and the amount of money to be contributed by each. The crown was to
appoint a president general, who should command the united forces and

BACKGROUND AND BEGINNINGS 23

have the spending of the money so raised. 1 But Franklin was ahead of his
time; and, although the delegates at Albany approved his project, it was
rejected by the colonial legislatures when it came before them for ap-
proval. Thus the Albany Plan came to naught, but it nevertheless
rendered some service in paving the way for the First Continental
Congress of the Revolutionary War.

Why was it, in view of the manifest advantages of cooperation, that
the thirteen colonies did not come into some sort of working federation
long before the actual outbreak of troubles with England? WHY UNION
In the first place, they were not equally exposed to attack WAS so LONG
by the Indians, the French, or the Spanish. Local jealousies DELAYED -
afforded another reason. A failure to realize that, in a broad sense, all their
interests were alike, was another. The home government, moreover, was
never favorable to any scheme of union which would give the colonies a
permanent solidarity of action in all matters. It was ready to have them
join for the common defense, provided the carrying out of such plan was
entrusted to officers sent out from England. In a word, the colonies never
realized their essential unity until the acute controversy with the mother
country made it clear to them.

The significant thing, after all, is this: In the colonies there was a
public opinion, and on certain fundamental issues it was fairly well
unified. The colonial assemblies were good reflectors of this SIGNIFICANCE
public sentiment. They judged the colonial temper with OF THE
remarkable accuracy. If parliament had done it as well, DIFFERENCE -
there might have been no Revolution. Intercolonial jealousies and differ-
ences of opinion related to minor questions. English statesmen foolishly
assumed that because the colonies could not unite on small issues they
would be unable to unify on larger ones. They were wrong, as the event
proved; for when united action became urgent, the entire group of
colonies forgot their differences and joined hands in a common front.

CThis is not the place to detail the events which led to the breach with
England. It should be pointed out, however, that there was no general
dissatisfaction with the type of government which existed CAUSES OF
in the various colonies. The Revolution did not come be- THE
cause the colonies wanted new charters or elective governors REVOLUTION -
or manhood suffrage. Its underlying causes were economic; they con-
cerned questions of trade and taxation. But once the spirit of resistance
was aroused, it found new and broader grievances. The colonists soon

1 The plan may be found in the Writings of Benjamin Franklin (ed. A. H. Smyth, 10 vols ,
New York, 1907), Vol. Ill, pp. 207-226; and William MacDonald, Select Charters and Other
Documents Illustrative of American History, 1606-1775 (New York, 1899), pp. 253-257.

24 THE GOVERNMENT OF THE UNITED STATES

came to a realization of the fact that democracy had been forging ahead
more rapidly in the New World than at home; and the Declaration of
Independence gave vigorous expression to various ideals of democracy
which had originated in England but became more firmly rooted across
the ocean.

It was the events of 1773-1774, including the imposition of the new
taxes and the action of parliament in suspending the charter of Massa-
THE ULTI- chusetts, that brought home to the colonies the urgent need
MA ITS for a united front. One of their number was in danger of

BREACH. having its liberties taken away: what of the other colonies,

each in its turn? The danger was no longer confined to north or south;
it was common to all. Hence the calling of the First Continental Congress,
which met at Philadelphia in the autumn of 1774 with

FIRST CON" lit.

TINENTAL delegates present from all the colonies except Georgia. The
CONGRESS object of this congress was to take counsel on what seemed

to be a common peril. Its members adopted various resolu-
tions addressed to the home authorities, pledged the cooperation of the
various colonies in resistance to oppressive demands, and agreed that a
similar congress should meet the following year.

But events moved rapidly. Before the early summer of 1 775, when this
Second Continental Congress assembled, the situation had gone from
bad to worse. The open clash of arms had come at Lexington, and the
SECOND CON- ^ ate ^ Massachusetts seemed to be scaled unless the other
TINENTAL colonies could quickly come to her aid. Accordingly, the
CONGRESS Second Continental Congress appointed Washington to

the chief command, called upon all the colonies for troops
THE CLASH and supplies, and took upon itself the right to issue pa-
OF ARMS. p cr monc y as a means of helping to finance the armed

resistance. These powers were usurped by the congress because of the
necessities of the situation; they had no legal or constitutional basis. But
their usurpation was sanctioned by the acquiescence of the people, and in
the last analysis that is the most effective sanction that the actions of any
public authority can have.

All this gave rise to a very anomalous situation. The colonies were still
subject to the king although in active resistance to the royal authority.

They had assumed the attributes of sovereignty without
LARATION formally severing their old allegiance. This situation,
(i 776) AND however, came to an end with the Declaration of Independ-

encc in 1776. By this pronouncement the^ colonies became

states, each independent of the crown and politically
independent of others. Such action made it desirable that the Continental

BACKGROUND AND BEGINNINGS *25

Congress should rest on a legal basis with some definition of its powers
and duties. So, in 1777, the Continental Congress sought to gain perma-
nence and legality for itself by adopting certain "Articles of Confedera-
tion andPcrpetual Union," a document which had been prepared by
one of its committees. These Articles were then sent to the several states
for ratification; meanwhile the Continental Congress went ahead with
the conduct of the war. ^*

By the provisions of the Articles, the thirteen states entered into a
league of amity; but each state retained its sovereignty, freedom, and
independence. 1 Every right not expressly delegated to the
confederation remained with the states. The organ of the

* '

confederation was a congress made up of delegates from all ERAIION AND
the states, each state sending not fewer than two nor more ns GENTRAL

ORGAN.

than seven, but in any case hiiving one vote only. The legal

equality of all the states was thus recognized, although there were great

differences among them in area and in population.

As for political authority, the congress of the new confederation was
givenyery .littlg. It was empowered to manage_thc war,
reladons, and make peace. In order to continue and finish
the war, it could call upon the several states for contribu-
tions of money or men; but it had no way of compelling CRESS UNDER
them to respond. It was given various internal powers such THE

- - 1 - O 1 ARTICLES.

as those of establishing a postal service and managing
Indian affairs. With nine of the states assenting, it could fix the size of
the militarv and naval forces, make treaties, vote a budget, borrow
money, coin money, or issue bills of credit; and it did issue paper money
in large quantities to pay the expenses of the war. ~~

But it had no power to tax, no power to regulate trade, and no effectivej
authority to settle disputes among the various .states themselves. Compared
witTi the vast range of authority which the Constitution of the United
States conferred on the new federal government ten years later, these
powers seem pitiably small; yet they represented substantial concessions
Dn the part of the states. Public opinion was not at the time prepared" to
50 farther. The people were afraid of "strong" governments. They were
afraid of a supcrgovernmgnt. They were afraid _of too much government.

The Articles of Confederation did not bestow much. attention upon the'
utive, branch of the government. It was assumed that the congress,

Awhile in session, would itself perform all necessary executive functions;

jut provision was made for a committee of the states to sit and act

1 For the text of the Ai tides see William Mac Donald, Select Documents Illustrative of the
history of the United States, 1776-1861 (New Yoik, 1899).

26 THE GOVERNMENT OF THE UNITED STATES

when the congress was not in session. Likewise, it was stipulated that
the congress should appoint such "civil officers" as might
THE.EXECU- be needed; and it did appoint a supe/intenderrt of finance, a
postmasterjgeneral, a secretary^of^war, and a foreign Secre-
tary. These appointments foreshadowed the "heads of departments"
faho later became an integral part of the federal executive under the
Constitution of 1787.*

Some of the states were so slow in ratifying the Articles that the war
was virtually over before the confederation completed its legal formal-
THE LACK OF li ^ s ' Then, with the disappearance of a common danger,
COERCIVE the states gradually lost interest in the idea of a union and
POWER. j et t hi n g S d r ift until they got into a bad way. The con-

federation, based upon the Articles, continued in existence, and its
congress tried to hold meetings; but the attendance of members di-
minished steadily as the states lost interest.

' The war had inflated the currency, and prices had gone sky-high.

Everybody cried out that the cost of living was excessive, but there was

no one with power to reduce it. To visualize what inflation

THE CRITICAL r . . .

ERA: INFLA- means, and what widespread suffering follows in its tram,
TION one need only consult the experience of the United States

during this era, 1781-1787. \The farmers blamed the mer-
chants, the merchants blamed the politicians, the politicians blamed the
propertied classes. ^

But turn for a moment from the demoralized affairs of the confedera-
tion and see what the states themselves had been doing during the war

and after .1 As the hostilities spread from one colony to an-

WHAT THE . r . ]

STATES WERE other in the early months of the war, the various royal
DOING MEAN- governors and officials fled the country, leaving the as-
semblies to do as they pleased. \Connecticut and Rhode
Island merely made a few changes in their colonial charters and retained
them after independence. Virginia, on the other hand, called a con-
vention which, under Jefferson's leadership, adopted a constitution with
a bill of rights and provision for a new frame of state government. One
after another the remaining states followed, until Massachusetts, the
last of the thirteen, adopted her first state constitution in 1 780.

While these new state constitutions differed considerably in their
detailed arrangements, they presented a fundamental similarity. 2 \In
every case provision was made for a governor, to be chosen either by

1 Sec J. B. Sanders, Evolution of Executive DepartmentT*vf^the Continental Congress, 1 7 14-1789
(Chapel Hill, N. C., 1935).

* A conspectus, showing the main features of these several state constitutions, may be found
in Edward Channing, History oj the United States, Vol. Ill (1916), pp. 459-462.

BACKGROUND AND BEGINNINGS 2?

the legislature or by the voters; in nearly every instance a legislature

of two chambers was seTTtp; and each state provided itself with a

judiciary. Large powers were everywhere allotted to the

state legislatures. The principle of "separation of powers"

that is, of keeping the executive, legislative, and judicial STITUTIONS

organs of government separate gained recognition in THEIR CHIEF

only a few of these state constitutions; but in two of them

it was stated plainly; nanfely, in the Virginia constitution of 1776 and

in the Massachusetts constitution of ^780. \

Another characteristic of the earliest state constitutions was the
emphasis which most of them placed upon "bills of rights" containing
securities for individual liberty. Freedom of speech and of
assembly, the right of trial by jury, the privilege of the

writ of habeas corpus these and many other so-termed
unalienablc rights were now solemnly set forth in black and white.
The state constitutions of this war period, indeed, were strongly tinged
with that "natural rights" philosophy which marked the Declaration of
Independence. They emphasized the doctrine that men were equally
free and independent, that all political power came from the people,
and that governments rested upon the consent of the governed.

The framing of these state constitutions had an important educative
influence. The thoughts of the people were directed to the funda-
mentals of government. Men read the writings of Locke, THE REV IVED
Montesquieu, and Tom Paine; they talked of social com- INTEREST IN
pacts, checks and balances, popular sovereignty, and the OFPOLITIGAL
natural rights of the citizen. 1 Hundreds of leading citizens, FUNDAMEN-
throughout the thirteen new states, gained practical ex- TALS *
perience in the framing of constitutions. All this proved to be of great
service when the time came to frame a national constitution. The country
had passed through a course of education in the theory and practice
of constitutional government. By 1787 the whole people had become
familiar with written constitutions emanating from the people and
guaranteeing them against the abuse of power.

But, while men were discussing the doctrines of Locke and Paine, the
economic situation in America was getting steadily worse. While they
argued about political ideals, the economic depression INTERSTATE
became more severe and popular discontent rose steadily JEALOUSIES
higher. One cause of the trouble was the scarcity of real DEVELOP -
money, despite tjie flood of paper notes issued by the confederation and

1 Sec the discussion in A. N. Holcorabe, State Government in the United States (3rd edition,
New York, 1931), pp.

28 THE GOVERNMENT OF THE UNITED STATES

by the states. Everybody wanted to pay his debts in this depreciated
"rag money," but creditors were unwilling to take it except at a heavy
discount. It was impossible to carry on trade under such conditions; yet
thousands of foolish people clamored for more governmental spending,
more borrowing, more paper currency as a way of regaining prosperity.
Today all this has a familiar sound.

Even more menacing to the general security was the bad feeling which
rapidly developed among the states themselves. Each was hurrying to
THE WAR OF build up trade at the expense of its neighbors. Those states
BANTAM which had natural advantages tried to exclude others from

TARIFFS. t j ie use Q f t i iem A war O f hostile tariffs began in 1785,

when New York imposed fees upon all vessels entering its ports from
Connecticut or New Jersey. The duties which New York laid upon im-
ports were paid in large part by the inhabitants of those neighboring
states in their capacity as consumers. Madison likened North Carolina,
which paid tribute of that kind to Virginia and South Carolina, to a
patient bleeding at both arms. Virginia and Maryland were at swords'
points over the navigation of the Potomac. Great Britain, of course, did
not fail to profit by these dissensions. The London government laid toll
upon American trade with the British West Indies and delayed handing
over the trading posts in the American Northwest, although the treaty
of 1783 had promised that these posts would be given up.

Why did not the congress of the confederation intervene to prevent

this drift toward economic anarchy and civil strife? It was still meeting

each vear at Philadelphia, and certainly it would have

WHY THF **

CONGRESS intervened if it had possessed the authority. But the congress
COULD NOT h a( j no power of taxation and hence no revenues. It had no

INTERVENE . . 11-

money to pay interest on loans or even the ordinary expenses

1. IT HAD of government. It had authority to borrow money; but with

NO MONEY. . r .

no regular revenues to ensure prompt payment oi interest,

2. IT HAD j t was not possible to obtain loans on any reasonable terms.

NO CREDIT. ,_. . . . . r , T T . , _, . , i

Ihe national credit oi the United States in these critical
years was lower than that of Peru or Mexico today. John Adams in 1 785
was sent to Europe on a borrowing trip, but all he could raise was a
relatively small sum at an exorbitant rate of interest. European bankers,
in those days, regarded American government bonds as a speculation,
not an investment.

Equally vital among the weaknesses of the confederation was its lack
of power to regulate trade, either with foreign nations or among the
several states, or with the Indian tribes of the great hinterland. There
was urgent need for some uniform trade control, but the congress of the

THE

BACKGROUND AND BEGINNINGS 29

confederation had no power to establish anything of the sort. Each state,
on the other hand, was making its own tariff, designed to shut out goods
from other states. Self-sufficiency and autarchy are terms

' O T'TT TT \T\

of present-day use, but the idea involved in them is not N0 POWER
new by any means. It is just what the thirteen American T0 REGULATE

, , on COMMERCE.

states were attempting to achieve in the years 1783-1787.

Given a fair chance, such a policy would have led to a civil war long

before one actually came.

Worst of all was the outlook in international relations. England was
still entrenched in Canada to the north, while Spain possessed the South-
west. The American colonies had won their independence ^ IT WAS
with the aid of France, but who could tell how long the WITHOUT
tottering French monarchy would stay friendly or continue ^
in a position to render aid? Two powerful nations of Europe COMMON
were on the confederation's flanks: what if they should some DEFENSE -
day join hands to raid the land and divide the spoils? Such a danger was
by no means beyond the range of possibilities if the states should start
warring among themselves. Seventy-five years later, when a much larger
group of American states engaged in civil strife over the issue of slavery,
the danger of foreign intervention, and with it the possible disruption of
the Union for all time, was still serious. How much more vividly the
danger must have appeared to thoughtful men in the closing decades
of the eighteenth century!

Finally, there was the question of the great western territories. At the
close of the Revolution all the land east of the Mississippi was claimed by

one or another of the various individual states. These claims,

1-11 THE PROB ~

most of them based on colonial charters or on treaties with L EM OF THE

the Indians, were hopelessly in conflict. If each state had WESTERN

, . ~ , . , , . . , TERRITORIES.

undertaken to enforce what it considered its own rights,
there would have been a general war. So it was proposed that all should
hand over their claims to the congress, which would then use the territory
for the common benefit, eventually making new states out of it. One by
one the several states consented to do this, and in 1 787, shortly before the
congress of the confederation went out of existence, it passed the famous
Northwest Ordinance providing a frame of government for THE NORTH .
this ceded territory. 1 Although this was probably the most WEST OR-
important piece of legislation enacted by the congress, only D1NANGE -
eighteen members, representing eight of the thirteen states, were present

1 J. A. Barrett, Evolution of th^Qrdtnance of 1787 (New York, 1891); B. A. Hinsdale, The
Old Northiufst (new edition, Nogf York, 1899); and Thomas P. Abernethy, Western Lands and
the American Revolution (New ^5^k, iqs7) ffive in detail the history of this enactment.

30 THE GOVERNMENT OF THE UNITED STATES

to vote on it. How could a central government hope to manage this great
western domain firmly and successfully if it could stir up no more public
interest than that?

Along with the economic depression there was, as always happens, a
weakening in popular respect for government and for the existing social
DARK AND order. People were defaulting on their taxes, refusing to pay
BRIGHT their debts, insisting that the government owed them a

SPOTS. living, and in some cases calling for a redistribution of

private property. The Shays Rebellion in Massachusetts (1786) proved
that something akin to chaos in government had spread a long way. 1
On the other hand, one must not paint too doleful a picture of those
times. 2 There were some bright spots on the horizon. Bad as conditions
were, they hardly justified Alexander Hamilton's lament that the country
had reached "almost the last stage of national humiliation." "National
disorder, poverty, and insignificance," he lamented, "form a part of the
dark catalogue of our public misfortunes." 3

Washington readily put one finger on the prime source of the trouble
and pointed another towards the obvious remedy. "I do not conceive,"
he wrote, "that we can exist long as a nation without having
lodged somewhere a power which will pervade the whole
Union in as energetic a manner as the authority of the state governments
extends over the several states." In other words, the congress of the
confederation was a government of the states, not a government of the
people. It was weak because it lacked four things which every strong
national government must possess: the power to tax, to borrow, to
regulate commerce, and to maintain an army for the common defense.
Now it is significant that these were the four great powers given to the
Congress of the United States by the new Constitution, which in 1787
replaced the old Articles of Confederation.

But how could steps be taken to establish a strong central government
such as Washington had in mind? Fortunately, it happened
NAPOLIS that Maryland and Virginia were at this moment endeav-

CONVENTION oring to reach an agreement on certain matters affect-
ing trade, tariffs, and navigation. Then Pennsylvania and

1 What did the radicals want? "Their creed is that the property of the United States has
been protected from the confiscations of Britain by the exertions of all and therefore ought to
be the common property of all. . . . They are determined to annihilate all debts, public and
private, and have agrarian laws which are easily effected by means of unfunded paper money
which shall be a tender in all cases whatever." From a letter of General Knox to George Wash-
ington (1786).

2 For an interesting summary of the bright spots, see Charles A. and Mary R. Beard,
The Rist of American Civilization (2 vols., New York, 1927), Vol. I, pp. 302-309.

* The Federdist, No. 15 -

BACKGROUND AND BEGINNINGS 31

Delaware were asked to join in the negotiations. Seeing the oppor-
tunity, James Madison persuaded the legislature of Virginia to invite all
the states to a conference at Annapolis, so that the whole question of
interstate trade relations might be discussed. The response was quite
disappointing; for when the conference convened, only five states were
represented and it was not deemed worth while to proceed TBeibre the
conference adjourned, however, Alexander Hamilton gf New York made
the suggestion that another attempt be made to get alTthe states into a
convention, so that the question of confederation might be considered.
Resolutions were accordingly adopted, asking all the states to send
representatives to such a convention in Philadelphia during the summer
of 1787. The congress of the confederation was asked to join in this call,
which it did after a delay of several months.

Meanwhile Washington, Hamilton, Madison, Franklin, and others
had lent their great personal influence in support of the plan. Nothing
was said about framing a new federal constitution. No one ITS QST^N-
dared to propose that the convention be authorized to go so SIBLE
far. The avowed purpose was to revise , supplemen t^ an<d PURPOSE *
strengthejCL.the_ Articles of Confederation. When the call reached the
various state legislatures, some of them acted promptly; others were sus-
picious and held off; but in the end all of them except Rhode Island
appointed delegates. """"

The invitation did not specify how the delegates were to be chosen,
but in all cases the appointments were made by the state legislature, or
by the governor under authority given by the legislature. HOW DELE .
In no case were the delegates to the constitutional conven- GATES WERE
tion of 1 787 directly elected by the people. Many of them CHOSEN *
were sent with specific instructions to revise the Articles and do nothing
else. The date fixed for the assembling of the delegates at Philadelphia
was the second Monday in

REFERENCES

THE EUROPEAN BACKGROUND. The most convenient source of information on
the English antecedents of American colonial government is E. P. Cheyney,
European Background of American History, 1300-1600 (New York, 1904). More elab-
orate discussions may be found in the standard histories of England during the
eighteenth century, such as Lord Stanhope's History of England which covers the
period 1701-1783 in nine volumes, and W. E. H. Lecky's History of England in
the Eighteenth Century (new edition, 7 vols., London, 1913). Lists of other works
relating to the political developments and institutions of Great Britain during

1 Nine states appointed delegates, but only Virginia, New York, New Jersey, Pennsylvania,
and Delaware were actually represented.

32 THE GOVERNMENT OF THE UNITED STATES

this period may be found in the Guide to Historical Literature (New York, 1931).
especially pp. 506-509.

OVERSEAS RELATIONS. Colonial relations with the home government are fully
described in three volumes by George L. Beer entitled Origins of the British Colonial
System, 1578-1660 (New York, 1922), T/ie Old Colonial System, 1660-1754 (New
York, 1912), and British Colonial Policy, 1754-1765 (New York, 1922). L. W.
Larabee, Royal Government in America: A Study of the British Colonial System before
1783 (New Haven, 1930), and E. B. Russell, Review of American Colonial Legida-
tion by the King in Council (New York, 1915), also deserve mention.

COLONIAL EVOLUTION. On the general development of political institutions in
the colonies, there is an abundance of material in the first two volumes of Edward
Channing's History of the United States (6 vols., New York, 1905-1925); likewise
in H. L. Osgood, The American Colonies in the Seventeenth Century (3 vols., New York,
1904-1907), and the same author's American Colonies in the Eighteenth Century
(4 vols., New York, 1924-1925). Attention should also be called to the recent
work of Charles M. Andrews on The Colonial Period of American History (2 vols.,
New Haven, 1934-1936). A useful one- volume survey of colonial evolution is
given in M. W. Jernegan, The American Colonies, 1492-1750 (New York, 1929).

COLONIAL INSTITUTIONS. The political institutions of the pre-Revolutionary era
are described in Charles M. Andrews, Colonial Self -Government, 1652-1689 (New
York, 1904), Evarts B. Greene, The Provincial Governor in the English Colonies of
North America (New York, 1898), as well as in the same author's later books on
Provincial America, 16901740 (New York, 1905) and Foundations of American
Nationality (New York, 1922), and in L. W. Lara bee's Royal Government in America
(New Haven, 1930). O. M. Dickerson, American Colonial Government, 1696-1765
(Cleveland, 1912), deals chiefly with the supervision of colonial affairs by the
London authorities. Attention is also called to C. Bridenbaugh, Cities in the
Wilderness: The First Century of Urban Life in America, 1625-1742 (New York, 1938),
and to the discussion of "The Colonial Mind" in the first volume of V. L.
Parrington, Main Currents in American Thought (3 vols., New York, 1927-1930).

COLONIAL CHARTERS. Copies of the more important official documents are
printed in William MacDonald's two volumes entitled Documentary Source Book
of American History, 1606-1926 (3rd edition, New York, 1926) and Select Charters
and Other Documents Illustrative of American History, 1606-1775 (New York, 1899).
Mention should also be made of F. N. Thorpe, Federal and State Constitutions,
Colonial Charters and Other Organic Laws (7 vols., Washington, 1909).

THE STRUGGLE FOR INDEPENDENCE. A good general account of the American
Revolution is the one given in the third volume of Edward Channing's History
of the United States, already cited. Special studies of interest and value are
S. G. Fisher, The Struggle for American Independence (2 vols., New York, 1908),
H. E. Egerton, Causes and Character of the American Revolution (Oxford, 1923),
G. E. Howard, Preliminaries of the Revolution (New York, 1905), James T. Adams,
Revolutionary New England, 1691-1776 (Boston, 1923), Charles M. Andrews, The
Colonial Background of the American Revolution (2nd edition, New Haven, 1931),
Edmund C. Burnett, The Continental Congress (New York, 1941), Carl L. Becker,
The Eve of the Revolution (New York, 1918), and the same author's Declaration of
Independence (New York, 1922), C. H. Mcllwain, The American Revolution: A
Constitutional Interpretation (New York, 1923), J. F. Jameson, The American Revolu-

BACKGROUND AND BEGINNINGS 33

tton Considered as a Social Movement (Princeton, 1926), and R. G. Adams, Political
Ideas of the American Revolution (Durham, N. G., 1922).

THE CONFEDERATION PERIOD. Useful books on the course of political events
during the perplexing decade 1777-1787 are Allan Nevins, The American States
during and after the Revolution, 1775-1789 (New York, 1924), Merrill Jensen, The
Articles of Confederation (Madison, 1940), and Andrew G. McLaughlin, The
Confederation and tfie Constitution (New York, 1905). The opening chapters of
Andrew G. McLaughlin, Constitutional History of the United States (New York,
1935), also deserve mention. For the development of the idea of the written
constitution in America, the reader is directed to B. F. Wright, Jr., "The Early
History of Written Gonstitutions in America," in Carl Wittke (editor), Essays
in History and Political Theory (Cambridge, Mass., 1937). A large amount of data
relating to developments during the years 1781-1787 is contained in George
Bancroft, History of the Formation of the Constitution (2 vols , New York, 1882).
John Fiske, The Critical Period of American History -, 1783-1789 (Boston, 1888) is
worth mention because it so vividly (although not always accurately) portrays
the events of this era. For the political philosophy of the period, attention is
called to S. E. Morison, Sources and Documents Illustrating the American Revolution,
1764-1788 and the Formation of the Federal Constitution (Oxford, 1923), B. F. Wright,
Jr., Source Book of American Political Theory (New York, 1929), pp. 41-173; the
volume by V. L. Parrington mentioned above, and the article by Edward S.
Corwin on "The Progress of Constitutional Theory between the Declaration of
Independence and the Philadelphia Convention" in American Historical Review^
XXX, pp. 511-536 (April, 1925).

CHAPTER III
THE CONSTITUTION AND ITS MAKERS

While some have boasted the Constitution as a work from Heaven, others have given
it a less righteous origin. Robert Morris.

When one sets out to tell the story of the United States Constitution, it
is hard to know where to begin. If you start with the convention of 1 787,
WHEN AND y u w iM find that the members of that immortal gathering,
WHERE DID in almost everything they did, harked back to the constitu-
OI^H^*ON- tions which had just been put into operation by the several
STITUTION states. If you go back to these state constitutions, you will
BEGIN. discover that they cannot be full% understood without

referring to the colonial charters. But these colonial charters had their
origin and inspiration on the other side of the Atlantic. Their roots reach
deeply into English history. So, the framing of the American Constitution
did not really begin at Philadelphia in 1^787^ but at Senlac, Runnymede,
Marston Moor, and Westminster many generations earlier*. John
Lackland, Simon de Montfort, John Mampden, and Oliver Cromwell,
not to speak of John Milton and John Locke they all had a hand in it.
In a sense, indeed, Aristotle was one of the framers, for he first enunciated
the principle of separation of powers, which is a very important feature
of the American Constitution.

But a chapter on the making of the Constitution cannot well go back
to Aristotle. It will be long enough if it explains how the document was
framed, where some of its fundamental ideas came from, who did the
work, and what difficulties they had to overcome. These things are worth
knowing, for in spite of its flaws the work turned out to be a great
achievement, perhaps the greatest single stroke of statesmanship in the
whole history of the American people. These Fathers of the Republic,
when they finished their task more than one hundred and sixty years
ago, were not very proud of their handiwork, but they builded better
than they knew. 9

('The convention was summoned to meet on the second Monday ITL
May, i^fT^uVwhen that date arrived, many of the delegates had not

THE 'CONSTITUTION AND ITS MAKERS 35

reached Philadelphia, and more than a fortnight was lost in getting
started. At length, a sufficient number being on hand, the convention
unanimously chose Washington as its president, decided that ORGAN1ZA .
votes should be taken by states (not by individual delegates), TION OF THE
ordered that the deliberations be kept secret, and plunged CONVENTION.
right into its work. 1 The meetings were held in the old brick State House
in Philadelphia, the building in which the Declaration of Independence
had been signed, and probably in the same room. 2

Who were the men here assembled to wrestle with the problem of
welding thirteen jealous commonwealths into a "more perfect union"?
First and last, 74 delegates were appointed; but only
55 ever attended, and some of these were present for a few ^R D C ^"
dayJForily. The average daily attendance was between 30
and 35; but they formed a r5narkaBIe~"^oup. Jefferson once spoke cr
them as an "assembly of demigods." Others have seconded his praise
by9esignating~them as the greatest galaxy of patriots ever assembled in
one place. As a matter of fact, however, the group was not a gathering
of supermen, -but contained men of all types' with both big and little
minds\ Of Course, as everyone knows, itjnjgluded a few great figures.
Washington, Franklin, Madison, and Hamilton would have done honor
to any assembly, no matter how exalted its standards of statesmanship.

But the convention also included in its membership some men of very
moderate ability, and a few who possessed neither ability nor a sense of
humor, as the proceedings disclose. All that can truly be
said of the convention's make-up is that there were men of
widely differing capacities, foresight, temperament, experi-
ence, and ingenuity. Therein lay its strength and power. In addition to
the great quartet just mentioned, the membership of the convention
included a number of capable, shrewd, and resourceful men such as
Gouverneur Morris, James Wilson, John Dickinson, and Oliver
Ellsworth; several substantial men of affairs such as Robert Morris,
Nathaniel Gorham, and" Thomas Fitzsimons; a few adroit politicians
such as Elbridge Gerry and Roger Sherman; some sensible delegates of
more than moderate ability such as Rufus King, William Paterson,
Edmund Randolph, Robert Few, John Rutledge, and the two Pinckneys;
one or two long-winded obstructionists of parochial outlook, like Luther

>/ l The convention appointed a secretary, William Jackson, who kept a journal of the pro-
ceedings, but it turned out to be little more than a skeleton of formal motions and votes. If we
had to depend on this journal alone, we would know very little of what went on in the con-
vention from day to day. But James Madison, one of the leading delegates, wrote a personal
diary of the proceedings, which subsequently proved to be of the highest interest and value.
Many editions of the Debates have been published.

2 Some of the meetings may have been held in the room upstairs.

THE ABSENT
NOTABLES.

36 THE GOVERNMENT OF THE UNITED STATES

Martin; and a number of others who had little to say, but who listened
attentively and voted right when important issues arose. 1

Those who are familiar with the post-Revolutionary epoch of Amer-
ican history will notice that although the foregoing list is an imposing

one, it omits the names of several well-known .leaders.

Thomas Jefferson was not a delegate; he was in France on a

diplomatic mission. But Madison kept him informed of what
was going on, and in general he approved. Patrick Henry was not a
member of the convention; he had an opportunity to be one of the
Virginia delegation but was suspicious of the whole enterprise and
declined. John Hancock was not there, nor Samuel Adams of Massa-
chusetts, nor Tom Paine, the great radical, nor John Marshall, the fore-
most expounder of the Constitution in later days. These absences were
notable.

The 55 delegates came from twelve states. Rhode Island was alone in
being unrepresented: her legislature was controlled by radicals who

would have nothing to do with the proceedings. Pennsyl-
OPINIONS AND van * a sent 8 delegates; Virginia, 7; while New York sent
INTERESTS only 3, and these were absent a large part of the time.
REPRE- j Q fj xec j q uo ta was set because, irrespective of the size of

its delegation, each state was to have one vote. Nearly half
the delegates were college graduates; and a majority had held public
offices of one sort or another, some of them posts of high importance. 2
Twenty-eight had sat in the continental congress or in the congress of
the confederation. Almost as many were destined to serve in office under
the new Constitution. Lawyers were in the majority. 3 Not a few delegates
were men of large wealth or important business interests. Washington
was the richest Virginian of his day and one of the wealthiest men in the
whole country. Pierce Butler of South Carolina ranked among the rich
citizens of his own commonwealth. Robert Morris of Pennsylvania was a
large landowner; his holdings at one time ran into millions of acres.
Many other delegates, though not rich, were men of considerable prop-
erty according to the standards of the day. All but a very few were drawn

1 William Pierce of the Georgia delegation diverted some of his time from the serious
work of the convention to write and leave for posterity an interesting, though somewhat
facetious, sketch of his colleagues. It is printed in the American Historical Review, Vol. Ill
(1897-1898), pp. 3IO-334-

2 Nine were graduates of Princeton, four of William and Mary, two of Yale, two of Harvard,
two of Pennsylvania, and one of Columbia. Among European universities Oxford, Glasgow,
and Edinburgh were represented.

8 Thirty-three out of the fifty-five delegates who attended the convention were lawyers.
Eight were business men and six were plantation owners. One was a clergyman, one a teacher,
one a physician. Three could hardly be called anything bnt politicians, and the remaining
two had no occupation.

THE CONSTITUTION AND ITS MAKERS 37

from the professional and business classes. Roger Sherman of Con-
necticut, a shoemaker by trade, and William Few of Georgia, the son of a
small farmer, were about the only delegates who could be said to repre-
sent the common man. It is significant, but not surprising, that there was
not a single frontiersman or wage earner among the fifty-five delegates.
The convention was an assemblage of "gentlemen," as the term went in
those days that is, men of good birth and breeding, who had a sense
of the social amenities.

Nevertheless, every shade of opinion and political belief was repre-
sented among them, from Alexander Hamilton, who would have created
a highly centralized union, to Luther Martin of Maryland, ARISTOCRATS
who wanted the old confederation left as it was, weaknesses AND DEMO-
and all. There were those who wanted a genuine democracy, CRATS *
and others who were afraid of it. Washington feared that this diversity
of opinion was so great as to preclude any action whatever. Yet these
differences in attitude, outlook, and temperament proved in the end to
be an advantage. They prevented hasty, one-sided decisions. They com-
pelled compromises, and it was these compromises that ultimately saved
the day. A constitution dictated by any one group in disregard of the
others would never have received approval by the states.

The fact is that there were quite a few rich men among the framers of
the Constitution, and that fact has given much concern to present-day
champions of the forgotten man. One distinguished student RICH MEN
of American government, some years ago, wrote a whole AND POOR
volume to demonstrate that the Constitution was drafted MEN *
and put through by men who owned land, mortgages, depreciated paper
money, or government bonds; in other words, by men who stood to profit
fmarj^ally by the establishment of a strong, orderly government. 1 The
implication is that they must have been moved by a desire to protect
vested wealth and to secure special privileges for people of their own class.

But wait a moment. Many of those who signed the Declaration of
Independence were also men of wealth. John Hancock, whose flaming
signature tops the list, was probably the richest man in

b ^ 9 f 7 WEALTH AND

Massachusetts. Jefferson was a large owner of land. John 1HE DEC .
Adams, Robert Treat Paine, and Elbridge Gerry were men LARATION OF
of property. The same is true of several others, perhaps of
the Majority among the signers. So, the Declaration, quite as clearly as
the Constitution, was the work of moneyed men; but does this mean that

1 Charles A. Beard, ^ Economic Interpretation of the Constitution oj the United States (new edition,
New York, 1935). A different appraisal of the facts appears in Charles Warren, The Making
of the Constitution (Boston, 1937),

38 THE GOVERNMENT OF THE UNITED STATES

its forthright phrases were conceived in a spirit of class selfishness? The
ownership of property was not looked upon as a barrier to public con-
fidence in those days. The leaders in colonial times had been men of
substance; the leaders of the Revolution came mainly from the well to do.
Should it be made a reproach to Washington that he was rich as well as
resourceful? Or to Franklin that he was thrifty as well as wise? Was
Jefferson any less of a democrat because he owned broad Virginian
acres? The people of his own time did not think so.

Washington presided throughout the convention's deliberations. His
great prestige lent dignity to the proceedings, but as presiding officer

he felt debarred from any part in the debates and is only
LEADERS- twice on record as formally addressing the convention on

GEORGE the first day to welcome the delegates and on the last day to

bid them farewell. But he rendered great service in calming

the occasional storms of personal animosity, and there is
reason to believe that he exerted a good deal of influence on some of the
delegates off the floor.

Benjamin Franklin, who headed the Pennsylvania group, was the
most versatile genius of them all (the "first civilized American," one of

his biographers calls him), but he wits now eighty-one years
FRANKLIN 'd> crippled with rheumatism, and his voice would no

longer rise above a whisper. Nevertheless, his mature judg-
ment and his quiet optimism were steadying factors of great value. His
pen did service when his voice failed, and some of the wisest suggestions
came from it.

In point of political genius, imagination, and eloquence, none of the
delegates equaled Alexander Hamilton of New York. He was still a

young man, only thirty, well educated, and with

WASHING-
TON.

HAMILTON* political convictions. Unfortunately he had to be absent a
good deal and was ncjfc able to take any part in some of the
most exciting debates. Hamilton distrusted popular government and
insisted that the new ship of state be well ballasted. He wanted the
preponderance of power to be vqsted in the central government; he
proposed that senators hold office for life and that the governors of states
be appointed by the federal authorities. Moreover, he would have made
all state laws subject to absolute veto by these governors. 1 Of course his
fellow delegates were not prepared to support such a highly cent^kized
plan. Hamilton was rated the most eloquent speaker in the convention,

and his colleagues listened appreciatively to all that he said; then they

1 See Hamilton's "Draft of a Constitution for the United States," printed in Max Farrand,
Records of the Federal Convention of 1787 (3 vols , New Haven, 191 1), Vol. Ill, Appendix F.

THE CONSTITUTION AND ITS MAKERS 30

proceeded to vote his motions down. On one occasion, after his most
magnificent effort, he received nobody's vote but his own. As one of his
fellow delegates said, u he was praised by everybody and supported by

none. 55

Then there was James Madison of Virginia. He is often called the
"Father of the Constitution," and if the attribute of paternity must go to
someone, he is entitled to it. Less brilliant than Hamilton, JAMES
he was more widely read, more tolerant, and more patient MADISON.
in the advocacy of his views. A prim little man, still in his middle thirties,
but looking prematurely old, he was entirely without what we now call
personal magnetism. His style of writing was arid and his voice mo-
notonous. But if ever a man proved that the right kind of scholar has his
place in politics, Madison did it in this convention. The breadth and
accuracy of his information, the modesty of his demeanor, and the quiet
compulsion of his arguments these things contributed to make him a
more influential figure at Philadelphia than Edmund Burke or Daniel
Webster could have been.

A graduate of Princeton and from early days an industrious student of
past politics, Madison knew what had brought about the rise and fall of
every federation from the Achaean League to his own SOURCES OF
day. In preparation for the convention he drew up elabo- HIS GREAT
rate "Notes on Ancient and Modern Confederacies," and ^ NCE -
this manuscript furnished him with ammunition for his part in the de-
bates. Moreover, much of what we now know about the proceedings of
the convention is due to Madison's methodical industry, for day by day
he entered in his private journal a summary of what went on, and, as a
veracious record, this has proved to be invaluable. 1 The Constitution as
finally drafted was by no means a mirror of Madison's political ideas,
but it included many of the things that he had championed in the de-
bates. James Madison deserved well of his country, and his days were
long in the land, for he outlived all the other members of the convention. 2

1 Here is Madison's account of the way in which the Journal was compiled: "I chose a seat
in front of the chamber ... In this favorable position for hearing all that passed, I noted ip
terms legible or in abbreviations and marks intelligible to myself what was read from the Chair
or spoken by the members; and losing not a moment unnecessarily between the adjournment
and the reassembling of the convention I was enabled to write out my daily notes ... It
happened also that I was not absent a single day, nor more than a casual fraction of an hour
in any day, so that I could not have lost a single speech unless a very short one." The original
Journal is now in the Library of Congress. It was not published until after Madison's
death.

2 He died in 1836, ^Jmost a half century after the Constitution left the hands of its framers.
Madison, by the way, was an ardent admirer of his fellow Virginian, Thomas Jefferson, by
whom his political views were considerably influenced. President Theodore Roosevelt once
referred to Madison as "apale copy of Jefferson." That was hardly a fair characterization.

40 THE GOVERNMENT OF THE UNITED STATES

James Wilson of Pennsylvania also deserves a place in the hall of fame,
for he ranks next to Madison as the best-informed and most indus

trious member of the convention. Wilson was a good law
WILSON y er > rcasone d clearly, and took great delight in smashing

down, with sledge-hammer blows, the arguments of his
opponents. With Madison he worked shoulder to shoulder, and they
made a great team. Together they won many victories, and it was some-
times difficult to determine which deserved the major portion of the
credit.

There were others whose activities in the convention almost gave
them rank as leaders. Luther Martin of Maryland was one of these, a

powerful advocate but a partisan one, who made speeches
LEADERS f pitil ess length. On one occasion he spoke for two whole

days hot days at that. The world must have lost a great
oration, for not a fragment of it has been preserved. There has merely
come down to us the comment of a fellow delegate, Oliver Ellsworth,
who wrote that Martin had " exhibited without blush a specimen of
eternal volubility." John Dickinson of Delaware, and Gouverneur Morris
of Pennsylvania, Roger Sherman and Oliver Ellsworth of Connecticut,
Rufus King and Elbridgc Gerry of Massachusetts, William Patcrson of
New Jersey, George Mason and Edmund Randolph of Virginia, the
two Pinckneys of South Carolina, were all active in the proceedings and
contributed to the outcome in varying degrees. It is hard to tell just how
much influence each exercised, for in the constitutional convention of
1787, as in all deliberative bodies, the men most frequently on their feet
were not necessarily the ones whose words carried the greatest weight.

While the convention was made up of men of all ages, from twenty-
seven to eighty-one (the average being about forty- two), it is significant

that some of the best work was done by the younger mem-

bers. James Madison, who contributed most to the daily

labors, was thirty-six; Alexander Hamilton was only thirty;
and Gouverneur Morris, who put the finishing touches to the document,
was just thirty-five. Qn the other hand, the elder statesmen contributed
quite as much, or more; among these were Washington who was fifty-
five, Roger Sherman at sixty-six, and Benjamin Franklin, the Nestor of
them all, at eighty-one. The Constitution, accordingly, reflected the
zeal and optimism of relatively young men, chastened by the mature
judgment of their older colleagues.

But, most important of all, the convention was strong in political
realists, men of practical experience in politics. A majority of the dele-
gates had served in the continental congress, or ir\ the congress of the

THE CONSTITUTION AND ITS MAKERS 41

confederation, or had helped to frame the constitutions of their respec
tive states, or had been governors, or members of state legislatures. Very
few of them were without political experience of some sort,

BUT THE,

and many of them had acquired a great deal of it. This DELEGATES

was what kept the convention from chasing rainbows. Its W E ^ E MEN OF

i_ u- J i-^- i i i- -it i- EXPERIENCE.

members combined political idealism with the practicality
which comes from contact with the realities of public life. During the
debates, there were references to the political theories of Grotius, Locke,
and Montesquieu, it is true, but there were more frequent allusions to the
actual experience of Maryland, Massachusetts, and Virginia.

In organizing, the convention adopted its own rules. The delegates,
as has been said, were pledged to secrecy; and this was a wise move, for
if the subsequent bitter disagreements among the members
had been known to the people, the Constitution would PROCEDURE
probably never have been ratified by the states. The sum-
mer of 1787 was an unusually hot one in Philadelphia, but sessions were
held almost every weekday from May to September. Plans and proposals
were brought in and referred to committees, but all important issues were
threshed out on the floor by the whole convention. Those who glance
through Madison's Journal will observe that some things were discussed
for a while, then laid over, then taken up again, voted upon, reopened,
reconsidered, and argued a half-dozen times before a final agreement was
reached. The rules of procedure permitted the utmost freedom of debate
and reconsideration. Nothing was hurried through.

PLANS, COMPROMISES, AND AGREEMENTS

It did not take long to discover that there were conflicting opinions as
to what the convention ought to do. Some delegates felt that the Articles
of Confederation should be used as a basis, and that the FUNDA .
convention had no authority to do mpre than strengthen MENTAL
these Articles. In a sense they were right. It was for this TH^NATURE
express purpose that the delegates had been appointed. But OF THE
others were of the opinion that the Articles were so hope- UNION -
lessly inadequate that revising them would be a waste of time. A vote oft
this question was taken, and the convention decided to begin afresh.

Madison argued strongly for this procedure. Even before the sessions
began, he and his Virginia colleagues had prepared a scheme which dis-
regarded the Articles altogether, and this plan was now THE
submitted to the Convention by Edmund Randolph. Known VIRGINIA
as the Virginia plan (although largely Madison's work), it PLAN -
proposed a real federal union, with a central executive, legislature, and

42 THE GOVERNMENT OF THE UNITED STATES

judiciary. Further, it contemplated that the federal government should
have independent taxing powers and should possess authority to make its
mandates go directly to the individual citizen, not merely to the states.
The federal Congress, under this plan, was to be made up of representa-
tives from the several states in proportion to the number of "free in-
habitants" in each, or in proportion to their respective tax contributions.
Thus the larger states would control the new federal legislature. The
Congress, moreover, was to be given a veto on all laws passed by the
legislatures of the several states.

The opponents of the Virginia plan were slow in organizing, but
presently William Paterson of New Jersey, on behalf of the small states,
brought forward an alternative scheme. 1 This New Jersey
P* an contemplated the continuance of a congress on sub-
stantially the same lines as under the Articles of Con-
federation a single chamber with each state having one vote, but with
the addition of an executive chosen by the Congress, and with provision
for a federal judiciary. It provided for a federal revenue by giving Con-
gress the power to levy taxes on the several states and to use force, if
necessary, to compel the fulfillment of such obligations.

For weeks the convention, in committee of tfic whole, debated the

merits and shortcomings of these two general plans. Representatives of

the larger states pointed out the unfairness of giving to the

COULD THESE i , , r i

TWO PLANS states which paid most of the taxes no more representation
BE RECON- than to those which contributed little. Delegates from the

CILED?

smaller states retorted that states, like men, were created
free and equal. There was no more reason, said one delegate, for favoring
a large state in the matter of votes than for "giving a big man more votes
than a little man."

The fundamental trouble was that some states were large and some
small; while all were equally sovereign and independent. They had
adopted the doctrine of equality as a makeshift at the outset of the war.
They had been equally represented in the continental congress and in the
congress of the confederation. Now the small states held to equality as a
vested right. For a time it seemed as though the convention would break
up in disorder by reason of its failure to resolve this fundamental disagree-
ment. "The fate of America," as Gouverneur Morris put it, "was sus-
pended by the strength of a hair." But happily there were enough prac-

1 An alternative plan was also laid before the convention by Charles Pinckney of South
Carolina. Just what this plan contemplated we do not know, for there is a good deal of doubt
whether the document which has been published as the "Pinckney Plan" (American Historical
Review, Vol. IX, pp. 741-747, July, 1904) is authentic. *

THE CONSTITUTION AND ITS MAKERS 43

tical politicians on hand to find a solution through the channel of
compromise.

This solution is commonly known as the Connecticut compromise,
because it was brought forth in its final form by delegates from that state,
although it is believed to have sprung from the fertile intel- THE CON _
lect of Benjamin Franklin. In brief, it provided that the NECTICUT
upper house of the proposed federal Congress should be GOMPROMISE -
based on the equal representation of the states, while the lower house should
represent the several states in proportion to their respective populations, with
the additional proviso that all bills for raising revenue should originate in
the lower house. Before the delegates from the larger states would agree
to this arrangement, however, they made certain that the new govern-
ment would be a real one. The compromise was not accepted by them
until after the convention had decided that the new Congress, unlike its
predecessor, should exert its powers directly upon the individual citizen
through its own laws; likewise, that the new government would have its
own executive officials and courts.

Presently other sources of friction appeared. Representatives in the
lower house of the new Congress were to be apportioned among the
several states on a basis of population, but in counting the
population of a state were slaves to be included or left out?
And should Congress be free to prohibit the importation of
slaves, thus depriving the southern states of their labor supply? Having
power to regulate commerce, should Congress be permitted to lay a tax
on exports? These and various other questions were productive of much
wrangling, but in due course all of them were adjusted.

Many other problems had to be worked over patiently. The conven-
tion, to use Benjamin Franklin's metaphor, spent a great deal of its
time sawing boards to make them fit. The Constitution is full of sawed-off
provisions. Take the congressional term, for example. Some wanted
congressmen elected annually; others urged a three-year term. In the
end they split the difference and made it two years. So with the quali-
fications for voting. A few desired to establish manhood suffrage for all
white citizens. Others favored a strict property qualification. In the end
they left each state to decide this matter for itself Another compromise is
not embodied in any single clause of the Constitution, but permeates
every section of it. This compromise resulted from the balancing of ideas
between those who desired a strong central government and those who
were afraid of strong governments. The convention tried to satisfy one
group by giving the new federal government some general, far-reaching
powers, while endeavoring to reassure the other group by providing

44 THE GOVERNMENT OF THE UNITED STATES

plenty of checks and balances. Thus the Constitution, when it emerged,
was an attempted equipoise of two conflicting political philosophies.

But it would be wholly incorrect to say that this great document was

the work of trimmers and timcservcrs. As a matter of fact it embodied

more unanimous agreements than compromises. Take the

THE AGREE- . . , . r i ^

MENTS OF most important single section ol the Constitution, for
THE CON- example, the one that sets forth the "eighteen powers of
Congress." 1 On at least fifteen of these powers there was no
serious disagreement at all. Everyone agreed, for example, that the new
government should have power to levy taxes, to borrow money, to
regulate foreign commerce, to declare war, to coin money, to control the
postal service, to provide for the national defense, and so on. The same
thing is true of the limitations which the Constitution placed upon
Congress, and on the states. When you say that the Constitution is a
"bundle of compromises," you are partly right; but with equal correct-
ness the document can be designated as a series of virtually unanimous
agreements

(n>e convention did much of its work in committee of the whole
debating, enlarging, amending, and finally adopting twenty-three resolu-
PUTTING ON tions mostof which were along the lines of the Virginia plan.
THE FINAL These resolutions were then referred to a committee of detail
TOUCHES. which elaborated the resolutions into articles and sections)

Thereupon the convention went over the whole thing, section by section.
Nearly five weeks were spent at this task, the members working five or
six hours each day. Every phrase, indeed almost every word, was
scrutinized as with a microscope. (Early in September this long and
tedious job was brought to an end^ and a small committee was named
to " revise the stile" of the document^ Gouverneur Morris, as chairman of
this committee, was charged with the work of putting the provisions
into orderly form and clear phraseology. How well he performed this
task no one who reads the crystal English of the document will fail to
observe. For conciseness and lucidity the Constitution of the United
States still stands without a peer among all constitutions.

THE FIGHT FOR RATIFICATION

( When the final draft was ready, it was signed by thirty-nine members
of the convention. Of the others, some were absent, some refused to sign.
SIGNING THE ^^ latter included Randolph, Gerry, and Mason, three of
CONSTITU- the most influential delegates. But there were no hard feel-
TION - ings. The delegates celebrated the end of their labors with a

1 Article I, Section 8

THE CONSTITUTION AND ITS MAKERS 45

gay dinner / at the City Tavern, bade each other good-by, and started for
their homes. The Constitution was then sent to the congress of the con-
federation with two recommendations: first, that the document be sub-
mitted for ratification to conventions specially elected for the purpose in
each state; and, second, that the new government should be set up when-
ever nine states had ratified the Constitution. The first recommendation
was due to a feeling that the Constitution would stand a better chance
of adoption by special conventions than by the state legislatures. The
second was intended to prevent the whole work from being nullified by
the refusal of two or three states to come in/No one among the delegates
had any expectation that all thirteen states would accept the new Con-
stitution. Many of them doubted that even nine would do it. -

These doubts were not surprising, for the members of the convention
were themselves rather unenthusiastic over the product of their summer's
labor. Not one of the thirty-nine who signed the Con-
stitution regarded the document with full approval.
Alexander Hamilton, for example, in giving his signature, TION. WOULD
took occasion to remind the convention that no man's ideas THE STA1E ?

ACCEPT IT.

were more remote from the new Constitution than his own.
He gave his approval because he felt convinced that the proposed new
federal government could hardly be worse than the old confederation,
and might perhaps be better. Benjamin Franklin also had misgivings;
but, after remarking that the experience of fourscore years had taught
him to doubt the infallibility of his own judgment, he placed his name at
the head of the Pennsylvania delegation. "Thus, I consent, Sir, to this
Constitution because I expect no better, and because I am not sure that
it is not the best . . ." All along the line there were doubts and fears,
tinged with a presentiment that the whole plan would probably come to
naught through its rejection by the states.

As the convention met behind closed doors, no inkling of what the
delegates were doing had been allowed to reach the public until after
everything had been decided. In lieu of any information HOWTHE
from within the brick walls, however, the newspapers NEW CONSTI-

i j 11 ^ r -AT c ^ -1J TUTION WAS .

circulated all sorts of gossip. Many of the rumors were wild, RECEIVED B y
but even the wildest among them found believers. It was PUBLIC
asserted, and to some extent believed, that a monarchy was OPINION -
being hatched at Philadelphia and that a New-World George I would
come from Mount Vernon to take the throne. When the Constitution
was finally made public, a quietus was put upon such absurdities; but
more rational opposition flared up. There were loud protests that the
convention had beer* summoned to revise the Articles of Confederation

46 THE GOVERNMENT OF THE UNITED STATES

and had no right to draft a new Constitution*) Who gave these delegates
"at Philadelphia the right to say that their new Constitution should go into
effect when approved "by conventions" called in nine out of the thirteen
states?

^(Some critics thought that the new Constitution made the central
government too strong; others that it did not make federalism strong
enough. 1 Some protested that, by a failure to abolish all
property qualifications for voting, it sought to perpetuate
an aristocracy of wealth; others, that it went too far in the
direction of democracy with its short terms for congressmen and its
provision for having the senators chosen by the state legislatures^Some
complained that the new government would be too dependent on the
states; others feared that it would be too independent of them.<From all
quarters, again, came the well-founded criticism that the Constitution
contained no bill of rights, no guarantees for freedom of the press, free-
dom of speech, religious liberty, and so forth, such as had been incorpo-
rated in most of the state constitutions. Thomas Jefferson, for example,
regarded this omission as the chief defect of the convention's worlcj

Then there were those who grumbled because the Constitution gave
the new federal government power to issue paper money; while others
objected because it took this right away from the states. *Some were afraid
that the President's power as commander in chief would make him an
Oliver Cromwell who could come with a company of soldiers and turn
Congress out of doors, and one critic made much of the fact that the
power of Congress within the new federal capital, ten miles square, would
be absolute and supreme, thus throttling free government at its very
source. Clergymen took their fling at the document as sacrilegious be-
cause it contained no mention of the Deity and did not even require that
office holders must be Christians. <The fault-finders were numerous, and
they included many influential leaders.)

* The congress of the confederation, after some delay and hesitation,
sent copies of the Constitution to the legislatures of the several states.
THE These, in turn, called on the people to elect delegates to

STRUGGLE state conventions^ Such conventions in Delaware, Pennsyl-
FIC^ON'IN vania, and New Jersey accepted the new Constitution al-
THE VARIOUS most at once; Georgia and Connecticut followed within
STATES. a ew wee j cs Then serious obstacles began to appear in some

of the larger states: Massachusetts, New York, and Virginia where

1 In Paul Leicester Ford's Pamphlets on the Constitution of the United, States (Brooklyn, 1888)
will be found a collection of criticisms issued by various contemporary opponents of the Con-
stitution. These are worth reading because they indicate how many flaws, real and imaginary,
the opponents of the new Constitution were able to pick in it.

THE CONSTITUTION AND ITS MAKERS 47

the campaign of opposition grew intense/ Criticism was let loose in
broadsides, pamphlets, cartoons, stump speeches, letters to the news-
papers, and even in doggerel poetry. Letters of denunciation filled whole
columns, even whole pages, of the weekly journals. Constant Reader, Plain
Truth, Americus, Sentinel, Taxpayer, Homespun, and Rusticus laid their bar-
rage across the editorial desks. Never before had America, or any other
country, withstood such a blitzkrieg of the quill-pen brigade.

(Nor was the ink-spattering wholly directed against flaws in the Con-
stitution itself. Personal attacks were launched against the leading men of
the convention, and even Washington did not escape the THE
flood of invective^ He might be a good soldier, they said, PERSONAL
but he was a patrician in his ideas and a tyro in politics. ANIMUS -
Franklin was termed a doddering octogenarian in his second childhood,
while Madison and Hamilton (still in their early thirties) were ridiculed
as schoolboy politicians. Some of the pamphleteers and caricaturists
tried to make people believe that John Dickinson and Robert Morris
were Tories; that James Wilson was pro-British (Caledonian Jimmy, they
called him) and Roger Sherman a weathercock, while the rest of the
delegates were conceited nobodies. (From Georgia to New Hampshire
the states seethed with discussion, hot and heavy:}

4The danger was not merely that fewer than nine states would acceptf
the Constitution, but that the refusal of one or two pivotal states might
bog the whole plan. There was New York, for example,
where popular feeling was running strongly against the Con-
stitutiont; If New York stayed out, the new union could
hardly iSe a success even though all the other states came in. For New
York stretched right across the country from the Atlantic to the Lakes.
Four states were to the north of her and eight to the south. flier harbor
and strategic location made her doubly essential. No union could be solid
without New York.({Jhe most immediate need, therefore, was for a"
campaign of counterpropaganda, or a campaign of education, which
would focus the attention of the people, both in New York and else-
where, upon the merits of the Constitution itself not upon the failings
of the men who had framed it.*

- Such a campaign was planned by Alexander Hamilton" 1 , who enlisted
the cooperation of James Madison and John Jay^ During the winter and
spring of 1787- 1788, (these three wrote a series of letters) H1 f^ M .
which were printed, sometimes three or four letters a week, ^PAIGN OF
in various New York newspapers.^Each letter dealt with EDUGATION -
some provision of the Constitution, explaining, defending, and appealing
to the patriotism of tfre peopl^AH bore the common signature Publius; ,

48 THE GOVERNMENT OF THE UNITED STATES

and, although the individual authorship of several letters cannot be
definitely determined, it is beyond doubt that the great majority of them
were the work of Hamilton and Madison.

Although these newspaper expositions of the new Constitution were
written hurriedly and for campaign purposes, they set a high standard
VALUE OF both in substance and in style. Brushing aside all personal-
THE Pubhus ities, all appeals to passion, or to sectional prejudice, they
LETTERS. went right to the heart of every constitutional question.

They were the work of men who knew, better than any others of their
time, just what the provisions of the new Constitution were intended to
mean. Naturally, the letters exerted a great influence upon the public
mind, and particularly upon the minds of those who came to the state
conventions without a clear understanding of what the various provisions
of the Constitution implied. Had it not been for this vigorous educational
campaign, there is every reason to believe that New York would have
rejected the Constitution, for in the end that state ratified by the narrow
majority of three votes. Even this narrow margin was not obtained until
after assurance had been given that a bill of rights would be added to the
Constitution by later amendment, thus removing one of the principal
objections to the original document.

Even before all the letters of Madison, Hamilton, and Jay had ap-
peared in the newspapers, they were collected and printed in book form
under the title of The Federalist. In that shape they have
Federalist come down to us, and remain today the best contemporary
exposition of what the Constitution meant to the men whc
made it. But of course the book is not a trustworthy guide for those who
want to know what the various provisions of the American Constitution
express or imply today. Twenty-one amendments have since been added ;
the courts have interpreted many clauses in a way which the makers of
the Constitution could never have foreseen; political parties have arisen;
and all sorts of usages have grown up around the original frame of
national government. The student of American political philosophy will
find in The Federalist nothing about radio censorship or collective bar-
gaining, the interstate commerce commission or social security, dollar
devaluation or debt limits, presidential primaries or the Atlantic charter
nothing about the many phases of public policy which are topics of
discussion today. But as a treatise on the original philosophy of federal
government in the United States these letters of 1787-1788 remain

unsurpassed. 1

1 There are many editions of The Federalist, abridged and unabridged. The book can be
found in any library.

THE CONSTITUTION AND ITS MAKERS 49

While it is impossible to tell with certainty what would have happened
had the Constitution been submitted for acceptance to the direct vote of
the people in the various states, there is every reason to
think that it would have been rejected. At the hands of OTHER IN "

. , , r i i r r FLUENCES RE-

conventions it had a tar better chance ot ratification, SPONSIBLE
because in none of the states save New York were the dele- FOR THE

^ ^.L. u U c i i ADOPTION OP

gates to these conventions chosen on a basis of manhood THE CO NSTI-
suffrage. In all the remaining states there were property or TUTION BY
other qualifications for voting, and the propertied classes THE STATES -
were, on the whole, favorably disposed towards the Consti- ATTITUDE OF
tution. 'They felt that nothing but a strong central govern- THE PROPER-
ment could stem the drift to anarchy. The Constitution CLASSES>
drew its chief support from the business interests, the pro-
fessional men (including the clergy), the plantation owners of the South,
the merchants and shipowners, the men of education in a word, from
that part of the population which lived in the better-settled areas near
the seacoast. 1 A line drawn north and south, about fifty miles inland from
the seaboard, would have marked off the supporters of the new Consti-
tution from its opponents fairly well.

The opposition came principally from the interior and sparsely
settled areas, from the struggling farmers and pioneers who wanted
cheap money issued by the states, who looked upon the WHERE THE
merchants as profiteers, and who were in no mood to do OPPOSITION
anything that would benefit the towns. 1 The new Consti tu- CAME FROM '
tion was unpopular with the debtor class and exceedingly so among the
non-property-owners who were still disfranchised in all but two states
(New Hampshire and Pennsylvania). These nonvoters contributed a
great deal to the storm of protests, but they did not count for much in the
ratifying conventions.

In any event, the Constitution was not carried into operation on any
tidal wave of popular enthusiasm." One should remember that it was

framed and submitted to the states at a time when business

,. . 1111 -111 - - THE RELA -

conditions were bad and the national outlook unpromising. TION OF THE

The country was in a disillusioned, resentful frame of mind. OUTCOME TO
The delegates at Philadelphia were men who kept in touch
with their folks back home, and their ears were not closed to what these
people were saying. They knew that the country was in trouble, thai
there was a widespread yearning for peace, order, and economic stability,

1 For further information on this important point, see O. G. Libbv, The Geographical
Distribution of the Vote of the Thirteen States on the Constitution in 1787-88 (Madison, 1894), and
C. A. Beard, An Economic Interpretation of the Constitution of the United States (new edition, Nev*
York, 1935).

50 THE GOVERNMENT OF THE UNITED STATES

rather than for a hypodermic shot of proletarian democracy! So they tried
to devise a plan of federal government which would meet the existing
emergency and could then be adapted to future needs as these might
arise.. Under such conditions, the Constitution was not so strongly infused
with ultrademocratic provisions as would have been one framed ten
years earlier, by the men who signed the Declaration of Independence,
for example. It was not the sort of document that Daniel Shays, Patrick
Henry, Tom Paine, or Sam Adams would have drawn.

But despite its numerous checks and balances, its conservative tone,
its several compromises, and its emphasis on the right to life, liberty,
A DEMO- an ^ property* this Constitution set up an outstanding land-

CRATIC mark in the growth of political democracy. No leading

MENT^" nation of Europe in 1 787 had a written constitution of any
NEVERTHE- sort; nor, with the single exception of England, did any one
LESS> of them have even the forms of popular government. And

the new American Constitution provided a scheme of government which
was far more democratic in every real sense of the term than that which
England possessed at the time/ It is probable that Thomas Jefferson, had
he been given the task, would have framed a more liberal document, and
there is no doubt that Alexander Hamilton would have written a more
conservative one. James Madison could readily have devised a more
logical scheme of government. But no one of them would have had his
handiwork accepted by the states. No one of them would have devised
the compromises which the Constitution embodies, and without these
concessions to the middle way there would have been no ratification.

The statesmen of 1787, at any rate, gained their main objective. They
created a union that has endured. Their roll of parchment still governs
THE FATHERS ^eir children's grandchildren, after the lapse of over a
OF THE hundred and fifty years. Their thirteen states have grown

REPUBLIC. to f or ty-eight; their three million people have increased
nearly fiftyfold.' Faulty though their work may have been in spots, can
there be any greater tribute to its worthiness than that it has served so
long? "Leaders of the people by their counsels, wise and eloquent in
their instructions, all these were honored in their generations and were
the glory of their times. . . . With their seed shall continually remain a
good inheritance, and their children are within the covenant. . . . Their
glory shall not be blotted out. . . . Their bodies are buried in peace, but
their name liveth forevermore." l

But to return to the final ratification. It will be recalled that the

1 Ecclesiasticus (Apocrypha), 44 : 4-13.

THE CONSTITUTION AND ITS MAKERS 51

Constitution was to go into force whenever nine states should have

accepted it.fBy midsummer of 1 788 the necessary nine had

v^ ' ' ' THE GONSTI-

been secured; Virginia and New York soon made it eleven, TUTION
and the victory became decisive. North Carolina did not FINALLY
give assent till the autumn of 1789, however, and Rhode
Island delayed ratification until the spring of 1 790.

When nine states had announced their adhesion, the congress of the
confederation, which had prolonged its lingering existence during all

these turmoils, issued a call to the various states to choose

. , , , 1M THE NEW

presidential electors, senators, and congressmen; likewise it FEDERAL

designated New York as the temporary seat of the new gov- GOVERNMENT
ernment, and then gracefully bowed itself out of the picture.
It could not muster a quorum to pass a motion of final adjournment. Ten
states responded by choosing presidential electors, who in due course
selected Washington as President and John Adams as Vice-President of
the Union. 1 Likewise, they chose their quota of senators and repre-
sentatives in the way prescribed. The new government took office on
April 30, 1789. *

REFERENCES

Many years ago the Department of State published a Documentary History of the
Constitution (5 vols., Washington, 1894-1905), which contains the official
Journal of the Convention together with Madison's Journal and other important
documents. Gaillard Hunt and James Brown Scott, Debates in the Federal Con-
vention of 1787 (New York, 1920), is a convenient reprint of Madison. Max
Farrand, The Records of the Federal Convention (revised edition, 4 vols., New Haven,
1937), includes all the available records and much interesting supplementary
material. The same author's single volumes on The Framing of the Constitution
(New Haven, 1913) and The Fathers of the Constitution (New Haven, 1921) are
concise and readable surveys. Arthur T. Prescott (editor), Drafting the Federal
Constitution (Louisiana State University Press, 1941), is a large volume of com-
piled material on the subject. Mention should also be made of Hastings Lyon,
The Constitution and the Men Who Made It; The Story of the Constitutional Convention,
1787 (Boston, 1936), Edward Elliott, Biographical Story of the Constitution (New
York, 1910), and Fred T. Wilson, Our Constitution and Its Makers (New York,
1937). E. M. Burns, James Madison, Philosopher of the Constitution (Rutgers Uni-
versity Press, 1938), deals with the ideas of a statesman who took an outstanding
part in the making of the Constitution. The best comprehensive outline of the
subject is Charles Warren, The Making of the Constitution (Boston, 1928 and 1937),
but attention should also be called to chap, xiv of Andrew C. McLaughlin's
Constitutional History of the United States (New York, 1935), which summarizes the
most recent conclusions of historical scholars concerning the great convention

52 THE GOVERNMENT OF THE UNITED STATES

and its work. Another excellent work of the same nature is H. G. Hockett, The
Constitutional History of the United States, 1776-1826 (New York, 1939).

George Bancroft's History of the Formation of the Constitution (2 vols., New York,
1882) is a work which retains considerable value in spite of its age. Mention
should also be made of W. M. Meigs, The Growth of the Constitution in the Federal
Convention of 1787 (Philadelphia, 1900), S. G. Fisher, The Evolution of the Consti-
tution of the United States (Philadelphia, 1900), and Breckinridge Long, The
Genesis of the Constitution of the United States (New York, 1925). The volume by
James M. Beck and J. T. Adams, The Constitution of the United States (New York,
1941), is a readable book, written in eulogistic tone.

Other books which deal with the personnel, organization, problems, and
procedure of the convention from various points of view are: Charles A. Beard,
An Economic Interpretation of the Constitution of the United States (new edition, New
York, 1935), G. E. Stevens, Sources of the Constitution of the United States (2nd
edition, New York, 1927), J. F. Jameson, Essays in the Constitutional History of the
United States in Its Formative Period, 1775-1789 (Boston, 1889), C. C. Tansill,
Documents Illustrative of the Formation of the Union of the American States (Washington,
1927), and R. L. Schuyler, The Constitution of the United States: an Historical Survey
of Its Formation (New York, 1923).

The best succinct account of the ratification by the states is that given in
Albert J. Beveridge's Life of John Marshall (4 vols., Boston, 1916-1919), Vol. I,
pp. 319-356. Mention should also be made of Louise I. Trenholme, The Ratifi-
cation of the Federal Constitution in North Carolina (New York, 1932), and S. B.
Harding, The Contest over the Ratification of the Federal Constitution in the State of
Massachusetts (New York, 1896). For public comment on the Constitution,
especially adverse comment, during the period of ratification, a good source is
P. L. Ford (editor), Pamphlets on the Constitution of the United States, Published during
Its Discussion by the People, 1787-1789 (Brooklyn, 1888). The proceedings in the
various state conventions are printed in Jonathan Elliot, Debates in the Several
State Conventions on the Adoption of the Federal Constitution (2nd edition, 5 vols.,
Washington, 1854), commonly cited as Elliot's Debates, Students should also
become acquainted with the material which is contained in The Federalist, of
which there are numerous editions.

CHAPTER IV
"THE SUPREME LAW OF THE LAND"

Constitution . . . shall be the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the constitution or laws of any state to the con-
trary notwithstanding. The Constitution of the United States? Article VI, Paragraph )

two men ride a horse," quoth Shakespeare, "one must ride
behind.' 5 In a government there can never be two powers, each with
ultimate supremacy. The Constitution of the United States, THE GON-
to use its own words, is "the supreme law of the land," STITUTION AS
and this clarion phrase makes perfectly clear where the ADOCUMENT -
Constitution stands.^^isjupreme over all organs of American govern-
ment, national, state, and local. Its provisions, so far as they go, are
binding on everyone from tiTelcKIef executive of the nation down to the
humblest citizen. Laws made in pursuance of this Constitution^and^
treaties made under the auFhority of the United States are also para-
mount, because it is through them that the supreme constitutional"
power is exercised.

, When people speak of the national Constitution, they usually think of
a document framed at Philadelphia in 1 787, a short document as such
things go shorter than the constitution of any other nation and much
shorter than any of the American state constitutions. A model of concise-
ness it certainly is, for there are only 4,000 words in it, occupying ten or
twelve pages of print, which can be read in half an hour. But let no one
make the error of supposing that these ten or twelve pages can be under-
stood merely by reading them, or that they contain all the constitutional
rules which govern the American people today .^ In the document itself
there are many things which are not visible to the naked eye. And pyra-
mided upon its printed words is a superstructure of vastly greater
dimensions, made up of federal and state laws, judicial decisions, usages,
precedents, and official opinions, which fill statute books, law reports,
rules of procedure^ and administrative decisions to the extent of a million
pages or more.

The architects of . 1 787 built only the basement. Their descendants

-53

54 THE GOVERNMENT OF THE UNITED STATES

have kept adding walls and windows, wings and gables, pillars and
THE BUILDERS P orc h es > to niake a rambling structure which is not yet
KEEP finished. Or, to change the metaphor, it is a fabric which,

BUILDING. to use the words of James Russell Lowell, is still being

"woven on the roaring jggggj^^fqgi" That is what the framers of the
original Constitution intended it to be. Never was it in their minds to
work out a final scheme for the government of their country and stereo-
type it for all time. The^ sought merely to provide a starting point.

In this sense JohnT^Tarshall, Vyoodrow Wilson^ and Franklin Roosevelt
are entitled to be ranked as makers of the American Constitution just as
truly as James Madison and Alexander Hamilton were. For these jurists
and statesmen have from time to time infused the words of the Constitu-
tion with new meanings and a new spirit. 1 Thousands of others have
helped them in this_tagk x so that the makers of the Constitution, in jail
truth, form a great company whom no man can number. Even today
they are at work, never more so; and their task will not be finished while
the nation endures. The process by which the Constitution has been
developed, year by year, will be explained in the next chapter of this
book; meanwhile it may be well to indicate at the outset what its dis-
tinctive and fundamental features are.

In the first place, the Constitution gives recognition to the principl'
of popular sovereignty. It avows itself to be the act of the people. ("We
the people of the United States, ... do ordain and establisl
STTTUTION this Constitution.!' Of course it can be argued, and quit<
EMBODIES rightly, that the men who framed it were not chosen by the

THE PRIN- , , , -,+ * i i i ^

CIPLE OF people, nor was their work ratified by a popular vote. But

POPULAR the fact remains that the document asserts itself to be an
ordinance of the people and has been accepted as such for
nearly five generations. In other words it establishes, and has maintained,
a system of government based upon popular consent. Unlike totali-
tarian constitutions, it postulates the capacity of men for self-government.
It rests on the proposition that to follow the freely given judgment of the
Whole people is safer, if not always wiser, than to let the ultimate deter-
mination of public policy rest in the hands of anyone who is beyond the
reach of popular accountability. That proposition, unhappily, has not
held its own in other countries during the past generation. \

The second outstanding feature of the Constitution is this: it is a grant
of powers. It created a new government and endowed that government
with a definite range of authority, making it supreme within its own
sphere. Yet it left the state governments functioning and likewise

1 Sec W. B. Munro's Makers of the Unwritten Constitution (New York, 1930).

"THE SUPREME LAW OF THE LAND" 55

supreme within their own fields of jurisdiction. The framers of the
American Constitution believed that Jwc^gOY?rnments could be supreme,
provided^ each waSL given its own sphere of action. So they 2< rrDi-
proceeded to give the new federal government certain VTOES
powers, both general and specific, to be exercised without
interference by the states. All other authority they left to NATION AND
the states, to be exercised by them without interference on E STATES -
the part of the federal government, and any doubts that might arise on
this point were resolved by the forthright phraseology of the tenth
amendment. 1 ~ ""

AThere is always a danger in setting up two related governments, each
expected to whirl contentedly within its own orbit. I Either the central
government gets too little power and perishes from general HOW THE
debility, or it gets too much power and eventually crushes ADJUSTMENT
out everything else. The first of these two dangers was what ITY WAS AR .
beset the old confederation (1781-1787); the second RANGED.
brought about the collapse of the German republic in 1933. The makers
of the American Constitution were at great pains to steer a course mid-
way between these two pitfalls. They wanted a strong central govern-
ment and strong state governments, with neither encroaching on the
other. So they gave large powers to the new federal government, but took
care to limit these powers^For example, they tried to assure the new
federal government a reasonable revenue, buFcfiH not give it unrestricted
jxnver to tax; they empowered it to regulate foreign and interstate com-
merce, but not to interfere with commerce within the states; they author-
ized it to maintain an army, but left each state its own militia. To the
states, as a counterpoise, they reserved nearly the whole field of civil and
criminal law, the regulation of industry and labor within each state, the
control of local government, the upbuilding of an educational system and
nrany other far-reaching functions.

^ It has sometimes been said that the framers of the Constitution tried
togive all powers of a general nature to the central government, while
reserving all powers of a local nature to the states. That is not
what they tried to do. Having in mind the experience of the
states under the Articles of Confederation, they merely
sought to give the new federal government those powers which experience
had demonstrated to be essential^Thcy conformed their work to facts,
not to formulas. Look over the .Articles of Confederation and put your
finger on the weajc spots. Note the things that needed to be done, but

1 "The powers not delegated to the United States by the Constitution, nor prohibited by
it to jhe states, are reserved to the states respectively, or to the people.'*

56 THE GOVERNMENT OF THE UNITED STATES

could not be done because no one had power to do them. You will find
that the eighteen powers given to the new Congress are directly related
to the lack of powers in the old one.

Here are the chief powers given by the Constitution to the federal gov-
THE DIVISION ernment; and alongside are placed some of the most impor-
OF POWERS tant things which, by the silence of the Constitution, were
IN DETAIL. j e f t i ar g e iy O r wholly to the jurisdiction of the several states:,

Federal Powers State Powers

1 . Taxation for federal purposes. i . Taxation for local purposes.

2. Borrowing on the nation's credit. 2. Borrowing on the state's credit.

3. Regulation of foreign and inter- 3. Regulation of trade within the

state commerce. state.

4. Currency and coinage. 4. Civil and criminal law.

5. Foreign relations and treaties. 5. The "police power."

6. Army and navy. 6. Education.

7. Postal service. 7. Control of local government.

8. Patents and copyrights. 8. Charities and correction.

9. Regulation of weights and meas- 9. Highways and traffic.

ures. 10. Organization and^control of cor-

10. Admission of new states. porations. ^f

(^At the outset, the states got the better of the bargain; but the federal

government has grown steadily stronger. And this, rather strangely, has

taken place without reducing the amount of work which the

THE BALANCE f . , , i r ,

HAS BEEN state legislatures have to do. The amount of governmental
FAIRLY WELL work which has to be performed has grown so enormously

PRESERVED

that the state governments are far busier today than they
were a hundred and fifty years agoAln 1 787 some opponents of the Con-
stitution predicted that the states 'would eventually be reduced to the
status of mere districts for administrative purposes. They were wrong.
Despite all that has happened in the intervening years, the original
balance of powers has not been radically disturbed. The danger that it
will be, as time goes on, is nevertheless one that must be reckoned with.
The federal government has been steadily edging up in recent years. 1
After the constitutional convention had adjourned, someone said to
Benjamin Franklin, "Well, Doctor, have you given us a republic or a
monarchy?" "A republic," replied Franklin, "if you can keep it."
Yes, that is the problem which never ceases to confront a great republic
made up of lesser republics known as states to keep the balance from
being upset.

A third outstanding characteristic of the American Constitution is its

1 See p. 363.

"THE SUPREME LAW OF THE LAND" 57

recognition of what has commonly been called the principle of separation
of powers; in other words, the idea that the three organs of
government kgislative, executive, and judicial should PRINCIPLE OF
be kept distinct and independent, each acting as a check on SEPARATION

7"" , r^, "* i< ^ i i i i i OF POWERS.

the others. The executive, according to this principle, should

never legislate; and the legislature should never attempt to administer its
own laws. The courts, again, should interpret and enforce the laws, but
shpuld have no hand in making or administering them.

yThe origin of this interesting doctrine has been commonly attributed
to a French writer, Baron de Montesquieu^ whose two volumes on The
Spirit of Laws appeared in 1 748\JBut the idea is as old as DERIVED
Aristotle. 1 Montesquieu merely gave it a broader and more FROM MON-
emphatic expression, and through his writings the leaders ^SQ^ 1 * 11 -
of political thought in America were impressed by it. Here is the doctrine
in Montesquieu's own words:

^Political liberty is to be found only in moderate governments; even in these
it is not always found.^It is there only when there is no abuse of power. But
constant experience shows us thatfevery man invested with power MONTES .
is apt to abuse it, and to carry his authority as far as it will go. Is QUIEU'S OWN
it not strange, though true, to say that virtue itself has need of STATEMENT
limits?\To prevent this abuse, it is necessary from the very nature OF THE
of things that power should be a check to power. ... In every DOCTRINE -
government there are three sorts of power: the legislative, the executive, . . .
and the judiciary power. . . . When the legislative and executive powers are
united in the same person, or in the same body of magistrates, there can be no
liberty. . . . Again, there is no liberty, if the judiciary power be not separated
from the legislative and executive. 2

The great English jurist, Blackstone, also emphasized the desirability
of separation. "In all tyrannical governments," he wrote in his famous
Commentaries* . . . the right of making and of enforcing the BLACKSTON E'S
laws is vested in one and the same man, or are in the same ENDORSEMENT
body of men; and wherever these two powers are united OF IT '
together there can be no public liberty. . . . Were [the judicial power]
joined with the legislative, the life, liberty, and property of the subject,
would be in the hands of arbitrary judges. . . . Were it joined with the
executive, this union might soon be an overbalance for the legislative."

1 "All states have three elements, . . . first, that which deliberates about public affairs;
second, that which is concerned with the magistrates, and determines what they should be, over
whom they should exercise authority, and what should be the mode of electing them, and
thirdly, that which has Judicial power." Aristotle's Politics (Jowett's edition, 1885), Vol. I,

P *33-

1 The Spirit of Laws, Book XI, chaps. 4-6 passim.
* I, ii, 146; and I, vii, 269.

58 THE GOVERNMENT OF THE UNITED STATES

Now, a majority of those who framed the Constitution of the United
States were lawyers and undoubtedly had studied Blackstone, as all
lawyers did in those days. At any rate they respected his dicta as gospel,
to be quoted as the last word on issues of legal or political philosophy.
"No political truth," said N^dison^ "is of greater intrinsic value. . . .
The accumulation of all powers, legislative, executive and judiciary, in
the same hands, whether of one, a few, or many, and whether hereditary,
self-appointed, or elective, may justly be pronounced the very definition
of tyranny." Jefferson^ although absent from the constitutional conven-
tion, was equally explicit. "An elective despotism," he wrote, "is not
what we fought for, . . . but one in which the powers of government
should be so divided and balanced, . . . that no one could transcend the
legal limits without being effectively checked and restrained by the
others."

Wise old Benjamin Franklin also favored a scheme of government
based upon the principle of separation of powers; but he was a scientist,
not a lawyer, iand reached his conclusion from a different
starting pointy For the idea fitted the general conception of
ANALOGY the universe which Franklin and other men of science held
FROM ^ t j ie c i os j n g decades of the eigHteenth century. Scientists

SCIENCE.

/ everywhere, in 1787, accepted the laws of Newtonian
physics.vThey believed the universe to be a thing of checks and balances,
with everything held to its proper orbit by the gravitational influence of
other bodies. Mass and distance, properly adjusted, kept celestial bodies
from colliding, to the destruction of one another. Hence it was easy for
Franklin to accept the law of gravitation in government: the inevitable
pull of large centers of authority upon smaller ones. The way to keep
repositories of power within their own orbits was to give them the right
adjustment of mass and distance. Government, in other words, might be
looked upon as a mechanism, not as an organism. Properly adjusted at
the start, it would stay adjusted.

But it is unlikely that Madison, Franklin, and the rest would have
been much influenced by Montesquieu's aphorism, were it not for the
fact that it seemed to have been verified right up to the hilt
ky the political experience of the thirteen colonies before the
Revolution. Vrhe colonists had repeatedly protested against
the interference of the colonial governors in matters of legislation,
and there had been many controversies over the independence of the
colonial judges. Looking back, it seemed as though most of the political
troubles of the colonial era had arisen from a failure to keep these three
branches of government separate. So, while no express enunciation of

"THE SUPREME LAW OF THE LAND" 59

the Montesquieu-Blackstone principle was incorporated in the national
Constitution, the separation therein of legislative, executive, and judicial
provisions into three independent articles is evidence that the idea was
kept well in mind. 1

I Pushed to an extreme, the principle of separation of powers would, of
course, prove unworkable. The absolute independence of the three great
departments of government would inevitably produce a
deadlock and bring governmental activities to a standstill.
The framers of the Constitution realized this and made no

, . ~ , . , . NEITHER

attempt to secure a complete separation of legislative, execu- PRACTICABLE
tive, and judiciary, each from the others.) They gave to the NOR DE -

" > ---... ~- ,- SIRABLP

Sena^t^ for example, the right to refuse confirmation of the
President's appointments, thereby awarding it a share in the exercise of
his executive power. On the other hand, they gave the President, through
his veto, a check on legislation. Then, lest this presidential veto might
prove too powerful a weapon, they permitted it to be overridden by a
two-thirds vote of both Houses. Again, they assured the judges a life
tenure, but made them removable by impeachment. While desirous of
creating an independent judiciary, they_nevertheless gave Qongress
, power to determine the numberof judges and fix their salaries. They gave
the President the power to negotiate treaties, BuFmade a two-thirds vote
of the Senate necessary for approval. While thus establishing various
checks and balances, they took care not to make them too rigid./ They
separated powers, but they also provided lines of connection.^

vlt was well that they did so, because in times of emergency it becomes
essential for all three branches of the government to work in unity under
a single leadershipy During the period of America's participation in the
First World War (1917-1918), for example, the executive branch of the
government took command and virtually dominated congressional
lawmaking; but, when the emergency was past, Congress at once re-
sumed its position of independence; and the Senate asserted a dominant
voice, not merely an assenting one, in the making of a postwar treaty.
So, likewise, in 1933, President Franklin D. Roosevelt not only took into
his own hands the leadership in national lawmaking but sent to Congress,'
straight from the White House, a program of "must" legislation which
went through with drumfire rapidity. Much of this legislation transferred
to the President various powers which Congress had hitherto kept jcal-

v i Notice the wording: "All legislative powers herein granted shall be vested in a Congress of
the United States" (Art. I, Sec. i). "The executive power shall be vested in a President of the
United States" (Art. II* Sec. i). "The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress may from time to time ordain
and establish" (Art. Ill, Sec. i).

60 THE GOVERNMENT OF THE UNITED STATES

ously within its own jurisdiction. In a word, the principle of separation oi
powers^ontinues as a constitutional theory to whichlhe^rmal practice
of American ^gvcrmncnt informs; butTwhen emergencies arise, it is not
permitted to stand in the way of prompt and forceful action.

Yet, there are limits beyond which the breaking down of the division
cannot be permitted to go. Congress can delegate to the President a great
deal of power when the need arises; but it cannot abdicate into his hands
the power to make the laws of the land. This point was unanimously
decided by the Supreme Court in 1935, when it invalidated the National
Industrial Recovery Act. This statute authorized industries to make
"codes of fair practices," and provided that, when promulgated by the
President, these codes should have the force of law. The Court held that
this was an unconstitutional delegation of the legislative power of Con-
gress. 1 The Constitution does not permit the laws of the land to be made
by representatives of industry, even with the President's approval.

A fourth distinguishing feature of the American Constitution is its

tacit recognition of the principle of judicial supremacy. 2 In every

sovereign state there must be a supreme authority whose

4. THE DOC-

TRINE OF determinations are final and not subject to be overruled.
JUDICIAL i n England at the time the Constitution of the United

SUPREMACY. r 11- i'ii'

States was framed, this supremacy rested with parliament.
In other words, England had adopted the principle of "legislative su-
premacy." But that is just what the framers of the Constitution wanted
to avoid. Experience with repressive acts of parliament in the days before
the Revolution had impressed upon them the belief that it is the habit of
all legislative bodies to grasp and exercise powers that do not belong to
them. So they set boundaries to the powers of Congress; and it was their
intent that these limitations should be observed. But how was such
observance to be enforced? By the courts? The statesmen of 1787 did not
categorically answer that question.

Yet the issue was bound to arise, for it is impossible to conceive of two
sets of governments, working side by side, each supreme

DID THE .... r- i i i i i

FRAMERS within its own field, but without any recognized agency

INTEND TO for settling disputes between them. This power to speak the

SUP^ME^ * ast WOI *d in matters of jurisdiction could not be given to

COURT THE Congress the states would not have tolerated it. Nor

^Mm? F could ' lt be lod S ed with the state legislatures, for that
TUTION? would have resulted in a chaos of interpretations. And

1 For a further discussion, see pp. 444-446. c

1 For a full discussion of this topic, see p. 570, and the references given at the close of Chap-
ter xxxv.

"THE SUPREME LAW OF THE LAND' 61

when controversies should arise between the President and Congress,
as to their respective powers, who would serve as the umpire? Was it
intended to have the Supreme Court take upon itself the guardian-
ship of the Constitution, interpreting it and ensuring its supremacy by
declaring void any act of Congress that might overstep the allotted
bounds of its authority? Was it intended that the Supreme Court should
be supreme to the extent of being authorized to declare acts of Congress,
acts of the state legislatures, and actions of the President unconstitutional?

The Constitution itself is silent on that question ; it contains no express
provision that the Supreme Court should or should not pronounce the
last word on questions of constitutionality. Nor do the A HARD
debates in the constitutional convention throw much light QUESTION TO
on what the makers of the Constitution may have intended. ANSWER -
In the Virginia plan a proposal was laid before the convention providing
for a "council of revision," made up of "the executive 5 ' (presumably the
President and the Vice-President), together with "a convenient number 55
of federal judges. This council was to scrutinize laws passed by Congress,
and any measure to which it objected would be void unless reenacted in
Congress by an unspecified majority. The convention did not like this
proposal and rejected it in favor of a simpler method which gave the veto
power to the President alone. In the course of the debate something was
said about the inadvisability of giving judges power to override the law.
"The judges of Aragon," remarked John Dickinson, "began by setting
aside laws and ended by making them." But the convention never faced
the definite issue of judicial supremacy, never discussed it, and never
voted on it.

What the convention would have decided if the problem had come
before it in point-blank fashion, we have no way of knowing/ We do
know, however, that the leaders of the convention were ONE SIDE .
familiar with many cases in which colonial laws had been LIGHT ON
declared void by the Privy Council in England; and they THE MATTER -
were also aware of the action of state courts in declaring state laws un-
constitutional in the Rhode Island case of Trevett v. Weeden, for
example. 2 Hence the idea that a court could declare a law unconstitu.-
tional was by no means unfamiliar to them. And Alexander Hamilton,

y l Professor Charles A. Beard, after a careful study of all the evidence, is convinced ,that
a majority among the leaders of the convention believed the right and duty of passing upon
the constitutionality of laws to be within the authority of the Court. See his book on The
Supreme Court and the Constitution (New York, 1912).

2 J. B. Thayer, Case^on Constitutional Law (a vols., Cambridge, 1895), Vol. I, pp. 73-78.
There is a good discussion of this whole subject in Edward Charming, History of the United
States (6 vols., New York, 1905-1925), Vol. Ill, pp. 498-507.

62 THE GOVERNMENT OF THE UNITED STATES

in urging the ratification of the Constitution by the states, plainly affirmed
that the Constitution intended the judicial power to serve as an inter-
mediary "between the people and the legislature," in order "to keep the
latter within the limits assigned to their authority." l It is not unfair to
assume, therefore, that if the convention had been strongly averse to
the idea of judicial review, it would have gone on record against it.

fin government, at any rate, it is acts, not intentions, that count.
What the framers of the Constitution intended is of less practical con-
sequence than what the Supreme Court has done. The
OUTCOME Constitution certainly gave this tribunal an opportunity to
take upon itself the function of declaring national laws
unconstitutional. And the Court, under the leadership of Chief Justice
John Marshall, seized this opportunity, assumed the right to say the last
word on questions of constitutionality, and possesses that right today ?)
Moreover, it is hard to see how the Constitution could have acquired
much binding force if the Supreme Court had not done as it did. Without
some body to enforce its provisions, a constitution has nothing but moral
force behind it; and the history of new governments everywhere indicates
that constitutional guarantees require something much stronger than
moral Sanctions if they are to be upheld.

A fifth outstanding feature of the American Constitution is found in
theTfiumber and strictnesiTof the limitations which it containsTIt is full
of them. There are many things which neither the national
THEORY OF nor t ^ ie state^governments may do, such as^assing bills of
GONSTITU- attainder or^granting titles of nobility. There are some
TIONAL tKings which the" national government may do, but which

LIMITATIONS.

the state governments may not issue paper money, for
example. Likewise, there are things which Congress must not do, but
which the states are at liberty to do if they please. 3 Thus every branch of
American government is limited. Whether all the limitations which
appear in the Constitution of the United States have really served a

1 The Federalist, No. 78. "The interpretation of the law," said Hamilton, "is the proper
and peculiar function of the courts. A constitution is, in fact, and must be regarded by the
judges as a fundamental law."

* 2 It assumed, for the first time, in 1803 (Marbury v. Madison, I Cranch, 237) the power
of declaring laws of Congress unconstitutional; but the acts of state legislatures were held
unconstitutional as early as 1791 by the circuit court and as early as 1796 (Ware v. Hylton,
3 Dallas, 199) by the Supreme Court. In view of the language of the Constitution (Art. VI,
par. a), judicial review of state legislation aroused no protest.

8 These last-named limitations are for the most part in the bill of rights, or first ten amend-
ments. They have been held applicable to the federal government bnly and not to the state
governments unless the state constitutions have copied them, as has been done in some cases.
Yet in such recent cases as Gitlow v. New York, 268 U. S. 652 (1925),* and Near v. Minnesota,
283 U. S. 697 (1931), the court has applied some of these rights against the states under the
"due process" clause of the fourteenth amendment.

"THE SUPREME LAW OF THE LAND" 63

useful purpose is a matter to be discussed in another chapter; but in any
case they form a significant feature of the document.
Finally^ die Constitution*of the United States is distinctive not only
for what it contains, but for what it omits. Its silence on some points is

Hu_^__ ,.4u in i*M"inrT I r i *

eloquent. It goes into detail on quite incidental matters g THE CON _
such as the calling of the Yeas and Nays in Congress and the JJPICUOUS
exact worcfm^of the oath which the President must take at QMISSI(3NSt
his inauguration, but omits all reference to many fundamental features
of American politics. There is not a word, for example, about corpora-
tions, banks, immigration, eduation, civil service, political parties,
budget-making, agriculture, labor, and the regulation of industry. The
Constitution indeecTcontains fewer reference! to economic and social
matters than does the organic law of any other country. Even on political
matters it shows some strange omissions.

(For example, it provides that the House shall choose its own Speaker,
but does not say what his powers shall be. It requires the assent of both
Senate and House for the enactment of laws, but says nothing about how
a disagreement between these two chambers shall be settled} It makes
provision for a president pro tempore of the Senate, but no provision for
a secretary of state. It goes into detail about the appointment of federal
officials, but overlooks the matter of removing them from office, except
by impeachment. Happily, (however, the powers given to Congress are
couched in such broad terms that they have enabled most of these
omitted matters to be dealt with by lawAWere it not for this element
of flexibility, the Constitution would have been more frequently amended
during the past fifty years, and the amendments would have been of
wider scope.

The silences of the Constitution are not altogether to be regretted,
Its framers could not forecast the social and economic problems that
would arise in the days of their great-grandchildren. They REASONg
were too practical to concern themselves with any such V OR THESE
futility, and anyhow they had more urgent things to do. ^QH 18510 ^?-
For the moment they were trying to pull the country out of a depression,
restore its prosperity, make it safe for decent citizens to live in, able to
pay its debts, and worthy of respect from the rest of the world. That was
a big enough job for fifty-five delegates. As for the future, they provided
no fewer than four different ways by which the Constitution could be
amended wheneve^ the need might arise. They were at great pains to
make certain that neither Congress alone, nor the state legislatures alone,
would ever be able to keep the Constitution from being changed. It was
their thought thai changes in the Constitution would be made freely,

64 THE GOVERNMENT OF THE UNITED STATES

year by year, and that the whole document might be revised from time

to time.

These are the notable features of the national Constitution. Not one

of them was wholly new in 1787. The doctrine of popular sovereignty
had been preached by John Locke and Tom Paine. The
*^ ea f a constitute 011 as a grant of powers is as old as the

FEW WHOLLY Lycian Confederacy, while the principle of separation of

NEW powers harks back to Polybius and Aristotle, not to speak of

PRINCIPLES. ~ ' .

Montesquieu and Blackstone. The doctrine of judicial
supremacy and the idea of placing constitutional limitations upon the
powers of legislatures were both evolved out of English and American
experience in the years before the Constitution was drawn. Limitations
on governmental authority were as ancient as Magna Carta. Bills of
rights were familiar to Englishmen. Silences and omissions in a funda-
mental law were old acquaintances, for the colonial charters and earliest
state constitutions had been full of them.

So, the Constitution of the United States, in its outstanding features,

was not designed to be an array of novelties in government, now put to

" the test for the first time. The colonists had brought English

TO^NGLAND institutions to America, set them up over here, modified

them, improved them, and made them serve new needs.
The men who made the Constitution had over one hundred and fifty
years of New World political experience behind them. Thirteen colonies
had tried all sorts of things during that century and a half. Finally, the
experience under the Articles of Confederation had been the most en-
lightening of all. Accordingly, the framers of the Constitution, most of
whom had served in public office, did not need to go outside the range of
their own personal knowledge in order to decide what was worth a
further trial. From foreign lands they took almost nothing. The experi-
ences of ancient confederacies, mediaeval republics, and eighteenth-
century absolutisms were instructive mainly in showing them what to
avoid. ~~~

REFERENCES

TREATISES. Among the treatises on the principles of the Constitution, Joseph
Story's Commentaries on the Constitution (first published in 1833, 5th edition, 2 vols.,
Boston, 1891) contains what may be termed the classic exposition. Another work
which has almost reached the stature of a classic and which examines the Ameri-
can Constitution from the point of view of comparative public law is John W,
Burgess, Political Science and Constitutional Lauf (2 vols., New ifork, 1890). W. W,
Willoughby's Constitutional Law of the United States (2nd edition, 3 vols., New York v
1929) is more closely in touch with the conditions of today. Another well-knowa

"THE SUPREME LAW OF THE LAND" 65

commentary is J. I. G. Hare, American Constitutional Law (2 vols., Boston, 1889),
which includes extended discussions of some difficult constitutional questions.
The same is true of Roger Foster's Commentaries on the Constitution of the United
States (Boston, 1895). J onn R- Tucker's Constitution of the United States (2 vols.,
Chicago, 1899) gives the southern point of view on controverted questions.
Other works worth noting are T. M. Gooley, Treatise on Constitutional Limitations
(8th edition, 2 vols., Boston, 1927), and W. M. Meigs and Thomas H. Calvert,
The Constitution and the Courts (3 vols., Northport, New York, 1924). Some
excellent discussions are contained in Selected Essays on Constitutional Law, com-
piled and edited by a Committee of the Association of American Law Schools
(4 vols., Chicago, 1938).

BRIEFER STUDIES. Among single-volume surveys the most useful are Charles
K. Burdick, Law of the American Constitution (New York, 1922), Charles W.
Gers ten berg, American Constitutional Law: Text and Leading Cases (New York,
1937), John M. Mathews, The American Constitutional System (revised edition,
New York, 1940), Henry Rottschaefer, Handbook of American Constitutional Law
(St. Paul, 1939), A. C. McLaughlin, Foundations of American Constitutionalism
(New York, 1933), and B. A. Arneson, Elements of Constitutional Law (New York,
1928). Samuel P. Orth and Robert E. Cushman, American National Government
(New York, 1931), is largely devoted to a discussion of constitutional interpreta-
tions. Brief commentaries on the contemporary construction of the various
clauses of the Constitution may be found in Edward S. Corwin, The Constitution
and What It Means Today (7th edition, Princeton, 1941), and F. A. Magruder
and Guy S. Claire, The Constitution (New York, 1933). Attention is also called to
The Constitution of the United States, with annotations, published by the govern-
ment printing office (Washington, 1938).

CASE BOOKS. The study of the American Constitution is largely a study of
constitutional decisions. There are several good compilations of these decisions,
such as J. P. Hall, Cases on Constitutional Law (new edition, St. Paul, 1926),
L. B. Evans, Leading Cases on American Constitutional Law (5th edition by Charles
G. Fenwick, Chicago, 1942), O. P. Field, A Selection of Cases and Authorities on
Constitutional Law (2nd edition, Chicago, 1936), D. O. McGovney, Cases on Con-
stitutional Law (2nd edition, Indianapolis, 1935), Joseph R. Long, Cases on
Constitutional Law (Rochester, N. Y., 1936), Noel T. Dowling, Cases on American
Constitutional Law (Chicago, 1937, with Supplements in 1940 and 1941), and
W. F. Dodd, Cases and Materials on Constitutional Law (3rd edition, St. Paul, 1941).
A useful smaller collection of cases is R. E. Cushman, Leading Constitutional
Decisions (7th edition, New York, 1940).

CHAPTER V
HOW THE CONSTITUTION HAS CHANGED

Thus the American Constitution has necessarily changed as the nation has changed,
has changed in the spirit with which men regard it, and therefore in its own spirit.
Lord Bryce.

(Some years ago President Franklin D. Roosevelt, in a moment of

irritation, spoke of the Constitution as a "relic of horse-and-buggy days,"

with the implication that it is no longer suited to the needs

AN INAPPRO- . ....

PRIATE of the nation. But to characterize it in that way is to dis-

CHARACTER- regard the all-important fact that the Constitution, al-
though bearing the datemark of 1787, has been steadily
changing, developing, expanding, and adapting itself to new conditions
throughout all the intervening years)(6ne flight just as fairly designate
the White House itself as a relic of horse-and-buggy days, for it was built
more than a hundred years ago. Of course it has been modernized;
almostfevery President has made some changes in it, until today it serves
its purpose as well as it ever did. Exactly the same thing is true of the
Constitution)

In neither case is the edifice of today much like the original. The over-
hauling has been, in both cases, an almost continuous performance.
One must not look on the national Constitution as a series of paper
formulas which have remained intact and unaltered since the closing
years of the eighteenth century. It would be nearer the truth to say that
tfrom the time of its adoption there has never been a single year in whicl
something in the original document has not had its meaning changed
fit has been amended constantly, and, strange as the statement ma^
sound, most of the amending has been done without adding amendments
|To illustrate this paradox, take the growth in the powers of Congresi
during the past fifteen years. Without formal amendment of the Con
stitution it has been possible for Congress to legislate foi

AMENDING r

WITHOUT the entire banking and credit system of the country; hke<

AMEND- wise, to provide for the guarantee of bapk deposits, reduce

MENTS * the gold content of the dollar, give large grants-in-aid tc

the states, regulate the stock exchanges, establish a system of social

HOW THE CONSTITUTION HAS CHANGED 67

security, fix the prices of food, restrict the use of gasoline, enforce col-
lective bargaining, engage in hydroelectric enterprises on a large scale,
and do all manner of things which the Constitution does not expressly
authorize it to do. These are powers which the Constitution gives to
Congress by implication; in other words, they are incidentally dug out of
the express powers. The phraseology of the original document remains
unchanged, but it has been stretched to meet new conditions.)
<CThe Constitution is as flexible as the nation's methods dt business)
It is not merely a roll of parchment reverently treasured in the archives
at Washington, printed in the appendix of every textbook,
and committed to memory by a few precocious schoolboys
to win an American Legion prize. It is not static but FROM THE
dynamic, a Darwinian, not a Newtonian affair. One might ORIGINAL

PHILOSOPHY.

almost say that it is amended every Monday morning, when
the Supreme Court hands down its decisions. The Fathers of the Re-
public, were they to rise from their narrow cells, would not recognize
their handiwork, so greatly have all its implications been changed. How
would Alexander Hamilton feel, were he to look from the gallery at one
of our national party conventions and be told that this is the way we
proceed to choose a President under a constitution which he approved?
What would James Madison think of our vast array of federal reserve ,
banks, national banks, and farm loan banks not to speak of bank
deposits guaranteed by the federal government, home-owners' loan
corporations, and a host of other credit concerns all established under
the authority of a constitution which contains not a word about bank
deposits, commercial credits, or farm mortgages? To ask that question is
to answer it.

OVhat, them is the Constitution of the United States in its present-day
significance? (Briefly, it is made up of contributions from six different
Squrces. These are: (a) the original document; (b) twenty-

^ t / \ t i i r t i i THE CONSTI-

amendments; (c) hundreds of statutes which provide TUTION IN
details for the general provisions of the Constitution; ITS BROADER
(d) thousands of judicial decisions interpreting the Con-
stitution and the aforementioned statutes; (e) executive orders which fill
in the details of statutes; and (f) a countless host of usages, customs,
precedents, traditions, and even administrative opinions, which have
acquired constitutional strength^ These various factors in the enlarge-
ment of the Constitution should be explained one by one; but not in the
order above given^for it will better serve the interests of clarity to speak
of the statutes, decisions, and usages before dealing with the process of
formal amendment.

68 THE GOVERNMENT OF THE UNITED STATES

DEVELOPMENT BY LAW

(The simplest way of expanding the Constitution is by passing a la\yj

Many matters, in fact, were left by the framers of the Constitution to be

handled in that way. Knowing that they could not antici-

ORIGINAL P ate a ^ contingencies, they did not try to do so, but trusted

CONSTITUTION that future Congresses would enact such detailed provisions

LO D PE~D: as mi g ht be needecL

i . DEVELOP- (And during the past century there has been a tremendous

MENT BY development through this channel. The whole structure of

the subordinate federal courts is provided for by statutes,
SOME EX- and so is the procedure of these courts. The succession to

(aTcmcAN- t ' ie presidency, in the event that the Vice-President is not
IZATION OF available, is similarly arranged by the Presidential Suc-
THE COURTS, cess i on Act of 1 947- Again, there is scarcely a word in the
Constitution relating either to the President's cabinet or to
the organization of the various executive departments. True, there is
mention of "heads of departments," but not a word about how many
departments, or how they should be organized, or what functions should
be performed by them. All such matters were left to be settled by
law.>

(Similarly the present method of governing territories and insular
possessions, such as Alaska and Hawaii, rests upon law and not upon

constitutional provision. Likewise, the methods by which
(b) THE _ _ * . _ , . '

MECHANISM members of Congress are nominated, 1 and even the clctor-

OF GOVERN- mination of who shall vote at congressional elections, are
left to be arranged by the laws of the several states. The
Constitution gives Congress power to borrow money on the credit of the
United States. To facilitate such borrowing, a long series of laws was
passed, authorizing the establishment of banks and regulating their
methods of doing business. But the banks eventually got into trouble;
and another law was passed (1933) providing for the guaranteeing of
their deposits by a government agency. Thus the original power to
borrow has been extended by law to the safeguarding of depositors'
funds in privately owned banks. So with the budget. No provision for a
national budget is made in the Constitution. The whole budget pro-
cedure is established by law 1 )

(I^ven the procedure in lawmaking has had to be built up without
much guidance from the written provisions of the Constitution. The

1 Subject to overriding legislation by Congress (Art. I, section 4, and seventeenth amend-
ment of the Constitution).

HOW THE CONSTITUTION HA* CHANGED 69

Constitution, for example, does not say a word about committees in
Congress, who shall appoint them or what they shall do. It does not
even require that bills be given three readings, or placed ( c \ THE
on the calendar, or signed by the presiding officer of either PROCESS OF
Hous^l And of course it says nothing of filibusters, closures, LAWMA KING.
riders, time limits, lobbying, leave-to-print, suspension of rules, and the
other incidents of modernized legislation.

Concerning the actual, present-day workings of the federal govern-
ment, therefore, one cannot get any adequate knowledge merely by
studying the words of the Constitution itself. By far the greater portion of
what the student of government desires to know is not there. It is set
forth in the statute books and in the numerous volumes of administrative
regulations. (To use Woodrow Wilson's metaphor, the Constitution is
"only the sap center of a system of government vastly larger than the
stock from which it has branched .^ By statutes passed under the authority
of constitutional provisions, and by regulations issued under the authority
of these statutes, we have determined how commerce may be carried on,
how aliens may be naturalized, how patents and copyrights may be
obtained, how the census shall be taken, how employers must bargain
with their workers, how much wheat a farmer may raise, and how much
you pay in postage on an air-mail letter. It is decreed in the Constitution
that ^all legislative powers herein granted shall be vested in a Congress
of the United States" ; and Congress has not confined itself to a direct use
of this authority. It has devolved upon various executive officials and
administrative boards the power to supplement statutes by regulations
and orders. These regulations are not laws, but they have the force of
law. They are, as it were, the twigs on the branches which have sprung
from the main trunk, which is the Constitution. 1 ^

DEVELOPMENT BY INTERPRETATION

Qn the second place, the Constitution has been developed by judicial
and administrative decisions. The theory is that courts merely interpret
and apply the printed words of constitutions without adding

, . T. , N^r i 2. DEVELOP-

anythmg or taking anything awayy Yet every lawyer knows MENT BY
that to give a phrase a new interpretation is to give it a new JUDICIAL

_i\ - ^ i *. r DECISIONS.

meaning; and to give it a new meaning is to change it. The
Supreme Court of the United States has read into the American Con-
stitution many things which are not there visible to the naked eye.
It has read out of the Constitution other things which are there as plain

1 For a further discussion of executive orders and administrative regulations see pp. 197-198.

70 THE GOVERNMENT OF THE UNITED STATES

as print can make them. Mr. Justice Holmes once blurted out the truth
when he said that judges ^ do and must legislate. " So, notwithstanding
the limitations of juristic theory, the Supreme Court of the United States
has done a great deal of actual lawmaking during the past hundred yearsj
lt has done this by giving its own interpretation of provisions, phrases,
and words in the original document. "Congress," the Constitution de-
clares, "shall have power ... to regulate commerce. . . .'*
SOME . But what is included within the term "commerce"? TKe
Supreme Court has rendered at least a hundred decisions in
(a) REGULA- answer to that question. This is because changes in the
COMMERCE methods and materials of commerce give rise to new situa-
tions and problems almost every yearlt has been the work
of the Supreme Court, through its power of judicial interpretation, to
twist and torture the term "commerce" so that it will keep step with the
procession} Thus it has upheld Congress in the extension of its commerce
power to railroads, motor stages, telegraph and telephone companies,
airplanes, steamship lines, radio broadcasting stations, stock exchanges,
and even ordinary industrial concerns which do business in more than
one state. 1

But there are limits to the flexibility of the commerce clause. When
Congress in 1933 passed the National Industrial Recovery Act, it sought
to widen the commerce power to a point where it would permit federal
control over wages, hours, and methods in industries which conducted
their business wholly within a single state. It did this by setting up the
the theory that, while such industries were not themselves engaged in
interstate commerce, their activities had an indirect influence upon other
industries which were so engaged. But the Supreme Court in the Schech-
ter Case (1935) declined to permit this sweeping extension of the com-
merce power. 2

Or take another illustration. The Constitution provides that Congress
shall have power "to raise and support armies." These five words looked
safe enough in 1 787. To the minds of the men who put them
POWERS^ * n the Constitution, they meant that Congress might call up
volunteers, furnish these soldiers with muskets, feed them,
clothe them, and not leave them to go cold and hungry as the Conti-
nentals had gone at Valley Forge. But the quintet of words has been
swollen with the lapse of time. They have proved broad enough to
authorize the drafting of men by the million, even in time of peace. To
support armies, moreover, means to feed them, to upply them with

1 See pp. 399-403-

f Schechter Poultry Corporation v. United States, 295 U. S. 495.

HOW THE CONSTITUTION HAS CHANGED 71

munitions, and even to require that the civilian population undergo
sacrifices in order that the armies can be fed and supplied with adequate
implements of warfare. Power "to raise and support armies"! The
federal government, with the Supreme Court at its right hand, can wring
a vast amount of authority from these five words.

Here we have, therefore, a powerful agency of verbal elongation. To
find out what any word in the American Constitution means, you do not
look in a dictionary. You look in a digest of judicial de- WORDSAND
cisions. There you find what it means in its legal sense, THEIR LEGAL
which is often quite different from what it means in every- MEANINGS -
day English. The Supreme Court of the Unlrcd States has ruled that
telegrams are instrumentalities of commerce while bills of exchange are
not; that primaries are elections; 1 that ex post facto laws do not include
all retroactive laws; and that the phrase "due process of law'* means a
great deal that a layman would not understand it to mean. 2

So, the student who desires to know what the words of the Constitution
really mean will find Daniel Webster a better guide than Noah Webster.
If he wants to find out what (the actual powers of Congress ^^^ STEADY
are today, he will get a poor idea of their scope and rami- EXPANSION
fications by merely surveying the eighteen formal powers AND^PHRASES
which are granted in the words of the Constitution itself. IN THE CON-
Supreme Court decisions have widened these original STITUTION -
powers beyond recognition} yet never in a single instance has the Court
claimed the right to make any change in the phraseology. "It does not
put new things in the Constitution, but merely finds new things there."
The stretching of a phrase in one decision gives a foundation for some
further elasticity in the next ; the lines of development are pricked out by
one decision after another until the last has carried matters a long way
from the point at which the interpreting process began. And the Court's
latest decision stands until the next one comes. "That isn't a correct
interpretation of the Constitution," remarked a Supreme Court justice
in rebuke to a young lawyer who was arguing a case before that august
body. "Well, it was until Your Honor spoke," came the conciliatory
reply.

And it is not the courts alone that interpret the Constitution. Heads of
departments and other administrative officers are often confronted with
the necessity of acting quickly, even though their constitutional powers
are not clear. Their actions may be challenged and subjected to judicial
review, but often they are accepted without any such protest. In that

1 U. S. v. Classic, 313 U. S. 299 (1941).

* For a discussion of this phrase, see pp. 519-523.

72 THE GOVERNMENT OF THE UNITED STATES

case, the action forms a precedent for the future. And when any admin-
istrative interpretation of a constitutional clause has been allowed to

THE CON- P ass * r a * on & t * me unc h a U en g e d> and particularly when
STRUING OF important public and private rights have become based
CONSTTTU- upon it, the courts will not usually go out of their way to

TIONAL PRO- , , , . T ill

VISIONS BY break things open. In recent years there have been many
ADMINISTRA- executive orders and administrative rulings which virtually
operate as agencies of constitutional change. It should be
mentioned, however, that these orders and rulings are not issued, in the
main, without legal advice. The office of the attorney general is usually
asked to give its opinion oWthe probable constitutionality of important ad-
ministrative orders before they are issued. Of course it is quite impossible
for the attorney general to pass on all such questions, so he refers them
to one of his numerous assistants. Thus it comes to pass that matters of
considerable importance relating to the powers of public officials under
the Constitution are virtually determined by some young lawyer in the
attorney general's office. 1

DEVELOPMENT BY USAGE

pn the third place, the Constitution has been developed, expanded,
and modified by usage or custom.lWhat habit is to the individual, usage

DEVELOP- ls to the state. Nations, like men, get into the habit of doing
MENT BY things in a given way. Habit then hardens into usage, which

USAGE. becomes difficult to change. So$ike a pyramid reared upon

the written Constitution, there has been built up in America a body of
political customs and usages which have their basis neither in laws nor
judicial decisions, but are merely the result of long-continued habit.
This habit-forming process goes on continually. Usage is always at work
adding, subtracting, altering, and influencing the substance of the
written Constitution and the laws. It has given us, in considerable
measure, an "unwritten Constitution." )

What are some of the usages that have modified, developed, and fixed
the political institutions of the United States?^he most striking one,
SOME perhaps, concerns the method of electing the President.

EXAMPLES: Here the written provisions of the Constitution have been
(a) THE SQ g reat iy altered by usage that a literal reading of them

ACTUAL . t m i i i 11

METHOD OF gives, in some cases, an impression which is wholly at

ELECTING TH2 variance with the realities. The Constitution provides that

the presidential electors shall meet in ttyeir several states:

1 These Opinions of the Attorney General are published and have become increasingly important
as a source of information on matters of constitutional interpretation.

HOW THE CONSTITUTION HAS CHANGED 73

and it was assumed that they would survey the whole field before casting
their votes.)Not a word is said about nominating presidential candidates
in advance, or pledging the electors. Nothing of that sort was con-
templated. But/political parties came into the field and began nominating
their candidates, and soon the electors found themselves with virtually
no choice but to vote for these candidates. They became human robots
with a purely mechanical function, and they now form an inconse-
quential cog in the machinery of election)

Yet, as a matter of law, there is nothing to prevent their doing just
what the Constitution contemplated (It is merely that usage has become
stronger than the Constitution itself. Under normal conditions the
President of the United States is now as directly chosen by the voters of
the states as though there were no intervening electors at all. In other
words, there has developed precisely what the architects of the Constitu-
tion sought to avoid. They did not desire the direct, popular election of
the nation's chief executive, and they exerted themselves to devise a
scheme for preventing it.^

{jfhere are some cases, on the other hand, in which usage prevents what
the Constitution permits. For example, there is nothing in the original
Constitution to debar the election of both the President and
the Vice-President from the same stateAAt first glance WITH"
the twelfth amendment might seem to stand in the way of RESPECT TO

, . , . r .,, i i r- r T r RESIDENCE.

such a choice, but if you will read the first few lines of it
carefully you will see that it does not. Nevertheless^the President and
Vice-President have never been chosen from the same state at the same
time, and probably never will be. Custom dictates that they shall be
nominated not only from different states but from different regions of
the country. So it is with candidates for election to the national House of
Representatives. The Constitution merely requires that a member of
Congress shall be a resident of the state from which he is chosen. But usage
goes further and virtually requires that he be a resident of the district which
chooses himj

The way in which usage may operate in government without most
people realizing it was strikingly shown when President Wilson went to
the Paris Peace Conference in 1918. During his absence he
asked Vice-President Marshall to preside at cabinet meet- CABINET.
ings. At once the Washington newspaper correspondents
began thumbing the pages of the Constitution in quest of his authority
to do this. And of course they found nothing. For the simple fact is that,
so far as the Constitution and laws of the United States are concerned,
the President can call to his cabinet, at any time and for any purpose,

THE USAGE

74 THE GOVERNMENT OF THE UNITED STATES

anybody he pleases. He could take all the White House employees into
his cabinet, so far as the Constitution goes. He can ask the Vice- President
or anyone else to preside at cabinet meetings: he could even discontinue
these meetings altogether. For there is nothing at all in the Constitution
relating to the cabinet. There is a provision which says that the President
"may require the opinion, in writing, of the principal officer in each of
the executive departments," but not a word about meetings held by these
principal officers or anyone else at the President's behest. So the cabinet
is whatever the President chooses to make it. The practice of calling the
nine heads of departments into a weekly conference is purely a matter of
usage.

| (But the most important development which has come about in the
field of American government as the result of usage is embodied in that
complicated fabric which we call the party system\ The
MACHINERY leading statesmen of 1787 looked upon the rivalry of po-
AND WORK OF litical parties as a thoroughly vicious feature in free govern-
POLITIGAL m ent; hence Ahe Constitution contains no mention of

PARTIES. f ^--

caucuses, primaries, conventions, platforms, party com-
mittees, campaign funds, and the other paraphernalia of modern party
politics. Nevertheless, political parties sprang intp existence almost at the
outset and gradually became dominating factors in the work of the new
federal governments/The whole party system as we now know it vits
organization, personnel, and methods, its manipulations both in Congress
and outside all this has been developed in the realm of unwritten
law. 1 Only in recent years have the laws of Congress attempted to regu-
late party organizations; and even yet these regulations go but a little
wayj(Usage has created and maintains the party system,} but who will
say tfiat party organizations do not profoundly affect both the constitu-
tional practices and the political life of the American people?

Various other examples of institutions and practices which owe their
existence to the same source might be given. (Custom, during a century

and a half, maintained the principle that no President
EXAMPLE^* should have more than two consecutive termsj Why do all

American ambassadors tender their resignations when a
new administration comes in? Why are many appointments in the
federal service treated as "political patronage"? Why does the Supreme
Court hand down its decisions on Monday, and why are elections
almost always held on Tuesday? Why are the heads of the army and navy

1 This refers to parties solely in the field of their national activity. Regulation by state law
has become most elaborate even where the nomination and election of federal officers are
:oncerned

HOW THE CONSTITUTION HAS CHANGED 75

departments chosen from civilian life and not from these professional
services? Why is the head of the nation addressed simply as "Mr. Presi-
dent" while the governor of Massachusetts is styled "His Excellency" and
the mayor of New York is "His Honor"?

'^ven usages, however, may change^ President Franklin D. Roosevelt
successfully challenged the third-term doctrine in 1940. For a full cen-
tury after the administration of John Adams 5 (*no President ever read his
messages to Congress. The custom was to send them in writing by
messenger) feut President Wilson changed this custony setting aside the
precedents of a hundred years, and the new practice has been continued
by some of his successors. From Washington to Taft, moreover, no
President during his term of office ever left the jurisdiction of the United
States. But President Wilson shattered this continuity of practice by
going to Europe, and President Franklin Roosevelt more than once set
foot on alien soil. One must not conclude, however, that usage is a frail
reed easily broken. Now and then individual usages are snapped, but
most are tough in the fiber.

GROWTH BY AMENDMENT

finally, the Constitution has been developed by formally amending it.
Its framers foresaw that the need for amendments would arise from time
to time, and they tried to make the process of amendment,
as they thought, a fairly simple one. In this spirit, they pro-
vided four alternative methods of putting through an CONSTITUTION
amendment. They made it possible to initiate an amend- ** FORMAL

' AMENDMENT.

mcnt either in Congress or outside Congress. They provided
for ratification by state legislatures or, as an alternative, by special
conventions. It was certainly not foreseen by them that with an increase
in the size of Congress, and in the number of the states, the process oi
amending the Constitution by any of these methods would automatically
become more difficult. Nor was it anticipated that only one of the four
amending methods would be used to the virtual exclusion of the other
three. But the first ten amendments were proposed in a batch by Con-
gress and submitted to the state legislatures as the quickest way of getting
them ratified. This action set a precedent which was followed in the case
of all later amendments down to the twenty-first. In that instance rati-
fication was made by conventions instead of by the state legislatures^

As for the procedure in making amendments to the Constitution, it
cannot be more concisely described than by using the words of the
document itself:

76 THE GOVERNMENT OF THE UNITED STATES

Congress, whenever cwo thirds of both Houses shall deem it necessary,
shall propose amendments to this Constitution, or, on the application of the
legislatures of two *hirds of the several states, shall call a convention for proposing
amendments, which, in either case, shall be valid to all intents and purposes
as part of this Constitution, when ratified by the legislatures of three tourths
of the several states, or by conventions in three fourths thereof, as the one or the
other mode of ratification may be proposed by the Congress) . . .*

Now while the above-quoted sentence is a pretty long one, and would

probably get the blue pencil from a teacher of English composition, it

contains no wasted words. Like many other provisions of

TioNSRELAT- ^e Constitution, however, it avoids going into details and

ING TO THE consequently leaves some questions unanswered. Does the

PROCESS OF phrase "two thirds of both Houses" mean two thirds of all
AMENDMENT.

the members, or two thirds of those present? The latter

interpretation has prevailed. Does the action of Congress, in voting tcf
propose a constitutional amendment, require the assent of the President?
The Supreme Court has held that it does not. When a state legislature has
ratified a proposed constitutional amendment, may it later (before the
necessary three fourths has been obtained) rescind its action? Congress,
by a joint resolution, has declared that this cannot be done. On the other
hand, a state legislature may first refuse to ratify, and then, at a later
date, change its mind. 2 And when a state legislature votes to ratify an
amendment its action is not subject to veto by the governor.

Then there is the question whether Congress, in proposing an amend-
ment, may fix a limit of time within which the ratification must be com-
pleted .{This Congress did, for example, in the case of the

TIME LIMITS

ON RATiFicA- eighteenth, twentieth, and twenty-first amendments, fixing
T10NS * seven years as the maximum time for ratification in each

case.' The Supreme Court has held that this is allowable} 3 Finally, may
a state legislature, when a proposed amendment comes before it for
ratification, submit the question to the people by referendum? Of course
there is nothing to prevent the submission of the question to the people,
provided (the legislature itself takes formal action after the people
have expressed themselves; but a state legislature may not submit an
amendment to the people for final decision, thus abdicating its own
powers. *J

(^Vhen Congress initiates a proposed amendment, the secretary of state
sends a certified copy of it to the governor of each state and he, in turn,

1 Article V.

* Coleman v. Miller, 307 U. S. 433 (1939).

8 Dillon v. Gloss, 256 U. S. 368 (1921) and Coleman v. Miller.

4 Hawke v. Smith, 253 U. S. 221 (1920).

HOW THE CONSTITUTION HAS CHANGED 77

transmits it to the legislature. Then when the legislature ratifies the
amendment the governor so certifies to the secretary of CERTIFICA .
state in Washington and the latter, on receiving certificates TION OF
from three fourths of the governors, proclaims the amend- AME NDMENT.
ment to be in force.i)

A final question: is there any provision in the Constitution which
cannot be changed by amendment? This question is difficult to answer
with a Yes or No, because, while the Constitution expressly
declares itself to be unamcndable on two points, it is

impossible to conceive of an unamendable Constitution as
anything but a contradiction in terms. For a Constitution is a mani-
festation of popular sovereignty; and one generation of the people can
hardly impose, for all time, a limitation upon the sovereignty of future
generations. That would constitute government by the graveyards.
Therefore, it is quite likely that, if conditions ever make it imperative to
amend the Constitution on either of the two points at issue, a way will be
found to do it. Indeed, one way is obvious: to remove the exception by a
preliminary amendment and thus clear the way for further action.

What are these two unamendable provisions? One is the stipulation
that no state, without its own consent, shall ever be deprived of its equal
representation in the Senate. In this respect, New York and Nevada
must continue free and equal, although they are hardly so in anything
else. The other provision is that no state shall be divided, nor shall any
two states be combined, without the consent of the state legislatures
concerned. 2 If the country ever decides to put an end to the undue
influence of the small states in Congress, caused by their overrepresen-
tation in the Senate, it can achieve this end in a roundabout way. An
amendment could provide that when the House and Senate disagree
they must settle the disagreement, not by conference and separate con-
currence as at present, but by holding a joint session.
_ Only twenty-one amendments to the Constitution have been adopted
in more than one hundred and fifty years. The number is really smaller
because the first ten amendments, which were all submitted

THE FIRST

at the same time, might just as well have been combined TEN AMEND-

into a single one. The remaining eleven amendments fall MENTS -

into three groups. The eleventh and twelfth were designed THE ELEV-

to remedy ambiguities and defects in the original Constitu- ENTH AND
tion perfecting amendments, they might be called. The

1 An amendment becomes effective before promulgation, however, and at the moment
ivhen ratification has been completed. Dillon v. Gloss, 256 U. S. 368 (1921).

'This is inserted in the Constitution as a limitation upon the powers of Congress; but it
operates as a limitation upon the power to amend the Constitution.

78 THE GOVERNMENT OF THE UNITED STATES

eleventh was a direct result of a Supreme Court decision (Chisholm v.
Georgia) which held that a citizen of one state could sue another state
in the federal courts, under the constitutional provision which extended
the judicial power of the federal government to "suits between a state
and citizens of another state." This affirmative interpretation of the
judicial power aroused the champions of states' rights, who bestirred
themselves successfully to have the legal immunity of the states made
clear. The other amendment, the twelfth, was proposed and adopted
because the presidential election of 1800 demonstrated the danger of
a deadlock in the election of a President and Vice-President,)

(For sixty-one years no further amendments were adopted, although
many were proposed. Then came the Civil War, and after its close, the
THE CIVIL postwar amendments thirteenth, fourteenth, and fif-
WAR AMEND* teenth embodying the principles for which the victorious
MENTS. northern states had been contending. These three amend-

ments embody, as it were, the terms of peace. They were submitted to
the legislatures of the states which had seceded, and acceptance was
made an essential of their readmission to the Union. Ratification of the
three amendments was virtually imposed upon these states by the
triumphant North. The southern states resented Jhis procedure, and they
have managed to make one of the postwar amendments, the fifteenth,
virtually inoperative^

Again there was a long interval during which no further amendments
were made. Time and again, proposals were made in Congress, but they

failed to obtain the necessary two-thirds majority. Mean-
LAST while, however, public sentiment was developing along

various lines - in favor of tax reform and the direct election
of United States senators, for example. Accordingly, within the short
space of twenty years, 1913-1933, six amendments were ratified. Of
these, the sixteenth permitted Congress to levy and collect taxes on
incomes without apportioning such taxes among the states; the seven-
teenth provided for the direct election of senators; the eighteenth in-
augurated a short-lived experiment in national prohibition; the nine-
teenth established woman suffrage; the twentieth changed the date of
the presidential inauguration and abolished the "lame duck" session of
Congress; while the twenty-first amendment repealed the eigJijE^nth. .
^*The Constitution has not been greatly changed by these 4wenty-ofte
amendments. Most of them impose restraints rather than add powers or
AMENDMENT change method^)Constitutional amendments in the United
AS A LAST States have been relatively few because there are easier
RESORT ' ways of gaining the same end^The election of the President

HOW THE CONSTITUTION HAS CHANGED 79

by what is essentially direct popular suffrage, for example, has been
secured by the voluntary individual action of the state legislatures; but if
these legislatures had persisted in naming the presidential electors (as the
Constitution permits them to do), rather than turning the election over
to the people, it is altogether certain that a constitutional amendment
would have been utilized to force the changel^Amending the Constitu-
tion, far from being a first recourse, is a channerof last resort for obtain-
ing what cannot be had by statute, by usage, or by judicial interpretation:
(In the general framework of American government, the changes of the
past century have been numerous but not fundamentalist is in the
practice of government, in the things which the laws,
judicial decisions, and usages determine, that most of the
changes have taken place. The people of the United States HAS BECOM
live under a far more powerful and more democratic MORE DEMO *
national government toda^than in the closing years of the
eighteenth century^This is not because there has been a revolution or a
series of revolutions. It is because so much development has been
possible within the broad terminology which the framers of the Con-
stitution employed; and because^the Supreme Court, during most of its
history, has shown a friendliness towards the expansion of federal
authority) * ^

And, after all, the form of a government reaches but a little way. It is
the spirit that giveth life. r c Constitute government how you please,"
Edmund Burke once wrote^"the greater part of it must
depend upon the exercise of powers which are left at large
to the prudence and uprightness of ministers of state. . . .
Without them your commonwealth is no better than a scheme on paper,
and not a living, active, effective organization. 5 ^It is allowable to repeat,
therefore, that the Constitution of the United states is not a "horse-and-
buggy" affair projected into a motorized era, but in almost every line it
has been expanded, modified, and brought into articulation with the life
of each succeeding age/Among present-day constitutions it is one of the
most up-to-date, the rflbst thoroughly modernized^; It is easy to pick
flaws in this fundamental law of the nation, but what body of men is
there nowadays that could be trusted to frame a better one?

So the government of the United States ought to be studied, not as a
static mechanism but as a living organism! not as a moribund heritage
from the past but as a going concern.. The American Constitution was
born in the eighteenth century, grew to vigor during the nineteenth, and
in the twentieth it* is naturally showing in its visage some wrinkles that
have to be smoothed out. Many of the young men and women who are

80 THE GOVERNMENT OF THE UNITED STATES

now in college will live to celebrate its bicentennial in 1987. What kind
of a Constitution will it be (if it survives) on its two-hundredth birthday?

REFERENCES

GENERAL SURVEYS. The development of the Constitution in all its more im-
portant phases is surveyed in A. C. McLaughlin's Constitutional History of the
United States (New York, 1935). Mention may also be made of E. M. Eriksson
and D. N. Rowe, American Constitutional History (New York, 1933), B. F. Wright,
The Growth of American Constitutional Law (New York, 1942), and Carl B. Swisher,
American Constitutional Development (Boston, 1943). The latter volume is valuable
for the more recent period.

SPECIAL STUDIES. Discussions on the various topics covered in the foregoing
chapter may be found in H. W. Horwill, Usages of The American Constitution
(Oxford, 1925), H. L. McBain, The Living Constitution (New York, 1927), C. E.
Merriam, The Written Constitution and the Unwritten Attitude (New York, 1931),
H. L. West, Federal Power: Its Growth and Necessity (New York, 1918), William
MacDonald, A New Constitution for a New America (New York, 1921), Alexander
Hehmeyer, Time for a Change: A Proposal for a Second Constitutional Convention
(New York, 1943), Conyers Read (editor) The Constitution Reconsidered (New York,
!938), A. C. McLaughlin, The Courts, the Constitution and Parties (Chicago, 1912),
W. M. Meigs, The Relation of the Judiciary to the Constitution (New York, 1920),
Carl L. Becker, Our Great Experiment in Democracy (New York, 1927), Felix
Frankfurter, Mr. Justice Holmes and the Constitution (Cambridge, Mass., 1927),
Charles Warren, Congress, the Constitution and the Supreme Court (Boston, 1925),
C. G. Tiedeman, The Unwritten Constitution of the United States (New York, 1890),
W. Y. Elliott, The Need for Constitutional Reform (New York, 1935), W. K.
Wallace, Our Obsolete Constitution (New York, 1932), Henry W. Elson, Through
the Tears with our Constitution (Boston, 1937), W. H. Hamilton and D. Adair,
The Power to Govern: the Constitution Then and Now (New York, 1937), Edward S.
Corwin, Constitutional Revolution Limited (Claremont, Calif., 1941), and William
B. Munro, The Makers of the Unwritten Constitution (New York, 1930). An entire
issue of the Annals of the American Academy of Political and Social Science (May, 1 936)
is devoted to a series of articles on "The Constitution in the Twentieth Century."
A history of the proposals to amend the Constitution up to 1889 may be found
in H. V. Ames, "The Proposed Amendments to the Constitution of the United
States during the First Century of Its History," Annual Report of the American
Historical Association, II (Washington, 1896); proposals to amend between 1889
and 1929 are found in M. A. Musmanno, Proposed Amendments to the Constitution,
published as House Document 551, Seventieth Congress, 2nd Session (Washing-
ton, 1929). For more recent proposals, attention is called to E. A. Halsey,
Proposed Amendments to the Constitution of the United States Introduced in Congress
Dec. 6, 1 926- Jan. 3, 1941 (Washington, 1941). A discussion of the procedure in
making constitutional amendments is found in L. B. Orfield, The Amending of the
Federal Constitution (Ann Arbor, 1942).

CHAPTER VI
CITIZENSHIP AND CIVIL RIGHTS

The God who gave us life gave us liberty at the same time. Thomas Jefferson.
What rights are his that dare not strike for them? Tennyson.

Citizens are those who possess full membership in a political com-
munity. They are differentiated from aliens, who do not have all the
rights which go with this full membership. In the United
States the citizens outnumber the aliens about thirty times ALIENS
over, and this disparity is steadily widening. Most aliens,
after they have lived for a sufficient time in the United States, become
naturalized citizens. They thereby acquire certain rights and privileges,
such as the privilege of voting, which they would not have if they con-
tinued to be aliens. {

Who are citizens of the United States and how have they obtained that
status? The Constitution in its original form uses the term "citizen"
seven times, but nowhere defines the term. Apparently it
was assumed that the existing rule of English law would be
followed: namely, that allegiance within the jurisdiction
would determine citizenship, and hence that all resident persons owing
allegiance to the United States would be regarded as citizens. But the
Constitution seems to have contemplated two types of citizenship, for it
speaks of "citizens of the different states" as well as "citizens of the United
States." By doing this, it created confusion and raised some embarrassing
questions. Could an individual be a citizen of the United States without
being also a citizen of some state in the Union? Or could he have state
citizenship without possessing national citizenship?

During the years preceding the Civil War, a great deal of controversy
arose as to whether there were really two citizenships, or merely two
phases of the same citizenship. Some interpreters of the

^-> . THE OLD

Constitution argued that the two citizenships were separa- CONTROVERSY
ble, and that citizenship of the United States was not a OVER DUAL

. . , . A , CITIZENSHIP.

necessary consequence of state citizenship. A state, they
maintained, might confer its own citizenship upon individuals without

82 THE GOVERNMENT OF THE UNITED STATES

thereby giving them the privileges of American citizens. Others con*
tended that the two citizenships were necessarily conjoined. No one, they
claimed, could be a citizen of a state without becoming also a citizen of
the United States, and vice versa.

After a great deal of discussion in pamphlets and speeches, this issue
finally came before the Supreme Court in the Dred Scott Case (1857),
THE DRED where the issue turned on the question of whether a state
SCOTT could grant citizenship to a Negro, and if so, whether this

DECISION. m ade him a citizen of the United States. Under the leader-
ship of Chief Justice Roger B. Taney, the court upheld the dual-citizen-
ship doctrine in these words:

It does not by any means follow that because he [Dred Scott] has all the rights
and privileges of a citizen of a state, he must be a citizen of the United States.
He may have all the rights and privileges of a citizen of a state and yet not be
entitled to the rights and privileges of a citizen in any other state. For, previous
to the adoption of the Constitution of the United States, every state had the
undoubted right to confer on whomsoever it pleased the character of citizen,
and to endow him with all its rights. But this character, of course, was confined
to the boundaries of the state, and gave him no rights or privileges in other
states beyond those secured to him by the laws of nations and the comity of states.
Nor have the several states surrendered the power'of conferring these rights and
privileges by adopting the Constitution of the United States. Each state may still
confer them upon an alien, or anyone it thinks proper, or upon any class or
description of persons; yet he would not be a citizen in the sense in which that
word is used in the Constitution of the United States, nor entitled to sue as such
in one of its courts, nor to the privileges and immunities of a citizen in the other
states. The rights which he would acquire would be restricted to the state which
gave them. 1

This astounding decision left the situation in a hopeless muddle. A
state might confer citizenship upon an alien without making him a citizen
of the United States. In that case, he would be left without the status of
an American citizen in international law; for the individual states were
not recognized by foreign countries as having power to confer citizenship.
Moreover, since the southern states did not accord citizenship to Negro
slaves, this decision placed them in the category of men without any
citizenship at all.

There the whole issue remained while the Civil War was being waged.

Lincoln's Emancipation Proclamation freed most of the slaves, but did

not confer American citizenship upon them. When the war

THE FOUR- was at an end, however, Congress passed a civil rights act

TEENTH which provided that all persons born i^i the United States

and not subject to any foreign power were to be deemed

1 Dred Scott v, Sandford, 19 Howard 393 (1857).

CITIZENSHIP AND CIVIL RIGHTS 83

citizens. This was followed, two years later, by the adoption of the four-
teenth amendment, which decreed that "all persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the states wherein they reside," thus defi-
nitely rejecting the doctrine of separable citizenship which had been
enunciated in the Dred Scott decision. Citizenship of the United States
was, by this amendment, made primary and fundamental. Since 1868
every citizen of the United States by birth or naturalization has become
automatically a citizen of the state in which he resides. 1 And no matter
where he resides, the fourteenth amendment provides that his privileges
and immunities as a citizen of the United States must not be abridged.

Now the words of this fourteenth amendment may at first glance seem
to be perfectly clear, but in reality they are not. For it will be noted that
the phrase "subject to the jurisdiction thereof," introduces a
limitation. It means that birth in the United States is not
absolutely conclusive in establishing American citizenship;
one must be born within the jurisdiction as well as within the boundaries
of the United States. Thus, children born to parents enjoying extra-
territorial privileges, for example, children born to diplomats stationed in
the United States, arc not American citizens by birth. Foreign legations
arc deemed to be outside the jurisdiction and are, by a legal fiction,
assumed to be part of the foreign country which the diplomat represents.
On the other hand, a person may be born outside the jurisdiction and
outside the United States for example, he may be the child of Amer-
ican parents residing abroad. In that case, if one of his parents resided
in the United States prior to the child's birth (and the conditions pre-
scribed by the Nationality Act are fulfilled), the child is entitled to have
the status of a natural-born citizen of the United States. 2

Lawyers know that there are two general doctrines upon which
citizenship by birth can be based. One is the English legal principle,
known as the jus soli, which regards place of birth as the
controlling factor; the other, known as jus sanguinis, is jwsmwrinis
derived from the old Roman law and puts the main empha-
sis on parentage. The United States recognizes both birthplace and
parentage as alternative qualifications. Accordingly, persons born on

1 Of course, it is possible for one to be a citizen of the United States without being a resident
of a state. He may reside in the District of Columbia, for example, or in Hawaii, Alaska, or
Puerto Rico.

2 The laws of nationality were revised and codified by the Nationality Act of October 14,
1 940. This Act deals in some detail with cases in which only one parent is a citizen of the
United States. See footnote, p. 84. On the general question of citizenship, see Luella Gettys,
The Law of Citizenship in the United States (Chicago, 1934), and Arnold J. Lien, Privileges and
Immunities of Citizens oj the United States (New York, 1913).

84 THE GOVERNMENT OF THE UNITED STATES

American soil and within the jurisdiction are entitled to claim American
citizenship no matter who their parents are; while children of American
parentage, residing outside the United States, are entitled to claim
American citizenship if certain formalities have been complied with. 1

American soil, on which a citizen may be born, includes not only
American legations abroad, but American ships of war anywhere (even
in foreign ports), though not American merchant vessels
even when on the high seas. It includes Alaska, Hawaii,
Puerto Rico, and the Virgin Islands, but not the Panama
Canal Zone. It matters not that a child's parents are both aliens; they
may even be aliens who are themselves ineligible for naturalization.
Thus the American-born child of Japanese parents, residing in the
United States, is an American citizen by birth, although his parents
are themselves ineligible to become citizens.

CITIZENSHIP BY NATURALIZATION

Citizenship may be acquired not only by birth but by naturalization.
Naturalization is a legal procedure by which aliens are transformed into

citizens. It may be either collective or individual naturaliza-
CITIZENSHIP ' .

BY NATURAL- tion. In the former case, whole bodies ot people are admitted

IZATION. to citizenship at one stroke, as when new territory is annexed

COLLECTIVE to the United States and the inhabitants of such territory
NATURALIZA- taken within the fold of American citizenship by treaty or
by act of Congress. This was done in the case of Texas.
Likewise the act of Congress which provided a civil government for
Hawaii in 1900 conferred American citizenship on all those who had
been citizens of the Hawaiian Republic. On several other occasions,
when the United States has acquired new territory by treaty, the in-
habitants of these territories have been collectively naturalized. 2 And,
by an act of 1924, citizenship was conferred upon all Indians born within
the jurisdiction of the United States.

But the mere acquisition of new territory by the United States does not
of itself admit the inhabitants to American citizenship. There must be a
specific provision by treaty or by action of Congress. The treaty with

1 If both parents are citizens, one having resided in the United States at some time prior
to the birth of the child, the law now imposes no further conditions. But if one parent only is a
citizen, he or she must have resided in the United States for ten years, half of that time after
reaching the age of sixteen; and the child loses citizenship unless he resides in the United
States for five years between the ages of thirteen and twenty-one.

2 For example, the Louisiana Treaty of 1803; the Florida Treaty of 1819; and the Alaska
Treaty of 1867. And in 1927 the inhabitants of the Virgin Islands were collectively admitted
to American citizenship by act of Congress.

CITIZENSHIP AND CIVIL RIGHTS 85

Spain in 1898, by which the United States acquired Puerto Rico and
the Philippines, contained no such provision; on the contrary, it stipu-
lated that the annexation of these islands should not oper- MERE CON .
ate to naturalize the Puerto Ricans and Filipinos. In 1917, QUEST DOES
however. Congress granted full status as citizens to the COLLECTIVE
Puerto Ricans. To the Filipinos it gave some of the privi- NATURALIZA-
leges and immunities of citizens; but it never made them TION *
citizens of the United States. Today they are citizens of the Philippine
Republic.

Individual naturalization, as the term implies, is the process of con-
verting aliens into citizens, one by one. The procedure is established by
federal statutes, more particularly by the Naturalization INDIVIDUAL
Act of 1906, and by the Nationality Act of 1940. While the NATURALIZA-
actual process of individual naturalization is performed by TION *
the courts, the preliminaries are supervised by the immigration and
naturalization service of the department of justice. This bureau main-
tains representatives at various centers throughout the country. It is their
business to assist applicants for naturalization and to relieve the courts
from the necessity of carefully checking all the facts stated in the ap-
plications.

There are three steps in the naturalization procedure, all of which
must be taken before a federal district court or a state court of competent
jurisdiction. The first step, commonly called "taking out
first papers," is a formal declaration of intention to become NATURALIZA-
a citizen. This declaration may be made by any qualified TION:
alien: that is, one who, being able to speak the English i. THE DEC-
language, is a white person, or of African nativity or of LARATION OF

AT- i ^ i j if i- x.U INTENTION.

Airican descent, or descended irom a race indigenous to the
Western Hemisphere. 1 Such declaration may not be filed, however, until
the alien has reached the age of eighteen years. It must contain informa-
tion as to the applicant's name, age, parentage, occupation, country of
origin, and time and place of arrival in the United States; a statement
that he is not an anarchist, or an opponent of organized government, or a
member of any group teaching opposition to organized government;-
and it must further declare his intention to renounce his former allegiance
and become an American citizen. A copy of this document, under the
seal of the court, is given to the alien, and must be presented by him
when he applies for final naturalization. Such is the normal procedure.

1 It will be noted thaf this wording excludes Chinese, Japanese, Hindus, and in fact nearly
all Asiatic aliens. Armenians, however, have been held to be "white persons," and a limited
right of naturalization is now extended to Chinese and other Asiatic aliens.

86 THE GOVERNMENT OF THE UNITED STATES

But an alien who marries a citizen, or whose alien spouse becomes a
citizen by naturalization, may be naturalized without first papers after
a residence of three years. The residential requirement is shortened by
one year if the two parties have been living in marital union throughout
the last year. 1

After not less than five years' continuous residence in the United

States, and not less than two or more than seven years after an alien

has filed his declaration of intention, he may take the second

o THE FIL~

ING OF A step. This involves the filing of a petition for citizenship.

PETITION FOR it ma y b e presented in one of the various courts designated

CITIZENSHIP. tit. i i-

by law as having authority over naturalization matters,
provided the applicant has lived within the jurisdiction of the court at
least one year immediately preceding the filing of his petition. The
petition must be signed by the applicant himself, and must give full
answers to a set of prescribed questions. If the alien has arrived in the
United States since June 29, 1906, his petition must also be accompanied
by a document from the United States immigration authorities certifying
the time and place of his arrival. In addition he must file with his
petition the sworn statements of two witnesses (both citizens of the United
States) in personal testimony to his five yearsj continuous residence and
his moral character, as well as in substantiation of the other claims made
in his petition. After this paper has been filed with the clerk of the court,
it must be kept without action for at least ninety days, during which time
a notice of its filing is publicly posted. In this interval an investigation of
the petitioner's statements is made by a federal agent.

All these formalities having been attended to, the petitioner awaits the
third and final step. The court sets a date for a hearing upon the petition.
3. THE This hearing must be public, and cannot take place within

GRANTING OF thirty days preceding any regular federal or state election.
rioN J oR LIZA " T* 10 a Ppli cant must answer such questions as are put to him
"FINAL by the presiding judge, who may demand proof that the

PAPERS." applicant understands and is attached to the principles em-

bodied in the Constitution of the United States. The rigor of this exami-
nation depends on the judge. He may, for example, inquire whether the
applicant is willing to fight for his new country. 2 He may ask him

1 Citizenship may likewise be acquired without formal declaration of intention by aliens
who have served three years in the United States Army or Navy and who are still so serving or
who have been honorably discharged therefrom.

2 In two cases, which attracted wide attention, the Supreme Court held that admission to
citizenship could properly be denied to any applicant who refused to affirm a willingness to
serve in the armed forces of the United States if called upon. One of these applicants was a
woman. See the decision in United States v. Rosika Schwimmer, 279 U. S. 644 (1929). The
other was a professor of theologv See the decision in United States v. Macintosh, 283 U. S.

CITIZENSHIP AND CIVIL RIGHTS &?

whether he understands what a writ of habeas corpus is, or how presi-
dential electors are chosen, or where the Supreme Court gets its power to
declare laws unconstitutional, or what is meant by the right of eminent
domain. And when he does, he is likely to get some strange answers.

Nowadays, however, it has become the practice to have examiners
from the naturalization service perform this work of inquiring into the
applicant's knowledge of American government. Then the judge takes
the examiner's word for it. In any event, if the court is satisfied that the
applicant is of eligible nativity or descent, has lived continuously for five
years in the United States, can speak the English language, is of good
moral character, a believer in organized government, understands and
is attached to the principles of the Constitution if the court is satisfied
on all these points, the oath of allegiance is administered and the clerk
of the court is authorized to issue letters of citizenship, or "final papers"
as they are more commonly called.

Quite a long process this is before an alien can say Civis Americanus sum!
As a matter of fact we expect from naturalized citizens a higher standard
of character, literacy, and willingness to fight than we exact REASON s FOR
from those who happen to have been born within the THE STRICT-
United States. Not all native-born Americans can produce PR^NT**
credentials certifying to their moral integrity, their knowl- NATURALIZA-
edge of the nation's government, and their willingness to TION LAWS -
defend the Constitution, right or wrong. The long roll of red tape which
encircles our naturalization procedure represents an attempt to get rid
of various abuses which existed under the earlier naturalization laws.
In those good old days great crowds of aliens were often herded into the
courtroom by politicians during the days immediately preceding an
election and given the oath of allegiance en masse. Paid witnesses were
provided by these politicians to vouch for aliens whom they had never
seen. The naturalization of newly arrived foreigners and the speedy
placing of their names on the voters' list became regular activities of the
ward bosses in every large city.

These abuses have now been eliminated, but at the expense of making
the new procedure tedious and complicated. Moreover, the present
method still leaves some leeway for political favoritism. The THE
judge (or the official examiner) can make the examination ^L^NATION
of an alien easy or difficult. He can ask a few perfunctory OF ABUSES.

605 (1931). In rendering these decisions the court had no discretion other than to apply
the naturalization law, which does not provide for any reservations to the oath of allegiance,
but requires every applicant to swear that he will "support and defend the constitution . . ,
against all enemies, foreign and domestic."

88 THE GOVERNMENT OF THE UNITED STATES

questions about the American ideology of government, or he can give
an oral examination that would flunk a college graduate. He can make
sure that the applicant actually speaks and understands the English
language (which is what the law requires), or he can be satisfied with a
nod of the head in answer to his questions. And of course any alien can
nod his head in English. While individual naturalization is supposed
to involve the admission of aliens one by one, it is still the occasional
practice to put them through in batches when the court finds itself too
busy to do otherwise. This is not surprising when one bears in mind that
more than one hundred thousand aliens are naturalized each year.

It is a rule generally recognized among nations that the naturalization

of a father carries with it the naturalization of all his legitimate children

under twenty-one years of as^c. provided they are resident

CITIZENSHIP . 7 i i T -i i i 1- r

OF WIVES m the country with him. Likewise, the naturalization ol a

AND husband makes his wife a citizen. This latter rule was fol-

lowed in the United States until after the close of the First
World War. An alien woman (if herself eligible for naturalization)
became an American citizen if she married one, and conversely an
American woman lost her citizenship if she married an alien. This, of
course, was a simple and easy arrangemont, but during America's
participation in the war it led to many embarrassments. American-born
women who had married Germans suddenly found themselves rated as
alien enemies in the United States, while German-born women who had
married American citizens found themselves similarly treated in Ger-
many.

By a series of legal enactments, therefore, Congress abrogated the old

rule, so that marriage no longer operates either to give citizenship or take

it away. A woman of foreign citizenship who marries an

THE CABLE A i i A

ACT (1922) American does not now become an American citizen
AND AMEND- thereby. She can become a citizen only by naturalization;
but in her case a shorter period of residence is required and
the formal declaration of intention is not needed. On the other hand, an
American woman who marries a foreigner does not lose her American
citizenship, although she may formally renounce it and assume her
husband's citizenship if she so desires. Moreover, if an alien woman
residing in the United States (being herself eligible for naturalization)
marries another alien who, although eligible for naturalization, does not
choose to take advantage of his opportunity, the alien wife may go ahead
and be naturalized without him. <

These changes were intended to "recognize the right of women to their
own individuality." They made the two sexes equal a^ regards the

CITIZENSHIP AND CIVIL RIGHTS 89

acquisition and loss of citizenship. The intent was commendable, but
the workings of the new system have not been altogether satisfactory.
Some confusion has resulted, because other countries hold THE
to the old rule. The American citizen who marries an alien RESULTING
woman gets a wife who has no citizenship at all, for her CONFUSION -
own country disclaims her and the United States does not accept her.
On the other hand, the American woman who marries an alien becomes
invested with two citizenships, for both her own and her husband's
country claim her. When a husband and wife travel together with pass-
ports which have been issued by two different nations, it is not surprising
that immigration officers in foreign countries raise their eyebrows.

There is a Latin maxim: Nemo potest exuere patriam no one can give
up his native citizenship. There are some countries which still hold to
that rule (or try to), but it has long been abandoned by the now cm-
United States. American citizenship can be given up by ZENSHIP MAY
becoming naturalized in some other country, or even by BE LOST *
taking the oath of allegiance to some other country. 1 It is also presumed
to be lost if a naturalized citizen resides for three years continuously in
the country of his origin, or for five years in any other foreign country.
There is a common belief that persons lose their citizenship when con-
victed of serious crimes and sent to prison. But what they lose is not their
citizenship but their civil and political privileges, including their right
to vote. 2

Are corporations citizens? Not literally so, but for most judicial pur-
poses they are. A corporation is deemed to be a citizen of the country or
the state in which it is chartered. The legal doctrine may be IS A COR _
briefly stated as follows: The citizenship of a corporation is PORATION A
determined by that of the persons composing it; but when CITIZEN -
the corporation receives its charter from a state, the presumption is that
its members are citizens of that state, and this presumption may not be
rebutted by any evidence to the contrary. No matter where its stock-
holders reside, therefore, a corporation chartered in New Jersey is by

1 Enlistment in a foreign army customarily involves taking such an oath and forfeits
citizenship. But in 1917 Congress passed an act providing that American citizens who enlisted .
in the armies of the Allied Powers could regain their citizenship by taking the oath of allegiance
to the United States. In the Second World War, before the United States entered it, many
Americans enlisted in the armed forces of Canada, which permitted them to do so without
exacting an oath of allegiance. By diplomatic agreement, in 1942, such men were repatriated
and Canadian residents of the United States exempted from the draft if, in each case, they
preferred to serve their own country. At the same time Congress provided, after the manner
of the act of 1917, for cases in which citizenship may have been lost through taking an oath
of allegiance to one of tly United Nations.

2 See Everett S. Brown, "The Restoration of Civil and Political Rights by Presidential
Pardon," American Political Science Review, Vol. XXXIV (1940), pp. 295-300.

90 THE GOVERNMENT OF THE UNITED STATES

legal fiction deemed to be a citizen of that state and as such is entitled to
the equal protection of the laws in all other states.

This principle becomes important in determining whether a suit to

which a corporation is a party can be brought in the federal courts as a

suit "between citizens of different states." Corporations

SUITS BE~

TWEEN chartered in different states come within the scope of this

AMERICAN provision. But while regarded by the courts as having a

TK^To^" judicial status of citizenship, a corporation is not a citizen

DIVERSE in the full sense of the term, and is not entitled to all the

STATE "privileges and immunities" which the Constitution guaran-

cmzENSHiP. r- o ^ ^ ...

tees to individual citizens. It is quite permissible in the laws

of any state to make reasonable discriminations between corporations
chartered there and those chartered elsewhere, and to give to the former
some privileges which are denied to the latter.

American citizens by birth and by naturalization are on a plane of

complete legal equality save in two respects. A naturalized citizen cannot

become President or Vice-President of the United States.

f ^Yf, L " And a naturalized citizen is not entitled to American pro-

II Y \JP AJLL. *

CITIZENSHIP, tection against public duties (such as military service) which
HOWSOEVER may be claimed from him by the country of his former

DERIVED. 7 ' '

allegiance if he goes back to that country. But he will be
protected against such claims so long as he stays in the United States.
Even aliens in the several states of the Union are entitled to the "equal
protection of the laws." Apart from the right to hold office and to vote,
to practice certain professions, and in some states to be employed by any
public authority, the legal status of an alien in the United States does not
differ appreciably from that of the citizen. He is taxed like a citizen; he
may sue and be sued in the courts; may own property, 1 practice any
legal trade, send his children to the public schools, and be generally pro-
tected in all the fundamental rights. So long as he behaves himself he is
not reminded of his alien status except on election day or when he
tries to get a job on the public pay roll.

CIVIL RIGHTS

What are the "constitutional rights" of the American citizen? We hear
much about these rights sometimes from people who have strange
THE cm- notions as to what they are. Thus one hears of the citizen's

ca T KrAr right to personal liberty, to freedom from arrest without

STI 1 U 1 1ONAJL

ZEN S CON-
STITUTIONAL

RIGHTS. warrant, freedom of speech, freedom to march in a pro-

1 In some states those aliens who are ineligible to citizenship cannot own or lease land,
e.g., in California

CITIZENSHIP AND CIVIL RIGHTS 91

cession with provocative banners, and so forth. As a matter of fact, noth-
ing is much more difficult to make than a list of the American citizen's
constitutional rights as they have been interpreted by the courts. It
would take a whole volume to name them, with all their limitations.

The national Constitution, including its amendments, enumerates a
considerable number of rights which must not be denied, impaired, or
abridged; but this enumeration is not intended to be complete. On the
contrary, it is expressly declared that the mention of certain rights shall
not be construed to deny or disparage others. 1 The various state con-
stitutions are also prolific in their assertion of civil rights, and here again
the list is not intended to be all-inclusive. To make the confusion worse,
both the federal and state courts have been strict in their interpretation
of some rights and liberal in construing others. So we have nowhere a
complete statement of just what constitutional rights an American citizen
possesses or does not possess. And if such a list were compiled today it
would be inaccurate tomorrow, for the courts are continually changing
their rulings in this field. As the Supreme Court said on one occasion,
the scope of these rights must be fixed by "a gradual process of judicial
inclusion and exclusion." 2 It is difficult to catalogue a gradual process.

But it may be said without hesitation that many things which the
average citizen claims as his constitutional rights are not rights at all.
The right to vote, for example, is not a right guaranteed by SUFFRAGE IS
the federal Constitution. The highest court in the land has NOT ONE OF
made it clear that "the Constitution of the United States THEM>
does not confer the right of suffrage on anyone." 3 What the federal Con-
stitution does is purely negative: namely, to decree that the suffrage shall
not be denied to anyone on certain grounds viz., race, color, previous
condition of servitude, or sex. But it may be denied for lack of age,
residence, literacy, or even property. Voting is a right which a citizen
obtains by showing himself possessed of the qualifications which have
been established by the state in which he resides.

There is no constitutional right, moreover, to hold public office, to
serve on a jury, to get married, to practice law, to keep a drugstore, to
attend a state university, to drive a motor car on the public NOR B
highways, or to do various other things which people often OFFICE-
say they have a "right" to do. The laws give them these HOLD ? NG -
privileges, withhold them, or grant them under such various restrictions
as the public interest may seem to require. All this is not mere shadow-

1 Ninth amendment. *

8 The Slaughterhouse Cases, 16 Wallace, 36 (1872).

8 Minor v. Happersett, 21 Wallace 162 (1874).

92 THE GOVERNMENT OF THE UNITED STATES

boxing with words, for between a constitutional right and a privilege
conferred by law there is a fundamental difference. In the common
speech the distinction is usually disregarded; but students of government
should get into the habit of using these terms in their proper sense, for
loose terminology and cloudy thinking are comrades always.

The rights of the American citizen are formulated, first of all, in a series
of limitations on the power of Congress, some of which are contained in
the original Constitution and some in the articles of amend -
ALIENABLE ment, particularly in the first ten amendments which, taken
RIGHTS SE- together, are commonly called the bill of rights. These
^ U ^ D THE rights, as there stated, include (i) the right to be immune
NATIONAL from punishment by any bill of attainder or ex post facto
CONSTTTU- j aw ^ ^ to j iave t h e privilege of the writ of habeas corpus
except when the public safety may require its suspension,
(3) to enjoy freedom of worship, freedom of speech, freedom of the press,
freedom to assemble peaceably, and freedom to petition the government
for the redress of grievances.

They include likewise (4) the right to keep and bear arms when so
authorized by the militia laws of any state, (5) to have no soldiers billeted
on them except in time of war l and then only in a manner prescribed
by law, (6) to be secure in person and in home against unreasonable
searches and seizures, and from the issue of search warrants without
probable cause supported by oath, (7) to be given in the federal courts
all manner of judicial protection, including security against trial for any
serious crime except upon action of a grand jury, and (8) assurance
against being twice placed in jeopardy for the same offense, (9) in
criminal cases to be assured a speedy and public trial by jury, (10) to be
informed of charges, (n) to be confronted with witnesses, (12) to have
the assistance of counsel, (13) to have jury trial also in important civil
cases, (14) to be free from the requirement of excessive bail, and (15) not
to be subjected to any cruel or unusual punishment.

Also they comprise (16) the right to be free from bondage or involun-
tary servitude save as a punishment for crime, (17) the right to be pro-
tected in life, liberty, and property unless deprived thereof by due
process of law, and (18) to receive in every state of the Union the equal
protection of the laws. 2 In addition, every citizen has (19) the right to
pass freely from state to state, (20) to acquire a residence in any state

1 General Theodore Roosevelt, in writing of his experiences as a billeting officer in France
during the First World War says, "I knew nothing about billeting except that it was forbidden
by the Constitution of the United States." Average Americans (New'/ork, 1920). He should
have added "except in time of war,'* which is a highly important exception.

8 For an explanation of "due process of law" and its history see Chapter XXXII.

CITIZENSHIP AND CIVIL RIGHTS 93

and to be accorded the same privileges as those citizens who are already
resident there, and (2 1 ) to sue and be sued in the courts. Finally, there is
the assurance (22) that private property will not be taken except for
public use and then only with just compensation; and (23) a republican
form of government is guaranteed to every state in the Union. 1

This list of rights guaranteed by the Constitution of the United States
does not form a complete catalogue of civic rights, but only of the funda-
mental ones. Nor do most of them appertain to citizens

11 i 11 i i . . ,. . THE FORE-

alone, but extend to all persons within the jurisdiction. GOING LIST
This fact should be strongly emphasized, because it is too IS NOT

r i i i i A 11 i i i COMPLETE.

frequently overlooked. All constitutional rights are at the
same time constitutional limitations, that is, limitations upon the power
of the public authorities to interfere with the rights of the individual. The
Constitution does not say that people shall have freedom of speech; but
it achieves the same end by stipulating that "Congress shall make no
law . . . abridging the freedom of speech." A significant feature of the
Constitution is that while it contains only twenty grants of power or
thereabouts, it sets forth at least thirty specific prohibitions, restrictions,
and limitations. Well might Washington write to Lafayette, as he did in
1 788, that this document was "provided with more checks and barriers
against the introduction of tyranny . . . than any government hitherto
instituted among mortals hath possessed." The exact scope of these
checks and barriers against tyranny will be the theme of a later chapter. 2
For the most part, the guarantees in the national Constitution protect
the individual's rights against the federal government only. The provision
for trial by jury, for example, applies only to the federal Q BY THE
courts. But virtually all the state constitutions also guarantee STATE CON-
trial by jury, so that the jury system is established in the STITUTIONS -
state courts as well. It is a point worth emphasizing, moreover, that no
right conferred by either the national or state constitutions is unlimited.
The right of free speech does not imply the liberty of every citizen to say
what he pleases, regardless of its truth or falsity. The right to freedom of
worship does not entitle the members of any religious cult to contract
polygamous marriages, under the guise of practicing the tenets of their
faith. The right to freedom of the press gives no license to print libels.
As the Supreme Court once said in quite another connection: "The
liberty of the individual to do as he pleases, even in innocent matters, is
not absolute. It must frequently yield to the common good, and the line

beyond which the power of interference may not be pressed is neither

1 These various rights are discussed under the appropriate headings in later chapters.

2 See Chapter XXXII.

94 THE GOVERNMENT OF THE UNITED STATES

definite nor unalterable, but may be made to move, within limits not well
defined, with changing need and circumstance." 1

Unhappily, we hear more about the rights of the citizen than about
his duties. The crook and the chiseler, when haled into court, demand
all their rights under a Constitution which they have had
no scru pl es about violating. The rabble-rouser who brands
the Constitution as an obstacle to human freedom, and calls
for its overthrow by violence if need be, is nevertheless the very first to
demand a writ of habeas corpus, a trial by jury, and the equal protection
of the laws which this document guarantees. Even traitors and spies, the
agents of totalitarian tyrants, have not hesitated to seek, when brought
to book, all the protection that the Constitution provides in the way of
barriers to tyranny.

Of course every right, of whatever sort, carries an obligation along
with it. The right to the equal protection of the laws carries with it,
as on the reverse of a shield, the obligation to obey these

DUTIES AND l aws - The right to vote (if you insist on calling it a right)
involves the duty to vote. The right to claim protection
against foreign enemies carries with it the duty of helping to build up a
government that will be able to give this protection. The right to sue in
the courts carries with it the obligation to abide by their decisions. The
right to share in the making of laws is conjoined with the duty of co-
operating in the observance of these laws. It is a poor sort of citizenship
that claims the rights and avoids the obligations. "The primal duties" of
citizenship, as Wordsworth says, should "shine aloft, like stars."

What, then, are the primal duties of the citizen? They are not set forth
in the Constitution, it is true, but they are implied in the very nature of
WHY DUTIES f rce government. The citizens of a democracy who act upon
NEED EM- the assumption that popular government imposes no duties
PHASIS. w jjj - m t j me h ave no rights worthy of the name. Popular

government implies not only government for the people but by the
people. To a far greater extent than any other form of government it
makes demands in the way of self-sacrifice, public spirit, intelligence,
and watchfulness. "Our forefathers," declaimed Pericles, "have long
possessed this land and by their valor they made it free." But the fore-
fathers of a people cannot keep a country free. Their descendants must
do that, if it is to be done, by being willing to give as well as take.

The Constitution of the United States, for example, guarantees to every
citizen that he shall have the privilege of living under a "republican
form of government." But this guarantee will mean much or little as

1 Adkins v. Children's Hospital, 261 U. S. 525 (1923).

CITIZENSHIP AND CIVIL RIGHTS 95

each living generation chooses to make it. A government may be repub-
lican in form and yet be very bad government inefficient, oppressive,
and corrupt. All the governments of Central and South

r PROPER PER-

America are republican in form; yet some of them are FORMANCE
nothing but guerilla dictatorships with military juntas able OF GIVIG

. , , . T-X. , - ^ DUTIES IS

to seize power at an hour s notice. Dictatorships in Ger- ESSENTIAL TO
many, Russia, France, and elsewhere have masqueraded in GOOD

i i r LI T, ^i GOVERNMENT.

the garb ot republicanism, lo say that a government is
republican in form, or even democratic in form, means nothing. Euro-
pean and Asiatic dictatorships claim to be the most "popular" govern-
ments ever devised, with a solicitude for the people's welfare never
matched in all the ages. Yet not a single one of the civic rights guaranteed
by the Constitution to the people of the United States has been tolerated
by these dictatorships.

Every American citizen, Gentile or Jew, ought to read and ponder the
parable of Jotham in the Old Testament. It is the oldest, and one of the
best parables in the literature of democracy. "The trees A PARABLE
went forth on a time to anoint a king over them; and they AND ITS
said unto the olive tree, Reign thou over us." But the olive LESSON -
tree replied, as many a professedly good citizen has done when asked to
do some public service: "Should I leave my fatness wherewith by me
they honour God and man and go to be promoted over the rest of you?"
So they repaired to their [second choice, the fig tree. "But the fig tree
said unto them, Should I forsake my sweetness, and my good fruit, and go
to be promoted over the trees?" And to the vine they went, with the same
result. Presently, however, they came to the bramblebush with their in-
vitation to rulership. And the bramblebush, true to type like a modern
politician, was more than willing to serve. Said the bramblebush: "If in
truth ye anoint me king over you, then come and put your trust in my
shadow; and if not, let fire come out of the bramble, and devour the
cedars of Lebanon." l

When the olives, the fig trees, and the vines in the arboretum of a
nation's citizenship disdain to fulfill their civic obligations, the bramble-
bushes of politics will step in and give any country, or any community,
the kind of government it deserves. The excellences of a constitution avail
little if the actual machinery of government be not based upon a sound
sense of individual duty. The world has never yet been able to maintain
a successful democracy on foundations of public indifference and com-
placency. ,

1 Judges, ix: 8-15.

96 THE GOVERNMENT OF THE UNITED STATES

REFERENCES

CITIZENSHIP. All the general treatises on international law contain discussions
of the theory of citizenship and the rights of citizens under the law of nations.
In addition Charles H. Maxson, Citizenship (New York, 1930), J. S. Wise,
A Treatise on American Citizenship (Northport, N. Y., 1906), and Luella Gettys,
The Law of Citizenship in the United States (Chicago, 1934), contain discussions of
the subject. Mention should also be made of F. A. Cleveland, American Citizen-
ship as Distinguished from Alien Status (New York, 1927), C. Seckler-Hudson,
Statelessness, with Special Reference to the United States (Washington, 1934), Carl
Brinkmann, Recent Theories of Citizenship in Its Relation to Government (New Haven,
1927), and C. B. Moore, Our American Citizenship (New York, 1936). In 1936 there
was issued by the Government Printing Office a compilation entitled Naturaliza-
twn. Citizenship and Expatriation, and thirty years earlier a report on Citizenship
of the United States was published as House Document 326, Fifty-ninth Congress,
second session (Washington, 1906). The national status of women is discussed in
W. E. Waltz, The Nationality of Married Women (Urbana, 1937).

PROTECTION OF CITIZENS ABROAD. E. M. Borchard, Diplomatic Protection of
Citizens Abroad (new edition, New York, 1927), Milton OfTutt, The Protection
of Citizens Abroad by the Armed Forces of the United States (Baltimore, 1928), and
F. S. Dunn, The Protection of Nationals: a Study in the Application of International Law
(Baltimore, 1932).

NATURALIZATION. J. L. Tenny, All about Naturalization (Chicago, 1926), J. T.
De Bolt, The Naturalization of Aliens and Their Duties as Citizens (Honolulu, 1924),
D. H. Smith, The Bureau of Naturalization (Washington, 1926), and Herbert M.
Beck, How to Become an American Citizen (Philadelphia, 1941). A useful compila-
tion is Francis Kalnay and Richard Collins, The New American; a handbook of
necessary information for aliens, refugees, and new citizens (New York, 1941).

STATUS OF ALIENS. W. M. Gibson, Aliens and the Law; Some Legal Aspects of the
National Treatment of Aliens in the United States (Chapel Hill, 1940), N. Alexander,
The Rights of Aliens under the Federal Constitution (Montpelier, Vt., 1931), H. La-
vine, The Fifth Column in America (New York, 1940), and Sidney Kansas, U. S.
Immigration, Exclusion and Deportation, and Citizenship of the United States (2nd edi-
tion, Albany, 1940).

CIVIL RIGHTS. A general account is given in Leon Whipple, The Story of Civil
Liberty in the United States (New York, 1927). The standard work is T. M. Cooley,
Treatise on Constitutional Limitations (8th edition, 2 vols., Boston, 1927), but ma-
terial may also be found in the various books on constitutional law mentioned
at the end of Chapter IV. Special studies of the subject are Arnold J. Lien,
Privileges and Immunities of Citizens of the United States (New York, 1913), Roger
Howell, The Privileges and Immunities of State Citizenship (Baltimore, 1918), F. J.
Stimson, The American Constitution as It Protects Private Rights (New York, 1923),
James Schouler, Ideals of the Republic (Boston, 1908), A. N. Snow, American
Philosophy of Government (New York, 1921), Rodney Mott, Due Process of Law
(Indianapolis, 1926), Herbert C. Hoover, The Challenge to Liberty (New York,
1 934)> William H. Murray, Rights of Americans under the Constitution of the Federal
Republic (Boston, 1937), and George Soule, The Futu/e of Liberty (New York,
1936). Free Speech in the United States > by Zechariah Chafee, Jr. (Cambridge, Mass.,

CITIZENSHIP AND CIVIL RIGHTS 97

1941), contains a thorough study of one important provision in the federal bill of
rights. References at the close of Chapter XXXII should also be consulted.
Attention is further called to the articles appearing in the Bill of Rights Review,
a quarterly periodical begun in 1940 under the auspices of the American Bar
Association.

civic DUTIES. On the duties of the citizen, reference may be made to the dis-
cussions in Elihu Root, Addresses on Government and Citizenship (Cambridge, Mass.,
1916), especially the first seventy-five pages, William H. Taft, Four Aspects of
Civic Duty (New Haven, 1911), James (Viscount) Bryce, Hindrances to Good
Citizenship (3rd edition, New Haven, 1910), C. E. Merriam, Civic Education in the
United States (New York, 1934), William Allen White, Politics: The Citizen's
Business (New York, 1924), George A. Coe, Educating for Citizenship (New York,
1932), and Irving Babbitt, Democracy and Leadership (Boston, 1924).

CHAPTER VII
THE PRIVILEGE OF VOTING

Nature docs not bestow virtue;
We are born for it, but without it.

Cicero.

"Democracy," said Herodotus, "is a form of government in which the
people rule." This is one of the earliest, the simplest, and the least in-
formative among all definitions of democracy ever framed.
DEMOCRACY ^ or cven dictatorships claim to be governments in which the
people rule. They profess to be governments by popular
consent, and outwardly they are. But consent which allows no alterna-
tive is no consent at all. It used to be taken for granted that universal
suffrage, if established and maintained, would guarantee a democratic
system of government. But we have learned, somewhat late in the history
of political science, that dictatorships arc sometimes the ones that have
the widest suffrage. The qualifications for voting in Russia, as set forth
in the constitution of that country, are the most liberal of any country in
the world.

All this means that true democracy requires something more than
letting everybody vote. It is indeed quite compatible with a limited
electorate, provided those who have the right to vote are allowed to
register their real judgment at the polls, without intimidation by the
public authorities and with a free choice between alternatives. In some
countries the whole adult population has gone to the polls on election
day, amid the ringing of bells and the blaring of bands; but only to
approve the policies and the candidates of the party that was already
in power. Universal suffrage, under such conditions does not mean
much.

So, while the size of the electorate may be of importance, it is not the

principal thing. The American system of government does not rest on

universal suffrage alone, but on free suffrage, on the free

CITIZENS AND . r ,, . M r . 1,1 11

VOTERS. exercise of the privilege of voting by those who have it.

And who are those who have it? People 'sometimes use the

terms citizen and voter as though they meant the same thing, but not all

THE PRIVILEGE OF VOTING 99

citizens are voters. There are millions of young American citizens in
forty-seven states of the Union who do not qualify as voters because they
are not yet twenty-one years of age. The voters comprise that portion of
the citizenry which has been given the privilege of voting. And this
proportion has been steadily widened during the past hundred and fifty
years until today it includes virtually all adult citizens of both sexes.

Yet neither in law nor in fact is there any necessary connection be-
tween citizenship and voting. Citizenship is a federal matter. The federal
government determines, under the Constitution, who shall
be rated as citizens, whether by birth or by naturalization.
But the federal government does not give voting privileges SUFFRAGE
to anyone. It makes citizens, not voters. The states deter-
mine who shall vote, even at national elections. It is true,
of course, that the states are not free to make any rules they please on
this point; they are forbidden to deny the suffrage on certain grounds
(namely, race, color, previous condition of servitude, or sex), and they
must also (for congressional elections) establish the same suffrage require-
ments that exist for elections to the larger branch of their own state
legislatures. But even with these restrictions they have a good deal of
discretion left them. They may allow aliens to vote; and before the
First World War, at one time or another, seventeen states did so. It was
not until 1926 that the last of these (Arkansas) abolished alien voting.

The states determine, moreover, the residence requirements for voting,
the taxpaying requirements, and the educational qualifications if there
are any. Within the constitutional limits they may set up THE STATES
any requirements they please. They could, if they so desired, CONTROL THE
provide that no one may vote at a presidential or con- SUFFRAGE -
gressional election unless he is able to recite the Declaration of Independ-
ence, or sing the high notes in the Star-Spangled Banner, or go through
the manual of arms. No state has done anything of the sort, of course, or
is likely to do so; but all of them have set up various specific requirements
for voting such as a period of residence in the state, sometimes the
payment of a poll tax, ability to read and write, or even the capacity to
pass a mild intelligence test. That is why the requirements for voting at
presidential elections are not uniform throughout the United States.
A citizen may be a voter at the presidential election in Pennsylvania,
when, under exactly the same conditions, he would not be permitted to
vote at a similar election in New York.

In the thirteen colonies before the American Revolution the privilege
of voting was generally restricted to male property owners and taxpayers.
Sometimes religious qualifications were added. The Declaration of

100 THE GOVERNMENT OF THE UNITED STATES

Independence proclaimed the equality of men; but the newly independ-
ent states did not carry this preachment into effect by giving voting
SUFFRAGE IN r ^ghts to all of them. They kept their several requirements
COLONIAL for voting. This situation created embarrassment in the
DAYS. constitutional convention of 1787 when it discussed the

question as to who should vote at congressional elections. Some wanted
the national suffrage confined to owners of land; some favored extend-
ing it to all taxpayers, whether they owned land or not.

Hardly anyone, among the framers of the Constitution, favored man-
hood suffrage although Benjamin Franklin, ever liberal in spirit, wanted
THE it made certain that "the common people" would have

DECISION votes. Then someone raised the question: Why not let each

IN 1787. state settle the matter for itself? Let those who are given the

right to vote in each state automatically become voters at congressional
elections. This seemed to be an easy solution, and it was adopted without
a dissenting voice.

With the matter thus left to the various states, the drift to a liberal
suffrage began at once; but for a time the opposition was strong and the
A GRADUAL progress slow. The anti-suffragists of those days put up a stiff
EXTENSION fight against the "vulgarization of politics," as they called
AFTER 1787. j t ^ anc j even so a j 3 } e a jurist as Chancellor Kent predicted
that "the extension of voting rights to all white men on equal terms would
end in the ruin of government and in universal calamity." But the move-
ment for a widened suffrage kept gaining impetus, and by 1820 most of
the states had abolished their property qualifications.

Then the new spirit of frontier democracy, as prefigured by Andrew
Jackson, surged out of the West. On the frontier a man is a man if he can
THE SPREAD survive the struggle for existence. And he is as good as any
OF MANHOOD other man. For this reason the new western states insisted
SUFFRAGE. Qn giving every man a vote, and every voter a right to hold
office. Some of them went even farther and extended the suffrage to aliens
as well as to citizens. This equalizing movement, moreover, did not con-
fine itself to the new West. It backwashed across the Alleghenies to the
older states and had its influence there. In one state after another, North
and South, the suffrage was liberalized by the abolition of property
qualifications, tax requirements, and religious tests. By the close of
Jackson's second term, in 1837, manhood suffrage had been adopted by
all the states except four with property and six with taxpaying quali-
fications; and these joined the procession later.

Consent of the governed and universal suffrage now have become so
closely associated in the American public mind that we wonder how

THE PRIVILEGE OF VOTING 101

men who were filled with the Spirit of 1776 could withhold the ballot

from three quarters of the adult population and yet believe that their

government was soundly based upon the voice of the people.

But such was the case. At the presidential election of 1832,

half a century after the Declaration, less than a million and 1832 AND

a quarter votes were polled in a population of more than I932 GOM "

twelve and a half millions or about 10 per cent. At the

election of 1932, a century later, the polled vote was nearly 30 per cent of

the population.

Manhood suffrage, as most of the states understood it in early days,
did not include the Negro. Except in a few New England states, colored
citizens were everywhere excluded from voting. Nor was

i 11 i r r i rr THE NEGRO

there any general demand for an extension ol the suffrage SUFFRAGE

to the Negro until after the Civil War. Then arose the PROBLEM.

question whether voting rights should be guaranteed to the TH L

new freedmen. Congress, by the Reconstruction Act of 1 867, FIFTEENTH

J TVT T A l_ ^ ^ r -uU r /^ AMENDMENT.

imposed JNegro sunrage upon the states ot the former Con-
federacy; and three years later the fifteenth amendment forbade the
denial of voting rights to any citizen, by any state, on grounds of "race,
color, or previous condition of servitude."

To enact such a prohibition proved easier than to enforce it. For a
time, the national government applied coercion to the southern states;
but this policy proved effective only so long as federal IT HAS NOT
troops were on hand to make it so. Since 1877, when the BEEN
troops were withdrawn, the southern states have successfully EFFEGTIVE -
managed to evade or circumvent the provisions of the fifteenth amend-
ment. At first they did it by Ku-Klux methods, intimidating the Negro
into staying away from the polls. But presently there developed a feeling
that these rough-handed methods could not go on forever, and that the
disfranchisement of the Negro ought to be "legalized. 55 The artifices
which have been used for this purpose ought to be explained, if only to
show how legal provisions can be set at naught when there is an over-
whelming public sentiment in favor of doing so.

Now it will be observed that the fifteenth amendment does not forbid
the denial of voting rights to illiterate persons. And a literacy test would
ihut out the great majority of colored citizens in the rural
areas of the South. But the southern states also contain EVADING IT
many white persons who are unable to read and write;
hence the problem i one of keeping the illiterate Negro out while letting
his illiterate white neighbor in. The attempt was made to solve it by
providing that every voter must be able to read a paragraph from the

102 THE GOVERNMENT OF THE UNITED STATES

state constitution, or, as an alternative "give a reasonable interpretation
thereof." This was on the assumption that any white voter, however
illiterate, could expound the constitution to the satisfaction of the
registrars, they being of his own color. On the other hand, the illiterate
colored man who would set out to give these white officials a "reasonable
interpretation" of habeas corpus, due process of law, attainders of
treason, second jeopardy, eminent domain, excess condemnation, and
what not well, the result can be left to the imagination of anyone who
knows the Southland.

When the Supreme Court of the United States was asked to decide
whether this provision constituted a breach of the fifteenth amendment,
UPHELD BY ^ e decision was that it did not "deny or abridge the right
THE SUPREME of any citizen to vote on account of race, color, or previous
COURT. condition of servitude." 1 Legality was thus conferred upon

the "reasonable interpretation" procedure despite its sinister purpose;
but in due course it was found to have some defects from the politician's
point of view. No matter how leniently it was administered, the provision
kept many illiterate whites off the voters' list, for there were some who
proved unable to give a reasonable interpretation of anything to any-
body. So the resourceful solons of Dixie turned to that handy refuge of
many a shiftless man his honest ancestors. They provided that any
illiterate man, otherwise qualified, might be registered as a voter within
a limited period if he or a lineal ancestor had possessed the right to vote
on or before January i, i867, 2 or (in Alabama, Georgia, and Virginia)
had served in the armed forces of the United States or the Confederate
States. This alternative, which was intended to let in every white citizen,
but keep out every colored one, came to be known throughout the country
as "the grandfather clause." 3

But the grandfather clause proved a little too raw for the gowned
gentlemen who sit on the supreme bench at Washington. When the
r,, AT, issue came before them from the border states of Oklahoma

DEdl.,AKEL)

UNCONSTI- and Maryland, they ruled the grandfather clause to be an
TUTIONAL. evasion of the fifteenth amendment and hence unconstitu-
tional. 4 "It is true," said the court in this decision, "that it [the grand-
father clause] contains no express words of an exclusion, from the stand-

1 Williams v. Mississippi, 170 U. S. 213 (1898).

2 This was the date of the earliest act of Congress granting suffrage to the Negroes in the
southern states.

8 It would be more accurate to use the term "permanent-registration clause"; for among
the six states of the Solid South resorting to the practice, the "grandfather" provision was
omitted in South Carolina and combined with other qualifications in Alabama and Virginia.

4 Guinn v. United States, 238 U. S. 347 (1915), and Myers v. Anderson, 238 U. S. 368

THE PRIVILEGE OF VOTING 103

ard which it establishes, of any person on account of race, color, or previ-
ous condition of servitude . . .; but the standard itself inherently brings
that condition into existence." Before this decision was rendered, how-
ever, all grandfather clauses in the Solid South had expired by limitation.
While they were still in vigor a good many illiterate white citizens had
been placed permanently on the voting lists. What is, then, the sig-
nificance of the decisions? It will prevent any revival of the old procedure
for the enrollment of a new generation of illiterate white voters.

Some southern states gain their purpose by establishing rigid require-
ments as to residence and by making the payment of a poll tax essential.
In three states, residence of two years in the state and a year pOLL TAX
in the county is insisted upon. This helps to eliminate the QUALIFICA-
migratory element among colored workers. Negroes in TIONS -
large numbers neglect to pay the poll tax, especially when white tax
collectors put no pressure on them, even to the extent of sending a notice.
Those who do pay it often lose or mislay the tax receipt, which must be
produced at election time. 1 Mention should also be made of the fact that
in some southern states it is provided by law that disfranchisement may
be ordered on conviction for such misdemeanors as petty theft, vagrancy,
or trespass. These so-called "chicken and watermelon laws 55 accomplish
at least a part of their purpose.

Finally, there is a way of permitting Negroes to be registered as
voters, but nevertheless depriving them of any real share in the selection
of public officials. This is made possible by the system of

T^ 11 if i EXCLUSION OF

party organization. Practically all the southern states are NEGROES

overwhelmingly Democratic. The candidates who receive FROM THE
. . . , . , . r , i- i PRIMARIES.

the nomination at the primary elections ot that political

party are certain to win at the polls; hence the real fight is for the nomi-
nation. So Texas in 1923 adopted the expedient of providing that no
Negro should be qualified to participate in a Democratic primary and
that any ballot cast by a Negro at such primary should be thrown out.
But here again the Supreme Court intervened and held this provision un-
constitutional as denying to Negroes "the equal protection of the laws." 2
Thereupon the Texas legislature tried to circumvent the decision by
providing that the state executive committee of each political party
should "prescribe the qualifications of the party's own members, 55 and
thus to control eligibility to vote at the primaries. Then the Supreme
Court again intervened to enforce "the equal protection 55 clause of the

1 Attempts have been ihade in Congress to secure the abolition of poll taxes as a require-
ment for voting, but thus far they have not been successful.

2 Nixon v. Herndon, 273 U. S. 536 (1927).

104 THE GOVERNMENT OF THE UNITED STATES

Constitution. 1 But this was not the end of the matter; for the decision in
this case intimated that a political party might, on its own initiative and
undirected by state law, prescribe qualifications for membership in the
party and hence for voting at the party primary. Thereupon the Demo-
cratic state conventions adopted a rule excluding Negroes, and in a
unanimous decision the Supreme Court held this action to be constitu-
tional. Nevertheless, in a more recent decision, the Supreme Court
virtually reversed itself, holding that Negroes are entitled, under the
fifteenth amendment, to participate in primaries, and that a state cannot
nullify this right by electoral laws which permit a private organization to
discriminate against them. 2

Moreover, if worst comes to worst, the colored citizen can be registered

as a voter at both primaries and elections, but actually debarred from

appearing at either. He can be required to prove that he

OTHER was never convicted of any offense: he can be bullied by the

METHODS . ' 1-1 i

OF KEEPING polling orhcials; or he can be warned in advance to keep
NEGROES away and he will usually do it. The number of Negroes

FROM THE . .. , . . . i.i

POLLS. who actually vote in the southern states has been relatively

small although recently, especially in urban areas, that
number has been increasing. There is evidence, moreover, of greater
interest on the part of southern Negro organizations in the voting status
of their race. Given time and mutual understanding, this whole con-
troversy may iron itself out. Most people agree that the victorious north-
ern states erred after the Civil War in insisting on immediate political
equality for the two races, thereby creating in the South a situation that
was bound to prove difficult. Seventy-five years after the event it seems
clear that emotion rather than cool judgment ruled the mind of the
nation when it adopted the fifteenth amendment.

The framers of the fourteenth amendment foresaw that the white
population of the South might attempt to exclude colored citizens from
EFFECT ON voting, and they provided Congress with a possible method
THE BASIS O f penalizing any state that should do this. Here is the

OF REPRE- . .

SENTATION. provision:

But when the right to vote at any election for the choice of electors for Presi-
dent and Vice President of the United States, representatives in Congress, the
executive and judicial officers of a state, or the members of the legislature thereof,
is denied to any of the male inhabitants of such state, being twenty-one years of
age, and citizens of the United States, or in any way abridged, except for par-
ticipation in rebellion or other crime, the basis of representation therein shall be

1 Nixon v. Condon, 286 U. S. 73 (1932).

2 Smith v. Allwrisrht, 321 U. S. 649 (1944).

THE PRIVILEGE OF VOTING 105

reduced in the proportion which the number of such male citizens shall bear
to the whole number of male citizens twenty-one years of age in such state.

The stipulation, be it noted, is that the basis of representation "shall
be reduced," but it never has been. Congress alone has power to enact
the reduction, and Congress has never been ready to do it, HAS NOT
although measures in that direction have been brought in BEEN MADE
from time to time. Southern congressmen have argued (and OPERATIVE -
if you read the above provision carefully you may agree with them) that
if the basis of representation is reduced by reason of Negro exclusion in
the South, it should also be reduced in those northern states which
exclude thousands of citizens from voting because they cannot read and
write, or because they cannot pass an elementary intelligence test
as in New York State. At any rate, there is little likelihood that Congress
will reduce the quota of representation from either section of the country.

It is significant that, of the nine amendments which have been added
to the Constitution of the United States during the past hundred years,
three deal with suffrage (the fourteenth, fifteenth, and nine- THE ISSUE
teenth), all of them by way of prohibiting its denial on OF WOMAN
specified grounds. The nineteenth amendment, which be- SUFFRAGE -
came effective in 1920, resulted from an agitation which had been carried
on with varying degrees of vigor for nearly three quarters of a century.
The right of women to the ballot is sometimes said to be a natural right,
and deducible from the fundamental principles of American government.
If so, it took the American people a very long time to recognize the funda-
mental principle in this case. As a matter of fact, they looked upon the
issue as one of expediency, not of principle. They were reluctant to
double the electorate until they could be convinced that some good
would come of it.

The agitation for woman suffrage began in the first half of the nine-
teenth century, but before the Civil War it made no headway, for people
could not be brought to take it seriously. The agitation for

BEGINNINGS

"woman's rights" merely furnished the theme of perennial AND
jokes, cartoons, and humorous ditties. But after the Civil PROGRESS OF

THE MC
MENT.

War the movement began to make some progress. Manhood THE MOVE "

suffrage had been won; the Negroes had been technically
enfranchised ; these older issues were out of the way. The arena was clear
for a new suffrage battle; and it was soon in progress. In 1869 the advo-
cates of votes for women won their first skirmish in the territory of Wyo-
ming, when womerj were given the suffrage at territorial elections;
and the privilege was continued when the territory became a state in
1890. During the next ten years Colorado, Idaho, and Utah were also

106 THE GOVERNMENT OF THE UNITED STATES

chalked up as states which enfranchised women on the same terms as
men. Other states did likewise, one by one, during the next two decades,
until in 1915 there were about a dozen of them in all.

But the leaders of the movement lost patience with the slow process
of winning the states one by one. They wanted nation-wide enfranchise-
THE NINE- nient and wanted it quickly. So they turned their energy to a
TEENTH constitutional amendment which had been slumbering for

AMENDMENT. man y years in the files at Washington. 1 Congress responded
to their pressure in 1919, passed the proposed amendment by a two-
thirds vote in both Houses, and sent it to the states for ratification. The
necessary three fourths of the states accepted it as the nineteenth amend-
ment in a little more than a year, thus putting it into effect for the
national election of 1920.

This is hardly the place to recapitulate the arguments for and against
woman suffrage, which were poured into the ears of the American people
RESULTS OF ^ or a half century or more. The issue is now settled prob-
WOMAN ably settled for good, and doubtless settled rightly. We

SUFFRAGE. have now had more than twenty-five years of nation-wide
sex equality at the polls, but what the result has been there is no way of
determining, for the ballots cast by men and women are not kept sepa-
rate. From the superficial indications, however, there is no reason to
believe that the extension of the suffrage to women has made any sub-
stantial change in the quality of the electorate, whether for good or ill.
It has doubled the voting lists throughout the country, thus making the
registration of the voters and the holding of elections more expensive.
Candidates now have to reach twice as many voters with their propa-
ganda and incidentally do it with less vulgarity than in the old days.

On the other hand, the nineteenth amendment has made twice as

many people contented with their electoral status, and has removed an

irrelevant issue from American politics. Sex has no more

WOMEN VOTE , , , , - ,.,. ,, , !

AS MEN DO right to be an issue m politics than has race, or color, or
religion. The extension of the suffrage to women has un-
doubtedly developed among them a more vital interest in public affairs.
They are using the ballot as men have used it with about as much
intelligence or lack of it. They appear to be susceptible to the same influ-
ences, good and bad. Like their husbands and brothers, some women
vote regularly and with discrimination, while others go shopping on
election day or vote for the hillbilly candidate who talks humbug over
the radio. Some women voters are unbossed in their own homes but
thoroughly bossed by a ward leader, or perhaps by a clergyman who finds

1 Known as the Susan B. Anthony amendment. It was first proposed in 1 878.

THE PRIVILEGE OF VOTING fOT

political parables in his gospel texts. In a word, some are wise serpents
and some are harmless doves, even as male voters have always been.

Most of the predictions which were made concerning woman suffrage
thirty years ago have turned out to be false. It is often so in politics, where
predictions are usually the by-products of wishful thinking. Far from
supporting candidates of their own sex, wqgjien have generally preferred
to vote for men. Women voters during the past couple of decades have
not, as far as one can discern, altered the party predominance in any of
the strongly partisan states. On the whole, they have attached themselves
to the established political loyalties. TJ^ consensus of opinion is that
their enfranchisement has not altered the relative strength of the major
political parties in any region of the country.

Controversies as to who shall have the privilege of voting are not yet
at an end. The question of debarring illiterates, of whatever sex or color,
is under discussion. Eighteen states now apply a literacy
test. Of these, some require that voters shall be able to read;
others insist that they shall be able both to read and write. GENERAL
The test is usually given by the registrar of voters or by the LIT ^ RACY
election board, and in that case often turns out to be a per-
functory affair. Administered by these bipartisan officials, it does not
shut out most of those who ought to be excluded. It fails to exclude large
numbers of applicants who can barely write their own names and who
have great difficulty in reading, much less understanding, simple para-
graphs in any newspaper.

New York State has had, for some years, a new type of literacy require-
ment which virtually operates as a mild intelligence test. The require-
ment is that every new voter who cannot present a cer-
tificate of graduation from the fifth grade of an elementary
school in which English is the language of instruction (or
from a higher school) must pass a literacy test administered by the school
authorities, not by the election officials. 1 The test is uniform throughout
the state. It consists of a paragraph of simple English (about 100 words),
which each applicant is first required to read. He must then answer in
writing six or eight easy questions based upon the paragraph. This plan,
however, has not worked any too well because of partisanship in its
administration.

In any event, the adoption of a stringent literacy test is always opposed
by the practical politicians of all parties. They argue that political

capacity is not related to education. Men who can neither read nor

1 Persons who have attended an evening school and completed a prescribed amount of
work are given a certificate of literacy without taking the test.

GOVERNMENT OF THE UNITED STATES

write are required to pay taxes, they point out, and to serve in the army

during war, as well as to perform other civic obligations. That argu-

^ ment, of course, is not relevant to the issue. The real ques-

THE AHHKr

MENT FOR^ tion ijwhether the giving of the ballot to illiterates is desirable
AND in th^fcferal interest, and to that question there can be but

AGAINST IT. ^^^ ans^k GiAig the ballot to anyone who cannot read
or understand it is surely not in the public interest. This is particularly
true in communities which use the initiative and referendum, thus
submitting a long list of complicated questions to the decision of the
voters. m*

People do not always seem to realize that the ballot is potentially the
most dangerous weapon that can be placed in the hands of any man. As
an instrument for doing damage on a nation-wide scale, when unwisely
used, there is nothing that compares with it. Its capacity for harm is
surely not diminished when it is placed in the hands of men who do not
know what they are voting for or against. Literacy is not a luxury in
America, with free day schools for children and free evening schools for
adults. No alien who cannot read and write is eligible to be naturalized.
No illiterate, in most states, is allowed to serve on a jury. It has now
become virtually impossible for anyone to get or hold a job above that
of a common laborer unless he can read and write. When these things are
considered, the literacy requirement for voting does not seem to be an
unreasonable one.

The idea that the average voter really understands the problems of
American government today is one of the agreeable fictions that have
come down to us from pioneer days when there was some
CREASING basis for it. Just run through the pages of the Congressional

DIFFICULTY Record for any session of Congress. You will find discussions
rc ^ m S lo deficiency appropriations, rediscount rates,
railroad differentials, immigration quotas, cartels, the
freezing of foreign credits, amortization of plant expansion, excess profits
taxes, gold and silver purchases, capital levies, credit inflation, agricul-
tural adjustment and farm loans, collective bargaining, dollar devalua-
tion, stabilization of exchange, equalization funds, social security,
unemployment insurance, public utility regulation, the guarantee of
bank deposits, and many other topics of equal complexity. It may be
doubted whether one American citizen in five has any clear compre-
hension of what most of these things mean. Certainly not one in a hun-
dred understands them in all their applications. If he is not out of work,
the average voter is busy. When he is not busy, he r is tired. When he is
not tired, he is worried. To ease his mind he reads the sports section of

THE PRIVILEGE OF VOTING 109

the newspaper or listens to the radio, from neither of which does he get
much real enlightenment on public issues.

Some states still maintain a tax qualification for voting. In eight of
them, every voter must have paid a poll tax. 1 The usual argument for
imposing a tax qualification is that nobody should have a TAX QUALI-
voice in spending public money unless he has contributed FIGATIONS
some of it. But this argument errs in assuming that the only FOR VOTING -
people who pay taxes are the ones who pay directly. What about the
indirect taxpayer? Everyone who pays rent pays taxes. Everyone who buys
goods pays taxes. Every grocery bill, doctor's bill, or gas bill is a tax bill
in part. A portion of it goes to pay the taxes which are levied on grocers,
doctors, gas companies, and others. Between taxpayers and non-
taxpayers it is not possible to draw a sharp line of distinction. Many of
those whom we call "large taxpayers" are nothing but middlemen for
others. They are landlords, merchants, or manufacturers who collect
taxes in rents or prices and then pass them along to the public treasury.

Citizenship has now become an absolute requirement for voting.
None but American citizens are permitted to vote in any part of the
United States. The minimum voting age is twenty-one, CITI ZENSHIP
except in Georgia, where it has been reduced to eighteen. AGE, AND
The argument for this reduction, which is under discussion RESIDENCE -
in other states, is that boys who are old enough to be drafted into the
army are old enough to vote. All the states prescribe a certain minimum
requirement of legal residence, ranging from six months to two years.
Sometimes there is a double requirement, such as three months in the
county or city and a year in the state. Legal residence, however, does not
necessarily involve actual residence. One may be a legal resident of a
state or city while actually living, perhaps for several years, somewhere
else. President Roosevelt was a legal resident of Hyde Park, New York, a
registered voter there, although for many years he had spent the major
portion of his time elsewhere at Albany or in Washington. A voter's
legal residence is where he claims his home, or, as a judicial decision once
expressed it, "the place from which, when going, he goes, and to which,
when coming, he comes." It is not necessarily the place at which he stays.

There are certain disqualifications which also ought to be mentioned.
These include conviction for certain serious crimes. Election frauds
are sometimes penalized by disfranchising those convicted
of them. Some states exclude from their voters' lists all
soldiers, sailors, and marines in active service. Insane

1 As already indicated, there is a movement to require the abolition of poll tax payments
as a requirement for voting; but Congress has not yet taken the initial step in that direction.

110 THE GOVERNMENT OF THE UNITED STATES

persons and those confined in certain public institutions of incarceration
are also barred. Legal residents of the District of Columbia are not dis-
qualified from voting, but they never get an opportunity to vote because
no elections are ever held there. The District has neither presidential
electors, senators, representatives in Congress, governor, assemblymeix,
mayor, or councilors. It is ruled by three appointive federal com-
missioners. 1

Hence, when we say that "universal suffrage prevails in the United

States/' the saying is only roughly correct. To be accurate one should

say that in the United States a person usually has the right

SUMMARY. ' i . / \ /i \ r

to vote it he or she is (a) a citizen, (b) twenty-one years of
age or over, (c) a legal resident in a given state and locality for a pre-
scribed length of time, (d) able to read and write, in states which have
literacy tests, (e) a taxpayer, where so required, (f) not disqualified in
any way, and (g) forehanded enough to get registered in time. These
various requirements, taking them together, shut out at least ten million
adult inhabitants of the United States.

No one is registered as a voter for national elections. Each state makes
provision for the enrollment of voters, and these lists are used at the
REGISTRA- national elections. Each state performs the work of register-
TION OF ing voters according to its own methods, and these methods

VOTERS. differ in efficiency from state to state. In any event the

national government has no control over them. On the other hand, Con-
gress has the right to judge the qualifications of its own members; hence,
if a senator or representative appears to have been chosen through the
wrongful inclusion or exclusion of names on the voters' lists, he can be
denied a seat. This, in a roundabout way, gives Congress a means of
insisting upon fair play in the registration of voters.

People in general are more insistent on having the right to vote than
upon exercising this right. Threaten to take a man's voting privilege
away, and he will fight like a gladiator to retain it. But give

k to him > and he wil1 often tuck it: awa y in moth balls -

There are millions of eligible voters who never register,
and millions more who register but do not go to the polls. In the most
hotly contested presidential elections at least twenty per cent of the
registered vote remains unpolled. In state and local elections the per-
centage of stay-at-homes is frequently twice as large. Some years ago
there was a feeling that the situation might be improved by permitting
absent voting; that is, by allowing voters whose business takes them
away from home on election day to vote before they go, or to send their

1 Sec Chapter XXXIII.

THE PRIVILEGE OF VOTING 111

ballots by mail. Absent voting is now permitted in forty-four states; but
the results have not been up to expectations. Relatively few voters take
advantage of the opportunity.

Various other remedies for nonvoting have been proposed. Com-
pulsory voting has been advocated, but does not exist anywhere in the
United States. In some other countries the procedure is to
impose a small fine upon every voter who, without valid
excuse, stays away from the polls on election day; or, for
repeated absences, to strike his name from the voters' list altogether.
But such measures have not proved to be generally effective. In some
cases, the compulsion has merely availed to increase the number of blank
ballots which voters drop in the box. Anyhow the voter who goes to the
polls because he will be fined for staying away is not likely to mark his
ballot with much discrimination. Voting is a duty which ought to be
performed from motives of civic responsibility, not from fear of the
penalties. People do not become good citizens by going to the polls.
They go to the polls because they are good citizens. They go because
they are interested. They stay away because they have no interest, or too
little interest, in the issues or the candidates. And when one reflects
upon the kind of issues and candidates that arc sometimes presented to
them, this lack of popular interest is not altogether surprising.

Energies ought therefore to be concentrated upon the task of clarifying
the issues, vitalizing the party system, and improving the quality of the
candidates as a means of getting the people interested,
informed, and aroused between elections. Registration NONVOTING? R
should be made less irksome, the ballot simpler, elections
less frequent, party cleavages more distinct and vital, and party programs
fevlteive. Above all, our campaigns of civic education should be more
icnsive, more persistent, and more effective in reaching those
the electorate which are most in need of sound information,
ly such campaigns begin and end where the need is least
among business and professional organizations, in women's clubs, in
the editorial columns of newspapers, and on the radio at hours when most
voters are at^prk. Enterprises in civic education should be carried to the
factory gates and into the workers' homes. Most important of all, they
should be dramatized to catch the imagination of those whom the gospel
is intended to reach.

REFERENCES
*

THE ELECTORATE AND THE SUFFRAGE IN GENERAL. The best historical Outline

of the general subject is Kirk H. Porter, History of the Suffrage in the United States

112 THE GOVERNMENT OF THE UNITED STATES

(Chicago, 1918). A. J. McGulloch, Suffrage and Its Problems (Baltimore, 1929),
is a useful discussion. Material may also be found in the books by P. Orman Ray,
Robert C. Brooks, Edward M. Sait, and others listed at the close of Chapter
VIII.

WOMAN SUFFRAGE. I. H. Irwin, The Story of the Women's Party (New York, 1921),
Helen L. Sumner, Equal Suffrage (New York, 1909), and C. C. Catt and N. R.
Shuler, Woman Suffrage and Politics (New York, 1923). E. C. Stanton, S. B.
Anthony, and M. J. Gage (editors), History of Woman Suffrage (4 vols., New York,
1881-1902), is of value on the earlier stages of the movement.

NEGRO SUFFRAGE. G. T. Stephenson, Race Distinctions in American Law (New
York, 1910), Paul Lewinson, Race, Class and Party: A History of Negro Suffrage and
White Politics in the South (New York, 1932), W. F. Nowlin, The Negro in American
Politics Since 1868 (Boston, 1931), and James S. Allen, The Negro Question in the
United States (New York, 1936).

ELECTIONS AND VOTING. J. P. Harris, Registration of Voters in the United States
(Washington, 1929), and the same author's Election Administration in the United
States (Washington, 1934). The problem of the stay-at-home voter is discussed in
C. E. Merriam and H. F. Gosnell, Non-Voting: Causes and Methods of Control
(Chicago, 1924), and H. F. Gosnell, Getting Out the Vote (Chicago, 1927). General
discussion of voting habits may be found in J. K. Pollock, Jr., Voting Behavior; a
Case Study (Chicago, 1939), the same author's Absentee Voting and Registration
(Washington, 1940), and C. H. Titus, Voting Behavior in the United States (Berkeley,
I935)-

CHAPTER VIII

'POLITICAL PARTIES IN NATIONAL GOVERN-
MENT: WHAT THEY ARE AND WHY THEY EXIST

However combinations and associations of the above description [political parties]
may now and then answer public ends, they are likely, in the course of time and things,
to become potent engines by which cunning, ambitious, and unprincipled men will be
enabled to subvert the Power of the People and to usurp for themselves the reins of
government. . . . Washington's Farewell Address.

, The Power of the People, as Washington termed it, is ineffective with- >
out leadership. This axiom of the science of government may be regarded
a self-evident one, if anything is. x Sixty million American
voters constitute an enormous repository of political power, SOVEREIGNTY
but without leadership and direction this reservoir of is FUTILE
popular sovereignty would dissipate itself into numberless WITHOUT
channels and become quite futile. Thereby it would engen-
der governmental chaos and probably result in the complete abolition
of all open political dissent, as it has done in some European countries.
The insistence upon unified leadership, even though it may involve the
giving of dictatorial power to some one man, is a reaction from the in-
direction of the Power of the People.

mt by free political parties is merely another name for demo-
'ernment.% Nowhere has there ever been a free government
political parties^ Political parties existed even in

- """^/ PARTIES

ancJenfrepublics and mediaeval cities, although they were BEGAN WITH
not known by that name. There were Lancastrians and HUMAN
Yorkists, Cavaliers and Roundheads in England long before
the AmericatfT^evolution. (There were Whigs and Tories in the thirteen
colonies. These rival factions sometimes settled issues by breaking heads
rather than by counting them, but they were the ancestors of our political
parties at the present day^

The men who framed tRe Constitution of the United States OPPOSITION
did not believe in p?rty government. On the contrary, they pr^ s T o
sought to provide a scheme of government which would THE PARTY
be free from all "violence of faction," as Madison called it: SYSTEM -

114 THE GOVERNMENT OF THE UNITED STATES

Among the numerous advantages promised by a well constructed union, none
deserves to be more accurately developed than its tendency to break and control
the violence of faction. ... By a faction I understand a number of citizens,
whether amounting to a majority or a minority of the whole, who are united
and actuated by some common impulse of passion, or of interest, adverse to the
rights of other citizens, or to the permanent and aggregate interests of the com-
munity. 1

Thus it was Madison's idea that a well-constructed government would
keep groups of people from organizing in response to a common impulse;
and his associates, including Washington, shared this view. So they
ignored political parties altogether, making no mention of them in the
Constitution. But everyone now realizes that a government has no energy
of its own and must be propelled into action. Its motive power is fur-
nished by representatives whom the voters elect, and in the nature of
things the voters cannot intelligently elect anybody without organization
and leadership. Give people the right to govern themselves, to choose
their own representatives freely, and to speak their minds without let or
hindrance do this and political parties will inevitably appear, no
matter what the Constitution may intend. It has been so in America.
The stone which the builders rejected has become the chief stone of the
corner. The only way to silence the rivalry of political parties is to
abolish free elections, free discussion, and free government.

For a short time after 1787 no regular political parties made their
appearance in the United States. Washington's election was unanimous
on both occasions. But before the end of his second term he
TON^ANTIP- saw indications that "the spirit of party" was rearing its
ATHYTO sinister head and in his farewell address tried to

people on their guard against this danger. "In tl
solemn manner" he warned the nation "against tl
effects of the spirit of party generally," and declared that it h
in "governments purely elective." His warning was so earnes^|pf it
deserves inclusion here:

I have already intimated to you the danger of parties in thjj^te, with par-
ticular reference to the founding of them on geographical disSRinations. Let
me now take a more comprehensive view, and warn you in the most solemn
manner against the baleful effects of the spirit of party generally. ... It serves
always to distract the public councils and enfeeble the public administration.
It agitates the community with ill-founded jealousies and false alarms; kindles
the animosity of one part against another; foments occasionally riot and insur-
rection. . . . There is an opinion that parties in free countries are useful checks
upon the administration of the government, and serve to keep alive the spirit

1 The Federalist, No. 10

PARTIES: THEIR NATURE AND PURPOSE 115

of liberty. This within certain limits is probably true and in governments of a
monarchical cast patriotism may look with indulgence, if not with favour, upon
the spirit of party. But in those of the popular character, in governments purely
elective, it is a spirit not to be encouraged. ... A fire not to be quenched, it
demands a uniform vigilance to prevent its bursting into a flame, lest, instead
of warming, it should consume. 1

But this clarion call for "uniform vigilance" fell upon heedless ears.
Party divisions were bound to arise; in fact they had already arisen. The
members of the constitutional convention had already
divided on party lines although they did not realize it. THE BEGIN-
Alexander Hamilton and Luther Martin, Edmund Ran- NINGS OF

AMERICAN

dolph and William Paterson were as partisan in the con- POLITICAL
vention as Andrew Jackson and John Quincy Adams PARTIES -
became forty years later. From the very outset of their

iiM - ^ J 1 ^ j'-jj'^^ THERE WERE

deliberations, the delegates were divided into two groups PARTY
on questions of general policy. A majority believed in a real GROUPS EVEN
union; they wanted to make the states subordinate to the STITUTIONAL
nation and to bestow large powers upon the central govern- CONVENTION.
ment. These were the Federalists. On the other hand there
was a strong minority of delegates who desired that no power should go
to the central government if it could possibly be left to the states. These
were the Anti-Federalists.

These two groups continued their rivalries during the contest for
ratification. The Federalists supported the new Constitution in the
various state conventions, while the Anti-Federalists op-

. THE FED-

posed it. But the line of demarcation between the two was ERALISTS AND
not yet a rigid one; and, when the Constitution was finally ANTI-

./ , , A . T-. i i- 11 i- i i FEDERALISTS.

ratified, the Anti-Federalist opposition naturally died down.
Washington, when he formed his first administration in 1789, tried to
complete the healing of the breach by taking into his cabinet the two
outstanding leaders of divergent political thought, Thomas Jefferson
as secretary of state and Alexander Hamilton as secretary of the treasury. 2
For the rest, however, he chose his appointees from the Federalist ranks.
Thus the Federalists were actually in control, although disclaiming all
idea of partisan government. The country rallied to the new administra-
tion, partly because people wanted to give it a chance and
partly because the improved economic conditions were ERALISTS IN
thought to be due to it. The excesses of the French Revolu-
tion (1789-1795) likewise disgusted public opinion in

1 The Writings of Washin&ton> edited by L. B. Evans (New York, 1908), p. 539.
8 For the interesting story of the rivalry between these two notable statesmen, see Claude
G. Bowers, Jefferson and Hamilton (Boston, 1925).

116 THE GOVERNMENT OF THE UNITED STATES

America and led the voters to think more of internal order and national
defense than of state rights and individual liberties.

Still, the activities of the new federal government, more particularly
the work of Alexander Hamilton, aroused a good deal of opposition.
-r, O^TTOV To the farmers and frontiersmen, Hamilton's new deal

1 rlE,IK. JrlJL,lL<X

AROUSES looked like a surrender to the moneyed and shipping

OPPOSITION. interests. Jefferson, whose lack of sympathy with Hamilton
was not concealed even while he was a member of the same cabinet,
presently came to be recognized as the champion of the opposition, and
his followers (strange as it may seem today) began to be called Repub-
licans. 1 Washington did not align himself openly with either side and
until his retirement from office managed to keep "the violence of faction"
from becoming "a fire not to be quenched."

But when he retired to Mount Vernon, and John Adams became his
successor, the breach rapidly widened. Hamilton could not work in
THEIR DIS- harmony with Adams; and this dissension weakened the
UNION UNDER Federalists. This gave Jefferson and his followers a chance
ADAMS. to rna j ce headway with the people. By their support of the

Alien and Sedition Acts (1798), moreover, the Federalists committed a
serious error; for the feeling against this legislation was so strong that
every prosecution provided the occasion for a popular demonstration
against the Federalists. At the election of 1800, therefore, Jefferson was
able to win the presidency, and his followers assumed control of the
national government.

The election of 1800 disclosed a clean-cut division into political parties,

not merely among the leaders but among the people. The agricultural

population of the country, the back-country grain growers,

THE JEFFER- f or foe most part supported Jefferson ; the industrial and the

SONIAN VIC- i rr u

TORY OF trading interests of the seaboard fringe went chiefly to

1800. Adams. The change from Adams to Jefferson was, therefore,

a turnover of much political significance. The Federalists

SUPREMACY r

OF THE had placed more emphasis upon order than upon liberty.

REPUBLICANS Jefferson and his supporters professed a philosophy of
1824). government which laid stress upon the natural rights of the

citizen. But while they reversed some of the Federalist
policies after coming into office, they did not abandon any of the powers
which had been acquired for the new national government. They con-
tinued the protective tariff; and in purchasing Louisiana Jefferson gave

1 Later, in the " reign " of Andrew Jackson, they came to be called Democratic-Republicans.
Still later they became known as Democrats, while their opponents assumed the designation
of Whigs and then Republicans All this explains why Jefferson is often called a founder of
the Democratic party, though he called himself a Republican.

PARTIES: THEIR NATURE AND PURPOSE 117

the Constitution a wider stretch than it had ever been given by the
Federalists. Nevertheless, Jefferson remained strong in the confidence
of the people, as his reelection proved in 1804; and he was able to pass
the presidency to his disciple, Madison, at the close of his second term.
During the two administrations of Madison, the Federalist party still
further disintegrated, and at the election of 1820 placed no candidate
before the people. With the reelection of James Monroe in 1820, the
Jeffersonian Republicans were in complete control, their candidate
having carried every state in the Union. 1 The Federalist party went out
of existence.

But no single party ever remains permanently in control of a free
government. A political majority, when it becomes too strong, invites
disintegration within its own ranks. In this instance the THE PARTY
triumphant leaders found that they could not act together; CHAOS OF
so they went their several ways, each carrying a section 4 *
of the party with him. Henry Clay, John C. Calhoun, William Crawford,
Andrew Jackson, DeWitt Clinton, and John Quincy Adams each had
his following. Party politics, for a time, gave way to personal politics.
It was for this reason that the people failed to give any presidential
candidate a majority in 1824 and thus compelled the House to make the
choice. The action of the House in electing John Quincy Adams instead
of Andrew Jackson served to unite most of the erstwhile personal factions
behind these two rival leaders, one group calling itself the National
Republicans (later Whigs) while the other Democrats adopted the desig-
nation Democratic-Republicans. The election campaign of 1828 was
fought by these two parties, and Jackson won.

"The election of General Jackson to the presidency," says Edward
Channing, "was the most important event in the history of the United
States between the election of Jefferson in 1800 and that of

THE ELEG"*

Lincoln sixty years later." 2 Every President down to 1828 TION OF

had come from Virginia or Massachusetts. They had been JACKSON AND

drawn from the Brahmin caste of American society. Even DEMCX^RATK:

Jefferson and Madison, although holding liberal views, SUPREMACY
represented in their education and habits the courtly
standards of the Virginia gentleman. Jackson, by way of
contrast, was a product of the new West. He embodied the spirit of the

1 One elector from New Hampshire gave his vote for John Quincy Adams for President,
and thus deprived Monroe of a unanimous election. It has been frequently said that this
recalcitrant elector did so in order to prevent anyone else from sharing with Washington the
honor of a unanimous choice, but this statement is not true. The elector had other reasons for
his action. See Edward Su.nwood, A History of the Presidency (revised edition, 2 vols., Boston,
1928), Vol. I, p. 118.

2 The United States, 1/65-1865 (New York, 1896), p. 208.

118 THE GOVERNMENT OF THE UNITED STATES

frontier. A fighter by instinct, his whole life had been spent in fights
against Indians, Englishmen, and reactionaries. After his election to the
presidency he kept on fighting against everything that he regarded
as the enemy of the common man.

^Jackson gave the United States its first new deal. His policies were
forceful; they made him warm friends and bitter enemies. Above all,
they solidified the division of the people into two regular parties, one
conservative and the other more liberal, then known as Whigs and
Democrats. 1 Jackson's extension of the spoils system made his party
organization stronger by giving it something tangible to fight for. Even
more far-reaching in its effects upon the American party system was his
successful fight to break up the congressional caucus as a mechanism for
nominating presidential candidates, thus paving the way for the rise of
the national party conventions.

(*fhe Democrats continued to hold power until 1841, having reelec ted
Jaclcson in 1832 and named Van Buren as his successor in 1836. Then
THE ALTER- commenced an era of party alternation in office. The issue
NATIONS AND o f slavery came more and more to dominate the political
ZATON^OF arena, and in the end it split both the Whig and Democratic
THE PERIOD parties asunder. During the middle fifties a new Republican
1840-1860. party arose from the ruins of the old Whig organization
and clinched its position by securing the election of Lincoln over a
divided opposition in 1860^ This election ushered in a period of Repub-
lican control of the presidency which continued for twenty-four years,
from 1861 to 1885.

The Civil War, while it lasted, drew into the Republican ranks all
those who believed in "the unconditional maintenance of the Union,
the supremacy of the Constitution, and the complete sup-
pressioii of the existing rebellion with the cause thereof
WAR ON by all apt and efficient means." It was by appealing to the

PARTY voters on this program that the Republicans reelected

Lincoln in 1864. When the war ended, it left the Republican
party strongly entrenched. Then came the difficult task of reconstruction,
which kept sectional bitterness alive; and it was not until the end of
Grant's second term (1877) that the two great parties began to align
themselves upon issues unconnected with the Civil War.

One of the legacies of the war was a high tariff, and the continuance of
a protective policy during the seventies drew to the Republicans the

x The Whig party was organized in 1834 by a combination oC the National Republicans
with the Anti-Masonic group and dissident Democrats who had been alienated by certain
acts of President Jackson.

PARTIES: THEIR NATURE AND PURPOSE 119

support of the large business interests of the country. Questions of finance

and currency also came to the front during this period,

and they were dealt with by Republicans in a way which

drew support from those who believed in conservative leg- LIGANS WITH

islation. The Democrats, on the other hand, made their THE BUSINESS

7 ' INTERESTS.

appeal to the friends of tariff reduction, to the agricultural
voters of the South, to those who had radical views on matters of finance
and currency. Grant, Hayes, and Garfield successively THE ELEG _
carried the Republican standard to victory during these TION OF
years, and it was not until the election of 1884 that the Re- l88 4*
publican hold upon the presidency was relaxed. Even then, the triumph
of Grover Cleveland was due to the weakness and indiscretions of the
Republican candidate.

At each of the next four elections the tariff figured as a prime issue,
although the Democratic adoption of a free-silver program in 1896 thrust
the question of bimetallism into the foreground. The RECENT
Democrats did not find this issue a winning one and PARTY DE-
dropped it from their platform. Until 1912, therefore, the VELOPMENTS -
cleavage between the two major parties remained fairly clear, and it
related more directly to the tariff than to any other issue. In 1912, how-
ever, there came a schism in the Republican ranks, a revolt against the
alleged reactionary methods and tendencies of its leaders, with the result-
ing formation of the short-lived Progressive party. This xdivision in the
Republican ranks made certain the success of the Democrats and the
election of Woodrow Wilson for his first term. By 1916 the breach had
been somewhat healed, but a new issue had now thrust itself upon the
political scene. The tariff dropped out of public discussion, and there
were no currency questions in dispute. The relation of the United States
to the World War, which for two years had been raging in Europe, was
the chief issue in the minds of the people. President Wilson was reelected
by the votes of those who appreciated his endeavors to keep the country
out of war; but no sooner had he been inaugurated for his second term
than circumstances forced America into the great conflict.

This war came to an end in 1918, and President Wilson went to
Europe to help arrange a treaty of peace. Included in this treaty he
brought home a covenant for a League of Nations and sub- THE IJAGVE
mitted these combined documents to the Senate for its OF NATIONS
"advice and consent." The Democratic party, through the ISSUE *
President's action, f9und itself committed to the League; while the Re-
publicans opposed America's adhesion to it. The treaty and covenant
failed in the Senate, whereupon this issue (along with various others)

120 THE GOVERNMENT OF THE UNITED STATES

went to the people at the presidential election of 1920. The result was a
Republican victory and a consequent relegation of the League issue to
the background. President Harding, who took office in 1921, died before
the end of his term and was succeeded by Calvin Coolidge, who had
been elected with him as Vice-President. The latter won the election of
1924. Four years later the Republicans, aided by the general prosperity
of the country, were once more victorious. 1

At this election of 1928 the voters chose President Hoover by the
largest majority that had been given to any candidate for more than
a century. But President Hoover did not prove to be a
DEPRESSION favored son of fortune. The country, after its long session
AND ITS of abnormal economic prosperity, was heading into a

POLITICAL severe business depression. During the four years of the

EFFECTS. l ... .

Hoover administration, this situation grew steadily worse,
and the people were quite responsive to the promise of a "new deal"
which the Democratic platform held out to them in the campaign of
1932. On this platform Franklin D. Roosevelt was elected by a very large
majority, carrying Democratic control of Congress along with him.
Far-reaching projects of legislation were at once brought forward, and
most of these were rapidly enacted into law.*This New-Deal program
served to break down the old party lines to a considerable extent, and
out of this breakdown the Democrats gained a large accession of strength.
At the election of 1936 they were overwhelmingly victorious, carrying
every state in the Union with the exception of Maine and Vermont.

During his second term, President Roosevelt continued the general

policies of his first. His hold upon the rank and file of the Democratic

party continued so strong that in spite of the anti-third-term

THE ANTI- , . . , i i i

THIRD-TERM tradition he was almost unanimously renominated in 1940.

TRADITION The ostensible reason for this radical departure from tradi-
tion was the critical state of affairs in Europe where Ger-
many had gained complete mastery over France and was preparing to
crush Great Britain. The potential danger to the United States, it was
argued, made a change of administration at Washington undesirable.
Four years later America had become an active belligerent and Presi-
dent Roosevelt was reelected for a fourth term. His death in 1945
brought Vice-President Truman to the helm and the elections of 1948
made him the popular choice for a full four-year term.

The foregoing paragraphs, in very brief review, have sketched the

1 A more extended account of party evolution may be found in amuel P. Orth and R. E.
Cushman, American National Government (New York, 1931), pp. 165-214. See also Frank R.
Kent, The Democratic Party: A History (New York, 1928), and W. S. Myers, The Republican
Party: A History (revised edition, New York, 1931).

PARTIES: THEIR NATURE AND PURPOSE 121

evolution of the two major political parties. This has been done for two
reasons: first, because the American party system of today

t , . ,, . i- - , SUMMARY.

cannot be understood, in all its implications, without some
knowledge of its historical background; and, second, because this back-
ground so admirably illustrates the law of the pendulum in politics. The
Democratic party of today is not taking the general drift of its idealism
from Thomas Jefferson but from Andrew Jackson. The Republicans,
mutatis mutandis, are closer to the general objectives of John Quincy
Adams than to those of Abraham Lincoln. The alignments of 1932-1948
are not, fundamentally, so very different from what they were a century
ago; but they have undergone all sorts of twists and turns during the
interim. History, moreover, shows that the law of the pendulum is
continuously at work. A political party fights its way into power, integrat-
ing and strengthening itself as it goes; then almost from the hour of its
triumph the process of weakening and disintegrating begins. The paths
of glory lead but to eventual defeat.

Although the Democrats cind Republicans have held their place as the
two major parties during the past eighty years or more, various minor
parties have come into the field from time to time, and these
deserve mention in even the briefest outline of American PARTIES .
political history. One is the Prohibition party, which held THE

PROF
PARTY.

its first national convention in 1872. Its fundamental prin- PROHIBI N

ciple, as its name implies, is opposition to the manufacture,
importation, and sale of intoxicating liquors -\ but the party platform has
usually expressed itself on various other issues as well, (yntil 1920 its
main purpose was to secure the enactment of prohibition; then for a
dozen years its energies were devoted to the task of getting the eighteenth
amendment enforced. Since the repeal of this amendment in 1933, the
Prohibition party has been relegated to the background, but it is girding
up its loins for a renewal of the fight.

The Socialist party in the United States began its career as a national
organization over forty years ago, but for some time previously there had
been a Socialist-Labor and a Socialist-Democratic party.
The Socialist party of today is the result of a partial union
of these two earlier organizations. 1 Until a few years ago,
its platforms called loudly for various economic and political
reforms. Among the economic demands have been the public
ownership of railroads, telegraphs, and telephones; the extension of
state ownership to mines, forests, and other natural resources; the

1 Not all the members of the Socialist-Labor party wen* into this union. So it continues
In existence and sometimes puts candidates in the field, but they poll a very small vote.

rrs

122 THE GOVERNMENT Of THE UNITED STATES

socialization of industry; the provision of work for the unemployed;
and the expansion of social security benefits; and among the political
demands, the initiative and referendum on a nation-wide scale; the
abolition of the United States Senate; the popular election of federal
judges for short terms; and the termination of the Supreme Court's
power to declare laws unconstitutional.

The Communist party represents the extreme left wing among political

groups. It is regularly organized and places its own candidates in the

field. Probably its numerical strength is greater than is

I HE OOM- .

MUNIST disclosed at the polls. Recently the party announced its

PARTY. formal dissolution and the organization, instead, of the

Communist political association. Apparently the change was one of
terminology, for the party reorganized under its old label in 1945.

There is no regular Labor party in the United States, but this does not
mean that organized labor takes no part in national politics. The Amer-
ican Federation of Labor, the Congress of Industrial
GROUPS IN Organizations (C. I. O.), and the Railroad Brotherhoods
POLITICS. embrace within their membership a very large number of

voters. Their leaders are politically influential. The membership cannot
be counted upon to vote solidly on either sifle in a national election,
although there have been times (as in the presidential election of 1 944)
in the case of the C. I. O. through its Political Action Committee when
it has gone very heavily to one of the major parties. Mention should also
be made of Labor's Non-Partisan League and the American Labor and
Liberal parties of New York state.

WHO CONSTITUTE THE PARTY

On the face of things, a political party is a voluntary association of
individuals. It attracts those voters who believe in its principles, program,
or leaders. But this does not mean that the average voter
BERSHIP AND sits down and after careful reflection decides that one of the
HOW IT is major political parties is more closely in tune with his own
MADE UP. political philosophy than the other. More often he just takes
K THE ^ this proposition for granted. Every political party, accord -
REGULARS. has a foundation of "regulars," men and women who

stay in its ranks through thick and thin, no matter what happens. Most
of these have inherited their political allegiance. They are Republicans or
Democrats because their fathers and grandfathers were. Irrespective of
issues, leaders, or candidates, these regulars can be counted upon. They
would support Beelzebub for President if he had the right tag pinned on
him,* "Every strong party," a practical politician once remarked, "rests

PARTIES: THEIR NATURE AND PURPOSE 123

on a solid foundation of fools." That is putting the situation rather
strongly ; it would be better, perhaps, to say that a political party depends
to some extent on the unquestioning loyalty of its undiscriminating
members.

It is these party regulars who carry the burden and heat of the day.
They hold the offices in the party organization, serve on the various
committees, collect the campaign funds, arrange the rallies they do
the thousand and one things which seem to be necessary in a well-
organized political campaign. Behind these active regulars there is a
much larger number of semiactive or inactive party adherents who rarely
or never leave any doubt as to their regularity, although they do not
show their participation in politics except by attending meetings some-
times and by voting always. At any rate the regulars form the party's
minimum strength, its numerical rockbottom, no matter what the issil|
or who the candidates may be. The strength of partisan regularity vari
in different parts of the country. On the whole, it is greater in the South
than in the North, and in the East than in the West.

Politicians do not like to admit it openly, but every observer of the
American political scene knows that voters of the same race tend to
gravitate into the same political party. In the southern
states, for example, virtually all tjie few colored voters were
till recent years Republicans; and the same held generally
true of colored voters in northern communities. Since 1932' the Democrats
have managed to split the colored vote in northern cities arid to capture
a substantial fraction of it. Voters of Irish extraction in the cities of New
England and the middle states have been chiefly affiliated with the
Democratic party. In Boston, for example, fewer than five per cent of the
Irish voters are normally Republican. In Philadelphia, on the other
hand, there is a large Irish-Republican element. Among voters of
German descent the tendency is to Republicanism, especially in the cities
of the Middle West, but not strongly so. The Italians, as a race, have not
gone largely into the ranks of any one political party, but are well dis-
tributed; and the same is true of the Jews. Citizens of Polish ancestry
tend to be Democrats, while Scandinavians are inclined to Republican-
ism although not to the reactionary brand of it. But generalizations of
this sort are open to numerous exceptions. The political behavior of all
racial strains is somewhat volatile. What should be kept in mind is that
racial and party lines often coincide not precisely, but in a general
way.

Much more important nowadays, in determining the party affiliation
of the average voter, is his economic status whether he is rich or poor,

124 THE GOVERNMENT OF THE UNITED STATES

successful in business or unsuccessful, debtor or creditor, one of the
"haves" or one of the "have nots." Nearly one hundred and fifty years
ago James Madison averred that the unequal distribution
^ P r P er ty was the fundamental basis of party cleavage.
"Those who hold, and those who are without, property have
ever formed distinct interests in society," he wrote. "Those who are
creditors, and those who are debtors, fall under a like discrimination." l
The lapse of time is proving that Madison was right. One cannot fail
to see that the inclination is for those who have no property to range
themselves in opposition to those more fortunately placed. Shiftlessness
lines up against thrift and clamors for security. In many of the larger
American cities the political leanings of any neighborhood can be ac-
curately judged by anyone who takes the trouble to look at the houses
E which the people live. It is the east side against the west side, left wing
ainst right wing, plebeian against patrician, as it was in ancient Rome.
Sometimes it is difficult to determine whether the boundary follows racial
or economic lines, for the two may be closely identified. A generation ago
it used to be said that the party line-up in the agricultural areas of the
United States was wheat versus cotton rather than Republican versus
Democratic in other words, that the farmer's vote depended on which
crop he raised. To a certain extent this is still true although since 1932
wheat and corn states have often voted with the cotton states.

The influence of religion upon party politics is hard to gauge because
people do not discuss it except in whispers. Yet the omens of its existence
RELIGION come boldly to the surface at times, as in the campaign of
AS A FACTOR 1928 when a Catholic was one of the presidential candidates.
IN POLITICS. Religious animosity can be turned by the party leaders to
their own account more easily in some sections of the country than in
others. Race and religion, moreover, are sometimes so closely conjoined
that they are hard to separate. In the southeastern states the Democratic
party is heavily of English descent and Protestant. But in Louisiana and
New Mexico, which arc heavily Catholic, the same party is dominant.
In the New England states the voters of Irish and Polish descent, who are
largely Catholic, tend to become Democrats; but the French Canadians
(who are also Catholics) have tended to join the Republican ranks, and
the Catholic Italians are not monopolized by either of the two major
parties. Those who make appeals for political support on religious
grounds realize that they are playing with dynamite and must keep
their activities out of the open. But a great deal more of this work goes on,
by whisperings, innuendo, and deeply shadowed appeals to intolerance

1 The Federalist, No. 10.

6 LEADER-
SHIP.

PARTIES: THEIR NATURE AND PURPOSE 125

than most citizens realize. Clergymen of all religious persuasions often
take a hand in it.

Southern Democrats who move to the North frequently become Re-
publicans in the new environment; while northern Republicans who
migrate to the South even more frequently gravitate into
the dominant party there. A changed social environment 5 ' S * CTION "
dictates the shift. It is natural that many voters should prefer
the party which is steadily dominant in their home communities. It
requires firmness of conviction to stand by the loser always, and there are
numerous voters who decline to do it. They go with the assured winner,
for it is from that source that all the patronage and political favors
flow.

Sometimes a party is stronger than its leadership; but perhaps just as
often the leader is stronger than his party. When the latter proves to llj
true, the party gains an accession of strength which it may ^

not hold permanently. It would be fair to say that Jefferson 3
Jackson, Lincoln, Cleveland, Wilson, and the two Roose-
velts were all of them extra vote getters for the party which they led.
Confidence in the party's leadership counts for more than approval of
the party platform when it comes to capturing the independent voter
nowadays. This is particularly true of new voters men and women
who are voting for the first time. What the party stands for is embodied
for them in the personality of its leading candidate, rather than in its
official program. The presidential campaign of 1940 was a contest
between two personalities rather than one between two parties. Leader-
ship has become more important than it used to be. The time is gone
when either of the major political parties can count upon victory irrespec-
tive of its principal nominee. The American voter is tending, more and
more, to decide between men rather than between issues.

Victory at the polls depends upon gathering new adherents into the
party's ranks; and this, in turn, necessitates organization. No amount oi
organization will suffice if the leadership is weak and the
party program unpopular; on the other hand, when the
balance is fairly even in other things, it is an axiom of
practical politics that a superior organization will often turn the scale
And it is not merely, or even mainly, the organization at the top that
counts. Organization at the bottom, in the townships, wards and pre-
cincts, is more important. Nor is the problem merely one of intense
activity during the weeks immediately preceding the election. Good
organization is an all-the-year-round affair. It involves getting voters
into the party, not merely getting them to the polls. Some communities

126 THE GOVERNMENT OF THE UNITED STATES

are steadily kept in the party fold by superior organization irrespective
of everything else.

Finally, inertia must be reckoned with as a factor of some importance.

Men do not change their party as often as they change their minds. To

leave one party and join another takes more self-assertion

8. INERTIA t k an somc vo tcrs possess. The line of least resistance induces

AND REVOLT. m .

them to stay where they are. Nevertheless there is a certain
fraction of the electorate which will bolt from the ranks if sufficient
provocation is given. How large this fraction will be depends on the
degree of provocation. The Democratic party gave its followers a large
measure of it in 1928; and the Republican party followed suit in its own
ranks four years later. In both instances the number of desertions from
the party ranks mounted into the millions. At such junctures people tend

tmake their party allegiance a matter of free (if sometimes emotional)
toice, but these occasions are exceptional, although not so exceptional
as they used to be.

So what is the composition of a political party and how is it deter-
mined? |\n American political party is a mosaic made up of some
^- millions of adherents who, by reason of ancestry, home

SUMMARY. . _ . ,. . | r , ,

influence, race, economic status, religion, place ot abode,
leadership, organization, inertia, or reasoned ^preference, allow them-
selves to be drawn into it. Someone has defined a political party as a
group of men and women "who think alike on public questions," but
such a definition runs wide of the realities. Like-mindcdness among the
members of a party is perhaps the least visible of all its characteristics,
Each party has both conservatives and radicals within its own ranks,
Each has members who think wisely, or think foolishly, or do not think
at all. On every issue there are divergences of opinion even among the
party regulars. Marching under the same banner, the rank and file are
miles apart in their habits of thought. The problem of the party leaders
is tp keep the somewhat loose aggregation from flying apart.
J If all people thought alike on political questions, there would be no
rivM political parties. There would be one all-inclusive political group;
as is the case under the totalitarian system of government,

THE REASON . , . , . fl . . . , ,., . f , . . .

WHY PA&TCS m which everyone is compelled to think alike if he thinks
ARE INEVI- out i ou d. On the other hand, if every man thought differ-
TABLE. en ^ _^ h}s fellowSj there wou ld a i so be no party organ-

izations; for every voter would then be a political party unto himself. So
the political party is an inevitable development under every form of
government, except dictatorship on the one hand and anarchy on the
other, tyi witness whereof one need only repeat that no country has ever

PARTIES: THEIR NATURE AND PURPOSE 133

1922), of which the first volume deals with parties in Great Britain. Good ma-
terial may also be found in Henry Jones Ford, The Rise and Growth of American
Politics (New York, 191 i), Edward Stanwood, A History of the Presidency (revised
edition, 2 vols., Boston, 1928), E. E. Robinson, Evolution of American Political
Parties (New York, 1924), and Wilfred E. Binkley, American Political Parties,
Their Natural History (New York, 1943).

SPECIAL PERIODS. Important books dealing with special periods in party his-
tory are Jesse Macy, Political Parties in the United States, 1846-1861 (New York,
1900), and three books by Claude G Bowers' namely, Jefferson and Hamilton
(Boston, 1925), The Party Battles of the Jackson Period (Boston, 1922), and The
Tragic Era (Boston, 1929).

HISTORIES OF THE TWO MAJOR PARTIES. On the history of the two major parties
the following three works may be consulted: W. S Myers,, The Republican Party:
A History (revised edition, New York, 1931), Henry A. Minor, The Story of the
Democratic Party (New York, 1928), and Frank R. Kent, The Democratic Party:
A History (New York, 1928). f%

THIRD PARTIES O* third*part!V movements reference may be made to B. P.
De Witt, The Progressive Movement (New York, 1915), E. H. Cherrington, The
Evolution of Prohibition in the United Siates{Yi&ST6tvi\le, Ohio, 1920), J. W. Hughan,
American Sotiajjtsm qf tye Present Day (New 'York, 191 1), F. E. Haynes, Third Party
Movements sinfc-4Jt* Glvil War (Igw&^City, 1916), and the. same author's Social
Politics in te LJniKd States (Boston, 923), Solqn J. Buck, The Agrarian Crusade
(New Haven, 1^20), Wesley McCune, The Farm^loc (Garden City, N.V., 1943),
John D. Hicks, The Potiulist jftfolt (Minneapolis, 1931), Nathan Fine, Labor and
Faimer Parties in the I J mbd States, iSsS-iQsfStptew York, 1928), Claude G. Bowers,
Bevendge and the Pr ogres wye Era (Boston, Vr 932), Paul H. Douglas, The Coming
of a New Party (New York, ^932), Sj^rt A Rice, Farm^s and: Workers in American
Politics (New York, 1924), Kf R Carroll, Labor and Politics (Boston, 1923), J
Oneal, American Communism (New York, 1927), feirl^Browder, The Peopled Front
in America (London, 1938), A. N. HoloomJ^A A/tf Middle Classes in American
Pontics (Cambridge, Mass, 1940), and tV \V. Laidler, Amencan Socialism; It*
Aims and Practical Program (New York, 1937%

PARTY FUNCTIONS. Charles E\ M^rftam and Harold F. Gosnell, The American
Party System (revised edition, Ne^vTio^k. 1940), P. O. Ray, An Introduction to
Political Parties and Practical Politics \^rd qjdition, New York, 1924), R. C. Brooks,
Political Parties and Electoral Problems (jrd editioh, New York, 1933), A. N. Hoi-
combe, The Political Parties of Today (2nd edition, New York, 1925), and the
Fame author's New Party Politics (New York, 1933), E. M. Sait, American Parties
and Elections (3rd edition, New York, 1942), H. R. Bruce, American Parties and
Politics (3rd edition, New York, 1936), E E. Schattschneider, Party Government
(New York, 1942), V. B. Boo the, The Political Party as a Social Process (Phila-
delphia, 1923), John W. Davis, Party Government in the United States (Princeton,
1929), Charles A Beard, The Amencan Party Battle (New York, 1928), G. Shuler,
Party Control in Politics and Government (Brooklyn, 1923), Stuart Lewis, Readings in
Party Principles and Pi actual Politics (New York, 1928), E. P. Herring, Politics
of Democracy; American Parties in Action (New York, 1940), C. W. McKenzie,
Party Government in the United States (revised edition, New York, 1939), and Theo-
dcie Couseris, Politics and Political Organizations in America (New York, 1942).

CHAPTER IX

POLITICAL PARTIES IN NATIONAL GOVERN-
MENT: HOW THEY ARE ORGANIZED AND DO
THEIR WORK

There are relatively few men who grasp the fact that one of the surest ways to succeed
in politics is to give the people a good show Give them a really good show and they will
warm to you, rally around you, support you. At bottom, what they want is to be amused,
not instructed. The thing they abhor is to be bored. Frank R. Kent.

It is a moot point whether political discussions should start with a
definition or end with one. There are those who argue that nobody
THE should attempt to discuss the place of political parties in

QUESTION OF government without first defining just what a political
DEFINITIONS. part y j s> g ut there are others who contend that it is im-
possible to frame such a definition until after One has found out what
political parties do and how they do it. In other words it is the function
that determines the form.

fpne difficulty arises because of the fact that a political party has to be
viewed from two angles. First, it is an instrument for declaring principles
and formulating a program. Second, it is a combatant organization,
comprising leaders and followers, whose business it is to win victory at the
polls as the essential first step towards carrying this program into opera-
tion. Thus a political party is both an exponent of public ideals and a
functioning mechanism. Ostensibly, all its members are in allegiance to
the same ideals; as a practical matter, most of them have only a shadowy
notion of what the party is going to do in case it wins. Thousands of
people belong to political parties and work diligently for success at the
polls without knowing what the party platform contains/)

Why do people, inspired by such varied motives, associate themselves
together in politics? The answer is that^every political party has an
THE NEED immediate, as well as an ultimate, objective. The immediate
FOR ORGANI- aim is to win the election and get control of the government.
ZATION. rp Q achieve t his immediate aim, the party must have an

organization. Lord Bryce's statement of this matter is so well expressed
that it deserves insertion here:

134

PARTY ORGANIZATION AND METHODS 135

Organization is essential for the accomplishment of any purpose. ... To
attempt to govern a country by the votes of masses left without control would be
like attempting to manage a railroad by the votes of uninformed shareholders,
or to lay the course of a sailing ship by the votes of the passengers. In a large
country the great and increasing complexity of government makes division,
subordination, coordination, and the concentration of directing power more
essential to efficiency than ever before.^

^American party organizations have developed from local and rudi-
mentary beginnings, but they are now the most elaborate and efficient
institutions of cheir type in any country. During colonial
days there existed in various parts of the countr^ but espe- FORMS OF
cially in the New England towns, various social clubs, which PART Y o*-
becamehptbeds of political discussion during the stormy
days ofstamp taxes and tea par tics. (ThebestJ known among them(was
the T^auus_Club of Boston?^ In selecting its name this group coined a
word which is now used throughout the English-speaking woifld.CLocaj
clubs in other parts of the country also played a considerable part in
colonial politics^ At the time of the French Revolution they reappeared
as "Democratic Societies"; but since public opinion did not take kindly
to their activities, they soon went out of existence.

\pme form of organization was needed, however, to make the nomi-
nations for public office; and for the moment, the function of making
the nominations for the presidency was usurped, by the THECONGRES
respective party representatives in Congress. iNo one in- SIGNAL
vented this plan of making nominations and organizing CAUCUS -
the campaign; it was merely adopted as the easiest wa^> The legislator?
in Congress were party men; they represented all sections; they were
already assembled; and it was much easier to/ have them do the work than
to call special conventions^ /

But in due course the congressional cau/cus came to be regarded with
disfavor by the rank and file of the party J^oters. It was looked upon as a
method of nominating presidential candidates without giv-
ing the people any voice in the matte/ This popular an-
tagonism grew steadily and became Overwhelming when
the caucus chose Crawford instead off Andrew Jackson in 1824. So,
"King Caucus" was compelled to abdicate. Jackson's victory at the polls
in 1828 made this abdication permanent.

But what was to replace the congressional f aucus as an agency for
nominating candidates? The answer tovthis question was quickly provided
byfthe rise of party conventions. Conventions of party delegates, elected for

1 Modern Democracies (New York, 2 vols , 1921), jVol. II, pp. 546547.

136 THE GOVERNMENT OF THE UNITED STATES

the purpose, were brought together to make the nominations. There-
after, for three quarters of a century, district conventions, county con-
ventions, state conventions, and national conventions made

REPLACED ' '

BY THE the party nominations in their respective fields ot Amen-

CONVENTION. can government. Candidates for the presidency and vice-
presidency are still placed in nomination by national party conventions,
but primaries have now, for the most part, replaced the convention in
the nomination of candidates for Congress, as well as for the various state
and local offices. 1 ^ Proposals to abolish the national party convention as a
nominating body have been made from time to time, but they have not
gained much favor. This is partly because many of the states have made
provision whereby the party voters, in choosing delegates to the national
conventions, may indicate their preference among the various candidates
and may even pledge their delegates to vote for a designated candidate
at the convention.

^Conventions can nominate candidates, but they cannot manage a

campaign. To do this it is necessary to have committees. So committees

were named by the earliest conventions to raise funds, get

THE GRADUAL Qut c i cct i on literature, and print ballots) for until about

ELABORA t ,

TION OF sixty years ago the ballots were not officially printed; they

INTERNAL W ere merely "tickets" provided by the party organizations.

MACHINERY. - ' ... .

(JThcn, as the country grew in population and more voters
had to be reached, the committees found more work to do. It became
necessary to have subcommittees, to maintain a corps of paid workers
during the campaign, and to raise much larger sums of money for cam-
paign expenses. Little by little, in this way, the party organization
became more extensive and more complicated. Every change introduced
new complexities. The adoption of the direct primary in many of the
states altered the method of making the nominations, but it did not
simplify the mechanism or lessen the amount of work to be done. On the
contrary, it increased the work J

So we have evolved, by gradual and natural process, (jthat amazing
network of conventions, committees, subcommittees, chairmen, secre-
taries, leaders, bosses, precinct captains, and other party

THE PRESENT . . ' . \ i 1 1 f *.

PARTISAN functionaries, wbiefa now covers the land from sea to sea.

HIERARCH- These workers form :d larger army of professional politicians
IES ' than can be found ir'i all the rest of the world put together.

Their activity is ceaseless: raising imoney and spending it; planning cam-
paigns and fighting them; nominating candidates and getting their

1 See Chapter XXXVIII.

PARTY ORGANIZATION AND METHODS 145

1928), E. R. Sikes, State and Federal Corrupt Practices Legislation (Durham, N. C.,
1928), S. McKee Rosen, Political Process (New York, 1935), Dewey Anderson
and Percy E. Davidson, Ballots and the Democratic Class Struggle; a Study in the
Background of Political Education (Stanford University, 1943), Louis H. Bean,
Ballot Behavior (Washington, 1940), H. D. Lasswell, Politics: Who Gets What,
When, How (New York, 1936), Louise Overacker, Money in Elections (New York,
1932), Edward B. Logan (editor), The American Political Scene (New York, 1936),
V. O. Key, Jr., Politics, Parties, and Pressure Groups (New York, 1942), K. G.
Crawford, The Pressure Boys (New York, 1939), E. E. Schattschneider, Politics,
Pressures, and the Tariff (New York, 1937), and George Gallup, Public Opinion
in a Democracy (Princeton, 1939).

PRACTICAL POLITICS. The actualities of party organization and the sinuosities of
practical politics cannot be fully learned by a study of platforms, regulations, and
handbooks; or even from the many excellent volumes which describe such things
in general terms. For much illuminating material, one must review the experi-
ences of men who have taken their places on the firing line in party battles, as
given in such biographies as Allan Nevins, Grover Cleveland (New York, 1932),
the Autobiography of Robert M. La Follette (Madison, 1913), Theodore Roosevelt's
Autobiography (New York, 1913), Herbert D. Croly, Marcus Alonzo Hanna (New
York, 1912), Harold F. Gosnell, Boss Platt and His New York Machine (Chicago,
1924), L. W. Busbey, Uncle Joe Cannon (New York, 1927), N W. Stephenson,
Nelson W. Aldnch (New York, 1930), William Lawrence, Henry Cabot Lodge
(Boston, 1925), William F. McCombs, Making Woodrow Wilson President (New
York, 1921), and William Allen White, Masks in a Pageant (New York, 1928).

Further information on practical politics may be gleaned from James A.
Farley, Behind the Ballots (New York, 1938), Harold F. Gosnell, Machine Politics;
Chicago Model (Chicago, 1937), and Grass Root Politics (Washington, 1942),
J. T. Salter, The American Politician (Chapel Hill, N. C., 1938), J. H. Wallis,
The Politician: His Habits, Outcries, and Protective Coloring (New York, 1935),
Peter H. Odegard and E. Allen Helms, American Politic*: A Study in Political
Dynamics (New York, 1938), and Harold Zink, City Bosses in the United States
(Durham, N. C., 1930).

CHAPTER X
THE PRESIDENT

The President of the United States is both more and less than a king; he is also both
more and less than a prime minister. The more carefully his office is studied, the more
does its unique character appear. Harold J. Laski.

is great office, the greatest in the world to which any man can rise
by his own merits, was not intended to be what it has become. The
NINE WORDS architects of the American governmental system did not have
OF GREAT in mind the creation of a chief executive who would be more
SIGNIFICANCE. fa an a king, or more than a prime minister. Their idea was
that the post would be one of honor and leadership rather than of com-
manding authority. When they decreed that "the executive power shall
be vested in a President" they did not realize that some day these nine
words would serve to consolidate the largest aftiount of authority ever
wielded by any man in a democracy. jThey did not realize that with the
growth of the nation this office would inevitably become the focus of all
federal authority and the symbol of national unity.

Why was the presidency established? Largely because the experience
of the country during the Revolutionary War and under the confedera-
THE NEED OF t ^ on ^ a d shown the urgent need for one. Executive work
A SINGLE had been handled by committees of the old Congress, and

EXECUTIVE. later by secretaries; but this arrangement proved quite
unsatisfactory, and it was generally agreed that in the new government
a one-man executive ought to be provided. All the state constitutions
had made provision for governors. A plural executive at the head of the
federal government would place the nation at a disadvantage in its
dealings with the states. It would be handicapped in negotiations with
foreign countries. A plural executive could not be commander in chief of
the army and navy. At any rate the decision to have a president was
reached without much argument, although Edmund Randolph of
Virginia registered objection on the ground that a single executive would
serve as "the foetus of a monarchy." But how the chief executive would
be chosen, whether he should be independent of Congress or not, and
what powers he should have these matters were not so easily decided.

146

THE PRESIDENT 147

As for the proper term, method of selection, powers, and functions
of the executive, there were nearly as many different opinions as there
were delegates. Hamilton expressed a preference for life THE PRESI-
tenure, and a few others were willing that the President DENTIAL
should hold office "during good behavior 55 ; but the majority TERM '^ ^
were for limited terms ranging from two to twelve years. After a-good
deal of discussion the delegates agreed on a seven-year term, with a
provision against reelection; then they reconsidered the matter and ulti-_
rnately fixed the term at four years with no limitation on the number of
times that a President might be reelected to the office.

The Constitution, therefore, contains no stipulation against a third
term. But where the Constitution remained silent, usage stepped into
the breach: and for over a hundred years the anti-third- ^ OT AXT ^

' 1 H fci AN II

term rule was commonly said to be one of the fixed tradi- THIRD-TERM
tions of American national government a tradition so USAGE -
strongly buttressed by both time and logic that it seemed improbable that
it would ever be successfully defied. Washington started the precedent
by flatly declining a third term. But he did not base his declination on
the idea that third terms would be either undemocratic or dangerous. He
was then approaching the age of threescore and ten, and pleaded "the
advancing weight of years. 55 Jefferson declined to be a candidate after he
had served two terms, and made the tradition stronger by basing his
refusal on the expressed belief that third terms would be incompatible
with the public interest. Jackson, in 1836, might have had a third term,
but declined the opportunity. Indeed, as President, he had repeatedly
urged a constitutional limitation of tenure to one six-year term. Grant
and Theodore Roosevelt both sought third non-consecutive terms, but
failed one in the nominating convention, and the other at the polls.
Calvin Coolidge could probably have claimed a third term by pointing
out that, having come to the White House when his predecessor's term
was more than half through, he had served less than six years in all; but
he surprised the country by announcing in 1927 that he did not "choose
to run. 55 Thus the tradition seemed to be fairly well established; but in
the summer of 1940 President Franklin Roosevelt decided to accept the
Democratic nomination for the third successive time, and in due course
was reelected. He was again elected in 1944, but died soon after his
fourth inauguration. 1

From time to time, there have been proposals to amend the Constitu-
tion so as to make the question of presidential reeligibility more definite.

1 For further information, see Charles W. Stein, The Third-Term Tradition: Its Rise and
Collapse in American Politics (New York, 1943).

148 THE GOVERNMENT OF THE UNITED STATES

The latest of these is a proposed amendment which Congress submitted
to the states in February, 1947 for their ratification or rejection. The
fate of this proposal is still uncertain. It would make a person forever
ineligible for the presidency if he has held the office or acted as President
for one calendar year or more in each of two terms. In practice this
would mean that the maximum tenure of the office would be two terms
or eight years. These terms, moreover, need not be consecutive. Should
the amendment be adopted, whoever is serving as President at the time
would be permitted to finish his term though he might thereby exceed
the new eight-year maximum.

Even more difficult than the question of term and reeligibility was the
problem of how to choose the President. Most of the delegates favored a
HIS POSITION proposal to let Congress do the choosing, and that plan was
INFLATION provisionally adopted. But at a later stage the members of
TO CONGRESS. ^^ convention became convinced that such an arrangement
would destroy their system of checks and balances. The question was
therefore reopened and finally settled in an entirely different way:
namely, by the expedient of indirect election. There were a few who
favored direct popular election, but the majority were strongly opposed
to that plan because they feared that it would open the door to the choice
of demagogues. Accordingly, they adopted the lan of indirect election
by presidential electors because it seemed to have fewer objections than
any other among the various methods proposed.

This plan, as outlined in the Constitution, is a relatively simple one
and allows a great deal of latitude to the states. Briefly, it provided that
each state should "appoint in such manner as the legislature
thereof may direct" a number of "electors" equal to the
OF CHOOSING state's combined quota of senators and representatives
j n Congress. For example, a state having two senators and
five representatives would choose seven electors. In due
course these electors were to meet, each group in its own state, and give
their votes in writing for two persons, of whom at least one must not be
an inhabitant of the same state as the electors. The ballots were then to
be sealed and transmitted to the president of the Senate, who was di-
rected to count them in the presence of both Houses and to announce the
result. The person receiving the most votes was to be President, provided
he obtained a clear majority of all the electoral votes, and the one ob-
taining the next highest number was to be Vice-President if he fulfilled
the same requirement.

Some among the framers of the Constitution expected that very
seldom would any candidate receive this clear majority. George Mason,

THE PRESIDENT 149

one of the leaders in the convention, predicted that it would not happen
more than once in twenty elections. So provision was made that, in
case no one obtained a majority of the electoral votes, the
House of Representatives (voting by states and each state ~

SI0 IN

having one vote) should choose from among the five highest. OF AN INCON-
Note that in thus "voting by states" every state was given
an equal voice, no matter what its population. New York
has forty-seven electoral votes, while Nevada has only three; but when
the election is thrown into the House of Representatives the provision is
that each of these states has one vote only. The congressmen from each
can merely decide how the state's single vote shall be cast. In the event
of a tie in the electoral vote of the nation, it was provided that the issue
would be settled in the same way. The stipulation that the House should
vote by states, not by individual members, is significant. This was looked
upon as a very important concession to the small states and a partial
compensation for what they had surrendered in the Great Compromise.
The plan of indirect election had the merit of satisfying those who did
not want the President elected directly by the people or directly by
Congress. It gave the large states an initial advantage, but
raised the small states to a plane of equality with them in
case the electors failed to give any candidate a clear major-
ity. The plan was adopted not because the makers of the MOTIVES

n . . 11. i . i i i i i i r i WHICH Die-

Constitution believed it to be ideal, but because they felt TATED THE
that it was open to fewer objections than any of the other SELECTION OF
plans. They were overwhelmingly against direct popular ^NISM^"
election, for they had read ancient history to some purpose.
They knew that tyrants and dictators in Greece and Rome had fre-
quently been catapulted into their posts of power by the acclaim of the
multitude. Let the states appoint thoughtful men as electors, therefore,
and commit the choice of the President to these electors. This seemed to
be a safe, if not an altogether democratic plan. The delegates felt that all
classes of the people would be satisfied with it.

For the moment, "they were right. When the provisions of the Con-
stitution were made public, there was almost unanimous approval of the
plan for indirect presidential elections. Almost every other

HOW IT

feature of the new Constitution was assailed; but this one WORKED IN
escaped the barrage of criticism. And in the first two THE EARLIEST

, t^ir-j i ELECTIONS.

elections the scheme functioned exactly as its originators

intended. 1 Everyone expected Washington to be chosen, and he was.

1 In 1 789 and in 1 793 all the electors voted for Washington (thus making him the unani-
mous first choice), but their second choices were well scattered, thus indicating that they were
using their individual judgment and were not being pledged in advance.

150 THE GOVERNMENT OF THE UNITED STATES

Then a different course began to shape itself. At the third election (i 796)
it was well understood, even before the electors met, that most of the
presidential electors would vote for either John Adams or Thomas
Jefferson, although in no case were any pledges exacted. In 1800 things
were carried a step further. Two well-defined political parties, Re-
publicans and Federalists, had now arisen, and at the election of that
year both put forth their candidates. Electors were chosen on the under-
standing that they would vote for the nominees of their party. The
Republican electors marked their ballots for Jefferson and Burr, while
the Federalist electors did the same for Adams and Pinckney. No other
candidates were considered. 1 Deliberation on the part of the electors
thus became a fiction; henceforth they were to serve as mere automatons,
selected because they would do what they were told to do. The heart of
the original plan was cut out within ten years, and never since has there
been any serious attempt to restore it.

The people, not the electors, have been choosing the President and the
Vice-President for more than a hundred and forty years. This is because
all the state legislatures have directed that presidential
electors shall be chosen by popular vote and these electors
are always pledged to the nominees of the national party
conventions. The electoral college has thus lot all discretion in the
choice of a President, but it continues to go through its gestures every
four years. It has become an anachronism. Why, then, is it not abolished?
The answer is that any proposal to abolish it would precipitate a con-
troversy as to what provision should be made in case no presidential
candidate received a popular majority at the polls. Obviously the present
plan of equal voting by states in the case of an indecisive election ought
to be discarded if the House of Representatives is to continue its consti-
tutional function of breaking a deadlock; but the smaller states would be
reluctant to ratify any amendment which surrendered their present
status of equality.

The election of 1800 was also significant in that it disclosed a serious
flaw in the Constitution as the framers worded it. The Constitution in
A DEFECT IN * ts original form provided that the electors should vote for
THE ORIGINAL "two persons" without designating which was the elector's
PLAN. choice for President and which for Vice-President. In 1800

Jefferson and Burr both received the votes of all the Republican electors,
which meant, of course, that they got an equal number of votes. They
had been put forward by one political party with the intention that
Jefferson should be chosen President and Burr Vice-President; but the

1 Except that a Federalist elector in Rhode Island voted for Jay instead of Pinckney.

THE PRESIDENT 151

plan went awry because both received "the highest vote, 55 which accord-
ing to the Constitution was to determine the choice of a President, and
neither obtained the "second highest," which was to designate the
Vice-President-elect.

Happily, the framers of the Constitution had been foresighted enough
to insert the provision that in case of a tie the House of Representatives
should determine the choice; and the House did so, choosing
Jefferson President on the thirty-sixth ballot after an
exciting contest. Then, as a safeguard against any future
confusion, an amendment (the twelfth) was added to the Constitution in
1804. This provided, among other things, that the electors in the several
states should u name in their ballots the person voted for as President,
and in distinct ballots the person voted for as Vice-President." So the
electors now cast two ballots, where originally they marked only one.

During the seventy years following the adoption of the twelfth amend-
ment, presidential elections were held without any trouble of a serious
nature. In 1824, it is true, no candidate for President re- THE INDECI .
ceivcd a clear majority of the electoral votes; and the House SIVE ELEO
of Representatives once more had to make the choice. It TION OF
selected John Quincy Adams, much to the disgust of Andrew Jackson's
supporters, who felt that because Jackson had obtained more electoral
votes than Adams he ought to have been chosen by the House. There was
some talk of again changing the Constitution, but nothing was done.

It was not until the election of 1876 that another perplexing difficulty
arose. From several states, on that occasion, two different sets of electoral
certificates were received. Who should determine which of THE HAYES .
these was valid and entitled to be counted? The Constitution TILDEN GON-
had not anticipated this eventuality; it merely provided that TROVERSY -
"the president of the Senate shall, in the presence of the Senate and th(
House of Representatives, open all the certificates, and the votes shal
then be counted." As it happened, however, the Senate at this time con-
tained a majority of Republicans and the House a majority of Democrats
Accordingly, if the president of the Senate took upon himself the duty o
deciding which set of certificates ought to be counted, the election o
Rutherford B. Hayes, the Republican candidate, would be assured
But if the question of validity were left for decision to the two Houses
in joint session, then the Democrats would have a majority and the elec-
tion would go to Samuel J. Tilden. As a further complication, the joini
rules of the two Houses provided that no disputed election returns should
be counted unless both the Senate and the House of Representatives,
acting separately, should so authorize.

152 THE GOVERNMENT OF THE UNITED STATES

Neither House, of course, would vote to authorize the counting until
tfie question of disputed votes could be settled. And each insisted on hav-
ing the matter settled its own way. As matters stood there
HOW IT WAS was no possibility that any of the disputed votes could be
counted, or either candidate elected, unless the two Houses
were willing to compromise their differences. In some countries such an
impasse would have led to serious trouble. In more than one of the Latin-
American republics, a less awkward situation has precipitated civil war.
But in the United States the counting of electoral votes is the end of a
revolution, not the beginning of one. So the statesmen of the two parties
put their heads together and worked out a solution. 1 Briefly, they agreed
that Congress should at once establish a special commission of fifteen
persons: namely, five senators chosen by the Senate, five representatives
named by the House, and five justices of the Supreme Court. This com-
mission was to investigate the validity of the disputed returns and decide
which ones should be counted. Then both Houses would accept their
decision. The commission was quickly brought together; it heard both
sides of the controversy; and by a majority of one vote its rulings deter-
mined the election of President Hayes. 2

While the matter was finally settled in this way, it had engendered a

good deal of ill feeling. Congress felt the desirability of making sure that

a similar deadlock should not occur again. After prolonged

ITS SEQUEL "

THE ACT OF discussions and various delays, it finally enacted a statute
1887. (1887) dealing with the whole subject of disputed votes, and

this law is still in force. It provides that each state must now determine,
in the first instance, all disputed questions concerning the choice of
presidential electors from that state. If in New York, for example, two
groups of electors claim to have been chosen at the polls, and the courts
of New York have decided in favor of one group, the votes of this group
will be counted. But if the issue has not been decided by the state courts,
each branch of Congress shall pass on the matter separately; and, if they
fail to agree, then no votes from the state are to be counted at all.

Thus far we have been speaking of a presidential election from the

1 P. L. Haworth, The Hayes-Tilden Disputed Presidential Election of 1876 (New York, 1906).

2 Of the 369 electors, 184 were pledged to Tilden (Democrat), 164 to Hayes (Republican),
and 21 votes were in dispute, namely, those of South Carolina, Florida, Louisiana, and one
vote from Oregon To the electoral commission the Senate appointed three Republicans and
two Democrats, while the House of Representatives appointed three Democrats and two Re-
publicans. Of the five Supreme Court justices, three had been Republicans before their ap-
pointment to the bench, and two had been Democrats. Thus the electoral commission, as
finally constructed, contained eight Republicans and seven Democrats. All, however, took an
oath to decide the issue on its merits and impartially. On every disputed question, neverthe-
less, the commission divided on straight party lines and gave the entire twenty-one disputed
votes to Mr. Hayes.

THE PRESIDENT 153

standpoint of the Constitution and the laws. But from neither of these
does one get an adequate idea of the way in which the THE PRESENT
election is actually conducted. The Constitution provides METHOD OF
only three steps: the choice of electors, the voting by elec- ELEGTION -
tors, and the opening of the electoral certificates in the presence of
Congress. But in practice two other steps have developed, so that there
are now five in all. The first three are of great importance, while the last
two, the voting by electors and the opening of the electoral returns, have
become mere formalities unless something quite out of the usual occurs.

PRESIDENTIAL NOMINATIONS ^"

(^ .The first step in the choice of a President is the nomination of candi-
dates, a matter on which there is not a word in the Constitution, for it
was not intended that there should be any nominations.
The process begins with the calling of the national party FI &&-S TJ ^
conventions, but before this is done there is always some OF GANDI-
informal grooming of prospective candidates. The call for a DATES -
national party convention is issued by the national com- STAGES IN
mittee, which (as already explained) is a body made up of NOMINATION
party"" delegates from all the states and certain outlying PROCEDURE -
possessions. 1 Each national committee calls its own con- x THE CALLS
vention, decides the time and place, and makes the pre- FOR THE
liminary arrangements. Usually the calls are issued in CONVENTIONS
January or February of a presidential year, and the
conventions meet during the summer, a few weeks apart, j
^ During this interval between the call and the convention, the political
parties in each state select their delegates. )Until recent years, every
state had twice as many delegates as it had senators and
congressmen combined. But under a new rule of 1940 the
Democrats allow two additional delegates to states that EGATES TO
vvent Democratic in the previous presidential election. com^moNs
The Republican rules have been changed in 1913, 1923,
and 1940. As they now stand, each state gets four delegates at large and
two delegates for each congressman at large (if it has any), 2 together with
three additional delegates if the state went Republican at the last presi-
dential or senatorial election. In addition, each congressional district
within the state is given one delegate if it cast i ,000 Republican votes
at the last election and an additional delegate if it cast 10,000. Dele-

p. 137.

* 2 A congressman at large is one elected by the whole state and not by a congressional
district. For the reason why states occasionally have congressmen at large see pp. 310-31 1.

154 THE GOVERNMENT OF THE UNITED STATES

gates are also allotted, by both parties, to the territories and insular
possessions. 1 The total regular membership of each national convention
is well over a thousand. In addition, each state is allowed
NATES " an ec l ua l number of alternates, who serve in case any of
the regular delegates are absent. Thus, with a full quota of
delegates and alternates in attendance, the Democratic and Republican
national conventions are huge, unwieldy gatherings. National conven-
tions are also hel'd by the Prohibition, Socialist, and Communist parties,
but they are very much smaller.

^ How are delegates and alternates chosen? Until the early years of the
twentieth century they were always named by party conventions held
in the states and congressional districts. Then, in 1905,
Wisconsin originated the presidential primary, requiring
delegates to Fe elected directly. Within the next two decades
almost thirty states adopted the presidential primary in
various forms. They provided for: (i) the direct election of
lelegates, who in most cases could be pledged to support some particular
^residential aspirant; or (2) in two thirds of all cases, for a preferential
fote to indicate the popular strength of all aspirants within each party;
>r (3) for both of these practices. 2 The movement declined rapidly after
916. Eight states repealed their presidential-primary laws; two aban-
loned them as unconstitutional. In several states the law binds the
lelegates morally to support the popular choice to their best judgment
ind ability (Ohio), by all honorable means in their power (Pennsyl-
rania), as long as his nomination is possible (Maryland). Such injunc-
ions have proved ineffective. 3

A NATIONAL CONVENTION AT WORK

1 Then comes the metin of thg convention. The Republican conven-
ion meets in one city and the Democratic in another; but the procedure
in each case is much the same. The thousand delegates are
seated in the front portion of a great hall, with the alternates
occupying the rear. These delegates and alternates are
mostly active party workers in their home states, with a good sprinkling
of congressmen and ex-congressmen. ^Formerly they included a large
quota of federal officeholders, such as postmasters; but the Hatch Act of

1 The Republicans allot two delegates to Puerto Rico and three delegates each to the
District of Columbia, Alaska, and Hawaii, giving a bonus of two to Alaska and Hawaii if
the territorial delegate is a Republican. The Democrats allot six delegates in each of these
cases; and also six to the Canal Zone and two to the Virgin Islands.

2 For a full discussion, see Louise Overacker, The Presidential Primary (New York, 1926).
8 For comment on the merits and defects of presidential primaries, see p. 166.

THE PRESIDENT 155

1939 now prohibits all such persons from serving as delegates to party
conventions. Delegates and alternates are grouped on the floor by states,
a huge placard indicating the location of each. Each delegation is pro-
vided with a microphone, connecting with the public address system, so
that any delegate who speaks from the floor can be heard throughout
the hall, and indeed throughout the nation, for the proceedings are
broadcast over the national radio hookups. -^

At the front of the hall is a great stage, on which the principal dig-
nitaries are given seats. A temporary chairman ^is chosen,, usually without
any opposition, and proceeds to deliver from the stage a keynote speech
in praise of the party's achievements. A committee is then appointed to
examine the credentials of the delegates. When its report has been
adopted, the convention elects a permanent chairman (who also un-
burdens himself of a speech) and proceeds to consider the party platform.
This platform has been framed in advance by a committee appointed for
the purpose. Some planks in it may give rise to debate, but as a rule the
platform is adopted without much change. \s

\_^ Finally, on the third or fourth day, after these tedious preliminaries
are over, the great item on the calendar is reached, and nominations for
the office of President are announced by the chairman to be
in order. The roll of states is called in alphabetical order,
Alabama first and Wyoming last. The chairman of any
Uate delegation, or someone acting for him, may make a nomination.
If a state has no candidate of its own, no "favorite son" as he is called, it
may yield its place in the alphabet to some other state. Thus Alabama
may yield to New York and the chairman of the New York delegation
will proceed to nominate his candidate in a eulogistic address. The
nomination is then seconded, with further eulogy, by delegates from
various states. 1 These nominations and speeches may take a whole day,
ar perhaps a couple of days. It is a time-consuming process because the
placing of each candidate's name in nomination is the signal for a demon-
stration on his behalf. Led by the delegates from the state which has
nominated him, a procession starts through the aisles, gathering as many
adherents as it can and making as much noise as lusty lungs can produce,
Sometimes these demonstrations last a half hour or more, with the
galleries joining in the bedlam. Admission to these spectators' galleries,
by the way,JsjDj^ticket each can3i3ate being given his sliare of the
tickets,' which he distributes among his supporters.
K After all the nominations have been made, the voting begins. It is not

1 In the Republican convention of 1940 nominating speeches were limited to thirty minutes;
leconding speeches, to five. Of the ten persons nominated, half were seconded four times each.

156 THE GOVERNMENT OF THE UNITED STATES

by ballot but by a voice vote. The roll of the states is again called in
alphabetical order, and the chairman of a delegation an-
ING ON NOM- nounces: "Alabama (etc.) casts its votes for So-and-So";
INATIONS. or he may report a divided vote, some for one candidate
THE RE- an d some for another. 1 In both the Democratic and the

PEATEDROLL Republican national conventions a majority is sufficient
to nominate; but a clear majority of all the delegates is
needed. \Accordingly, when several candidates are in the running, with
strong Support, it is often necessary to take ballot after ballot before any
one of them fulfills the requirement. As the polling goes on, the weaker
candidates drop out; votes are shifted around on successive ballots; one
roll call follows another until a decision is reached. The convention hall,
\n these midsummer days, becomes a sweltering cockpit and as a rule
both the delegates and the spectators are thoroughly wilted before a
decision is reached.

It required thirty-six ballots to nominate Garfield at the Republican
national convention of 1880. Woodrow Wilson, at the Baltimore con-
vention of 1912, was not chosen until forty-six ballots had
EXAMPLES been taken. At the Democratic national convention of 1924,
it required one hundred and three ballots to make a nomi-
nation. On the other hand, a national party convention makes its choice
on the very first ballot seven times out of ten. The Republican conventions
did so in 1924, 1928, 1932, and 1936; the Democratic, in 1928, 1936,
1940, and 1944.

(^ When the presidential candidate has been chosen, the selection of the
party nominee for the vice-presidency is made in the same way, but
usually with less trouble and sometimes in a great hurry, for the big
fight is over and the delegates are in a mood to get homc^But in nominat-
ing the candidate for the vice-presidency there are roll calls, speeches,
demonstrations and ballotings all less exciting, as a rule. In some
cases, however, the contest for this nomination becomes close and
exciting.* It is an axiom of practical politics that the vice-presidential
nominee should be someone who will "balance the ticket"; that is, he
should supplement the strength of the presidential nominee by being
drawn from another region of the country and perhapj^ representing a
different section of the party. .
L A national party convention in the United States is a unique affair.

There is nothing like it anywhere else on earth. x The great concourse

1 Until 1936, the Democratic party adhered to the unit rule, under which (if the state con-
vention applied it) the delegation cast its votes solidly for one candidate. The rule could not be
applied if the delegates were elected directly from congressional districts according to state law.

THE PRESIDENT 157

with its flag-bedecked stage and walls, the crowded floor and aisles
with delegates milling around, the blaring bands and loud-speakers, the
galleries filled with cheering onlookers, the atmosphere
electric with excitement all this provides a spectacle not
soon to be forgotten. A visitor from Mars, looking at this
sweltering throng, might wonder how a great nation expects to uncover
good Presidents by such turmoil methods. The answer is that it doesn't.
The nominee is not usually chosen by this howling mob of perspiring
delegates. They are merely behaving like whirling dervishes while the
issue is being settled for them in private conference.

C In most cases, a relatively small number of party leaders and chairmen
of the delegations from the big states have the convention well in hand.
Somewhere, away from the madding crowd, these moguls

r . ' / , ' . , ST- WHERE THE

ol the party are leaning across a table, conferring, bargain- TRICK is
ing, and deciding how whole blocks of votes shall be cast at BEING
the next balloting. Sometimes they find it a hard job, but all
energies arc concentrated upon it; for they know that if they fail to agree
the convention may get out of patience and choose someone whom none
of the leaders wants jfThe dickering may be prolonged; meanwhile the
convention keeps up its round of balloting until the word is passed down
and some candidate jumps into what looks like a decisive lead. Then the
deadlock breaks; the delegates tumble over one another in their anxiety
tcT be with the winner, and the nomination is made in a burst of en-
thusiasm^ The nominee is duly notified and accepts informally; but his
formal address of acceptance (in which he sets forth his own views on the
principal issues) is usually not delivered until the second week of August.
In 1932 and 1936 Franklin Roosevelt, breaking with precedent, ad-
dressed the Democratic convention immediately after he had been
nominated; in 1940 he did so over the radio from Washington.

With the framing of platforms, the naming of candidates, and the
appointing of a new national committee for the next four years, the party
conventions have finished their workt The next step is the
nomination of presidential electors in the several states. In ^ EC ^> NDSTEP:
each state the political parties put forth their slates of NATION o*
electors, nominated in whatever way the state laws or party ELEGTORS -
rules prescribe. These electors are usually prominent party THIRD STEP:
workers, but must not be federal officeholders. In most of THE ELEO
the states their names go on the ballot in parallel columns, ACTORS.
and on the day set for the national election in November the
voters in each state decide which group of electors shall be chosen^When
the voter marks his ballot for a certain group of electors, however, he is

158 THE GOVERNMENT OF THE UNITED STATES

in reality indicating his preference for one of the candidates already
named by the national conventions. In some states the ballots do not
bear the names of the presidential or vice-presidential candidates, but
only list the electors; in others they omit the names of the electors and
bear only those of the candidates. As a practical matter, it makes no
difference to the voters. In either case, from the voter's point of view, the
voting is just as directly for the candidates as if there were no intervening
electors at all.

But the results arc not necessarily the same as they would be if there
were no presidential electors and the election were determined by a

plurality of individual votes. The candidate who gets the
TORAI^VOTE most votes in the country as a whole is not certain to be
\ND THE elected. This is because the electors in each state are always

POPULAR chosen as a group. 1 The party which polls a plurality in any

state gets all the presidential electors from that state, while
the other party gets none. No matter how small the plurality at the polls,
it suffices to elect the state's entire quota of presidential electors. At the
election of 1884, for example, the Democratic plurality in New York
was only 1,149, but it was sufficient to give Grovcr Cleveland the entire
group of thirty-six presidential electors from that state, thus ensuring
his election. On the other hand, a large popular majority in any one
state has no additional bearing on the outcome of the election. However
large it may be, it does not add any additional electors. As a matter of
actual experience, however, the President-elect has usually been the
choice of both the electors and the people, although there have been
some exceptions, especially during the past seventy years. For example,
the elections of Hayes in 1876, Harrison in 1888, and Wilson in 1912
were achieved in spite of the fact that no one of them obtained a majority,
and only Wilson a plurality at the polls.

In any event, whether a candidate obtains a popular majority or not,
the election is really determined at the polls in November unless some-
FOURTH thing very unusual happens, such as the failure of any can-

STEP: ELEC- didate to get a majority of the presidential electors. Never-
PRESIDEN E theless, the Constitution requires two further steps in the
BY THE choice of a President. The electors who have been chosen in

ELECTORS. each state must come to their own state capital in December
and go through the motions of balloting for the candidates whom their

1 Virtually always, although the electors may be voted for individually. There may seem
to be no reason why a voter should mark his ballot for some electors in one column and some
in another. Yet, in a close poll, the electoral ticket has more tham once been split bepause of
the popularity or unpopularity of individual candidates: for example, Maryland in 1904
and 1908, California in 1912; and West Virginia in 1916.

THE PRESIDENT 159

party nominated at the national convention several months before. No
constitutional or legal provision prevents them from marking their
ballots for someone else, but they never do. They are pledged, and they
vote accordingly. Suppose, however, that one of the candidates nomi-
nated for President by the national party conventions should die during
the interval between the November polling and the assembling of the
electors in December. Would the electors then deem themselves entitled
to make a free choice as the Constitution intended? Horace Greeley died
under such circumstances in 1872. Otherwise, he would have received
sixty-six votes. He did receive three, which Congress rejected, the other
electors scattering their support among four persons. Nowadays this
cannot occur. By a vote of the convention, the national committees of
the parties are empowered to fill any vacancy in the ticket or else call
a convention for the purpose.

C When the electors have marked their ballots, and these ballots have
been counted, a certificate from each state is immediately sent to
Washington attesting the result. There,, as has been said,
the president of the Senate supervises the opening of the TRAWMKION
certificates in the presence of both Houses of Congress. As a AND COUNT-
rule this is a pure formality and merely discloses what ING OF THE
everybody knew before. But it may happen that the result
is a tie, or that no candidate has received a clear majority of the total
electoral vote. Then the House of Representatives proceeds to choose a
President from among the three candidates who have stood highest in
the electoral returns. And in this balloting the members vote by states,
not as individuals, a majority of the states being necessary to a choice. *)
<^_ In case the electors have failed to elect a Vice-President by a cleaii
majority, the Senate makes the choice between the two highest candi-j
dates the senators voting as individuals and not by states. J '

On only two occasions, the last of them more than a century I ^ DEGISIVE
ago, has the House been called upon to select a President;
and on only one occasion (in 1837) has the choice of a Vice-President
been decided by the Senate.

Prior to the adoption of the^ twentieth amendment in 1933, the
President was inaugurated on March 4, four months after the November
polling. This interval often proved embarrassing because an THE
outgoing President could accomplish little during these last jKaiOTETO
months, even though a critical situation might demand AMENDMENT.
action. So it is now provided that the terms of the President and Vice-
President shall end at noon on January 20, and the new inauguration is
h^lH on that HatfA Likewise the twentieth amendment stioulates that

160 THE GOVERNMENT OF THE UNITED STATES

if a President-elect dies before the beginning of his term, the Vice-
President-elect shall become President^ Or if, when the inauguration
date arrives, no President has been elected or has qualified, the Vice-
President-elect shall act as President until the matter is settled.jprhis pro-
vision takes care of the possibility that an indecisive presidential election
might have to be taken into the House of Representatives, and that this
body, which meets on January 3, might be unable to make a choice
within the seventeen days that are available before the inauguration
date. Finally, the amendment gives Congress power to determine by law
what shall be done in case neither a President nor a Vice-President has
been elected when the 2oth of January arrives.

f At his inauguration, the President takes the oath of office which is
prescribed in the Constitution. Ordinarily this is administered by the
THE INAU- Chief Justice of the United States during a public ceremony
DURATION OF at the east front of the capitol. But when a President dies in
A PRESIDENT. o ffi ce? anc j a Vice-President succeeds him, the latter takes
the oath at once and in private! Thus, Calvin Coolidge was sworn in by
his father, a rural justice of the peace, whom he happened to be visiting
in Vermont when President Harding's sudden death occurred. No
official act can be performed by the President until he has taken the
oath, which is as follows: "I do^ solemnly swear (or affirm) that I will
faithfully execute the office of President of the United States, and will to
the best of my ability, preserve, protect and defend the Constitution of
the United States."

WHY GREAT MEN ARE SELDOM CHOSEN

In Lord Bryce's analysis of the spirit and workings of American govern-
LORD BRYCE ment fifty-odd years ago a notable chapter was devoted
ON THE to the question, "Why Great Men Are Not Chosen

PRESIDENCY. p residents .

Europeans often ask, and Americans do not always explain, how it happens
that this great office, the greatest in the world, unless we except the Papacy, to
which anyone can rise by his own merits, is not more frequently filled by great
and striking men. . . . [Since] the heroes of the Revolution died out with
Jefferson and Adams and Madison, no person except General Grant has
reached the chair whose name would have been remembered had he not been
President, and no President except Abraham Lincoln has displayed rare or
striking qualities in the chair. 1

If Bryce were writing today, he would change the foregoing paragraph
considerably, for at least three or four Presidents with "rare or striking

1 The American Commonwealth^ Vol. I, chap. viii.

THE PRESIDENT 161

qualities" have occupied the White House during the past fifty years.
Most Americans regard Grover Cleveland and Woodrow Wilson as
"great" Presidents, even when measured with John Adams THE NATION
or James Madison; and there are few who would deny HAS NOT
to either of the Roosevelts the possession of "striking" UTILIZED ITS
qualities. Among the thirty-two Presidents of the United GREATEST
States there have been nearly as many great and striking MEN *
figures as one can discover among the prime ministers of England during
the past hundred and fifty years, although this is a matter on which
there might be difference of opinion. There have been men of small
caliber in the White House at times, but Downing Street has also had its
share of them. 1 The Third French Republic, during the seventy years
between its inception and collapse, had an even more generous sprin-
kling of small-caliber prime ministers. America is not alone in permitting
mediocrity to gain, at times, the highest honor in the land.

Still, the query propounded by Lord Bryce is a suggestive one and
deserves discussion. The United States has failed to utilize in the presi-
dential office a long line of outstanding statesmen: Hamil- SOME ILLUS .
ton, Marshall, Gallatin, Webster, Clay, Calhoun, Seward, TRATIONS
Sumner, Elaine, Hay, and Root to name only a few. OF THIS *
On the other hand, it has bestowed its highest honor on men like
Fillmore, Pierce, Arthur, and Harding, of whom no one now knows
much (or cares to know) except that their names have achieved im-
mortality on the roll of chief executives. Certain it is that the standard
has not been so high as the Fathers of the Republic expected, for Hamil-
ton in 1 788 voiced the prediction that "the office of President will seldom
fall to the lot of anyone who is not in an eminent degree endowed with
the requisite qualifications. ... It will not be too strong to say that there
will be a constant probability of seeing the station filled by characters
preeminent for ability and virtue."

Several factors contribute to the election of Presidents who do not
necessarily possess conspicuous merit. 2 In the first place, the greatest
asset of a presidential candidate is 1 "availability." A

candidate has availability if his place of residence^ tempera-

ment, affiliations, public record, and place in the public MORE THAN

imagination seem likely to impress the electorate at the PERSONAL

f MERIT.

moment. At the approach of an election campaign there

may be many aspirants with the desired qualities; or, on the other hand,

1 A full account may be found in Clive Bigham, The Prime Ministers of Great Britain (New
York, 1922). *

2 For an interesting discussion of this topic see Harold J. Laski, The American Presidency:
4n Interpretation (New York, 1940), pp. 41 ff.

162 THE GOVERNMENT OF THE UNITED STATES

both political parties may be hard pressed to find anyone who comes a1
all near qualifying. There may be plenty of " presidential timber" or a
great scarcity of it. It sometimes happens, moreover, that a man who is by
common agreement the^trongest possible candidate in one year mayjbe
wholly out of the running a few years later. The right candidate during
an era of peace and prosperity would be the wrong candidate for_ja
3epression or an emergency. Availability and high personal competence
on the part of a candidate do not necessarily go together. National
nominating conventions are primarily concerned in finding candidates
who will win. Whether they will display real executive competence, when
called upon to dp it, is not so important to party leaders whose immediate
goal is to capture or retain the spoils of office.

It might be supposed, for example, that long experience in political

life would be an asset to one who seeks the nomination; but usually it is

not. The man who spends a lone: term in public office, if he

LONG POLIT- .. r & r ~i ,

ICAL EXPE- has a will of his own, is certain to accumulate political
RIENCE is A enemies. By supporting some measures and opposing: others.

LIABILITY ~ J . . r

RATHER he antagonizes voters sometimes a great many of them,

THAN AN it is an axiom of politics that most people vote their resent-

ment rather than their appreciation, and for that reason a
man with a long record in public office is not usually looked upon as a
strong candidate. On the other hand, candidates for the presidency arc
not often recruited directly from private life. Of the Presidents during the
past fifty years, four (Harrison, McKinley, Harding, and Truman)
served in Congress before going to the White House. All the others
possessed executive experience. Taft and Hoover had been in presidential
cabinets; Cleveland and the two Roosevclts had served as governors oi
New York, Wilson as governor of New Jersey, and Coolidge as governor
of Massachusetts. Experience, therefore, but not too much of it, seems tc
be what is required. Only once in recent years has either of the major
political parties nominated a presidential candidate who, at the time oi
his nomination, had no experience in public office. This was the surprise
nomination of Wendell L. Willkie by the Republicans in 1940.

It is politically desirable, again, that presidential candidates shall be

taken from what are called pivotal states. This results from the fact that

the presidential election is not determined by the plurality

ENCE OF THE of the total votes cast by the people but by a majority of the

"PIVOTAL" electors chosen. The successful candidate must carry enough

STATES.

states to control this electoral majority^ hence he should be
strong in those sections of the country which provide most of the presi-
dential electors. If one will look over the presidential nominees of the twc

THE PRESIDENT 163

major parties during the past fifty years, it will be seen that geography,
quite as much as personal qualifications, has had to do with the selection.

Seekers for the nomination are at a disadvantage if they come from
very small or heavily partisan states; and most of the states are in that
category. To be strictly truthful one should amend the ITS PRA(>
saying that "every American boy has a chance to become TICAL IM-
President," by adding: "if he lives in one of the big, doubtful PORTANCE
states." If he is a Republican and lives in one of the southern states, he
has, statistically, no chance whatever. No Republican candidate for the
presidency has come from any southern state since the Republican party
was born, over eighty years ago. On the other hand, it is almost incon-
ceivable that the Democrats, under ordinary conditions, would select
their standard-bearer from a state which is so hopelessly Republican
that he would have no chance of carrying it. Good political strategy
dictates that the presidential candidate should be someone who is
stronger than his party who can carry states which the party would
not ordinarily win. He should be able to swing one or more of the
pivotal states. Is it not significant that only four Presidents during the
past seventy years have come from states other than Ohio and New
York? 1 And in every presidential election since the Civil War at least one
of the major candidates has come from the same two commonwealths.

It has been customary to say that there are always three classes of
aspirants for the presidential nomination: namely, "logical candidates,"
"favontej*Qjis," and "dark hpr$sJ' The logical candidates
get into the running early, some times"aTy ear or two "before CANDIDATES .
the election. On paper they appear to have the elements of
strength; they draw support from various parts of the coun- l Jb??l CAL ;,
try and sometimes manage to pledge a considerable fraction * "

of the delegates before the convention meets. A President who is serving
his first term is always regarded as a logical candidate for a second term.
It is only with great difficulty that anyone else can take the nomination
away from him, and it has not been done in either party during the past
fifty years.

Favorite sons are candidates brought forward by their own states even
though they may have very little strength outside. There is always a hope
that other states, particularly in the same region, may lend
a hand. At any rate there are favorite sons aplenty in the
early stages of every presidential campaign. Sojnetimes the
favorite son is merely a stalking-horse, brought forth as a means of retain-

SONS*"*"

1 These were Wilson of New Jersey, Coolidge of Massachusetts, Hoover of California, and
Truman of Missouri.

164 THE GOVERNMENT OF THE UNITED STATES

ing freedom of action for the party in his own state. The local delegation
pledges its support to him as a means of warding off any attempt to
capture it for someone else. Then, at the convention, its strength can be
used for trading purposes; it can be turned over en bloc to some candidate
who has a chance of winning the nomination. Sometimes, however, the
favorite son is a real candidate and stays in the balloting to the end.

Finally, there are the dark horses who trot into the political paddock
and are what bookmakers would call a "long shot." These ebony equines
are not always avowed candidates, but it goes without say-
HORSES** m S ^at t " lc y are keenly receptive. Their chief hope liesjn
the possibility of a deadlock. With two or three strong candi-
dates in the field, there is always a chance that the convention will take
ballot after ballot without giving anyone the requisite majority. Then, as
the delegates grow weary and discouraged, dark horses are brought
forward in the name of compromise. Or, the improbability of any leading
candidate's obtaining a majority may become apparent after only two or
three ballots have been taken. The convention may then turn to a dark
horse without further delay.

Its action in doing so may be expedited by pressure placed upon the
delegates by people back home. For those who go to represent their
party at a national convention, even though they may be
officially unpledged, are usually deluged with telegrams and
long-distance telephone messages from friends and sup-
porters who urgently advise them what to do on the next ballot. The
nomination of Wendell L. Willkie by the Republican convention in 1940
afforded a striking example of the way in which telegraphic pressure from
the rank and file of the party, all over the nation, can sometimes impel a
convention to do what it is not itself much minded to do.

It would be difficult to make a list of all the considerations which
influence the action of a national convention in making its presidential
PERSONAL nomination. ^A man's^age^ family background, place of
FACTORS IN residence and experience^* hTs religion, his leanings to
THE CHOICE, fiberalism or conservatism, his economic affiliations past and
present, his acceptability to the business interests or to the labor organ-
izations, his past services to the party, his attitude on specific current
issues, his skill as a vote getter if he has demonstrated it, and the general
impression of himself which he has stamped upon the public mind
all these things weigh in the selection. Yet none of them is closely relatecT
to the possession of great intellectual capacity or ^administrative skill.
It is the business of a national convention to nominate a good candidate
rather than to see that the country gets a good President. Hence the

THE PRESIDENT 165

ablest statesman in the land may be regarded as inferior, in point of
political availability, to some amiable compromiser from a pivotal state.
To answer Lord Bryce's question one might say that great men are not
always elected to the presidency because great merTdb not necessarily
make strong candidates. The party's objective is a great victory, not^a
great President.

The policy of rigidly fixing the date on which a presidential election
must take place has also had its effect. Under the parliamentary system
of government, a general election must occur once in every THE TIME
so many years, but within this time limit an administration OF THE
can "go to the country" whenever it pleases. It can avoid a ELEGTION -
time when public opinion seems to be running adversely and can choose
a moment when some popular stroke operates heavily in its favor. But in
the United States a President cannot seek a reelection whenever a pro-
pitious juncture appears. He must wait till the constitutional date arrives.
Hence the party leaders, in choosing the candidates, must have regard
to the public temper of the moment. If everything is going prosperously,
the "safe and sane" type of candidate has an advantage. But if the date
for an election looms into view with the country in a depressed and
disillusioned frame of mind, then the advantage passes to someone who
can impress the people with his ability to provide remedial leadership
and give the country a new deal.YThat was the case in 1932. There are
fair-weather candidates and there are those to whom the voters turn
when the skies are darkened.

O^et the American presidency, when all is said, has maintained an
amazingly good average of ability and statesmanship, save for a lapse at
one period. It has been "one thing at one time, another at

r m UPS AND

another, varying with the man who occupied the office and DOWNS OF
with the circumstances that surrounded him." J) During THE PRESI-

DFNC'Y

the first forty years of its existence that is, from Washing-
ton to Jackson the standard was high. Then it began to slip, and it
kept slipping until the election of Lincoln in 1860. Since the Civil War
there have been big and little men in the White House, and some who fall
in neither classification. Cleveland was a great President, by whatever
standard judged; Theodore Roosevelt was a striking one; and Wilson's
place in history is assured by reason of the epoch-marking events from
which his name can never be dissociated. As for the Presidents who have
been in office during more recent years, their claims to greatness are as
yet controversial a$d a textbook is no place for political controversy.
Looking into the future, there is nothing to indicate the likelihood of a

1 Woodrow Wilson, Constitutional Government in the United States (New York, 191 1), p. 57.

166 THE GOVERNMENT OF THE UNITED STATES

decided change for better or for worse. Some years ago, when the presi-
dential primaries began to be used in a number of the states,
T^FUTURE? lt was P re dicted that the new method of choosing convention
delegates would quickly put an end to those maneuvers
and deals at national conventions which had occasionally resulted in
sending second-rate men to the executive mansion. That prediction has
not been fulfilled. The plan of asking the voters to express their prefer-
ences at the polls, and of pledging the delegates in accordance with such
preferences, does not afford much protection against political trading
when the national party conventions assemble.

The reason is that delegates cannot be sent to a national convention

with definite instructions covering all eventualities. Situations will arise

in which they must be free to act in accordance with their

WILL PRESI- . , r , i , t , t

DENTIAL own judgment. The candidate to whom they are pledged

PRIMARIES may withdraw from the race, or his prospect of getting

the nomination may become hopeless. Then the delegation
must be free to use its discretion in supporting someone else. It is in the
process of making this shift that the opportunity for trading arises. The
candidate who will promise the most is the one who may have the best
chance of capturing the loose delegations. The fundamental difficulty
with the presidential primary is that the choice of a presidential candi-
date is not usually a matter of selecting one from two, but one from a
dozen.

The presidential primary has been impaired in effectiveness because
various states hold their primaries at different dates. The results in one

state naturally influence the others. Not all the candidates
DEFECTO ITS w ^ 10 hP e to have their names presented at the convention,

moreover, are willing to enter the primaries. In states where
they fear that they may be losers, the stronger ones deem it good strategy
to stay out. In theory the presidential primary gives every voter the
opportunity to choose between Ihe leading contenders for the party
nomination; in practice it rarely succeeds in doing so. More often it bids
them choose between a favorite son and a foHbTnTibpe, neither of whom
has much chance of figuring in the final convention ballot. In general,
therefore, the presidential primary system has been something of a
disappointment. ~

The remuneration of the President is fixed by Congress, but it may not
be either increased or diminished during the term for which he was

elected. In 1949, it was fixed at $109,000 per annum plus

SALARY AND n A . ,. r

ALLOWANCES. an expense allowance. Appropriations for secretaries,
*** ~~ -~elerks, traveling, the maintenance of the White House,

THE PRESIDENT 167

et cetera, are annually made, amounting to about three hundred
thousand dollars. Even this, however, is not a large amount when com-
pared with the cost of maintaining the chief executive office in European
countries.

The President has certain constitutional immunities. He may not be
haled into any regular court either as witness or defendant. At the trial
of Aaron Burr, the Supreme Court issued a summons to PRESIDEN .
President Jefferson who declined to obey it on the ground TIAL IMMU-
that the court had no such power. "Would the executive *s.
be independent of the judiciary," asked the President, "if he were subject
to the commands of the latter, and to imprisonment for disobedience?" 1
The court eventually accepted the principle for which Jefferson con-
tended and agreed that the President, in the exercise of his constitutional
powers, is beyond the reach of any other department. 2 The only tribunal
before which the President can be brought is the United States Senate,
sitting as a court of impeachment, as will be later explained. 3 He may
nevertheless waive his immunity and appear as a witness in one of the
regular courts if he sees fit. On one occasion President Grant did this.

THE VICE-PRESIDENCY i

The framers of the Constitution made provision for a Vice-President,
although one of them remarked in the course of the debates that such an
official was not wanted and that the position was merely
being established as a consolation prize inasmuch as it was
to be bestowed upon the candidate getting the second-
highest vote from the electors. Benjamin Franklin, in one of his whimsical
moods, suggested that the Vice-President should be addressed as "His
Superfluous Highness. 5 j)lf Congress had been given power to choose the
President, as was the original plan, there would have been no need for a
Vice-President; for in the event of a vacancy the national legislature
would choose a new President without delay. But when the method of
electing the President through the medium of electors was decided upon,
it became apparent that, in the event of the President's death, resigna-
tion, or removal, it would be undesirable to have the presidential office
left vacant until new electors could be chosen and could act.

So, the vice-presidency was established to meet such contingencies.
Its incumbent is elected in the same way and for the same term as the
President. "In case of the removal of the President TronT office," says

1 Jeferson's Writings, edited by Paul Leicester Ford (12 vols., New York, 1904-1905),
Vol. IX, pp. 59-60.

8 Kendall v. United States, 12 Peters, 524 (1838). 3 See pp. 299-300.

168 THE GOVERNMENT OF THE UNITED STATES

the Constitution, "or of his death, resignation, or inability to discharge
the powers and duties of the said office, the same shall de-
volve upon the Vice-President." 1 It will be noticed that
this wording does not give the Vice-President any right to
assume the title of President. It merely provides that the powers and
duties of the presidential office shall devolve upon him. But John Tyler,
the first Vice-President to fill a vacancy, took the title as well as the
powers, and his example has since been followed.

On seven occasions since 1 789, the death of a President has elevated

the Vice-President in accordance with this provision of the Constitution.

No President has resigned or been removed by impeach-

SOME MOOT ~ *- . i r

QUESTIONS ment, and in no case has the succession come because of
CONCERNING "inability to discharge the powers and duties" of the office;
although President Garficld was for more than two months
in 1 88 1 physically unable to perform any important official act, and
President Wilson was similarly incapacitated for a considerable length
of time during the latter part of his second term. 2 Both these cases led to
some discussion as to just how much "inability" there would have to be
before the Vice-President could step in and assume the presidential
powers. And whose function is it to declare that a President, by reason
of a physical or mental illness, is no longer able to discharge the powers
and duties of his office? Neither the Constitution nor the laws give answer
to that question. Presumably, it would be in order for the Vice-President
(in response to a joint resolution of Congress) to issue a proclamation,
countersigned by the secretary of state, announcing that by reason of
the President's inability to discharge the powers and duties of his office,
the same had devolved upon the Vice-President. Then, if the fact of
inability were questioned, the courts would decide it.

If there is no Vice-President to succeed the President, Congress deter-
mines the order of succession. An act of 1792 provided that the president
pro tempore of the Senate and the Speaker should succeed

THE SUCCES- r

SIGN AFTER after the Vice-President; but in 1886 the succession was
THE VICE- shifted to the cabinet. The latest succession law of 1047

PRESIDENT. . ,, i . , . . r i ,.

virtually combines the provisions of these earlier measures,
naming the Speaker as first in line after the Vice-President, then the
president pro tempore of the Senate, and thereafter members of the
cabinet in the order of the seniority of their posts beginning with the
secretary of state. No one of these officials may succeed unless he is

1 Article II, Section I.

2 Absence from the United States, even for months at a time, di3es not constitute "inability
to discharge the duties" of the presidency as President Wilson demonstrated during his
absence in France during the negotiations for a peace treaty in 1918-1919.

THE PRESIDENT 169

constitutionally eligible(j\ vacancy in the vice-presidency is filled at the
next election, the Speaker being heir apparent in the interim. (Thus far
the succession has not passed beyond the Vice-President.^;

(A few words, but only a few, should be added with reference to the
position and duties of the vice-presidency^ The framers of the Constitu-
tion intended the office to be a dignified one and a sort of
preparatory school for the chief executive position. They AND DUTIES
expected its incumbent to be a man second only to the OF THE VJtCE>
President in the favor of the electors and in line for the
higher post at the next election. During the first few decades, this view of
the office persisted; but with the practice of nominating the candidates
at national conventions it was gradually lost to view. Thereupon the
vice-presidential nomination came to be used as a means of strengthening
the party ticket. It is still so used. It serves, as a rule, to balance the ticket
geographically or goes to someone who can placate a disgruntled or
disappointed faction of the party, or bring some doubtful state into line,
or secure large contributions to the party's campaign funds. The personal
merits and capacity of the candidate have not been the controlling
factors during the past hundred years; nevertheless, some men of marked
ability have found themselves installed in this office.

When the Constitution was being framed, one of the delegates sug-
gested that the Vice-President should be given something to do besides
waiting to fill another man's shoes. So they made him pre- PRESIDING
siding officer of the Senate. But he is an outsider there, has OFFICER OF
no vote except in case of a tie, appoints no committees, and THE SENATE -
has nothing more than perfunctory powers. Theodore Roosevelt, when
he held the post of Vice-President, referred to it as "an office unique in
its functions, or rather in its lack of functions." During the Harding
administration (1921-1923) Vice-President Coolidge was invited to
attend meetings of the cabinet and regularly did so. But Vice-President
Dawes, during the Coolidge administration, declined a similar invitation,
and the practice since then has varied. 1

No one is eligible to the presidency either by election or by succession
unless he is a natural-born citizen, thirty-five years of age or more, and
unless he has been a resident of the United States for at least

THE CONSTI-

fourteen years. A special exemption as to natural-born TUTIONAL

citizenship was made in the Constitution for those who were Qi JALI ?l9 A "

, . , . r . i TIONS,

citizens at the time of its adoption. 1 his was done as a matter - "

of courtesy to Alexander Hamilton, James Wilson, and others, who,

1 In 1 945 President Truman invited to cabinet meetings Senator McKellar, then serving as
president pro tempore of the Senate.

170 THE GOVERNMENT OF THE UNITED STATES

although not born in the territory which formed the Union, had taken a
considerable share in establishing the new government.

REFERENCES

In addition to Stanwood's History of the Presidency (revised edition, 2 vols.,
Boston, 1928), mention may be made of C. G. Thach, The Creation of the Presi-
dency, 1775-1789 (Baltimore, 1922), J. B. Bishop, Presidential Nominations and
Elections (New York, 1916), and J. H. Dougherty, The Electoral System of the
United States (New York, 1906), all of which are useful for a further study of the
subjects dealt with in this chapter. Attention should also be called to the publica-
tion by G. J. Schulz entitled Election of the President of the United States by the House
of Representatives, issued as Senate Document 227, Sixty-eighth Congress, 2nd
session (Washington, 1925). Other useful studies of presidential elections
include Cortez A. M. Ewing, Presidential Elections from Lincoln to Franklin D.
Roosevelt (Norman, Okla., 1940), Edgar S. Robinson, The Presidential Vote,
1896-1932 (Stanford University, 1934) and The Presidential Vote, 1936 (Stanford
University, 1940), P. L. Haworth, The Hayes-Tilden Disputed Presidential Elec-
tion of 1876 (Indianapolis, 1906), and L. H. Bean, Ballot Behavior: A Study of
Presidential Elections* ( Washington, 1940). The methods of electing a President,
including the organization and work of the national party conventions, are
described in all the standard works on the American party system such as those
of E. M. Sait, P. Orman Ray, and Robert G. Brooks (see references at the close of
Chapter VIII). Louise Overacker, The Presidential Primary (New York, 1926)
deals fully with the topic indicated by its title. Mention should also be made of
L. T. Beman, The Abolishment of the Electoral College (New York, 1926), issued
in the Reference Shelf Series. Willis Thornton, The Third Term Issue (New York,
1939), and Fred Rodell, Democracy and the Third Term (New York, 1940) pro-
vide a discussion of presidential tenure.

PRESIDENTIAL BIOGRAPHIES. For a general survey the best book is Herbert Agar,
The People's Choice (Boston, 1933). Brief biographies of the nation's chief execu-
tives are to be found in T. F. Moran, American Presidents (5th edition, New York,
1933). Individual biographies are T. C. Smith, Life and Letters of James Abram
Garfeld (2 vols., New Haven, 1925), Robert McElroy, Grover Cleveland (2 vols.,
New York, 1923), Allan Nevins, Grover Cleveland, a Study in Courage (New York,
1932), D. T. Lynch, Grover Cleveland (New York, 1932), C. S. Olcott, Life
of William McKmley (2 vols., Boston, 1916), J. B. Bishop, Theodore Roosevelt and
His Time (2 vols., New York, 1920), H. S. Duffy, William Howard Taft (New
York, 1930), H. F. Pringle, The Life and Times of William Howard Taft (New York,
1939), Theodore Roosevelt, Autobiography (New York, 1913), W. E. Dodd,
Woodrow Wilson and His Work (4th revised edition, New York, 1921), Ray Stan-
nard Baker, Woodrow Wilson; Life and Letters (8 vols., New York, 1927-1939),
Calvin Coolidge, Autobiography (New York, 1929), W. F. Dexter, Herbert Hoover
and American Individualism (New York, 1932), and Basil Maine, Franklin Roosevelt
(London, 1943).

THE VICE-PRESIDENT. L. C. Hatch, A History of the Vic$ Presidency of the United
States (revised edition, New York, 1934), and O. P. Field, "The Vice-Presidency
of the United States," American Law Review, LVI, pp. 365-400 (May-June, 1922).

CHAPTER XI
THE PRESIDENT IN RELATION TO CONGRESS

By mutual confidence and mutual aid,

Great deeds are done and great discoveries made.

Pope.

President of the United States is more than a chief executive. As
has been pointed out, he is expressly given the duty of recommending
measures to Congress, and by implication he may take any THE PRESI _
means that he deems necessary or proper to see that his DENT'S
recommended measures get before Congress in an effective MESSAGES -
way. ^Washington and John Adams carried their recommendations to
Congress in person; but Jefferson began the practice of sending written
messages to be read in both Houses by the clerks, and this plan was con-
sistently followed until 1913, when President Wilson reverted to the
earlier method. His successors have used both procedures, sometimes
sending written communications and sometimes addressing Congress
orally JA presidential message naturally makes a stronger impression on
Congress when it is delivered in person, especially if the President
is a forceful speaker and uses the radio to carry his words to the ears of
the whole country. But whether written or spoken, these expressions of
presidential opinion may come at any time and may deal with any
subjcct(j\t the beginning of each congressional session there is usually
a long message which deals with a variety of matters; while special
messages dealing with particular subjects are transmitted whenever the
President sees fit to send them. )

C Presidential messages to Congress may have any one of three purposes
in view or sometimes all three purposes combined? First^ the message
may be merely intended to suggest that there is neecTfor
certain legislation and that Congress should consiHer the AI ^ T0 D0 .
desirability of providing it.jln such cases a bill will be (a) INFLU-
inffSduced, along the lines of the President's recommenda- EN !L t: , 00

^ CONGRESS.

tion, usually by prearrangement with some member of the ~ ~ - *
Senate or the House. Sometimes the measure is drafted and in readiness
before the message comes. At any rate it is referred to the appropriate

171

172 THE GOVERNMENT OF THE UNITED STATES

committee^ and from that point will follow the customary legislative
procedure, except that by action of either chamber it may be given a
certain priority on its calendar. But whether it will eventually become
a law depends on many factors, such as the amount of influence the
President exerts in its behalf, the merits of the bill, and the political
complexion of Congress. \

XL Second, the President's message may not be primarily intended for
the ears of Congress, although officially addressed to that body; its real
,. x destination is the ears of the whole country. It may be, and

(b) INFLU- . . . .,- - 11 i

ENGE THE sometimes is, intended to rouse public interest all over the
PUBLIC land, to get people stirred up and provoke a bombardment

of letters and telegrams upon congressmen from their
friends back home. It is a way that the President has of "going to the
country," and rallying it to his support. ^In recent years, the President
has used this procedure on numerous occasions. Although in form a
message to Congress, the presidential deliverance has been in fact a
sermon to the American people from the biggest pulpit in the country.
Every presidential message, no matter what its purport, is virtually cer-
tain to get newspaper headlines. If it relates to a matter of importance it
is printed in full by newspapers everywhere. If it deals with a question of
foreign relations, it is likely to be published^ by newspapers in other
countries. No one can compete with the President when it comes to assur-
ing himself of a wide public hearing.

It is true that in his appeals to the public attention, both at home and
abroad, the President does not confine himself to congressional messages.
DIRECT Q!L ma y> an< ^ often .dogs, prefer the method of speaking to

PUBLIC the people direct /The radio gives him this opportunity

APPEALS. whenever he wants it. A series of "fireside chats," addressed

to the whole people over the nation-wide broadcasting chains, was a
feature of President Franklin D. Roosevelt's first term. Quite as influ-
ential upon Congress as official messages were these informal talks on
issues of the hour, which went to an audience of many million voters.
Addresses on a variety of public occasions (such as the dedication of new
public buildings) are also made by the President; and these, by way of
the ether, give the chief executive a means of intimating to Congress
how urgently the President desires one thing or another. Such addresses
also serve at times as "trial balloons" in other words, as the means of
making tentative proposals of legislation to see how the country will
react. By carefully noting the public reaction to his words, the President
is able to sense the drift of popular sentiment jnorc accurately than
Congress can do it.

THE PRESIDENT IN RELATION TO CONGRESS 173

Third, a presidential message may be primarily intended for foreign
consumptionjfnot for home use. Its principal purpose may be to inform
some one or more foreign powers concerning the attitude of ( .
the United States on some phase of international policy. \ ENC E
One of the most conspicuous landmarks in the history of FOREIGN
American foreign policy, the Monroe Doctrine, was estab- "
lished by a presidential message transmitted to Congress in 1 823. President
Cleveland's message to Congress on the Venezuela boundary dispute in
1895 was designed to bring the government and people of Great Britain
to a realization of the fact that the United States meant business in this
matter. During the years immediately preceding the entry of the United
States into World War I (1917), some of President Wilson's messages
to Congress were clearly motivated by a desire to let European Powers
understand the attitude of the United States towards certain features of
the great struggle. And more than one of President Roosevelt's messages
during the years 1941-1945 had the same end in view. The President is
the country's official spokesman on matters of foreign policy, but, in-
asmuch as the support of Congress is needed to make presidential
declarations of policy effective, it is appropriate that such pronounce-
ments be made in the form of messages to the national legislature. ^

iThere are times, however, when in spite of presidential urgings the
Senate, or the House, or both, remain indisposed to do what the chief
executive asks. This occasionally happens, even when his
own party controls a majority in both chambers of Congress^ PRESIDENTIAL
Party lines are often broken down when issues of foreign PRESSURE ON

,. r . . T^ i CONGRESS.

policy or of economic reorganization come up. Regional or
class interests quite frequently determine the alignment. When the
President's recommendations fail to gain congressional endorsement, he
has other means of bringing pressure to bear upon the recalcitrant
legislators. One way is to appeal unto Caesar that is, to make a bid
for popular support as has just been explained. Another way, not so
visible to the naked eye, is to withhold all patronage Trom congressmen
who do not play the game. Those senators and representatives who
belong to the same political party as the President are definitely in-
terested in things that the administration can give contracts and
appointments for their own friends and supporters, allocations of public
money for projects in their home states and districts in a word, patron-
age of all kinds. The President can easily drop a hint to the heads of
departments that congressmen who show themselves rebellious are not
to be given recognition when the loaves and fishes are being doled out.
It is not necessary to refuse what these legislators ask. The end can

174 THE GOVERNMENT OF THE UNITED STATES

usually be achieved by merely delaying action on their requests until
they begin to see the light.

C Thus the President's relation to Congress, if he chooses to make it so,
can be a very influential one along affirmative lines. He can initiate,
THE "PRESI- promote, and under favorable conditions virtually~assuTe
DENTIAL the enactment of legislation. Through his higher subordi-

LOBBY. nates, the heads of departments and bureaus, as well as the

members of numerous administrative boards, he has at his command the
most powerful lobby in Washington. These officials can gather facts and
data wherewith to demonstrate, in hearings before the congressional
committees, the urgent need for such legislation as the President recom-
mends. Opponents of the measures have no such far-reaching facilities.
Nevertheless, in spite of all these advantages, it is not possible for the
President to count with certainty upon the approval of his recommenda-
tions by Congress. Even under the most favorable circumstances it is a
long journey from the introduction of a bill to its final enactment, and
there are numberless pitfalls along the road.,)

^ THE VETO POWER

( Equally as important as the President's positive influence upon the
lawmaking work of Congress, and much more definite, is his potential
influence in a negative sense in stopping legislation to which he is
opposed. This comes to him through his veto power as provided in the
Constitution.^ The scope and nature of this authority cannot be more
succinctly expressed than by quoting the words of the Constitution
itself:

c Every bill which shall have passed the House of Representatives and the
Senate shall, before it becomes a law, be presented to the President of the
United States; if he approve he shall sign it, but if not he shall return it, with his
objections, to that House in which it shall have originated, who shall enter the
objections at large on their journal, and proceed to reconsider it. If, after such
reconsideration, two-thirds of tha| House shall agree to pass the bill, it shall be
sent, together with the objections, to the other House, by which it shall likewise
be reconsidered, and if approved by two-thirds of that House, it shall become a
law. But in all such cases the votes of both Houses shall be determined by yeas
and nays, and the names of the persons voting for and against the bill shall be
entered on the journal of each House respectively. If any bill shall not be re-
turned by the President within ten days (Sundays excepted) after it shall have
been presented to him, the same shall be a law, in like manner as if he had signed
it, unless the Congress by their adjournment prevent its return, in which case
it shall not be a law. 1 *

1 Article I, Section 7.

THE PRESIDENT IN RELATION TO CONGRESS 175

How did the framers of the Constitution come to adopt this provision,
which is a native-born American contribution to the practice of govern-
ment? They devised it in accordance with their policy of

^ THE QUALI-

choosing a middle course between two extremes. On the one FIED VETO
hand, they were not prepared to give the President an IS A COM -

11 i i j i i i PROMISE.

absolute veto such as governors had possessed in colonial
days. On the other hand, they did not think it proper that the laws should
be made in sheer defiance of the President's rights or wishes. Experience
with parliament in colonial days had shown that a legislature could be
quite as tyrannical as a monarch^ All the lessons of history, in fact,
seemed to demonstrate that no legislative body could be kept within its
own sphere of action by any "mere parchment delineation of bound-
aries." 1 The executive ought, therefore, to be given some sort of weapon
to wield in its own defense, and the "qualified veto" was devised as a
compromise between an absolute veto and no veto at all." It was agreed
upon as establishing what Alexander Hamilton termed "a salutary
check upon the legislative body," and at the same time a "shield to the
executive."Apparently the framers of the Constitution looked lipdti'tKe
President's veto as a legislative rather than as an executive function;
for they inserted it irTfhat part of the Constitution which relates to the
organization and powers of Congress. 2 ^

If you read carefully the veto clause of the Constitution, as previously
quoted, you will see that any one of four things may happer^when a bill
or joint resolution of Congress reaches the presidential desk.

, ~ . , t . . , THE THREE

First, the President may promptly sign it. That is what he COURSES OPEN
does"m the great majority of cases/Second, he may return T0 A PRE SI-
it unsigned, within the space of ten daysf to the branch of
Congress in which it originated. The Constitution requires that in re-
turning it he shall state his objections, but these need not be specific^
A mere statement that the measure is unwise or untimely or extravagant
is enough. At any rate, when the measure comes back to Congress, it is
again voted upon; and, if adopted in each House by at least a two- thirds
majority, it becomes a law notwithstanding the President's disapproval.
In popular parlance it is "passed over his veto." JThird, the President
may neither sign the measure nor return it. He maylet it lie on his desk
until the ten-day limit has expired. Thereupon the bill becomes a law
without his signature unless Congress has meanwhile adjourned. In that

1 The Federalist, No. 73.

2 "It has been suggested b some that the veto power is executive. I do not quite see how. . . .
The character of the veto power is purely legislative." W. H. Taft, Our Chief Magistrate and
His Powers (New York, 1916), p. 14.

176 THE GOVERNMENT OF THE UNITED STATES

case (and this is the fourth eventuality), it does not become a law. It
gets what is commonly known as "the pocket veto."

A few words of explanation should be added with reference to these
several methods of settling the fate of bills which come to the President's
THE VETO desk. The ten days do not include Sundays, nor does the
PROCEDURE time begin to run until the bill actually reaches the Presi-
IN ^JL AGTI ' G x dent. When President Wilson was in France, attending the
Peace Conference at the close of the First World War, the bills did not
reach him, in some instances, for more than ten days after they had
passed both Houses. The same was also true of some bills sent to Presi-
dent Franklin D. Roosevelt during his absences on trips to European
conferences during the Second World War. As a rule, the President
quickly signs those bills which he approves and vetoes those which he
disapproves; but if his mind is not strongly set in either direction he may
ignore the measure altogether. In this way, when ten days expire, he
throws the whole responsibility upon Congress by letting the bill become
a law without his signature.

/ When a congressional session is nearing its end, however, the Presi-
dent's failure to sign a measure is equivalent to an absolute veto. Many
bills meet this fate to the great disappointment of their sponsors. The
reason is that numerous measures drag their \xay along the congressional
calendar until the closing days of the session and are then rushed through
their final stages sometimes under suspension of the rules, or more
often by unanimous consent. The President gets them in batches on the
eve of adjournment and naturally finds it impossible to give each bill the
consideration it deserves. So he picks out the ones which he approves and
leaves the rest to die a natural death on his mahogany table while the
congressmen are scurrying to their homes.

But this should not be construed to mean that^he President, if he
decides to sign a bill, must do it before Congress adjourns. He has ten
days after its presentation to him, no matter what Congress does in the
meantime^ President Wilson, acting upon an opinion of the attorney
general, signed a number of bills after the adjournment of Congress in
1920; and the Supreme Court has ruled that such action is within the
President's power. 1 In still another way the President can gain time in
which to consider what he should do. Bills do not go to him, after passing
both Houses, until they have been signed by both presiding officers. So^
if the President is playing for time, he can sometimes arrange with one

1 Edwards v. U. S., 286 U. S. 482 (1932). For a full discussion, see the article by Lindsay
Rogers on "The Power of the President to Sign Bills After Congress Has Adjourned" in th<*
Tale Law Journal, Vol. XXX, pp. i ff. (1920). More than thirty years earlier the court had
ruled that the President might sign bills during a recess of Congress.

THE PRESIDENT IN RELATION TO CONGRESS 177

of these presiding officers to delay his signature and thus expand the
interval between actual passage and the deadline for the President's
decision. In one instance, in 1936, President Roosevelt signed a measure
more than three weeks after Congress had adjourned.
(Lit ought to be mentioned that proposed amendments to the Constitu-
tion, when they have passed Congress by a two-thirds vote in both
Houses, are not presented to the President for his signature
and hence cannot be vetoed by him. The same is true of DOES NOT
concurrent resolutions which, when passed by -both Houses, APPLY T0

i ni i r n i r i PROPOSED

do not usually have the force of law, but for the most part CONSTITU-
are mere expressions of congressional opinion. 1 \Joint TIONAL

1 .. i_ i-rr V AMENDMENTS.

resolutions, however, are in a different category and come
within the scope of the veto provision.

Was it intended that the veto power of the President should be used
freely or only on rare occasions? Alexander Hamilton predicted that it
would "generally be employed with great caution," and for
a time he seemed to be right. Washington, Adams, Jefferson, WHICH THE
and Madison used their veto power sparingly. During the VETO POWER
first forty years of the Republic, only nine bills were vetoed; HAS BEEN
and in every case the veto was based upon the alleged
unconstitutionality of the measure or some other inherent defect, not
upon the President's personal objection to it. Not one of these bills,
moreover, was passed over the President's veto.

But Andrew Jackson set a new record in this as in several other things
by vetoing twelve bills, which was about as many as all his predecessors
put together. This was because he interpreted the veto
power in a way quite different from the others. Their JOHNSON AN
attitude had been one of non-interference with the law-
making authority of Congress except when intervention seemed necessary
to prevent an unconstitutional or unworkable law from going on the
statute book. Jackson took a more aggressive stand, and used the veto to
stay the hand of Congress when its action ran counter to his own political
or personal views. This was bitterly criticized as an usurpation; although
the Constitution reads "if he approve he shall sign it, but if not he shall
return it," and these words are surely broad enough. At any rate, the
Jacksonian point of view eventually gained acceptance. From Jackson's
time until after the Civil War, however, vetoes did not materially
increase, even though the President sometimes had a refractory Congress

1 This practice exists in spite of the constitutional requirement that (like bills) every order,
resolution, or vote requiring the concurrence of the two Houses is subject to the veto. In fact,
concurrent resolutions are sometimes legislative in nature, as when they bring into force or
suspend the operation of a statute or some provision in it.

178 THE GOVERNMENT OF THE UNITED STATES

on his hands. But in the period immediately following the Civil War
the quarrels between Andrew Johnson and his Congress impelled the
President to swing the ax right and left, although not to much avail
because Congress regularly passed its measures over his veto.

During the past three quarters of a century, the executive veto has

been used freely by some Presidents and almost not at all by others. 1

A great deal depends upon whether there is a congressional

RECENT & . . r , it.. . T i ^

HISTORY majority opposed to the administration. In that case, Con-

or THE gr ess j s likely to pass bills which the President does not

approve and which consequently are sent back without his
signature. Congress, moreover, sometimes responds to the insistence of
organized pressure groups by passing bills which it expects the Presi-
dent to veto, thus shifting to his shoulders whatever resentment may be
aroused. In any event, all recent chief executives have assumed the right
to veto any measure that they regard as unwise or inexpedient; they have
not restricted themselves to those that seemed to be unconstitutional
or unworkable. What was intended, therefore, as a weapon of executive
self-defense has developed into a means of guiding and directing the
lawmaking authority of the nation. It has been expanded into a general
revising power, applicable to all measures of whatever sort. Enabling
each President to set up his own judgment against that of the legislators,
it has developed the presidency into something like a third chamber of
Congress, thus making the chief executive a more active figure in legis-
lation than he was originally intended to be. 2

Students of government sometimes ask themselves whether the presi-
dential veto has, on the whole, served a good purpose. Hamilton's
prediction that vetoes would be relatively few has not been

MERITS A.ND

DEFECTS OF fulfilled; yet if one counts only those measures which are of
THE VETO general interest (disregarding private pension bills and the
like), the vetoes probably do not average more than two or
three per year. Ninety-nine per cent of all the important measures passed
by Congress have obtained the presidential signature without delay or
evasion. This indicates that the veto power, far from being used ruth-
lessly, except by two or three Presidents, has been exercised with great
res traint.y Public opinion, moreover, has frequently sided with the
President in the use of the veto and has compelled Congress to back

1 Down to the close of 1941, a total of 1,663 measures have been vetoed, Cleveland having
teen responsible for 584 (mostly private bills), and F. D. Roosevelt for 533. See George
C. Robinson, "The Veto Record of Franklin D. Roosevelt," American Political Science Review,
XXXVI, pp. 75-78 (1942).

- E. G. Mason, The Veto Power (Boston, 1890), gives a full account of the use and abuse of
the veto power during the first century of its history.

down. That explains why congressmen who have voted for a measure
Jometimes change their votes when the attempt is made to pass the same
measure over the President's veto. On somewhat infrequent occasions
it is possible to get the two-thirds majority in both the Senate and the
House which is required to vault the executive hurdle, but at best this is
a rather difficult thing to do.K In the case of public bills which the Presi-
dent has returned to Congress with a veto message, his action has been
sustained at least five times out of six. Thus it comes to pass that what
was intended to be a qualified veto has become under most circumstances
an almost absolute one A

COne improvement in the American veto system has been strongly
urged: namely, that the President be allowed to strike out individual
items in an appropriation bill. This power he does not now

TT ^ j.u U'll U 1 l '4. '.i. VETO POWER

possess. He must veto the bill as a whole or leave it as it DOES NOT
stands. In consequence, he must sometimes give his assent EXTEND TO
to projects of expenditure which he does not approve; ITEMS IN A
otherwise the entire appropriation bill would fail. Such bills
often include hundreds of items, most of which are worthy of approval.
Slipped into almost every appropriation bill, however, are a few wasteful
items, the result of some congressman's energetic efforts on behalf of his
own district; and the President would often eliminate these if he could.
But under the present rule he cannot; he must take the chaff with the
wheat. Otherwise he would be left without funds to carry on some im-
portant branch of governmental activity.)

Even more objectionable are the "riders" which, like hitch-hikers,
have climbed aboard some of these bills on their journey through the
halls of Congress. A rider is some provision, irrelevant to the
bill itself, which has been fastened on as a means of giving RIDERS
the provision momentum. For example, if Congress is
favorably disposed towards some restriction which the President would
certainly veto if it went through in a separate bill, it can tack the pro-
vision to an appropriation measure, thus giving the President no alterna-
tive except to swallow the restriction or reject the entire bill. Thus, in a
measure providing money for the erection of public buildings, the
President may find a stipulation that daylight saving shall be abolished
in the District of Columbia or that the working hours of postal clerks
shall be reduced. Nothing is too extraneous to qualify as a rider. The
practice continues in spite of the fact that the rules of both Houses
forbid it. 1 .

Many wasteful expenditures have gone past the most vigilant Presi-

1 House rule XXI, Section a; Senate rule XVI, Section 4.

180 THE GOVERNMENT OF THE UNITED STATES

dents by reason of this inability to veto individual provisions in any bill
SHOULD IT which Congress has passed. A constitutional amendment
BE MADE TO would be necessary to confer this power, and it would
D0 so * doubtless serve a good purpose. But one should not overlook

the fact that such an extension of the veto power would increase the
influence of the President, giving him a nqw source of patronage equal
to that which he now possesses through the exercise of his appointing
power. This is because every senator and representative is profoundly
interested in securing appropriations for use in his own state or district. 1
He is, in fact, more interested in this than in almost anything else on the
congressional calendars. His support for a general appropriation measure
is sometimes predicated on the fact that it contains, among its various
items, a proposed expenditure for a new federal building in his home
town, or a government aviation field in his district, or something else
that his constituents will appreciate.

So, it can readily be seen that this right to veto individual items, if
placed in the hands of a vindictive President, might be effectively used
to penalize his opponents and reward his supporters in Congress. At any
rate it could not do otherwise than open up a new channel of executive
influence upon legislation. That has been the result in those states which
have placed in the governor's hands the authority to veto individual
items of proposed expenditure.

The President's influence upon lawmaking is exerted not only by
actually using his veto power, but by threatening to use it. When a
measure is in its earlier stages, even before it has been reported to Con-
gress by a committee, he can make his disapproval known. This he may
do openly, by a public announcement, or he may prefer to speak his
mind privately to the leaders of his party in Congress. A good deal of the
enthusiasm for a bill is bound to evaporate when its supporters realize
that the measure is going to encounter a veto, and that its only chance of
ultimate enactment lies in the faint possibility of rounding up a two-
thirds majority in both chambers of Congress. Legislators do not care to
spend their energies on bills which have virtually no hope of getting a
place on the statute book.

CONGRESSIONAL CONTROL OF THE PRESIDENT

The chief executive, as has been shown, has various constitutional
powers which he can bring to bear upon Congress as a means of influ-
encing its work of lawmaking. On the other hand. Congress has derived

(

1 The evils resulting from this situation have been considerably reduced by the national
budget system. See pp. 385-391.

THE PRESIDENT IN RELATION TO CONGRESS 181

from the Constitution and the laws some means of controlling the actions
and policies of the chief executive. Of paramount importance in this con-
nection is the fact that the executive branch of the govern- __ ,

^ i HE OTHER

ment can do little or nothing without spending money SIDE OF THE
and not a nickel of public money can be spent until after SHIELD -
Congress has appropriated it. 1 This power of the purse gives Congress the
whip hand. It can curtail any administrative activity by reducing the
appropriations. It can make detailed regulations as to how public
money may be spent. It can impose new duties upon the President or
upon any of his subordinates^ It can even provide that duties which L
imposes upon these subordinates shall be performed in a designated
way. Congress may call for information from any administrative depart-
ment at any time and on any subject, ylt can appoint committees to
investigate matters in any branch of the administrative service; these
committees may be given power to summon witnesses, take testimony
under oath, and make their findings public. While they have no author-
ity to require that the President shall remove any subordinate whose
work has been found open to serious criticism, these investigating com-
mittees have on more than one occasion virtually brought about such
removals by reason of their disclosures.^

From time to time, one encounters the complaint thatfcongress does
not have sufficient control over the policies of the nation because the
President can virtually commit the country to various

. ' . ' IS CONGRES-

actions without congressional assent. Only Congress can SIGNAL GON-
declare war, for example; but the President can bring TROL ADE-
about a situation in which Congress has no alternative but
to adopt such a declaration. Only Congress can appropriate money;
but there are circumstances in which, as the result of executive action,
the legislators have no option save to provide the funds. If the President,
to take an illustration, orders the fleet to a far-off base, Congress cannot
well refuse such funds as are needed to bring it home. Generally speaking,
it is true that Congress is at the President's mercy in such matters, but
there would seem to be no way of preventing this without placing a curb
on the constitutional powers of the chief executive and thus impairing
the nation's ability to meet critical situations. }

POWERS AS A PAKTY LEADER

/The foregoing relations between the President and Congress are estab-
lished by. the Constitution and the laws^pf the United States. But there

1 The Constitution is explicit on this point. "No money shall be drawn from the Treasury
but in consequence of appropriations made by law . . ." (Art. I, Section 9).

182 THE GOVERNMENT OF THE UNITED STATES

is another channel of relationship, and a very important although un-

official one, which has been opened to the President by the fact that

he is the leader in chief of his political party/ Constitution

THE PRESI- _ _ , . r * i * - .

DENT'S UN- and laws take no cognizance of the real power which the

chief executive derives from this source; but by students
v * of practical politics it is not to be minimized. (The Presi-
dent is a party man, elected as such. The leaders of his party must work
in reasonable harmony with their chief; otherwise a common front can-
not be maintained, and the party is likely to go down to defeat at the
next election. Nothing saps the strength of a political party like internal
dissension. Whenever there are signs of it, the opposing party jumps in
and tries to widen the gap. Both the President and the leaders of his
party in Congress realize that differences between them must be kept
from developing into an open quarrel, even if it involves concessions on
both sides. But in the making of such compromises it is inevitable, from
the nature of things, that the President usually gets the better of the
bargain. His is a single mind pitted against sever aly

The White House, one must never forget, is the biggest pulpit in the
country. Millions of plain people look to it lor guidance on the great
,A,AI. r. public issues. They want the President to tell them what he

WHAl Irlr* A

PUBLIC thinks they ought to think. These millions of citizens do

WANTS. not care overm uch about the sacred principle of checks and

balances. They do not look upon their government as an affair of water-
tight compartments. They remember only that they voted for a presiden-
tial candidate at the last election in the expectation that he would carry
out a certain program, and they want to know whether he is doing it.
When the President tells them that he is doing his best and that the whole
responsibility for a nonfulfillment of his pledges should rest upon Con-
gress, he is likely to be widely believed. Any congressman will tell you
about the hundreds of letters and telegrams that come to his desk, after
every presidential broadcast, from people who have not waited to hear
both sides of the issue.

(j From the nature of things the opportunity for executive leadership

expands greatly in times of national emergency. There have been three

great occasions in American history when such an oppor-

HOW AN . . i-i .11

EMERGENCY tumty has presented itself, and in each case it has been
EXALTS THE utilized. President Lincoln, during the critical stages of the

EXECUTIVE. ~, .. . A7 , r u J i j i i

Civil War, assumed a measure of broad leadership in legis-
lation which no chief executive of the nation had exercised prior to his
time. President Wilson, when the United States entered the European
War (1917), declared an adjournment of partisan politics and summoned

THE PRESIDENT IN RELATION TO CONGRESS 183

the entire nation to a unified effort under his leadership^The country
responded willingly, and the President found himself exercising a meas-
ure of executive authority far exceeding v that given to Abraham Lincoln.
Finally, in the great economic depression of the 1 930*8, Franklin Roose-
velt radically upset the normal balance of executive and legislative power
by demanding and receiving from Congress a range of discretionary
authority far beyond that which had ever been given to any of his
predecessors in the White House. Then, before the economic readjust-
ments in the United States had been completed, a new emergency arose
as the result of dangers to the national security and the country's par-
ticipation in the Second World War, whereupon additional powers were
obtained. Such emergency powers, conferred by Congress, are within the
authority of Congress to revoke when the emergency is past; and
American experience demonstrates that most of them are withdrawn;
but some of them obtain a firm footing and remain. Every national
emergency results, therefore, in some permanent additions to presidential
authority.)

The instinct of the country is for unified action. Woodrow Wilson once
wrote that "it craves a single leader." 1 But the Constitution of the United
States did not contemplate that the country should have a

1 1 j J T> J ,.1 l-^i THE OONSTI-

single leader, and no President can assume that role without TU-HON DOES

trenching upon the independence of the national legislature. NOT GIVE THE

Thus does the country's instinct, which is sound, conflict THE^AUTHOR-

with the frame of government, which in this particular is ITY OF A

defective. Mr. Wilson, five years before he became Presi- NATIONAL

LEADER-

dent, expressed the conviction that "the personal force of
the President is perfectly constitutional to any extent to which he chooses
to exercise it." 2 That conviction governed his course during his eight
years in office. But the enthusiasm with which the country, in 1920,
welcomed a return to the traditional method of government by coopera-
tion and compromise would seem to indicate that it was not then recon-
ciled to any plan of government by the personal force of the President.
President Franklin Roosevelt, a disciple of Wilson, went even farther
than his predecessor had ever dared to go. Whether the country, under
President Roosevelt's successors, will eventually swing back to the time-
honored scheme of government by checks and balances is something that
only the future can disclose.

The swing of the pendulum from men of strong personality to their
very antitheses has been a noteworthy feature in the presidential cam-

1 Constitutional Government in the United States (New York, 1908), p. 68.

2 Ibid., pp. 71-72.

184 THE GOVERNMENT OF THE UNITED STATES

paigns of the past sixty years. Chester A. Arthur was replaced by the

rugged Grover Cleveland in 1885. Cleveland gave way to the colorless

Benjamin Harrison for four years and then came back for a

STRONG

PRESIDENTS second term. He passed the scepter to William McKinley
AND WEAK j n 1897, and this mild Ohioan made way, in turn, for
Theodore Roosevelt. The dynamic Rooseveltian regime was
succeeded by Taft's four years of legalism and compromise. Then came
Woodrow Wilson with a measure of assertive leadership which no
President since Lincoln had ventured to assume. Eight years of it satiated
the electorate. In 1920 the people avowed themselves weary of presi-
dential government by electing Warren G. Harding to the White House.
For a couple of years he smiled benignly in the front parlor while scala-
wags were raiding the pantry. Calvin Coolidge then took his place and
let the ship of state drift along with the currents of industrial prosperity
until 1929. He rode in the procession of progress with his face turned
backwards. His successor, President Hoover, was by professional training
and executive experience well qualified for the presidential office; but
hardly had he become ensconced in the executive mansion before an
economic typhoon appeared on the horizon. Within three years it gained
a force that carried him (and would have carried any other President)
out of office at the election of 1932.

The country, gripped from end to end by a fear complex, called for a
new deal. The election of Franklin Roosevelt ushered in an era of revo-
THE TRANSI- lutionary changes in American politics, the like of which
TION ERA OF the nation had not witnessed since the days of Andrew
TODAY. Jackson, a hundred years earlier. Never in the entire history

of the American Union has the government of the nation been so com-
pletely under the domination of a single will as it proved to be during
this era of Roosevelt the Second. When the next swing of the pendulum
will occur, and what distance it will go these are questions which
cannot be answered without entering the realm of prophecy. And
prophecy is a game in which no sensible student of war or politics will
ever engage.

This, however, can safely be said /All through the centuries the public
temper has veered from weak leadership to strong, from conservatism to
liberalism, and from revolution to reaction but always with a return
ticket. The inclination to regularity in its lurches back and forth is
greater than most observers of the political scene are likely to realize.
If a prophecy must be made, then no prediction can be safer than that
political momentum, when carried far in any one direction, will eventu-
ally exhaust itself. Then there is a revulsion, the force of which is almost

THE PRESIDENT IN RELATION TO CONGRESS 185

directly proportioned to the strength of the preceding swing. This is a
law of politics and mechanics alike. Interludes of liberalism are essential
to political progress, but they are disintegrating in their immediate
effects upon government and hence are almost always followed, sooner
or later, by periods of reaction and integration. This is the law of the
pendulum and it is continually in

REFERENCES

GENERAL. There is no single source from which one can obtain a complete
survey of the President and Congress. But the subject receives considerable
attention in W. E. Binkley, The Powers of the President; Problems of American
Democracy (New York, 1937), E. Pendleton Herring, Presidential Leadership;
the Political Relationships of Congress and the Chief Executive (New York, 1940), and
H. G. Black, The Relation of the Executive Power to Legislation (Princeton, 1919).
Attention is also directed to the following: Harold J. Laski, The American Presi-
dency (London, 1940), Edward S. Corwin, The President; Office and Powers (New
York, 1940), D. W. Brogan, Government of the People (new edition, New York,
1944), Woodrow Wilson, Congressional Government (revised edition, Boston, 1925)
and Constitutional Government in the United States (New York, 1908), H. L. McBain.
The Living Constitution (New York, 1927), F. D. Roosevelt, On Our Way (New
York, 1934)5.1. P. Hill, The Federal Executive (Boston, 1916), George F. Milton,
The Use of Presidential Power, 17891943 (Boston, 1944), Lindsay Rogers, "Presi-
dential Dictatorship in the United States," Quarterly Review, CCXXXI, pp. 127-
148 (January, 1919), Samuel P. Orth, " Presidential Leadership," Tale Review, X.
pp. 449466 (April, 1921), and L. C. Rosten, The Washington Correspondents
(New York, 1937).

An interesting discussion favoring a type of executive leadership in the United
States comparable to that of the English cabinet system may be found in Henry
Hazlitt, A New Constitution Now (New York, 1942). This general subject is also
touched upon in William MacDonald, A New Constitution for a New America
(New York, 1921), H. W. Horwill, Usages of the American Constitution (Oxford,
1925), and F. E. Leupp, "The Cabinet in Congress," Atlantic Monthly, CXX,
pp. 769-778 (December, 1917).

THE EXECUTIVE VETO. E. C. Mason, The Veto Power (Boston, 1890), R. L.
Baldridge, Record of Bills Vetoed and Action Taken Thereon by the Senate and the House
of Representatives, Fifty-first Congress to Seventy-eighth Congress, Inclusive (Washington,
1941), G. A. Berdahl, "The President's Veto of Private Bills," Political Science
Quarterly, LII, pp. 505-531 (December, 1937), and Lindsay Rogers, "The Power
of the President to Sign Bills After Congress Has Adjourned," Tale Law Journal,
XXX, pp. 1-22 (November, 1920).

See also the references at the close of Chapters XII and XXIL

CHAPTER XII
PRESIDENTIAL POWERS AND DUTIES

The desire to be a ruler is the most vehement of all the passions. Tacitus.

^ The framers of the Constitution faced a difficult problem in determin-
ing what powers should be given to the President. They were agreed that
THE INITIAL ^ e s h u W function as part of the system of checks and bal-
PROBLEM OF ances, able to hold Congress within bounds if need be. To
POWERS. fa at enc j ke s hould be given a substantial amount of

executive authority, n the other hand, it seemed equally important to
place limits upon these presidential powers lest they be utilized to create
an executive absolutism. In short, the problem was to create an executive
sufficiently strong to ensure the faithful execution of the laws and yet not
so strong as to open the door for a presidential dictatorship Strong
executives had been dangerous, as history showed. Weak executives had
beeft safe but ineffectiveJTThe experience of the country under the Articles
of Confederation had proved that proposition up to the hilt. Strength
with safety was what the framers of the Constitution endeavored to
comBine in the presidential office adequate authority, but with firm
checks imposed upon it.

Today we have become so accustomed to the exercise of vast powers
by the President of the United States that it is difficult to realize how

deep-seated was the popular aversion to all forms of con-
^^ AND centrated authority a century and a half ago. People could

not rid themselves of the idea that political power was the
gateway to oppression. And this is not surprising, for the pages of history
prior to 1787 were cluttered with the names of rulers who had "trans-
formed a molehill of authority into a mountain of it. Naturally enough,
George III of England was at this time the American idea of what a chief
executive ought not to be. That being the case, the framers of the Con-
stitution can hardly be blamed for trying to make certain that there
would never be in America a George III any one who would be able
to accumulate so much power as this English monarch had gathered unto
himself. In this they did not succeed, as everyone knows, for the amount

186

PRESIDENTIAL POWERS AND DUTIES 187

of authority vested in the President of the United States today is vastly
more extensive than any ever exercised by the English monarchs of the
eighteenth century.

C The President of the United States derives his principal powers di-
rectly from the Constitution, which gives him in express terms the right
to veto acts of Congress, to appoint officials of government
and to make treaties (with the advice and consent of the 59M? ?? OF
Senate), to pardon offenders, to be commander in chief of

the army and navy, to call special sessions of Congress, to AUTHORITY:
demand written reports from the heads of the executive STITUTION.
departments, to take care that the laws be faithfully ~ ~T~
executed, and to preserve, protect, and defend the Constitution.)These
are far-reaching constitutional powers which Congress can neither
weaken nor take away.

C But in addition to the powers bestowed upon him by the express terms
of the Constitution, the President of the United States has acquired a
good deal of authority by statute. Congress, from time to
time, has given to the President a wide range of discretion
in supplying the details of the laws^n 1933, for example, it
gave him discretionary power to reduce the gold content of the dollar, to
issue additional paper money, and to purchase silver as a partial cur-
rency reserve. In 1941 it bestowed upon him, by the terms of the so-
called Lend-Lease Act, a formidable range of executive discretion in the
matter of furnishing ships, munitions, and supplies to those countries
which were fighting against German world domination. (JEnormous
appropriations of money have been made by Congress for relief, public
works, aid to agriculture, and other purposes, with the stipulation that
the specific expenditures shall be determined by executive order. Such
action has placed a vast amount of power in the President's hands; but in
situations of emergency there is no practicable way of avoiding it. Con-
gress cannot stop to work out and agree upon all the details which are
involved in the spending of a billion dollars for relief or several billions
for military and naval armament. So the work of doing this is turned
over to the President, who in turn devolves it upon his subordinates.
Through this channel, executive authority has been rolling up at a rapid
rate during recent years:}

" Again, the President has obtained some powers by means of judicial
decisions. Where the Constitution is silent, the judiciary has been called
upon to make it articulate. The Constitution, for example,
gives the President the right to pardon offenders, but does
not say whether he may pardon a man before he is con

188 THE GOVERNMENT OF THE UNITED STATES

victed.VThe Supreme Court has held that he possesses such poweAj Like-
wise, the Constitution provides that the President shall appoirit certain
public officials with the advice and consent of the Senate, but it does not
say whether this advice and consent shall be required for the removal of
such officers. It has been held that the President's power of removal can
be exercised without consulting the Senate. 2 ^

(^Some presidential powers have also been acquired by usage. For ex-
ample, the President, while in office, is regarded as the leader of his

party and is conceded the riejht to be consulted on all
4. USAGE. f ~ . . . i , . ^N
important matters anectmg its interests, both in Congress

and out of it. He virtually selects the chairman of its national committee
and through him directs the party's activities. But usage also limits the
President's powers. For example, the Constitution gives him full power
to make appointments, subject only to the approval of the Senate; but
the party system imposes upon him the obligation to consult with the
individual senators or congressmen of his own party before he makes
appointments in their states or districts/JThcre is nothing in the Constitu-
tion to suggest that appointments shall be used as political patronage,
but by long-continued custom it has been developed into a well -recog-
nized policy. ^heodore Roosevelt once asserted the doctrine that it is
the President's right "to do anything that the needs of the nation demand
unless such action is forbidden by the Constitution or the laws." But
there is no warrant for any such philosophy, either in the Constitution or
the laws. 3 *^/

\ It is not easy to make a logical grouping of all the powers and functions

which have been acquired by the President from these various sources,

but most of them can be arranged under seven principal

THE GROUP- i / \ i , t r

ING OF EX- heads: namely, (i) to serve as the nations chiel executive
ECUTIVE an d to secure a faithfuTenforcemelirof the laws; (2) to make

POWERS. . , i / \ .1

appointments and removals; (3) to exercise the prerogative
of pardon; (4) to conduct diplomatic relations and negotiate treaties;
(5) to send messages to Congress, issue executive orders when empowered
by law to do so, and either sign or veto acts of Congress; (6) to be com-

1 Exparte Garland, 4 Wallace 333 (1866).

2 Myers v. United States, 272 U. S. 52 (1926). But the presidential power of removal is
limited in the case of boards and commissions which have quasi-legislative and quasi-judicial
functions. Rathbun v United States, 295 U. S. 602 (1935).

3 For the views of some Presidents concerning what the functions of the presidential office
are, or ought to be, the reader may be referred to W. H. Taft's Our Chief Magistrate and His
Powers (New York, 1916), Grover Cleveland's Presidential Problems (New York, 1 904) ; Theodore
Roosevelt's Autobiography (New York, 1913), especially chap, x^ Benjamin Harrison's This
Country of Our* (New York, 1898), especially chaps ix-xix; and Woodrow Wilson's Consti-
tutional Government in the United States (New York, 1908), chap. iii.

PRESIDENTIAL POWERS AND DUTIES 189

mander in chief of the army and navy; and (7) to exercise the wide range
ofjnfluence which accrues to him as the titular leader of his party. These
powers are of such extensive scope as to warrant their careful considera-
tion, one by one/)

THE ENFORCEMENT OF THE LAWS

(? . ^

^ The President is the nation's chief executive, and there are implied

executive powers as well as implied legislative powers. It is hard to
determine the exact limits of the "executive power," which

, ^ , i 11 I i - , EXPRESS AND

the Constitution expressly states shall be vested in the IMPLIED
President; but the courts have been inclined to construe it EXECUTIVE

POWERS

liberally .Jin the famous Myers case, for example, the
Supreme Court held that the President's right to remove public officers
without the advice and consent of the Senate is implied in his general
endowment of executive power and cannot be restricted by any action
of Congress. 1

CThe President is enjoined by the Constitution "to take care that the
laws be faithfully executed," but this does not give him the right to sus-
pend or delay the execution of any law because he believes SCOPE OF
it to be unwise or even unconstitutional. It is for Congress THE POWER
to decide the wisdom of a law, and the courts its constitu- * IJ *~

' Vloli. 1 H.CJ

tionality. The laws of the United States, however, include EXECUTION
more than the statutes which have been passed by Congress. OF THE LAWS -
Treaties are included, because a treaty has the force of law. If the United
States, for example, agrees to deliver up or extradite foreign fugitives
from justice, that treaty becomes binding on all executive officials from
the President down. And, if the need arises, the President may use the
armed forces of the nation to see that its laws or treaties are faithfully
executed. With the execution of laws passed by the state legislatures he
has, of course, nothing to do. That is the function of the governor and
other state authorities.)

i The President's right-hand man in securing the faithful execution of
the laws is the attorney general . This official may be directed by the
President to bring an action in the courts against anyone at

__ - SOME DE>

anv time, even against one of the states of the Union. Or he CRETION
may be advised to withhold the bringing of an action. The CAN BE
degree of vigor or leniency with which any federal law shall
be executed is therefore to some extent within the President's discretion
even though he has a constitutional duty to see that all laws are executed
faithfully, yrhe Sherman Anti-Trust Law of 1890 accomplished very

1 Myers v. United States, 272 U. S. 52 (1926). See also p. 194 )

190 THE GOVERNMENT OF THE UNITED STATES

little throughout the administrations of Grover Cleveland and William
McKinley. It was only when Theodore Roosevelt became President in
1901 that new and vigorous prosecutions by the attorney general com-
pelled some of the so- termed trusts to comply with the law.

THE APPOINTING POWER

The President, of course, cannot give personal attention to the faithful
execution of the federal laws throughout the United States. He must
MA AND perform this duty through his subordinates, and the Con-
MI&QRAP- stitution empowers him to make the necessary appoint-
POWTMENTS. . mentS) including "judges of the Supreme Court, and all
other officers of the United States whose appointments are not herein
otherwise provided for and which shall be established by law." These
other officers include the members of the cabinet and their assistants, the
members of all administrative boards and commissions, the officers of
the armed forces, postmasters, customs officers, immigration officers,
internal revenue collectors, the judges, attorneys and marshals of the
subordinate federal courts, together with the great host of minor officials
who have gained places on the federal pay roll. "N

In the entire national service of the United States (excluding the armed

^W^t^l $4, \ <J

forces), there are now two million civil officers and employees of all
grades. They range from the heads of the major departments

THE GREAT T * T i i "*" "* i i

ARMY OF at Washington down to postmen on the city streets and

FEDERAL laborers in the forest service. All professions and trades are

EMPLOYEES. , , , .

represented among them under secretaries, assistant
secretaries, bureau chiefs, commissioners, attorneys, engineers, geologists,
accountants, statisticians, appraisers, customs examiners, bank examin-
ers, auditors, supervisors and instructors on Indian reservations, health
and quarantine officers, marshals, collectors and deputy collectors of
revenue, social security officers, civilians connected with the bewildering
number of special agencies, national park and forest workers, weather
forecasters, clerks, stenographers. Together it is the rank and file in this
civil army of two million men and women who "see that the laws are
faithfully executed." Not one of them is elected. All are appointed by the
President or by his immediate subordinates. As a matter of fact, there are
only two elective officers in the entire administrative service of the United
States: namely, the President and Vice-President.

( How are v these appointments actually made? The Constitution divides
all appointive offices into twcTclasses: v those higher posts which must be
filled by the President with the advice and consent of the Senate; and

PRESIDENTIAL POWERS AND DUTIES 191

ttiose "inferior" offices which may be filled, if Congress so provides, by
the President alone, or by the heads of departments, or by the courts.
In the category of higher officers (appointed by the President with the
concurrence of the Senate) are the members of the cabinet, APPOINT-
the under secretaries and assistant secretaries, all ambas- ^?NTS SUB-
sadors, ministers and consuls, all federal judges and court SENATORIAL
officials, members of the various federal commissions such CONFIRMA-
as the interstate commerce commission, the federal trade N *
commission, the federal communications commission, the national
labor relations board, and the various other permanent commissions,
together with collectors of customs and collectors of internal revenue.
Promotions in the armed forces, above a certain rank, are also subject
to senatorial confirmation. The line of demarcation between those
appointments which require senatorial confirmation and those which do
not is fixed by Congress when it establishes the office to which the ap-
pointment is made. *>

When confirmation is required, the President sends his nomination to
the Senate, which may confirm or reject it. If the Senate is not in session
when the nomination is made, the nominee takes office at _ 17 _ i:ioo

' IsjEiLilsSa

once and holds what is termed a "recess appointment" APPOINT-
until the Senate reconvenes and confirms him, or until the JS1Z?:
next session of the Senate comes to an end. If not confirmed by that time,
the appointment lapses. But the President may forthwith give the same
person a new recess appointment which will carry him over to the end
of another session. Occasionally this procedure has been utilized to keep
in office someone whom the Senate has declared its unwillingness to
accept. A safeguard, however, is provided in the fact that a recess
appointee, if the vacancy existed while the Senate was in session, draws
no salary\mtil his appointment is confirmed.)

Senate has an undoubted right to refuse its approval to any

nomination which the President may send. But as a rule it allows the
President to name the members of his own cabinet, confirm-

i r ^u^ 1 USAQE IN

ing these nominations as a matter ot course^JKJn only one ^H E MATTER
occasion during the past seventy-five years has it refused OFCONFJR-
its approval to anyone selected by the President for cabinet ~
rank. 1 And this is a proper attitude, for members of the cabinet are the
President's immediate advisers, and in the nature of things he ought to
have a free hand in choosing them. On the other hand, almost a fifth of
the nominees for service on the Supreme Court have been rejected out-

l This was the case of Charles B. Warren, whom President Coolidge nominated to be
attorney general in 1925. Altogether there have been seven such rejections.

192 THE GOVERNMENT OF THE UNITED STATES

right or effectively blocked. 1 Appointments to the diplomatic service
have often failed of confirmation. 2 In all other instances the Senate
freely uses its power to confirm or to refuse confirmation as it sees fit.
But as a rule it does not withhold its consent except for some substantial
reason, although much depends upon v^hether the President and a
majority of the senators are of the same political faith. A bare majority
of the senators present is sufficient to confirm a presidential appoint-
ment. It does not require a two-thirds vote as in the case of approving
treaties.

Many years ago there developed a curious twist in connection with

the practice of confirming appointments. It is commonly known as the

"courtesy of the Senate. "(Stated briefly, this is the custom of

OF SENA- refusing to confirm the nomination of any local officer, such

TORIAL as a federal attorney, postmaster, or collector of internal

COURTESY. i i i- i i r i

revenue, unless the individual senator or senators irom the
state concerned have been previously consulted and have given their
approval; provided, of course, that these senators are of the same political
party or party faction as the President. To put it more concretely, a
Republican President must not nominate anyone as collector of the port
of Philadelphia without first consulting the Republican senators (if
there are any) from that state. 3 If he does so, the other senators, out of
courtesy to their Pennsylvania colleagues, are supposed to vote against
confirmation.)

Senatorial courtesy has had its ups and downs; it has been\strong
enough at times to hamstring the chief executive almost completely;
on the other hand, some Presidents have successfully defied
** President Garfield, for example, locked horns with the
two senators from New York State on this matter in 1881
and won a signal victory. President Theodore Roosevelt, to use his own
words, "normally accepted each senator's recommendations for offices
of a routine kind, such as post offices and the like," but "insisted on
personally choosing the men for the more important positions." Still, no
matter what the President's personal inclinations may be, he is sure to
find that he can avoid trouble by antagonizing the individual senators as
little as possible. The President has only half the appointing power; the
Senate has the rest. 4

1 George H. Haynes, The Senate of the United States: Its History and Practice (2 vols., Boston,
I938) Vol. I, pp. 753-760.

*Ibtd, Vol. I, pp. 767-768.

8 Republican Presidents generally follow the advice of party 1 leaders with respect to ap-
pointments in the Democratic Solid South.

4 See also pp. 288-290.

PRESIDENTIAL POWERS AND DUTIES 193

4 But the great majority of federal appointments do not require con-
firmation at all. In the case of subordinate and minor officials, the power
of appointment has been vested by action of Congress in the
President alone or in the heads of the various departments, OFFICES
such as the postmaster general or the secretary of the
treasury. More than 95 per cent of all federal appointments are in this
category. About 30 per cent of these positions are still treated as "patron-
age" and are filled on the recommendation of congressmen from the
districts concerned; but by far the greater portion of them have been
placed in the "classified service" and the appointees are chosen under
civil service rules (the merit system) .^TThe way in which the old spoils
system of making appointments to subordinate posts has been broken
down by the civil service laws will be explained in a later chapter. 1

REMOVALS

C The Constitution provides that civil officers of the United States may
be removed by impeachment if convicted of treason, bribery, or other
high crimes or misdemeanors. But it does not say how or by
whom these officials may be removed for incompetence or
for the good of the service. This problem of dismissal arose
at an early date, and in the first session of Congress (i 789) it was debated.
Some congressmen felt that if the concurrence of the Senate was necessary
for appointments it should also be required for removals. Others argued
that the President could not be held responsible for the faithful execution
of the laws unless given a free hand to dismiss those subordinate officials
whom he regarded as incompetent. In the end this view prevailed. On a
few occasions Congress has attempted to restrict the President's freedom
in making removals, but without much success.^

A notable instance occurred in 1867 when Congress passed the Tenure
of Office Act with the plain purpose of preventing the removal of various
officeholders by President Andrew Johnson. This law pro- THE ^NUKE
vidcd that any person holding a civil office to which he had OF OFFICE
been appointed with the confirmation of the Senate should ACT ( l86 ?)-
remain in such office until his successor was in like manner appointed.
It was vetoed by the President, but Congress passed it over his veto.
Then the President disregarded it as unconstitutional, and this was one of
the grounds upon which he was impeached. Subsequently the Tenure
Act was repealed. It is now generally conceded to have been an uncon-
stitutional enactment.

1 Sec Chapter XVI

194 THE GOVERNMENT OF THE UNITED STATES

Later, in 1876, Congress tried once more to restrict the President's
authority by providing that certain classes of postmasters could not be
removed from office except with the advice and consent of
t ^ ie Senate. The constitutionality of this restriction did not
get before the courts in any clean-cut fashion until President
Wilson challenged it (1920) by summarily removing a postmaster with-
out senatorial concurrence. The dismissed postmaster carried the matter
to the Supreme Court, which held in a notable decision that the power
to remove appointive officers was vested in the President as the nation's
chief executive and could not be abridged by statute. 1 The decision in
this case, it may be mentioned, was written by a Chief Justice who had
himself served a term as President.

But in spite of this decision, the President's power of removal does
not extend to every appointive official of whatever rank or status. In
1 935 there came before the Supreme Court a question whether a member
of the federal trade commission could be removed by the President for
reasons other than those stipulated in the statute which had created this
commission. The decision in this case was that when the laws prescribe
the grounds upon which a member of an administrative board can be
removed, the President must keep within the bounds prescribed and
cannot make dismissals on any other grounds.

^ So, three classes of officeholders are exempt from the President's
unrestrained power of removal: first, the judges of the federal courts, who
can be removed by impeachment only. Second, members of various
boards which have been set up by Congress and who cannot be removed
except in accordance with such conditions as Congress has imposed in
establishing their offices. 2 Third, those officials and employees who have
secured their appointments under civil service rules and may not be
removed "except for such causes as will promote the efficiency of the
service." This limitation, however, is not a serious obstacle to a President
who desires to make removals on political grounds, but in practice its
spirit has been well respected. /

t While the foregoing limitations have done much to mitigate the worst
evil of the spoils system namely, the ruthless dismissal of public
SOME PATRON- o ffi c i a l s to make room for party henchmen it should not
AGE STILL be supposed that patronage has been wholly abolished in
REMAINS. ^e f ec [ era i service. Many thousands of well-paid offices are

1 See footnote p. 1 88. For discussions of the general question, see also E. S. Corwin, Th.e
President's Removal Power under the Constitution (New York, 1927); James Hart, Tenure of Office
under the Constitution (Baltimore, 1930); and George H. Haynes, o/a cit., Vol. II, pp. 827-835.

*Rathbtin v. United States, 295 U. S. 602 (1935). Also cited as Humphrey's Executor v.
United States

PRESIDENTIAL POWERS AND DUTIES 195

still within the gift of the President. He can fill these positions, many ^f
them with large salaries attached, according to his own desires or
preferences.yHe is still pressed upon all sides by office seekers and their
congressional friends; he is held responsible for appointments which of
necessity he must make without any personal knowledge whatever, and
is under constant temptation to use the appointing power in ways tha^
will ensure his own renomination or promote the interests of his party
An unscrupulous President, if he chose to misuse the extensive powers of
appointment and removal which still remain in his hands, could build
up a personal and political machine of almost irresistible strength, for,
despite the limitations of Senate approval and civil service laws, the
appointing power is today infinitely more extensive than could have been
envisaged when the foundations of the Republic were laid.

THE POWER OF PARDON

The President has inherited from the ancient prerogative of English
kings the power "to grant reprieves and pardons." He may pardon any
offense (crimes) against the federal laws, but he has no APPLICABLE
authority to grant pardons for offenses against the laws of a ONLY TO
state. A pardon may be either partial or complete: that is, AGAINST THE
conditions may be attached to it, or it may be unconditional. UNITED
One limitation is imposed upon the President by the Con- STATES -
stitution, however, in that he can grant no pardon in cases of impeach-
ment. This embodies a lesson which the framers of the Constitution drew
from England where an accused royal adviser sometimes went to his
impeachment with the king's pardon already in his pocket. The power
to pardon is linked with the power to reprieve that is, the right to
stay the enforcement of a penalty. A general pardon, granted to a large
number of offenders, is called an amnesty .) President Johnson issued two
of them after the close of the Civil War to those who had borne arms for
the South^The pardoning power, it need hardly be said, is not exercised
by the President at his own caprice, but on the recommendation of the
department of justice after the latter has made a full study of the case.

DIPLOMACY AND DEFENSE

There are times when two great and far-reaching powers of the Presi-
dent seem to transcend all others. These are his powers in the fields of
diplomacy and of national defense. The foreign relations of the United
States are almost wholly under the general direction of the President, with
the one important limitation that no treaty made by him is valid until it
has been approved by a two-thirds vote in the Senate. Likewise, as

196 THE GOVERNMENT OF THE UNITED STATES

commander in chief of the armed forces, the President has the general
direction of the national defense, but here again his authority is subject
to various limitations| These two branches of presidential authority are
of such importance that they deserve more than a few paragraphs and
hence will be reserved for consideration in separate chapters. 1

POWERS IN RELATION TO LAWMAKING

([t may sound strange to speak of the "lawmaking powers" of a chief
executive) One might suppose that the principle of separation of powers,
THE PRESI- to w hich the framers of the Constitution gave so much
DENT AND reverence, would require the exclusion of the executive
CONGRESS. rom a jj s j iare j n lawmaking. But the President was, in fact,
endowed by the Constitution with substantial powers in relation to the
making of the national laws, and these powers have now become greatly
expanded. Under the terms of the Constitution he is entrusted with
certain definite functions in relation to lawmaking: for example, the
right to call special sessions of Congress; to recommend the passage of
laws; to sign bills after they have been passed, or to veto them. /
CThe President, it should be noted, does not call Congress together
except in special session. The time for the beginning of regular sessions is
RESTRICTIONS fi* e d by law. Nor can he adjourn Congress unless the two
UPON THE Houses fail to agree between themselves as to the time of
CALL ANI? adjournmentpThe power to dissolve any legislative body
ADJOURN before its term has expired does not exist in the United

CONGRESS. States. The House of Representatives finishes cut its two-
year term, no more, no less On the other hand, the President does have a
great deal to do with the length of congressional sessions. He can urge
Congress to stay in session until important measures have been passed;
and his urging can be reinforced by the threat of a special session, im-
mediately after adjournment, if Congress should go home too soon. This
is no empty threat because members of Congress are paid by the year
and get no additional compensation for attending an extra session if one
is called.^

(^ In issuing a proclamation calling for a special session, the President
states the purpose of the call and the matters to be dealt with at the
CALLING special session; but Congress is not limited thereby. It can

SPECIAL take up other matters if it so desires! Most of the state

SESSIONS. constitutions, by way of contrast, provide that, when a state

legislature has been called into special session by the governor, it may
deal only with matters listed in the call. Special sessions of Congress are

See Chapter*

PRESIDENTIAL POWERS AND DUTIES /97

not called except when emergencies arise. A special session may last for
a few days only, or it may continue until the date for the next regular
session arrives. ;

The Constitution, again, requires the President to "give to the Con-
gress from time to time information on the state of the Union, and
recommend to their consideration such measures as he shall

. j ij- (VT-I -i i r i THE POWER

judge necessary and expedient. \ 1 his is the basis of the TO RECOM-
President's right to send messages to Congress, a right which MEND
has been freely used from the outset/The wording would
seem to indicate that the makers of the Constitution had no thought that
jJie nation's chief executive should play an inarticulate role in the plan-
ning of national policies. They imposed upon him a constitutional duty
to inform himself concerning the "state of the Union," to transmit this
information to Congress, and to recommend whatever measures he might
think fit. To that extent they discarded their allegiance to the principle
of separated powers^ Those who argue that the President should never
assume the initiative in legislation should give heed to this constitutional
provision. W*^

^n addition to the exercise of an influence upon the making of the
laws, the President virtually legislates on his own account. This he does
by the issue of "executive orders," which have virtually ANOTIIER
the force of law. 1 Theoretically, "a government of laws, PHASE OF
not of men" requires that the laws shall be comprehensive ^ENT^LEG-
and specific, that is, both broad enough and detailed enough ISLATIVE
to cover all cases that may arise.>But as a practical matter P y ^T* s: THE
this is quite out of the question under conditions of today. "EXECUTIVE
Take the federal income tax law, for example. JTo specify OKDERS -"
every detail relating to the figuring of exemptions, deductions, allow-
ances, depreciations, depletions, capital gains and losses, consolidated
returns, and so on would expand the law to a thousand pageslCongress
could not possibly give the time necessary to work out all those details.
What is more, the embodying of such detailed provisions in a statute
would give them a highly inconvenient rigidity. \jNbne of them could be
changed except by congressional action^ut by a stroke of the President's
pen an executive order, rule, or regulation can be modified at any time.
The courts have held that this practice, when kept within reasonable
bounds, does not constitute a delegation of legislative power by Congress/
A great expansion of the President's power to issue executive orders

1 In 1935 Congress passed a law (the Federal Register Act) requiring that all executive
orders, decrees, and proclamations having general applicability and legal effect must be
published in the Federal Register, which is issued daily.

198 THE GOVERNMENT OF THE UNITED STATES

has taken place in connection with the emergency legislation of the past
ten years. Congress has had neither the time nor the technical knowledge
which wpuld enable it to work out the details of statutes relating to such
matters as work relief, assistance to agriculture, federal housing loans,
industrial mobilization, emergency shipbuilding, the raising of an army
by selective service, the lending and leasing of war materials, and so on.
Consequently it has been virtually forced to enact such measures in rather
broad terms, with an included stipulation that the President (or some
administrative agency under his direction) should have power to make
such rules and regulations as might be found necessary within the scope
of the general provisions of the law. \x

Executive orders regulate the details of administration in many
important branches of government: for example, in the postal and im-
WHAT EXECU- migration service, the collection of customs duties, as well
TIVE ORDERS as in the patent, pension, and internal revenue offices. But
DEAL WITH. j et j t k e mac j e clear that Executive orders and regulations
are not supposed to change any provision of the laws; they profess merely
to supplement, elaborate, and apply provisions which Congress has
made. It is true, however, that they sometimes edge out a little farther
than they are supposed to go. Occasionally they give a twist to legislation
which Congress did not intend. Hence the power to work out the details
of a law by executive order becomes in effect a subsidiary branch of the
lawmaking authority. At any rate, the whole procedure is tantamount
to a confession that under the complex economic and social conditions
of today a government cannot remain exclusively a "government of
laws. 35 It must be to some extent a government of men who are vested
with power to supplement the laws.

REFERENCES

GENERAL. In addition to the references listed at the close of the preceding two
chapters, most of which contain discussions of executive authority, there are
many special studies of the President's powers. Among these are Grover Cleve-
land, Presidential Problems (New York, 1904), Benjamin Harrison, This Country of
Ours (New York, 1898), W. H. Taft, Our Chief Magistrate and His Powers (New
York, 1916), Woodrow Wilson, The President of the United States (New York,
1916), and N. J. Small, Some Presidential Interpretations of the Presidency (Baltimore,
1932). Recent developments in the presidential office are traced in Louis Brown-
low and others, "The Executive Office of the President," Public Administration
Review, I, pp. 101-140 (1940).

APPOINTMENTS AND REMOVALS. James Hart, Tenure of Office under the Constitution
(Baltimore, 1930), E. S. Corwin, The President's Removal Power under the Constitu-
tion (New York, 1927), C. E. Morganston, The Appointing and Removal Power of

PRESIDENTIAL POWERS AND DUTIES 199

the President of the United States, yoth Congress, 2nd Session, Senate Document 172
(Washington, 1929), Lucy M. Salmon, "History of the Appointing Power of the
President," American Historical Association Papers, I, No. 5 (Washington, 1886),
and Carl R. Fish, The Civil Service and the Patronage (New York, 1905).

DIPLOMATIC POWERS. E. S. Corwin, The Presidents Control of Foreign Relations
(Princeton, 1917), Quincy Wright, The Control of American Foreign Relations
(New York, 1922), J. M. Mathews, American Foreign Relations: Conduct and
Policies (New York, 1928), Arthur Bullard, American Diplomacy in the Modern
World (Philadelphia, 1928), and T. H. Lay, The Foreign Service of the United
States (New York, 1925). See also the references at the close of Chapter XXXI.

MILITARY POWERS. C. A. Berdahl, The War Powers of the Executive in the United
States (Urbana, 111., 1921), Bennett M. Rich, The Presidents and Civil Disorder
(Washington, 1941), Charles Fairman, The Law of Martial Rule (2nd edition,
Chicago, 1943), Howard White, Executive Influence in Determining Military Policy
in the United States (Urbana, 111., 1925), and Talbot Odell, War Powers of the
President; War Powers of the American Presidency Derived from the Constitution and
Statutes and Their Historical Background (Washington, 1942).

THE PARDONING POWER. William H. Humbert, The Pardoning Power of the
President (Washington, 1941).

EXECUTIVE ORDERS. J. P. Comer, Legislative Functions of National Administrative
Authorities (New York, 1927), James Hart, The Ordinance- Making Powers of the
President of the United States (Baltimore, 1925), F. F. Blachly and M. E. Oatman,
Administrative Legislation and Adjudication (Washington, 1934), and the same
authors' Federal Regulatory Action and Control (Washington, 1940).

CHAPTER XIII

THE CABINET: ITS PLACE IN THE SCHEME
OF GOVERNMENT

(jThe principles of a free constitution are irrecoverably lost when the legislative power

is dominated by the executive. -V Edward Gibbon.

I ^ > >

practice of surrounding the chief executive with a circle of
advisers or ministers, chosen by himself, is one of the oldest in the
THE GENESIS history of government. It appeared in England under the
OF "THE Anglo-Saxon kings and became recognized as a regular

CABINET. feature in the government of the realm under the Normans.

In due course, this body of royal advisers became the privy council, out of
which the British cabinet arose^

(The builders of the American federal system were well acquainted
with this historical development as well as with the work of the governor's
councils, which had existed in some of the colonies before
OF THE CON- tne Revolution. But they had not been favorably impressed
STITUTION with this colonial adaptation of the British system and after
REGARD A some debates had rejected a proposal to include provision
CABINFT AS for 3. council of state in the new Constitution. On the other
ESSENTIAL. hand, they realized that the President could not himself do
BUT MADE all the executive work which the new federal government
THE^coNsri 1 ^ would require; so they took for granted that he would
TUTION FOR appoint subordinates to help him. Wisely they did not
HEADS OF DE- attempt to designate what positions these presidential

PARTMENTS

coadjutors should hold, or what their duties should be, but
left it for Congress to determine what executive departments there
should be as a means of doing the work under the President's direction,
v"The President may require the opinion in writing of the principal
officer in each of the executive departments." That is all the Constitution
has to say about che President's relation to his chief execu-
tive advisers. Congress establishes a department, defines its
BEEN ESTAB- functions, limits its authority, and makes appropriations of
~x"~ D BY money for ifcTmaintenance"!) Three executive departments

CONGRESS. / - 4 -

- were established at the very first congressional session in

-200

THE CABINET 201

1783: namely, thejstate, treasury, ancTwar departments. A postmaster
general^and an attorney general were provided in the same year, but
their offices did not at the outset rank as regular departments. They be-
came departments later (in 1829 an d 18^3 respectively); and Congress
has from time to time established others: the navy in 1798, the interior
in i849,\griculture in 1 889,' commerce in 1902, and labor in 1913. In
1947, the war and navy departments became a single department of
defense, makingjiine regular departments. The heads of these are by
cuJpm, and by custom only, entitled to membership in the cabinet
(/The head of each department (secretary of state, attorney general,
postmaster general, as the case may be) is appointed by the President
with the consent of the Senate. But this consent, as has

*T -- 11 1-1 i i i i A STATUS OF

already been stated, is almost never withheld. 1 A new T"HESE pj>
President announces his selections immediately after his

inauguration, and the appointees usually hold their posts -~*"-* '
till the end of his term, although they may be removed at any time.
Removals or dismissals in the ordinary sense of the word are rare, but
resignations because of failure to work in harmony with the President
have sometimes occurred. It is clearly understood that every member of
the cabinet must be loyal to the President in all things, and that if any
serious estrangement arises the resignation of the dissenter should be
submitted without delay. There may be differences of opinion around
the cabinet table, but, when a decision is reached by the President, the
members of the cabinet must fall in with it, at least so far as their public
actions and pronouncements are concerned. The cabinet must at all
times present to the world an outward solidarity^)

Its meetings, therefore, arejrecrejU Whatever is discussed or decided
should reach the public only with the President's permission. Never-
theless, leakages do occur. President Wilson was troubled THEY SHOULD
by them early in his first administration. On one occasion NOT BETRAY
he said to his Secretary of Agriculture, David F. Houston: CONFIDENCES.^

I am embarrassed by the fact that one or two members seem to be unable to
refrain from telling everybody what happens in cabinet meetings. I wish to
advise with the cabinet freely. Some things cannot be given publicity; at any
rate, at once. It is important to consider what shall be said, and how and when.
I ought to have the privilege of determining this. The discussions should be free
and full. If they cannot be kept within the family, leaving it to my discretion
when and what to give out, it will make it difficult for me to canvass confidential
matters as I should like. 2

1 See pp. 191-192. c

2 D. F. Houston, Eight Tears with Wilson's Cabinet (2 vols., Garden City, N. Y., 1926),
Vol. I, p. 87.

202 THE GOVERNMENT OF THE UNITED STATES

Secretary Houston, bringing the matter before the cabinet as if he had
not been prompted to do so, asked the President for his judgment and
there appears to have been an exchange of views. The cabinet agreed
that, when general policies had been under consideration, nothing con-
cerning such discussion should be made public except at the President's
request.

Cabinet solidarity, however, may be more apparent than real. Per-
sonal antagonisms, long kept from public knowledge by official reticence,
may suddenly burst into an open rupture. At Paris, while

OR TRENCH . ... 11*1

ON THE peace was being negotiated in 1919, the relations between

PRESIDENT'S President Wilson and his Secretary of State, Robert

AUTHORITY. T u 1 x J U ^ ,. -1

Lansing, became severely strained; but it was not until
February, 1920, and then on quite a different issue, that Lansing was
forced to resign. This is what seems to have happened: The President,
after his return from Paris, had suffered a stroke of paralysis and for
several months was isolated in the White House. The extent of his in-
capacity could not be accurately learned because of the secrecy with
which he was surrounded. Under the circumstances Secretary Lansing,
as senior member of the cabinet, took it upon himself to summon meet-
ings of that body at which, it is said, the President's condition was dis-
cussed. When President Wilson heard of this "action after his partial
recovery, he denounced it as a most serious breach of the constitutional
proprieties. 1 The few precedents hardly support him in this, however, for
Secretary Elaine had followed a similar course during the prolonged
illness of President Garfield. Perhaps Wilson suspected that there might
have been a plan to declare him incapacitated and to ask the Vice-
President to take over the powers and duties of the presidential office in
accordance with the constitutional provision covering such eventualities.
But it seems more likely that President Wilson was influenced by what he
regarded as Mr. Lansing's failure to cooperate with him loyally at Paris.

1 In his first letter to Lansing (February 7, 1920), the President said: "Is it true, as I have
been told, that during my illness you have frequently called the heads of the executive depart-
ments of the government into conference? . . . Under our constitutional law and practice, as
developed hitherto, no one but the President has the right [to do so] and no one but the
President and the Congress has the right to ask their views or the views of any one of them on
any public question." Four days later the President wrote in reply to Lansing: "You kindly
explain the motive of these meetings, and I find nothing in your letter which justifies your
assumption of presidential authority in such a matter . . . f have to remind you, Mr. Secretary,
that no action could be taken without me by the cabinet and that therefore there could have
been no advantage in not waiting action with regard to matters concerning which actions
could not have been taken without me." Lansing continued to assert the propriety of his
conduct. He wrote: "I cannot permit to pass unchallenged the imputation that in calling
into informal conference the heads of the executive departments f sought to usurp your presi-
dential powers ... I cannot agree with your statement that I have tried to forestall your
judgment in certain cases by formulating action and merely asking for your approval "

THE CABINET 203

<In selecting the heads of his executive departments, the President is
not limited by the Constitution in the range of his choice. He may select
whom he pleases. But if he happens to select a senator or a"
member of tKe House of Representatives, the appointee
can no longer sit in Congress. No senator or representative
can hold any other office under the United States, even a minor post-
mastership} But while the Constitution gives the President a virtually free
hand in constructing his cabinet, there are various practical considera-
tions which he must keep in mind. (For one thing, he almost always
selects the members of the cabinet from within the ranks of his own
political part) Washington endeavored to make selections from among
men of different political affiliations; for that reason he chose Thomas
Jefferson as secretary of state and Alexander Hamilton as secretary of
the treasury. Both were admirably qualified for their respective offices;
but they stood widely apart in their political views and were frequently
at odds, much to Washington's embarrassment. CSo, the practice of
choosing the cabinet from the President's own political supporters was
adopted as a means of ensuring harmony; and it has since been generally
followed, although with occasional exceptions to the rule7)The most
recent example of a deviation from the traditional practice was the
action of President Roosevelt (1940) in calling to his cabinet two promi-
nent Republicans, namely, Henry L. Stimson as secretary of war and
Franklin Knox as secretary of the navy.

^IThis does not mean, however, that the President usually takes the
leaders of his party into the cabinet. Some leaders may be given this
recognition after a victorious campaign; but cabinet positions, for the
most part, are not used as a means of rewarding the top-flight party
strategists.^Whatever may have been the case fifty years ago, the enor-
mous expansion of executive work has made it essential that the heads of
departments shall be competent supervisors of administration. For this
reason it sometimes happens that, when a member of the cabinet dies or
resigns, his chief subordinate is promoted to the vacant post. On the other
hand, it is thought desirable to have at least one seasoned party war horse
in the cabinet, especially as an adviser on matters of practical politics, and
usually a man of this type has been appointed to the office of postmaster
general.

This distinguishes our practice from that of Great Britain, the British
Dominions, and other countries where responsible parlia-
mentary government prevails. In Great Britain, for example, WITH
the way to high political office lies through long service in BRITISH
the House of Commons. By this selective process leaders can

CONTRAST

204 THE GOVERNMENT OF THE UNITED STATES

be found when they are wanted, without protracted search or perilous
experiment; and after a man has once achieved cabinet rank, his claim
to future recognition binds the prime ministers of his party as long as his
orthodoxy, public reputation, or mental vigor remains unimpaired.
When a new cabinet is being formed, the newspapers are fairly accurate
in foretelling its personnel. They speculate about the septuagenarians
who may drop out and the young men who may force their way into the
charmed circle. They may falter in dealing with the distribution of
places. How could they know that, because of an impending shift in
foreign policy, the former secretary for India would go to the foreign
office or that, because of a projected reorganization of t^ie law courts,
the former lord chancellor, being stubbornly opposed to it, would become
lord privy seal at half the salary? What impresses one above all else, how-
ever, is the continuity of personnel, the existence of a career in political
office. It is only by a gradual process that the men at the top arc sloughed
off and room thus made for the slow infiltration of young men from
below.

<^Jn the United States, on the other hand, cabinet office is not looked
upon as a career. It "is an interlude in a career," as Laski says, leading
towards no definite goal. 1 "The composition oTa cabinet is
CABINET unpredictable. Many of its members* after their term of

office, retire into the obscurity from which their elevation
brought thern.";>The Taft cabinet (1909-1913) will serve as an illustra-
tion. 3 In an expansive moment, after his nomination but before his
election, Mr. Taft expressed his intention to reappoint the members of
the outgoing Roosevelt administration, but when the time came he
retained only two of them. Then, finding the task of filling the remaining
posts a picture-puzzle problem, he allowed weeks to pass without reach-
ing final decisions. In the end, six of the nine cabinet posts were given
to lawyers; for Taft was a lawyer of such eminence that he later became
Chief Justice of the United States, and he trusted men of his own pro-
fession. But one can hardly say that as a group they conspicuously
justified their selection.

president Wilson in 1913 received a good deal of advice respecting
the personnel of his cabinet. Yet three days before the inauguration he
still had to decide upon a secretary of war. In this dilemma
^ r * Wilson then turned for suggestions to his secretary,
Tumulty, whose political sagacity he trusted. ^)

1 Harold J. Laski, The American Presidency (New York, 1940), p 87.
* Ibid., p. 71.

8 Henry F. Pringie, The Lift and Times of William Howard 7 aft (a vols , New York, 1939),
Vol. I, pp. 381-386.

THE CABINET 205

1 informed the President [Tumulty tells us l ] that I would suggest the name of
some one within a few hours. I then went to the library in my home in New
Jersey and in looking over the Lawyers' Diary I ran across the name of Lindley
Garrison, who at that time was vice-chancellor of the state of New Jersey. Mr.
Garrison was a resident of my home town and although I had only met him
casually and had tried a few cases before him, he had made a deep impression
upon me as a high type of equity judge. I telephoned the President-elect that
night and suggested the name of Lindley Garrison, whose reputation as a dis-
tinguished judge of the Chancery Court was known to the President-elect. He
was invited to Trenton the next day and without having the slightest knowledge
of the purpose of this summons, he arrived and was offered the post of Secretary
of War in Mr. Wilson's cabinet, which he accepted.

This way of doing things may seem haphazard. But the incident just
related is not an isolated one. Before his inauguration Wilson had never
met the man whom he appointed secretary of the interior. AI x EGED
Hence it is not surprising that one member of this cabinet, MEDIOCRITY
in writing of its first meeting, said: "I decided without much OF CABINETS -
difficulty that it was not a particularly able group of men cabinets
seldom are." 2 This lack of outstanding ability was not a catastrophe,
however, because President Wilson seldom sought or took the advice of
his cabinet. ^He expected its members to assume full responsibility for
the business of their respective departments, consulting him only on
matters of unusual importance. This would be good administrative
practice if members of the cabinet were in all cases men of sound judg-
ment and discrimination^ Or, as one of President Wilson's ablest associ-
ates has expressed it: "If a head of a department is competent, if he has
first-rate executive ability, he can spare the President much time and
worry. The trouble is that the average head of a department is not highly
competent and has not first-rate executive ability. ... If the Presidents
of the United States had more efficient aids and were better served, they
might live longer." 3

Joseph P Tumulty, Woodrow Wilson as I Know Him (Garden City, N. Y , 1921), p. 138.

2 David F. Houston, Eight Tears with Wilson's Cabinet (2 vols , Garden City, N. Y., 1926),
Vol. I, p 40.

8 Ibid , Vol. I, p 89. It has been urged on numerous occasions during the past eighty years,
notably by President Taft in his last message to Congress, that cabinet officers be permitted
to appear on the floor of both Houses for the purpose of engaging in debate and required
to attend for the purpose of answering questions. This proposal is discussed at the end of
the next chapter. But one point deserves emphasis here. Those who favor the change as
a step towards parliamentary government often assume that it would improve the quality
of cabinets. Samuel W. McCall, a distinguished representative from Massachusetts, expressed
this opinion more than thirty years ago. He complained that members of the cabinet "quite
frequently" had displayed no aptitude for public affairs or were without any experience in
them. Such men could not hold their own in congressional debate, they would be replaced by
men who had previously served in Congress, who had become familiar with national affairs,
and who had at the same time talent in administration. "The time would end when it would
be possible to have a second-rate lawyer as head of the Department of Justice." The Business
rf Congress (New York, 1911), p. 196.

206 THE GOVERNMENT OF THE UNITED STATES

Geography, of course, is to some extent a factor which influences the
work of cabinet-making. No President, under normal conditions, would
draw his entire 1 cabinet from the North or the South, the
^J^p 1 " East or the West. If he did so there would be strong resent-
OTHER CON- ment in the neglected regions, with political repercussions
SIDERATIONS. as ^ resu i t ^11 this does not imply, however, that the
President feels under obligation to distribute cabinet positions to the
various regions of the country on a proportional basis. Sometimes a single
state is called upon for two, or even three, members of the cabinet, while
its more populous neighbors may have no representation at all. In a
word, the cabinet is not a representative body; when concessions are
made to the idea of geographical distribution, it is merely because good
political strategy seems to require it.

In organizing his cabinet, the President also keeps in mind the de-
sirability of satisfying the different factions of his party, if there are such
factions. He will not make all his selections from either the conservative
or the radical elements, but will try to take some representatives from
each. Organized labor always expects, and almost always gets, recogni-
tion in the cabinet's membership. And every President, in choosing his
circle of official advisers, is to some extent influenced by considerations
of personal friendship. Nearly every cabinet during the past fifty years has
contained at least one member who owed his inclusion to the fact that
he was a close personal friend of the President.

In the public mind there lurks the idea that members of the cabinet,
as directing heads of great administrative departments, ought to be

experts in their respective fields that the secretary of the
SPECIAL r r '

FITNESS AND treasury ought to be a past master in finance, the secretary
EXPERIENCE. Q f a g r i cu lture a "dirt farmer," the secretary of commerce
a business man of wide experience, especially in foreign trade, and the
secretary of labor someone with a union card in his pocket. That idea
is not in accord with the philosophy of democratic government. The
secretary of agriculture is not supposed to serve the farmers of the United
States but the people of the United States. Expertness is needed in all
the executive departments, but not necessarily at the head of it. Other-
wise, there would be every reason for choosing the head of the newly
formed department of defense or his assistants from the generals or the ad-
mirals. That is what they always did in pre-war Japan, for example; but
the United States has avoided such a course, and wisely so. Apart from the
attorney general, who from the nature of his duties ought to be a lawyer,
there is no good reason for insisting upon technical proficiency at the head
of any department and allowing this to outweigh general qualifications.

THE CABINET 207

So bear in mind that the(abinet is)not intended to be a representative
body, or a professional group, or a check upon the President. As a body,
its members are, officially at any rate,the confidential
advisers of the chief executive. But they are also the Presi- p^^"
dent's chief subordinates in performing his constitutional IDEA CON-

GERNING THE

duty to see that the laws are faithfully executed. In selecting

..... CABINET.

members of his cabinet it is difficult to find men who are
equally valuable in both capacities good confidential advisers and
competent chief administratonj|During recent years it has become ap-
parent that the advisory function of cabinet members is no longer
regarded as of prime importance. Presidents have developed their own
intimate circle of confidential advisers outside the ranks of the cabinet?
Men who hold no official positions at all sometimes exert more influence
upon executive decisions than do those occupying the highest cabinet
posts. This has become particularly noticeable during the past dozen
years.

(Taking one consideration with another, the cabinet of the United
States is likely to be a variegated group, in the composition of which
geography, conciliation, compromise, gratitude, political A VARIE .
strategy, administrative competence, personal intimacy, GATED
and even plain inertia or haphazardness play a varying GROUP -
part. It is sometimes said that a President is known by the cabinet he
makes; and, since no two chief executives are alike, their cabinets will
differ correspondingly^ President Theodore Roosevelt acquired a
cabinet with a variety of minds, but by force of his assertive personality
soon had them all marching in line with him. President Wilson chose
men (or tried to choose men) whose "minds ran along with his own."
President Coolidge inherited a cabinet from his predecessor, made few
changes in it, and deferred a good deal to its collective judgment. Presi-
dent Franklin Roosevelt tried to organize and keep a group representing
both the conservative and liberal elements of his party, besides taking
some members from outside the Democratic ranks altogether. For
advisory assistance, moreover, he drew to a greater extent than any of
his immediate predecessors upon sources outside the cabinet altogether.
Some Presidents think of cabinet members as colleagues, others as sub-
ordinates. Some want men of ideas and initiative; others prefer to supply
the ideas and the initiative themselves.

THE CABINET'S FUNCTIONS

Qn discussing the powers and duties of the cabinet, it is therefore
essential to keep in mind the distinction between the advisory function

208 THE GOVERNMENT OF THE UNITED STATES

of the cabinet as a whole and those administrative duties which are per-
formed by its members individually, as heads of their own departments:
(The advisory function rests upon custom alone; it has no
definite constitutional or legal basis. The cabinet as a body
is merely a group of high officials whom the President may
call together for consultation if and when he chooses to do
so. As a matter of usage, however, he does call them nor-

i. AS A

mally once a week (on Fridays) during sessions of Gppgress

and finds plenty for them to do at these meetings^&Vhat is
there to do? One cannot say more than that the cabinet discusses what-
ever the President sees fit to lay before it, and gives its advice when he
asks for it. It has no set of bylaws, rules of procedure, or field of juris-
diction. Its proceedings are conducted informally, in a conversational

manner around the table. There arc no motions or amendments, no

. '

formal speech^.^Sometimes the President has already made up his
mind on some question and merely brings it before the cabinet for its
information, or for suggestions as to details)

^(Lincoln, for example, did not consult his cabinet on the Emancipation
reclamation until he had himself decided that it ought to be issued.
REIATIONS Andrew Jackson, a generation earlier, found his cabinet an
WITH THE encumbrance upon his freedom of decision; and for nearly
PRESIDENT. twQ y ears he called no meetings at all. General Grant
carried his military traditions into the White House and dealt with
members of his cabinet as though they were second lieutenants, whose
duty it was to carry out the orders of their captain. Grover Cleveland,
imperious though he was in some ways, had a high respect for the judg-
ment of his cabinet members and followed their counsel on most matters.
Theodore Roosevelt sometimes acted first and explained afterwards. The
members of Woodrow Wilson's cabinet occasionally got their first infor-
mation about presidential action from the newspapers, and the same is
said to be true of some who served in the cabinet of Franklin D. Roose-

n addition to its weekly meetings, the cabinet may be summoned for
special meetingsTjThe members used to sit at an oblong table in order of
seniority: the President at the head, the secretary of state
MEETINGS on his right, 'the secretary of the treasury on his left, and so
, -- ~~ _ on down both sides of the table. Recently a new oval table
has been substituted and the President now sits at the middle of it, with
his cabinet members flanking him in order of seniority. \If the head of a

1 Before the administrations of President F. D. Roosevelt it was customary to meet twice
a week, Tuesday and Friday, at eleven in the morning.

THE CABINET 209

department happens to be ill, or absent from Washington, the under
secretary in that department, or an assistant secretary, is sometimes asked
to attend in his place. No formal records of the discussions are kept, and
no summary of the proceedings is ever given to the public. Whether the
President asks, receives, accepts, or disregards advice from his cabinet is
never known, save in rare instances, and then long after the event has
passed. It would be a grave discourtesy to the President, were any member
of the cabinet to make public what transpires around the table. If there
is anything to announce, the President makes it public as his own action
and not as a decision of the cabinet)

n^The best service performed by these cabinet meetings is the avoidance
of friction or misunderstandings among the several departments. They
provide a clearing house wEich helps the administration to
put unity into its prograrrwJvVith this in mind, the President
usually calls upon the members of the cabinet, one after
another, to present any matter that concerns the interests of more than
one department or raises some issue of general policy. If the President is
sending an important message to Congress, he sometimes reads it to the
cabinet in advance. Everything is done with proper dignity at these
meetings, but in an informal way, and always with close attention to the
business in hand. A cabinet made up of able and experienced men,
provided with a reasonable degree of political sophistication, can be a
great help to a weak President, and even by a strong one its helpfulness is
not to be despised.""}

HEADS OF DEPARTMENTS AS ADMINISTRATORS

v {More vital than the functions of the cabinet as a body are those of its
members as individuals, as heads of departments. Every head of a de-
partment is responsible to the President and is under his

... n . , . . . t 11 J 2. AS INDI-

direction at all times, but in practice each is allowed a VIDUALS
considerable range of independence. This must necessarily
be the case; for, if everything could be supervised directly by the Presi-
dent himself, there would be no need for department heads at all. Even
in a single department there is always more to do than its official head
can personally attend to; hence each department has one or more
assistant secretaries, who assume part of the work which would be done
by the chief if there were less of it to be done. Some departments also
have an under secretary who ranks next to the department head and
assumes charge when the latter is absent.}

(Each department, moreover, is divided into bureaus under bureau
chiefs or commissioners. The bureaus, in turn, are split into smaller units

210 THE GOVERNMENT OF THE UNITED STATES

called divisionsABut this disintegration is not uniform in all depart-
ments?j)Some have divisions above the bureaus and some have branches,
offices, commissions, subdivisions, and sections, related to
FEG^TION eac k ot her in a way that is very confusing to an outsider.
DP DEPART- The internal organization of each department is usually pre-
MENTAL scribed by law, but it has grown step by step over a long

MACHINERY. m

term of years and reflects the idiosyncrasies of successive

Congresses. On more than one occasion the President has been given

power to do a certain amount of consolidating and rearranging, but the

administrative structure remains a badly tangled mass.

[ frhe scope of work handled by these bureaus, divisions, and other

subordinate branches is very extensive^ With the expanding functions of

^ federal government, moreover, it has grown by leaps and

^TION^IN- Bounds. The administrative machinery at Washington is

DEPENDENT now many times more complex than it was a dozen years

BOARDS AND

Q ^ Q ^ on jy j ias fag work of the various departments been

OFFICES. o / i

divided, redivided, and subdivided among subordinate
offices, but many new administrative boards and commissions, some of
them exercising functions of the highest importance, such as the inter-
state commerce commission, the federal trade commission, the civil
service commission, the tariff commission, the federal communications
commission, the civil aeronautics board, the national labor relations
board, the reconstruction finance corporation, the securities and ex-
change commission, the veterans' administration, and a score of other
units, are working outside the purview of the nine regular departments.
Of these, however, more will be said in a subsequent chapter.
(The functions of each department are defined in part by law and in
part by executive orders. Within these bounds the head of the depart-

ment has the right to make rules for the conduct of depart-

GENERAL . r

WORK OF mental business. This is done by issuing departmental orders
THE DEPART- anc j regulations, some of which are full of detailed pro-

MENTS. - N/^i i r i t , .

visions^ u he regulations of the treasury department relating
to the collection of the revenues, for example, would fill a whole volume.
The same is true of the regulations which have been promulgated in
connection with the granting of patents, and most people are familiar
with that dog-eared book known as the postal regulations, which the
clerk at the post-office window thumbs over whenever he is asked a
question. By glancing through a copy of these regulations one may obtain
some idea of the vast and varied list of functions which a national ad-
ministrative department is expected to perform^No complete list of all
the functions of the nine departments is anywhere to be found, nor would

THE CABINET 211

such a tabulation be accurate a few months after it had been compiled,
for changes are being made continually/^

^It would be quite impossible to give, in a few paragraphs, more than
the barest outline of what^fhe head_ of_a department^ at Washington is
supposed to do in the course of his day's work. He Barnes FUNGTIONS OF
appointees to various junior positions, for Congress has put ADEPART- *
a "good deaf of appointing power directly into his hands. MkNT HEAD>
Even where this power has been reserved to the President, the advice
of the department head is usually sought, especially in the matter of
promotions within the department?SHis individual advice may, in fact,
be "sought by the President on an/matter at any time. The head of a
department approves and issues the regulations) which have been
mentioned in " the preceding paragraph. Sometimes, before issuing
certain new orders, it is found desirable to hold hearings at which all
persons who think themselves affected have an opportunity to present
their views. This may consume a good deal of time.
(TAgain, the head of a department has the responsibility for settling
disputes arising between his subordinates, or out of their actions. He
must deal with all manner of complaints against heads of bureaus and
other officials in his department; he hears and determines appeals from
their rulings; he listens to senators and congressmen who come with
multifarious suggestions, recommendations, and requests for favors. He
goes before committees of Congress when called upon, and supervises the
preparation of any data that either Congress or the President may
request. All important questions of departmental policy come to his desk
for decision, and to make an intelligent decision he must wade through
piles of memoranda and reports. Finally, he attends a cabinet meeting
once a week, receives delegations, makes speeches, goes to official recep-
tions, and gets a little recreation if he carfT^

CMany people think of government in its hegative or restraining aspects
only. The government, as they see it, is an' organization_that keeps
foreign enemies away ^prevents internal disorder^punishes
wrongdoing, Toi^ids_this_gr_that, and in%eneral stands in
the way of the citizen's doing what he would like to do.\
Birf this is only one aspect of the government's work, aria
by no means the most important one /Government is a*^nstructive as
well as a^restraininjg^factor in the life oTthe nation. It does not merely
prohibit. It promotes. Most of the functions performed by the various

1 The nearest approach to *ip-to-date lists is to be found in the Congressional Directory, new
editions of which appear in January and April; and in the United States Government Manual^
which is normally revised three times a year.

POSITIVE
CHARACTER
OF THESE
FUNCTIONS.

212 THE GOVERNMENT OF THE UNITED STATES

'administrative departments of the national government are of a positive

character; they involve activities for the benefit of agriculture, industry,
commerce, transportation, banking, labor, public health, education, and
other interests which come close to the daily life of every citizen. For this
reason one should not think of the national government as something
afar off. Its work is vital to the safety, health, prosperity, comfort, and
convenience of every household in the land. This will be apparent from
even a brief survey of what the nine regular departments are trying to do*^

REFERENCES

Important books on the American federal cabinet are H. B. Learned, The
'President's Cabinet (New Haven, 1912), M. L. Hinsdale, History of the President's
Cabinet (Ann Arbor, 1911), L. M. Short, The Development of National Administra-
tive Organization in the United States (Baltimore, 1923), and W. H. Smith, History
of the Cabinet of the United States (Baltimore, 1925). But attention should also be
called to E. S. Corwin, The President: Office and Powers, and H. J. Laski, The
American Presidency, books already listed, but which contain valuable comments
on the cabinet system. Valuable information on the actual work of the cabinet as
a body may be obtained from the published biographies or related writings of
former cabinet members. Among these are Franklin K. Lane, The Letters of
Franklin K. Lane (Boston, 1922), D. F. Houston, Eight Tears with Wilson's Cabinet
(2 vols., New York, 1926), William C. Redfield, With Congress and Cabinet (New
York, 1924), The Diary of Gideon Welles (3 vols., Boston, 1911), and H. K. Beale
(editor), The Diary of Edward Bates, in Vol. IV of the Annual Report of the
American Historical Association, 1930 (Washington, 1933). Mention may also
be made of Joseph W. Alsop, Jr. and Robert Kintner, Men around the President
(New York, 1939).

See also the references at the close of Chapters XII and XIV.

CHAPTER XIV

NATIONAL ADMINISTRATION:
THE DEPARTMENTS

It is a general popular error to suppose the loudest complainers for the public to be
the most anxious for its welfare. Edmund Burke.

There are two principal functions which have to be performed by
every government. The first is the determination of policies. The second
is the function of seeing that these policies are carried out. LAWMAKING
Policy making is primarily a legislative task; it belongs to AND ADMIN-
Congress. But to some extent it has also come to be a ISTRATION -
responsibility of the President and the various administrative agencies
which are subordinate to him. These executive officials and administra-
tive agencies also have the duty of seeing that the laws are faithfully
executed and that policies are carried out, although to some extent this
function is also shared by Congress through its right to make investiga-
tions. So the line that used to be drawn between the two general functions
of policy determining and policy executing has now become rather
badly blurred.

When Congress passes a law, such as the National Labor Relations Act,
and thereby establishes a definite policy, people are likely to think that
the issue is settled and the job is done. In reality it is only LAWMAKING
begun. Weeks may be spent in congressional debates on a is ONLY HALF
measure without settling hundreds of minor questions which THE STORY -
are bound to arise under its provisions. Then, when the bill has passed
its final stages and received the presidential signature, there comes the
task of applying the provisions of the law to the numberless situations
that come within its scope. This requires administrative officers, often a
great many of them. Congress may adjourn when its members get tired
of the Washington heat, but the administrative staff cannot, for its work
is continuous. And the quality of its work is of the highest importance;
for, no matter how well considered any principle of national policy may
be, it will not serve the, public well-being unless its execution is entrusted
to a competent, impartial and diligent corps of administrators.

213

214 THE GOVERNMENT OF THE UNITED STATES

Administration, then, is a large part of government. For every one
legislator in the United States there are at least a hundred administrators.
ATCTI>A Their number has undergone a great increase during the

ALIMlINlalKA- *-* *-' ^

TION is THE past twenty -five years an almost unbelievable increase.
OTHER HALF. The reason is to be found in the vast expansion of govern-
mental activities and the increased complexity of the matters with which
these activities come into contact. The things which the national govern-
ment finds itself called upon to do are no longer few and simple, as they
were in earlier days. They have become varied, intricate, technical,
exacting. Take a list of the administrative agencies at Washington and
see what an impressive array they offer, what a wide range they cover,
and with what technical matters, far beyond the range of the ordinary
citizen's competence, they are expected to deal. Banking and credit,
agricultural adjustment, soil erosion, regulation of radio broadcasting,
conservation and development of water power, a full list would occupy
many pages of this book. This administrative expansion, moreover, is not
a phenomenon of the past few years. It became visible during the closing
years of the nineteenth century and has moved at an accelerating pace
ever since. Nor is there any reason to think that we have reached the end
of it. If governments set out to do more each year (as seems likely), there
will be more administrators needed to do it.

There are two ways in which a federal government can administer its

laws and execute its policies. One is to devolve this duty upon the states

or other divisions which constitute the federation. Switzcr-

DIRECT AND

INDIRECT land has used this method to a large extent. When the Swiss

ADMINISTRA- central government makes a decision on a matter of general
policy, the officials of the several cantons are often directed
to carry it out. We are also familiar with this method of delegating
authority in the American states, where the state legislatures frequently
impose duties on the officials of counties, cities, and towns. For example,
they direct the local officers to register births, marriages, and deaths; to
enforce state laws relating to traffic on state highways; and to provide
jails for the incarceration of persons who are being tried in state
courts.

The other plan, which the national government of the United States
has largely used, is to administer its own laws and policies through its
own administrative officers men who are appointed by it, are paid
from the national treasury, and are responsible directly to Washington.
It is true, of course, that there have been notable exceptions to this
procedure. For one thing, the national elections have always been con-
ducted by the state authorities. State officers register the voters, compile

NATIONAL ADMINISTRATION: THE DEPARTMENTS 215

the voters' lists, print the ballots; in a word, they conduct the national
elections and pay the costs. The Selective Service Act of 1940, moreover,
was largely administered by the states under federal supervision. The
states were requested to provide the local draft boards, appeal boards,
advisory boards, and other personnel; but in this case the national
government defrayed the expense involved. Still other examples might
be given, but on the whole it remains true that the national government
performs its functions directly through its own officials.

Originally it was thought that the entire administrative work of the
national government could be concentrated in a few departments at
Washington. And for nearly a hundred years after the

.... r . TT . , . / . ~ CENTRALIZED

establishment ol the Union this was successfully done. Con- AND DECEN-
gress, whenever the need appeared, was induced to author- TRALIZED
ize the establishment of a new department or an additional
bureau within one of the older departments. Not until the creation of
the civil service commission and the interstate commerce commission
during the i88o's was nation-wide administrative responsibility of great
importance placed permanently in the hands of any official or group of
officials outside some one of these regulai departments. In the end there
were nine of these departments, each headed by a departmental secre-
tary or the equivalent, who by usage is a member of the cabinet. These
are the state, treasury, defense, justice, post office, interior, agriculture,
commerce, and labor departments. While somewhat overshadowed in
the public imagination by the host of new independent administrative
agencies that have mushroomed into the limelight during recent years,
these nine regular departments still possess a large and varied list ol
administrative functions. Their internal organization and broader re-
sponsibilities ought, therefore, to be briefly summarized.

I. THE STATE DEPARTMENT

The state department is the oldest among the nine regular departments
and for that reason the secretary of state ranks as the senior member of
the cabinet. But he is not a prime minister in any sense of
the term, and has no right to call meetings of the cabinet TIONS .
when the President is ill or absent. 1 The state department
deals chiefly with foreign and diplomatic affairs. It is the
channel of intercourse between the government of the
United States and all foreign governments; likewise it is the medium of
communication between the national and state governments in this

1 See p. 202.

216 THE GOVERNMENT OF THE UNITED STATES

country. It negotiates international agreements and treaties, receives and
answers diplomatic communications, gives instructions to American
ambassadors abroad, issues passports, conducts correspondence with the
governors of the various states, and performs many other functions of a
related character. The secretary of state, therefore, is the American
minister of interstate and foreign affairs. His dealings with foreign coun-
tries are conducted, in the main, through ambassadors, ministers, consuls,
and other subordinates who constitute the foreign service. 1

The secretary of state functions also in relation to home affairs. He

promulgates the laws passed by Congress, he countersigns the President's

proclamations, and is the keeper of the great seal. He

2. INTERNAL. r . r i. j ?r r

authenticates warrants lor the extradition oi fugitives from
justice in other countries. Finally, as has been indicated, he is the channel
of communication between the federal government and the states. To
assist him in the performance of all these functions he has an under secre-
tary (who acts when the secretary of state is absent), six assistant secre-
taries, a legal adviser, and various other advisers and special assistants,
all of whom are appointed by the President.

The work of the state department is distributed among some eighteen
offices, each in charge of a director. Even a cursory inspection of the
ITS activities of these eighteen offices will give the student an idea

NUMEROUS of the many additions which have recently been made to the
OFFICES. traditional functions of the state department. These activ-

ities relate not only to the internal administration and finances of the
department, treaties, visas, passports, and the foreign service, but also
to problems of international security, foreign economic development,
communications, international trade and fiscal policy, cultural relations,
information services, and a variety of other matters. Four of the eighteen
offices have charge of our relations with other parts of the world, that is,
European affairs, Far Eastern affairs, Near Eastern and African affairs,
and American Republic affairs. Thus it will be seen that the scope of this
department's work, in a geographical sense at any rate, reaches far
beyond that of any other department. Some notable figures have served
the nation as secretaries of state: Thomas Jefferson, James Madison,
John Quincy Adams, Henry Clay, Daniel Webster, John C Calhoun,
William H. Seward, James G. Blaine, Richard Olney, John Hay,
Elihu Root, Charles Evans Hughes, and Cordell Hull. These men have
given the secretaryship a fine tradition. In the early days of the Union
the post was utilized on several occasions as a stepping-stone to the presi-

1 For further details on American diplomacy, see Chapter XXXI.

NATIONAL ADMINISTRATION: THE DEPARTMENTS 217

dency, but for over a hundred years no one has moved from the one
office to the other. 1

II. THE TREASURY DEPARTMENT

The department of the treasury is next in order of seniority. In
European governments, the chief financial minister has usually possessed
the entire initiative in matters relating to fiscal legislation; A WORD OF
but such has never been the case in the United States. EXPLANA-
Most financial measures are brought before Congress by its TION *
own committees. The secretary of the treasury frequently tenders advice
to these committees and makes recommendations to them; but hib
recommendations may be (and often are) disregarded by both Houses of
Congress. Sometimes the secretary and his staff go to a great deal of pains
in preparing data for a new tax law, and such figures prove useful to the
legislators; but the tax law in its final form is likely to be a compromise
between what the treasury department would like to have and what
Congress, heavily influenced by considerations of practical politics,
proves willing to give.

It is here that the principle of separation of powers has operated at its
worst. The services of the one department which knows most about the
financial needs of the government have not been adequately

.,1-1.1 . i- CURIOUS

utilized in planning the national revenues or expenditures. POSITION OF
Congress has guarded with extreme jealousy its control of THE DEPART-

. . r ... MENT.

the purse, even to the extent ot sometimes resenting advice
from those treasury officials who are the best equipped to tender it
In no sense, therefore, is the secretary of the treasury responsible for the
fiscal policy of the federal government. He exercises a good deal of influ-
ence, to be sure; but he has neither the initiative nor the decision in
determining how the revenue shall be raised or the money spent. 2 Such
matters are, to a considerable extent, the waifs of dark-lantern politics.
The extent to which recommendations from the treasury department
will carry weight with Congress depends upon the existing relations
between the executive and legislative branches of government. Such
recommendations count for something under all circumstances, and,
when the President controls an ample majority in both Houses of Con-
gress, they usually count for a good deal. Still, the legislators have the

1 For a discussion of the history and work of this department see Gaillard Hunt, The
Department of State of the United States, Its History and Functions (New Haven, 1914). For the
present organization of the department, which dates from 1 944, the student had best consult
the most recent edition of the United States Government Manual.

1 See pp. 385-387-

218 THE GOVERNMENT OF THE UNITED STATES

last word in all matters of public finance and when they do not like the
recommendations that come from the treasury department they have no
hesitation in saying so.

The actual work of the treasury department is extensive and im-
portant. It may be grouped under four general heads. First, there is the
collection of revenue, especially the supervision of work
WORK OF THE p er f ormec [ by customs officers and collectors of internal

TREASURY ^ J

DEPARTMENT: revenue. This includes the duty of issuing all regulations

1. COLLECT- relating to revenue matters and the deciding of appeals
REVENUE. which come to the department from the rulings of subordi-
nate officers. Second, the treasury has the custody of the

2. CUSTODY public funds and the paying of all bills for expenditures
FUNDS, PAY- which have been properly authorized. There is a physical
ING OF BILLS treasury (with strongly guarded vaults) in Washington.

AND INVEST- ,-, , u* **

JNG For many years there were subtreasunes in nine important

cities; but these have been abolished, and the surplus funds
of the government are now deposited, for the most part, in the various
federal reserve banks. 1 This, of course, does not include the huge amount
of gold bullion which the government has accumulated and now keeps in
special vaults at Fort Knox, Kentucky. By the provisions of the Social
Security Act (1935), the treasury department has been given a greatly
increased responsibility as respects the custody and investment of funds.
For this statute imposes upon the secretary of the treasury the function
of receiving and safely investing in government bonds all the contribu-
tions of employers and employees in connection with the old-age pension
and employment compensation plans. 2

Third comes the entire supervision of the currency, including control

of the mints which coin the money. 3 These functions are apportioned

among the comptroller of the currency, the director of the

3. MINTS mint, and the director of the bureau of engraving and print-
ANDCUR- ' . r
RENGY. in g' The treasury is likewise charged with the inspection of

national banks and has various powers in relation to the

4. NON- federal reserve system. The issue of government bonds and
DUTIES. the borrowing of money, when authorized by Congress, are

likewise in the department's charge. 4 Finally, there are a
few functions which have nothing to do with finance, but have been
placed in the treasury department because they seemed to be as well

1 For an explanation of the federal reserve bank system, see pp. 430-432.
* See also pp. 453~45 8 -

3 For a discussion of currency matters, see pp. 422-426.

4 See pp. 393-39 6 -

NATIONAL ADMINISTRATION: THE DEPARTMENTS 219

located there as anywhere else. For example, there is the secret service
division, 1 the bureau of narcotics, which has the duty of enforcing the
federal laws relating to narcotic drugs, and the alcohol tax unit, which
handles regulatory functions in connection with the federal liquor laws.
The procurement division of the treasury department serves as a central
purchasing agency for government supplies. Until a few years ago, the
treasury had responsibility for the erection of federal buildings in all
parts of the country; but this important function has now been trans-
ferred to an independent federal works agency. The coast guard, which
took over the duties of the bureau of lighthouses a few years ago, operates
within the treasury department in time of peace, but in war or in any
other emergency, when so directed by the President, it goes under the
supervision of the navy in the department of defense.

In most other countries the treasury department prepares the budget,
but this is not the American practice. In the United States, as will be
later explained, this duty is devolved upon an official

BUDGET

known as the director of the budget, who has no connection AUTHORITY
with the treasury department, but is directly responsible IS NOT

i -i TA7i i i j i INCLUDED.

to the President. When the budget is ready, moreover, it
goes directly to Congress without passing through the hands of the
country's chief financial officer, the secretary of the treasury. Similarly,
in most other countries, the treasury department is responsible for the
auditing of public accounts; whereas in the United States a comptroller
general, who is not under treasury control, is given this responsi-
bility. 2

Next in rank to the secretary of the treasury is the under secretary.
Then there are three assistant secretaries, who are at the heads of sections
into which the various divisions and bureaus of the depart-

i T .1 . , , - , INTERNAL

ment are grouped. Likewise, there are various other high ORGANIZA-
officials including the legal counsel, the treasurer of the TION OF THIS

TT-io 11- r i i 11 f DEPARTMENT.

United States, the director of the mint, the comptroller ot
the currency, the commissioner of the public debt, and the various heads
of the internal revenue bureau, customs service, secret service, and so
forth. The headship of the treasury department has been held at various
times by men of great financial ability, beginning with Alexander Hamil-
ton and including among his successors Albert Gallatin, Salmon P.
Chase, and John Sherman.

1 This should not be con/used with the federal bureau of investigation (FBI), which is
in the department of justice. The secret service is responsible for protecting high personages
as well as for the enforcement of federal laws relating to counterfeiting, etc

2 See pp. 378-379.

220 THE GOVERNMENT OF THE UNITED STATES

III. THE DEPARTMENT OF DEFENSE

In 1 789 when the federal government was organized, Congress estab-

lished a department of war and nine years later created a department

of the navy. These two departments continued as separate

A UNIFIED .... . i , i i

DEFENSE administrative units, each with representation in the cabi-

ESTABLISH- ne t ? until 1 947 when, in one of the most important adminis-
trative reorganizations ever undertaken, they were merged
into a single department of defense. At the same time, a separate
national air force, equal in rank with the army and navy, was set up.
It is anticipated that this unified defense establishment, officially labelled
the "national military establishment of the United States," will secure
greater coordination in the policies and operations of the services and
promote economy. The hope of realizing such objectives is enhanced
by various special councils and boards, most important of which is the
national security council. This consists of the President, the secretary
of state, the secretary of defense and his principal assistants, and the
head of another new agency having to do with civilian and industrial
mobilization. Although army, navy, and air force are expected to co-
operate closely within the common defense department, they remain
largely independent of each other and exist as % separate, if subordinate,
departments within the larger department of defense. Each is headed by
a secretary who takes rank immediately below the secretary of defense.
The internal organization of each of these three subsidiary depart-
ments is so intricate and their activities are so extensive that a mere
resume would fill many pages. Some of the more important aspects will
be treated in a subsequent chapter. 1 Here it may be pointed out that,
besides a secretary, each of them has an undersecretary, one or more
assistant secretaries, and a variety of special assistants. In all three,
moreover, a high-ranking service officer acts as technical adviser and
affords liaison between the civilian administrators and the

THE THREE .

SUBSIDIARY professional ranks. In the departments of the army and

SERVICE DE- t h e a j r force, he is the chief of staff; in the navy department,

PARTMKNTS

he is the chief of naval operations. A variety of offices, divi-
sions or bureaus discharge the multifarious tasks confided to each of the
three departments. Common to all of them are the problems of recruit-
ing, selecting and training officers and men, the vast problem of supply,
the maintenance and improvement of weapons and equipment, various
types of specialized research and planning, and a host of minor func-
tions. In addition, each service department has 'duties peculiar to the
1 See Chapter XXX.

NATIONAL ADMINISTRATION: THE DEPARTMENTS 221

branch of the defense establishment over which it has jurisdiction. Thus
the navy must construct, arm and distribute naval vessels of all types
and maintain navy yards, docks, stations, and bases; the department of
the army maintains fortifications, camps and cantonments, proving
grounds and other military sites; and the department of the air force
constructs and distributes military craft of various types, maintains land-
ing fields and air bases and engages in other related activities.

Mention may be made here of certain fields of civil authority confided
to the departments of the army and navy. The former has charge of the
construction of various public works undertaken by the
federal government, such as the dredging of harbors, the
improvement of waterways, or even the construction of
railroads and highways, this work being under the immediate super-
vision of the army's chief of engineers. In the United States it has
always been the custom to make large use of the army's corps of engi-
neers for such special duties. Army engineers made the survey which
led to the building of the Union Pacific Railroad. They supervised the
laying of the Seattle-Alaska cable and constructed the Alcan highway.
Even the construction of the Panama Canal was entrusted to them.
All the navigable waters of the United States are, in a sense, under the
final jurisdiction of the department of the army, no obstruction to navi-
gation (in the way of piers or bridges, for example) being permitted
anywhere without its approval. The department of the army also super-
vises the administration of the Panama Canal Zone. The navy's civil
functions include the maintenance of a hydrographic office for ocean
charting, the supervision of various petroleum reserves and the adminis-
tration of certain small Pacific islands.

Administrative heads of the defense establishments in the United
States have with few exceptions been civilians. This is quite in contrast
with the practice in some other countries where high mili- HEADS OF
tary and naval officers are frequently, if not usually, DEFENSE
selected for such posts. Both policies have their advantages. ^NTS^***'
A military or naval officer is likely to have a better apprc- USUALLY
ciation of the technical phases of the work. On the other CIVILIANS -
hand, a civilian may be better qualified to handle such matters as con-
tracts, transportation, and public works; and he need not lack expert
advice on any service problem since the best professional opinion in the
land is always available within his particular department. Moreover the
subordination of the military to the civil branch of government is a
principle that should be upheld in any country which desires to be en
bured against the coups d'etat that are facilitated by a different policy.

222 THE GOVERNMENT OF THE UNITED STATES

IV. THE DEPARTMENT OF JUSTICE

The department of justice is the government's law-enforcing agency.
The attorney general, who is at its head, serves as the nation's chief legal
THE adviser. The President and the heads of departments call

ATTORNEY upon him for his advice and opinions with respect to points
GENERAL. Q j aw These Opinions of the Attorney General are published
after the manner of judicial opinions, and often establish important
precedents. They are rendered to the executive branch of the government
only, and never to Congress or to legislative committees. The attorney
general is also the representative of the federal government in all legal
proceedings to which the United States is a party. He and his assistants
conduct suits against corporations and individuals who violate the federal
laws, but his advisory and administrative duties are now so great that he
no longer personally appears in court, even in the Supreme Court, except
on rare occasions. Cases before the Supreme Court are usually argued on
behalf of the United States by the solicitor general, who is the ranking
officer of the department.

Again, the attorney general and his numerous assistants are given the
responsibility of reviewing, as to form and legality, all executive orders
SOME DUTIES before they are issued by the President. They also arrange
OF THE the settlement of claims against the United States. The

OFFICE. bureau of criminal identification, which collects and

classifies records relating to known criminals for the use of police author-
ities throughout the United States, is in the department of justice, which
in addition has supervision over all federal penal institutions. The federal
bureau of investigation, with its elaborate network of machinery for the
detection and arrest of offenders, is also within this department.

Quite as important is the department's task of supervising the work of

the federal district attorneys and marshals throughout the country.

There are over eighty of these districts, each with a federal

SUPERVISORY ; TAT i r i

FUNCTIONS district court. By their requests to Washington for advice or
ON A NATION- instructions the attorneys in these districts furnish the

WIDE SCALE. j . , , ^ f. , ,

department with plenty ot work. JLhc attorney general
and his staff also investigate and report to the President upon all applica-
tions for reprieves or pardons. The burden of duties has become so heavy
that there are now six or seven assistant attorneys general, to each of
whom is assigned some important field of departmental activity. These,
in turn, have their own numerous assistants, all of whom are members
of the legal profession. In 1940 the immigration and naturalization
service was transferred from the department of labor to this department.

NATIONAL ADMINISTRATION: THE DEPARTMENTS 223

For the discharge of its extensive duties in these fields it maintains more
than forty offices throughout the country.

V. THE POST OFFICE DEPARTMENT

The postmaster general is what his title implies. His department has
the largest number of employees and hence the greatest range of political
patronage, although this has now been greatly diminished
by placing most of the positions in the classified service. ^j^ F "^
The United States postal service is the biggest business of
its kind in the world, with nearly 45,000 post offices, 1 an annual gross
turnover of nearly $970,000,000, and more than 1,000,000 letters per
hour dropped into its hands. In conducting this great enterprise, the
postmaster general negotiates postal treaties with foreign countries and
awards contracts for the transportation of the mails both on land and sea.
He also assumes oversight of the air-mail service, the rural mail service,
the parcel-post system, the handling of money orders, the postal savings
banks, and the sale of United States savings bonds. 2

An important authority possessed by the postmaster general is that of
denying the use of the mails to swindlers, promoters of lotteries, dis-
tributors of obscene or seditious publications, and all con-
cerns which may come under the ban for using the service
wrongfully. The investigation of such matters is in the hands
of postal inspectors. By prosecution for fraudulent use of the mails, it
often happens that offenders who have been shrewd enough to escape
the clutches of state authorities are brought to account by the postal
inspectors and placed on trial in the federal courts.

The United States postal service is a big business but does it pay?
That question has been the subject of much controversy. The answer to
it depends on how you interpret the figures. Usually the post POSTAL
office department reports a deficit. But part of this is due to PROFITS AND
the enormous amount of matter (official correspondence, DEFIGITS -
printed matter issued by the various administrative agencies, congress-
men's mail, etc.) amounting to nearly a billion pieces a year which is
carried free. 3 The carrying of first-class mail yields a profit, but most
other classes of matter (e.g., newspapers and magazines) are carried at a

1 Forty-odd years ago there were 30,000 more post offices. The increase has been kept
within bounds by the growth of rural mail delivery.

2 See also pp. 474-477-

8 For figures covering a period of seven years see Congressional Record, December 4, 1941,
pp. A5778-5779. For the fiscal year 1940, the departments franked 999,138,000 pieces, the
post office losing by free carriage $41,533,000. Congressmen franked 45,128,000 pieces, the
post office losing $7,217,000.

224 THfc GOVERNMENT OF THE UNITED STATES

loss. It is assumed to be good social policy to handle these forms of mail
cheaply so that the reading habits of the people may be encouraged. If
the postal service were conducted on strictly business principles, it would
doubtless contribute greatly to the federal revenue; but there are con-
siderations other than those of profit and loss involved. The results of
political pressure, moreover, have been more costly in this department
than in any other.

VI. THE DEPARTMENT OF THE INTERIOR

The department of the interior has a title which affords very little
clue to its varied function^. In European countries there have been
ITS NAME departments called by this name, with such functions as the

AND ITS supervision of local government, including the government

FUNCTIONS. Q count i eSj cities, and towns. But the department of the
interior at Washington has nothing to do with local government. It has
an assortment of functions, so miscellaneous in character that it has
sometimes been called the "department of things in general." For ex-
ample, the interior department has charge of Indian affairs, public
lands, the regulation of fisheries, the conservation of natural resources,
national parks and monuments, the geological survey, the promotion of
safety in mines, the protection of migratory birds and wild life in general,
the reclamation of waste lands including irrigation, flood control, and
power projects (such as Hoover Dam and Grand Coulee), the adminis-
tration of the federal laws relating to the conservation of oil, as well as
relations with the more important of America's outlying dependencies.
The office of education was also sheltered in this mosaic department
until 1939 when it was transferred with all its functions to the federal
security agency. 1

The headship of all these bureaus and divisions, from Indian affairs
to migratory birds, would seem to require a man of uncommon versa-
A DIFFICULT tility. Not only that, but he must be an adroit and cautious
DEPARTMENT administrator ; for no other department is so besieged with
TO MANAGE. p eO pi e w ho have their own ends to serve. Oil leases and
timber leases on government lands, for example, have always proved
slippery things to handle. Indian affairs are also a dependable source of
embarrassment, for the poor Indian has so many paleface friends on the
one hand and exploiters on the other. By both sides, the department is
beset with protests and plans. Numerous sections of the country want
swamp lands reclaimed, dams built on rivers, des&rt lands irrigated, and

1 Sec p. 239.

NATIONAL ADMINISTRATION: THE DEPARTMENTS 225

other waste territory made usable at government expense. Then Hawaii,
that picturesque little melting pot of the mid-Pacific, sets its varied
problems at the department's door. Puerto Rico, the Virgin Islands and
Alaska, which represent America's dominion over palm and pine, do
the same. In recent years, several small Pacific islands have likewise be-
come wards of the department of the interior. Although the United
States, unlike certain European countries, has no separate agency for
colonial affairs, it is obvious that the department of the interior comes
close to being just such an agency.

If a statesman considered his own peace of mind, this would be one
of the last departments he would choose to head. Much of his work,
however, devolves upon subordinates, most of whom are specialists in
their respective fields. Chief among these are the under secretary of the
interior, two assistant secretaries, and five others who arc called "assist-
ants to the secretary." Then come more than a dozen directors of
bureaus, along with several commissioners, administrators, and other
officials who have important work under their supervision. In the num-
ber of its personnel this is one of the largest of Washington departments.

VII. THE DEPARTMENT OF AGRICULTURE

The secretary of agriculture has also acquired a list of assorted re-
sponsibilities, but all of them have to do, in one way or another, with
the winning of man's livelihood from the soil. The depart-
ment combines the functions of a research institution and a FUNCTION s
service agency. They include the maintenance of agricul- WITH A

COMMOI
TIE-UP.

tural experiment stations and of various other institutions GOMMON

for the study of soils, plants, and livestock, the distribution of
seed, the establishment of cattle quarantines, the inspection of meats and
other food products, the making of scientific studies relating to irrigation
and drainage, farm engineering and farm housing, the issue of agri-
cultural bulletins dealing with all manner of farm problems, the mainte-
nance of a specialized library, the management of the forest service, the
compilation of crop reports and crop forecasts, the management of the
crusade against noxious insects, the enforcement of the laws relating to
grain exchanges, the insurance of farm crops, the marketing of surplus
farm products, and many other things of an allied nature. The pro-
duction and marketing administration (PMA), which has for its main
objective the restoration of farm buying power, is under the jurisdiction
of the secretary of agriculture, and so is the farm credit administration,
which provides a credit system for agriculture. 1 A considerable part of the

1 See pp. 433-434-

226 THE GOVERNMENT OF THE UNITED STATES

department's work is of an educational character, carried on through its
extension service and its office of information. If one desires an impressive
illustration of the government's "constructive" work, there is none better
than this. The department of agriculture, through the work of its various
bureaus, offices, and services, has enormously increased the productivity
of the land. Its work is supplemented by the work of the states, most of
which maintain their own departments of agriculture.

VIII. THE DEPARTMENT OF COMMERCE

In 1903 Congress created a department of commerce and labor, but
ten years later divided it into two departments. The department of

commerce has expanded steadily; it is now a scientific,
ACTIVITIES statistical, and analytical body which is concerned in a

general way with the promotion of foreign and domestic
trade. Since trade depends on industry, however, it is sometimes said
that the department of commerce finds itself concerned with "all matters
affecting economic activity." One of the most important divisions is the
bureau of foreign and domestic commerce, which has to do with the study
and promotion of trade both at home and abroad. It is the basic economic
bureau of the government in normal times, acting as the liaison agency
between government and the business world. To facilitate its work the
department maintains offices in the principal American cities, and these
local offices keep contact with chambers of commerce, boards of trade,
and other trade-promotion bodies. In this department, also, are the very
useful weather bureau and the coast and geodetic survey. The latter aids
navigation and aviation with its coastal and topographical charts and
surveys. Likewise, the department of commerce includes the bureau of
standards, which determines by careful study the standard weights and
measures, particularly those in respect to which great precision is essen-
tial. It is the largest testing laboratory in the world, with a staff of
nearly one thousand, and in recent years has extended its work far
beyond the standardizing of weights and measures. Today it is a great
institution of research in physical science and technology.

The patent office is included within the department of commerce and
performs a function of far-reaching importance. As its name implies, it

is principally concerned with the granting of patents, but it

also has the duty of registering trade-marks and labels used
on merchandise which enters into foreign or interstate commerce.

The regulation of civil aeronautics comes within the purview of the
department of commerce because the administrator of civil aeronautics
and the civil aeronautics board are placed within this department.

NATIONAL ADMINISTRATION: THE DEPARTMENTS 227

Their function is to encourage the development of air commerce by the
establishment of airways, landing fields, and other aids to air naviga-
tion; likewise, to supervise and control the protection of

re , i . , . ,, .,. AERONAUTICS.

air tramc by making regulations and by granting licenses.

They are the principal authorities with whom all owners and operators

of civilian aircraft have to deal.

Finally, there is the bureau of the census. It has the responsibility of
making the nation-wide census enumeration every ten years. In earlier
days this bureau virtually went out of existence when a

i-i 111 111 THE CENSUS.

decennial count had been completed and was not revived
until the approach of another census date. During more recent years,
however, the work of enumerating, classifying, and interpreting the data
especially the figures relating to industry has become a continuous
job. The bureau now functions on a permanent basis, but adds greatly to
its staff in the decennial years when the house-to-house enumeration is
being taken.

IX. THE DEPARTMENT OF LABOR

The department of labor was originally created for the primary pur-
pose of acquiring and disseminating useful information on subjects con-
nected with labor, as a means of promoting the welfare of workers.
But its functions have been considerably widened. For example, the
wage and hour and public contracts division enforces the minimum-
wage and maximum-hour provisions of the Fair Labor Standards Act
of 1938 and the minimum- wage, maximum-hour and other standards
stipulated in the Walsh-Healey Public Contracts Act of 1936 for the
benefit of employees of government supply contractors. Through its
bureau of labor statistics the department collects data and publishes,
at regular intervals, various bulletins on living costs and labor condi-
tions in the United States and abroad. There is also a women's bureau
to promote the welfare of gainfully employed women and a division
of labor standards to improve labor legislation and its administration
and to enforce the child-labor provisions of the Fair Labor Standards
Act. Services relating to the health and welfare of minors, formerly
discharged by the department's now liquidated children's bureau, have
been transferred to the social security administration. 1 Until recently
the department also had a labor conciliation service; but this became
an independent agency in 1947 and is known as the federal mediation
and conciliation service. 2

1 For a discussion of the social security system, see pp. 454-458.

2 See also p. 448.

228 THE GOVERNMENT OF THE UNITED STATES

THE SYSTEM IN GENERAL

These are the nine regular departments. They are not arranged on any

logical, orderly, or systematic basis. They have grown up, one by one,

to meet new conditions. When a new piece of administrative

SUMMARY. , . . .... .

machinery is required, it is put wherever seems most con-
venient at the time in one of the regular departments or outside the
regular departments altogether. Then, when a department becomes
overcrowded, or when some other good reason appears, one or more of its
bureaus or divisions are shifted somewhere else. Under the circumstances,
it is not surprising that there is confusion and overlapping. Everyone in
Washington is aware of this. From time to time, it has been proposed to
give the organization a general overhauling, and a few years ago Congress
gave the President authority to shift things about by executive order.
By virtue of this power he has made a number of important changes, by
shuffling bureaus and divisions from one department to another. But
there has been no thorough overhauling of the whole administrative
machine, nor is such drastic action likely to be taken because it would
stir up a great deal of opposition from those public officials who might
be adversely affected.

Meanwhile, there has been some clamor "for the establishment of
additional departments a department of public works, of public
health, of education, of public welfare, of highways, of conservation.
Good arguments can be advanced in behalf of all these proposals, but
there is the serious objection that by creating several new regular de-
partments the cabinet would be enlarged to a point where it might lose
much of its value as an informal consultative group. So the recent prac-
tice has been to provide new administrative machinery by establishing
boards, bureaus or offices entirely outside the purview of the nine regular
departments. Some of these have now become quite as important, in the
administration of federal affairs, as are the departments themselves.
For example, the national labor relations board, an independent agency,
is hardly inferior to the department of labor in the scope and importance
of its work. And under wartime conditions the office of price administra-
tion outranked the department of commerce in the breadth of its
operations.

It has been suggested that a greater degree of harmony and coopera-
tion between the executive and legislative branches of the national
government would be secured if members of the Cabinet were allowed
to sit and speak (although not to vote) in both Houses of Congress; and
resolutions to the same effect have been introduced into Congress on

NATIONAL ADMINISTRATION: THE DEPARTMENTS 229

several occasions, but have never found much favor. President Taft
made such a proposal in his last annual message. 1 Congress, of course,
has an undoubted right to accord this privilege to members
of the cabinet, because there is a provision in the Gonsti- ^EMBE^S OF
tution of the United States which authorizes both Houses THE CABINET
to make their own rules of procedure, including the determi- SIT IN ? CON ~
nation of who shall have the right to speak and when. For
many years, under these rules, delegates from the territories (Alaska and
Hawaii) have been allowed to sit in the House of Representatives and to
speak there, although having no right to vote. The Constitution excludes
persons u holding any office under the United States" from membership
in either House during their continuance in office; but a member of the
cabinet, by merely taking part in the debates, would not become a
member of Congress any more than the chaplain or the clerk, both of
whom sit and speak within the legislative halls whenever it is in order
for them to do so. A member of the cabinet, if merely given the right to
sit and speak in Congress, would have no vote, no official term, no privi-
lege of immunity from arrest, none of the constitutional attributes of a
congressman.

Conceding, however, that Congress has the power to admit members of
the cabinet to all its sessions, would it be expedient to do so? This question
has been many times discussed, and there are two sides to it.
On the one hand, it has been argued that Congress in this THE^T
way could obtain more useful and more exact information
than it now obtains through roundabout channels which is probably
true. It is further contended that the change would virtually compel the
President to choose as members of the cabinet men of real capacity, who
would have to become extremely conversant with the affairs of their
several departments because no incompetent head of a department
could keep from demonstrating his incapacity if he were expected to take
an active part in the deliberations of Congress day by day. He would be
questioned on the floor, forced to defend his administrative policies, and
criticized for his actions. To be sure, there might be some embarrassment
in this procedure for the reason that the actions of every department
head are, in the last analysis, the actions of the President, and the
President is not responsible to Congress.

On the other hand, it should be borne in mind that by placing nine
cabinet members on the floor of Congress the executive branch of the
government would acquire a greatly increased influence upon congres-

1 Congressional Record, December 19, 1912, Messages and Papers of the Presidents, Vol. XVI,
pp. 7811-7813

230 THE GOVERNMENT OF THE UNITED STATES

sional deliberations, even though this group would have no vote in

either House. They would get the newspaper headlines more frequently

than regular members of Congress could hope to do. Mem-

OBJECTIONS bers of the cabinet wou id then be selected by the President

(some of them at least), not primarily for their administrative
ability, but because of their oratorical powers and their personal influ-
ence in the Senate and the House. A premium might well be placed on
the choice of men who had served in Congress and had acquired a strong
following there. The President would then have, on the floor of both
Houses, nine valiant champions of the administration who would be
privileged to serve as his super-lobbyists, both on the floor and off it.
Such an arrangement would undoubtedly increase his strength in pro-
moting or opposing legislation. Men who had not been elected by the
people would then be found to be exerting a considerable direct influence
upon the making of laws and the voting of money, which appointive
officials are not supposed to do. Moreover, if heads of the nine regular
departments are to be given the sit-and-speak privilege, why stop there?
Some heads of independent governmental agencies the director of the
budget, for example would seem to have an equally strong or even
stronger claim.

And in any case, those who serve as the PresiHent's chief administrative
subordinates, whether in the cabinet or out of it, have already quite
enough to do without daily participation in congressional debates. If
they had to spend much of their time in the legislative chambers, they
could not hope to gain adequate familiarity with the problems which
come to their own office desks. It hardly avails to say that members of
the ministry in some other countries (in Great Britain and the British
Dominions, for example) have found it possible to take a very active
part in parliamentary debates and also serve as competent heads of
administrative departments. These ministers, as a matter of fact, leave a
large part of their administrative responsibilities, with virtual finality, to
their chief subordinates. That is what would eventually happen in the
United States if members of the cabinet were expected to spend any
large portion of their time in attendance at congressional sessions.
Possibly such a development would not be at all harmful if the adminis-
trative subordinates were sufficiently competent and experienced.

A favorite theme of writers in the field of comparative government has
been the series of contrasts between the two great systems of administra-
tive responsibility the British andtthe American with
COMPARISON, direct responsibility to the House of Commons in one case
and to the President in the other. The difference is so great

NATIONAL ADMINISTRATION: THE DEPARTMENTS 231

and fundamental that its ramifications carry through the two political
systems from top to bottom. Each plan has its advantages, offset by
corresponding weaknesses. No thoughtful student of government would
care to affirm that either plan has an advantage over the other under all
circumstances and in all countries. Both have served a good purpose,
each in its own political orbit, and the adaptation of the agent to its
environment is as essential in the body politic as in living organisms. The
British plan makes for concentration of responsibility, firm legislative
leadership, and forthrightness of public policy. But if the American
system shows its weakness in the diffusion of responsibility for lawmaking
and in the defective cooperation which it provides between the two great
arms of government, it has an offsetting merit in the protection which it
affords against the undue gravitation of power into a few hands.

REFERENCES

THE DEPARTMENTS. On the departments there are such books as Gaillard Hunt,
The Department of State of the United States (New Haven, 1914), Robert Bendiner,
The Riddle of the State Department (New York, 1942), A. Langeluttig, The Depart-
ment of Justice of the United States (Baltimore, 1927), D. T. Seiko, The Federal
Finance System (Washington, 1940), Homer S. Cummings and C. McFarland,
Federal Justice (New York, 1937), D. G. Roper, The United States Post Office
(New York, 1917), W. L. Wanlass, The United States Department of Agriculture
(Baltimore, 1920), and D. C. Blaisdell, Government and Agriculture (New York,
1940). Special mention should be made of the long series of Service Monographs
(about seventy of them) published by the Institute for Government Research.
These monographs take up, one by one, the various bureaus, divisions, and offices
of the national administration.

On the subject of public administration in general, the following titles may be
consulted: W. F. Willoughby, Principles of Public Administration (Baltimore, 1927),
L. D. White, Introduction to the Study of Public Administration (revised edition, New
York, 1939), and Trends in Public Administration (New York, 1933), J. P. Comer,
Legislative Functions of National Administrative Authorities (New York, 1927), Com-
stock Glaser, Administrative Procedure (Washington, 1941), Lawrence Sullivan,
The Dead Hand of Bureaucracy (Indianapolis, 1940), David Lawrence, The Other
Side of Government (New York, 1929), C. H. Wooddy, The Growth of the Federal
Government, 1915-1932 (New York, 1934), E. Pendleton Herring, Public Adminis-
tration and the Public Interest (New York, 1936), Schuyler Wallace, Federal De-
partmentalization (New York, 1941), M. T. Reynolds, Interdepartmental Committees
in the National Administration (New York, 1939), J. M. Gaus, L. D. White, and
M. E. Dimock, Frontiers of Public Administration (Chicago, 1936), Arthur W. Mac-
Mahon and John D. Millet t, Federal Administrators: A Biographical Approach to the
Problem of Departmental Management (New York, 1939), and Ludwig von Mises,
Omnipotent Government (New Haven, 1944).

The attention of students is especially called to the important work of the
President's Committee on Administrative Management, which foreshadowed

232 THE GOVERNMENT OF THE UNITED STATES

many of the recent changes in federal administiative organization. Recom-
mendations and special studies of this committee may be found in its Adminis-
trative Management in the Government of the United States (Washington, 1937) and the
Report of the Committee with Studies of Administrative Management in the Federal
Government (Washington, 1937). Changes in the organization of the federal
administration are noted in summary articles which appear from time to time
in the American Political Science Review. Another publication which will help the
student to keep abreast of administrative changes is the United States Government
Manual, issued three times a year. For additional references on various phases
of this general subject reference may be made to Sarah Greer, A Bibliography oj
Public Administration (2nd edition, Part I, New York, 1933).

CHAPTER XV

THE INDEPENDENT AND EMERGENCY
ADMINISTRATIVE SERVICES

Nothing is so galling to a people as a paternal, or, in other words, a meddling gov-
ernment, a government which tells them what to read, and say, and eat, and drink, and
wear. Macaulay.

Until about fifty years ago, the entire administrative work of the
national government was performed by the regular executive depart-
ments. Even at that, some of these departments were far
from being overloaded. But during the past half century BOARD^OUT^
the general concept of governmental functions has under- SIDE THE
gone a steady change. The idea that a government should REGULAR DE -
govern best by governing least has given way to the doc-
trine that it should actively intervene to control and regulate the free
play of economic and social forces whenever these forces seem to be in
need of constraint. In other words, it has become our generally ac-
cepted political philosophy that the national government should keep a
regulating hand on transportation, communication, labor relations,
wages and hours in great industries, banking, credit, the issue of securi-
ties, the overproduction of crops, the price of silver, and a great many
other things. In keeping with this altered concept, there has developed
a steady expansion of governmental activities. And this, in turn, has
created new administrative duties which, although to some extent
absorbed by the nine regular departments, have been for the most part
turned over to new independent agencies outside the cabinet circle.

A variety of reasons, historical, political, and personal, have dictated
the setting up of these numerous commissions, boards, "administra-
tions," and offices as independent agencies. In some in- REASON s FOR
stances there was a justifiable desire to provide bipartisan THEIR
representation (as in the case of the civil service com- EXKTENCE -
mission), which could not be done if the work were placed in a depart-
ment headed by one person. In other instances there seemed to be an
urgent need for continuity, which could only be had by so constituting a

233

234 THE GOVERNMENT OF THE UNITED STATES

board that its members would retire one at a time. In still other cases
the creation of an independent agency was dictated by the fact that no
one of the regular departments seemed adequately equipped to under-
take the new duties. Finally, some of the new services were called into
existence by emergency conditions which, it was expected, would be
temporary in which case the agency would soon go out of existence
the war relocation administration, for example. At any rate, the system
of national administration has expanded at a rapid pace in recent years
by merely adding one piece of machinery to another until the result is a
great mechanism which almost defies description.

A complete enumeration of these independent and emergency admin-
istrative services, with a detailed statement of their functions, would fill
an entire volume. Even then it would be inaccurate within a

THE CHANG-

ING ADMIN- few weeks because of the almost daily changes which are
ISTRATIVE being made in the organization of the different offices and
in the distribution of duties among them. Most of these
changes do not require action by Congress: they can be made by execu-
tive order. In 1939 Congress gave the President a wide range of authority
to combine, coordinate, or abolish administrative agencies; and this
authority has been freely used, especially with respect to those which
have been set up during recent years as part of the recovery and rearma-
ment programs. 1

Today there are almost a hundred commissions, boards, bureaus,
divisions, offices, services, "administrations" and "authorities" function-
Two CLASSES i n outside the nine regular departments. As a preliminary
OF INDEPEND- classification they may be grouped into two categories: those
nm. A ^*" which have been established as part of the nation's per-

CiLt,o. trCjK." *

MANENT AND manent administrative equipment, and those which were
EMERGENCY. cre ated to deal with problems arising out of an economic
depression or war emergency. The latter were not intended to be perma-
nent. Some have already succumbed and others are expected to do so
under laws which automatically expire at a given date. But it is an
axiom of practical politics that governmental agencies always try to
perpetuate themselves and are never ready to give up when the condi-
tions which called them into existence have passed. They seek, and

1 The procedure of war obscured the process of consolidation. Until 1 946 at least half
of the semiautonomous agencies functioning outside the nine departments related to some
phase of the war effort, having been set up as circumstances demanded them. Yet since the
first inauguration of President Roosevelt, and particularly since the Reorganization Act
of 1939, many services have been abolished, merged, or transferred to the departments. The
actual number of such services falls just short of 300. Roughly speaking, 30 per cent have been
abolished; 20 per cent, transferred.

INDEPENDENT ADMINISTRATIVE SERVICES 235

usually find, reasons to justify their continuance. If there are no valid
reasons, they will create some. Nothing is more tenacious of life than a
government bureau. It is a safe prediction, therefore, that some of these
emergency agencies, perhaps many of them, will become permanently
embedded in the national administrative system.

I. THE PERMANENT REGULATORY AGENCIES

Among the permanent administrative agencies outside the nine depart-
ments of thexabinet, some of the most important are the great regulatory

boards which Coneress has established at various times to

i . r i IP . THE PER -

insure that its measures lor the control ol transportation, MANENTREG-

communication, industry, and finance arc carried into ULATORY
effect. These permanent agencies exist for the simple reason
that laws which are intended to regulate things do not achieve their
purpose unless some official or body of officials is given the direct re-
sponsibility for enforcing them. They exist for the further reason that
successful regulation requires a resiliency which statutes are themselves
unable to provide. To secure flexibility in the administration of a statute,
it is necessary to endow some administrative agency with power to use
discretion within the general provisions of the law. And the exercise of
such discretion can be more safely lodged in the hands of a board than
in those of a single administrative officer.

(A) THE INTERSTATE COMMERCE COMMISSION

Oldest among these permanent regulatory boards is the interstate
commerce commission. It was established in 1887 to supervise common
carriers transporting passengers or property "wholly by
railroad or partly by railroad and partly by water" when TH E REGULA-
both are used, for continuous carriage, under a common TORY
control. The original powers of the commission, however,
have been greatly extended by successive acts of Congress during the
past forty years. Today the I C C is charged with the general duty of
seeing that all interstate railroads and other "common carriers" maintain
reasonable rates and give adequate service. 1 The commission is now
composed of eleven members, each appointed for a seven-year term by

1 The Hepburn Act of 1 906 not only provided means for the enforcement of the commission's
orders, but also extended its jurisdiction to include pipe lines (except those carrying water or
gas), express companies, and sleeping-car companies. More recently its jurisdiction has been
further extended to include motor carriers (1935), water carriers operating on inland and
coastal waters (1940), and freight forwarders (1942). But its power to regulate interstate
telephone, telegraph, and cafcle companies was transferred, in 1934, to the new federal com-
munications commission.

236 THE GOVERNMENT OF THE UNITED STATES

the President with the consent of the Senate. From its own membership
the commission elects a chairman who serves for one year. It also ap-
points a secretary, who serves as the agency's executive officer and in
addition employs a large staff of engineers, accountants, examiners,
attorneys, special agents and other subordinate officials. Because of the
large amount of work which it has to do, the commission has created five
divisions, each having at least three members; and each of these divisions
may make rulings (subject to review by the commission) which have the
same force and effect as if made by the commission itself. The work of the
interstate commerce commission is quasi-judicial in its nature, for it
largely concerns the adjudication of controversies between transportation
companies and shippers of merchandise. The commission has become
the right hand of Congress in the exercise of that body's constitutional
power to "regulate commerce . . . among the several states." l

(B) THE FEDERAL TRADE COMMISSION

Another important board which exercises authority in the domain
of commerce and industry is the federal trade commission, established
in 1914. This commission took over the work formerly
c \NIZATION handled by the bureau of corporations in the department
AND PRINCI- of commerce, but acquired froni Congress a wide range of
PAL FUNG- authority in addition. It now consists of five members ap-

TIONS.

pointed by the President, with the approval of the Senate,
for a seven-year term. In general the commission may be said to have a
threefold purpose: (i) to promote free and fair competition; (2) to
safeguard the health of consumers by outlawing the misrepresentation
or false advertisement of food, drugs, and other commodities; and
(3) to publish factual data as a basis for remedial legislation. Its original
powers were directed against the growth of trusts and monopolies, against
such unfair methods of competition as price-fixing agreements, boycotts,
and combinations in restraint of trade. These powers have been greatly
extended by statute during the past decade. They now apply, for
example, to unfair or deceptive practices regarding food, drugs, cos-
metics, and wool products. But they do not apply to common carriers,
air carriers, telegraph, telephone, and radio companies, and banks, these
being supervised by other federal authorities. 2 The commission may in-
vestigate the organization and conduct of any firm, except common

1 See also the discussion of the commerce power of Congress, pp. 399-419.

2 Common carriers, by the interstate commerce commission; air carriers, by the civil
aeronautics board, telegraph, telephone, and radio companies, by the federal communica-
tions commission, and banks, by the comptroller of the currency.

INDEPENDENT ADMINISTRATIVE SERVICES 237

carriers and banks, that engages in commerce. When it finds on investi-
gation that any unfair trade practice is being pursued, it issues a cease
and desist order. 1 These orders, if need be, are enforced by the federal
circuit courts of appeals, which also have power to set aside or modify
the orders if they find that the commission has overstepped its legal
authority. 2

The federal communications commission was created in 1934. Its
duty is to regulate interstate and foreign communication by wire or
radio. Prior to 1934, this function was divided between the ORGANIZA .
interstate commerce commission (which had authority TION AND
over telegraph, telephone, and cable companies) and a POWERS -
federal radio commission. The new commission combines both these
jurisdictions with a view to making the system of regulation more effec-
tive. It has a membership of seven, appointed by the President with
senatorial concurrence, one of its members being designated as chair-
man. The federal communications commission has decentralized its
routine work among more than twenty district offices, which are located
at various points throughout the United States.

A large part of the commission's responsibility, at the present time, is
connected with the licensing of broadcasting stations, the allocation of
wave lengths to them, the determination of the hours in
which they may operate, and the placing of limitations upon LATION'OF
the amount of sending power that they may use. The com- RADIO
munications commission may revoke a license in any case
where it finds that a station is not being operated in the
public interest. This gives it a measure of authority over broadcasting
which might readily be widened into a general censorship. Thus far,
however, the commission has refused to exercise any close surveillance
over radio programs, although it has occasionally ordered the revocation
of licenses for such offenses as the use of scurrilous language and the
broadcasting of fraudulent advertising. All radio stations, of whatever
capacity, arc subject to federal licensing on the theory that they are
engaged "in interstate commerce," although it is not commerce but
entertainment which most of their programs feature. Even the so-called
local stations are held to be interstate in their scope, for potentially their
waves go across state boundaries.

The phenomenal growth of radio has made regulation difficult,

1 See also pp. 442-444.

2 For an explanation of these courts, see pp. 582-583.

238 THE GOVERNMENT OF THE UNITED STATES

Thirty years ago, in the First World War, the sending of messages by
spark wireless in the dot-and-dash code seemed miraculous.

GONTROVER- _f

sms DURING Broadcasting came later and soon reached vast proportions.
THE PAST This lusty and self-willed youngster has been inclined to

DECADE. 111 i i i

resent control and to denounce the commission as lacking
in sympathetic appreciation of the problems of youth. Controversy and
conflict have marked the relations between the broadcasters and the
commission, especially as the latter, guarding against antisocial tend-
encies, has made war upon monopoly and sought to harmonize private
profit with public welfare. Since the end of World War II, various
developments in wireless and electronic communication have claimed the
commission's attention. Among these are the addition of FM (frequency
modulation) stations to existing AM (amplitude modulation) broadcast-
ing facilities, the expanding interest in television and facsimile broadcast-
ing, and the linking of telephone systems with moving vehicles by radio.

(D) THE SECURITIES AND EXCHANGE COMMISSION

A newcomer in the field of federal regulation is the securities and ex-
change commission, established in 1934. Its five members are presidential
appointees, approved by the Senate; they serve for five
years, one member retiring annually. The commission was
set up to administer the provisions of statutes which Con-
gress enacted during 1933-1934, in its endeavor to curb various abuses
which had become widely prevalent in the flotation and marketing of
securities. 1 To this end, laws require that all new issues of securities,
except a few exempted ones, must be submitted to the commission
before being offered for sale in interstate commerce or through the mails.
In connection with this submission, a registration statement must be
filed giving all essential information, for the truthfulness of which the
promoters are responsible. The commission does not pass on the intrinsic
value of any securities which it approves for issue, but merely requires
the full disclosure of such facts as will enable an intelligent investor to
use his own judgment.

The commission also regulates the stock exchanges. Its approval of

their organization and bylaws is required. Likewise, all securities listed

on such exchanges must be registered with the commission.

REGULA- i i i . r 11

TION OF and in this connection the commission may require a full

STOCK disclosure of financial conditions in those corporations whose

EXCHANGES. . . ,. ^ , TjL , ^ . , ^ . , .

securities are listed. Its duty is also to prevent the making

1 The Securities Act of 1933 and the Securities Exchange Act of 1934. The authority of
the commission was increased, in the years 1935-1940, by four other statutes.

JUTY

INDEPENDENT ADMINISTRATIVE SERVICES 239

of unfair profits in stock-market manipulations by "insiders" who acquire
knowledge superior to that of the investing public. The practice of buying
stocks on margin is likewise subject to regulation, but rules relating to
the amount of such margins are made by the federal reserve board.
The general purpose of all this regulation is to provide investors with
adequate information about securities so that they may be enabled to
form intelligent opinions concerning the true value of stocks and bonds;
likewise, to protect the public against fraud by insisting that stock ex-
changes shall be unmanipulated and honestly conducted.

By the Public Utility Holding Companies Act of 1935, the securities
and exchange commission was also given powers in relation to all public
utility holding companies which are engaged in interstate
commerce or which make use of the mails in connection
with their business. As will be more fully explained later, PUBLIC

UTILITY

the commission has power to require the registration of all

/ n P f COMPANIES.

such concerns and is vested with the function of bringing

about a simplification of public utility corporate organization in order

that the interests of both consumers and investors may be properly

safeguarded. 1

(E) THE FEDERAL SECURITY AGENCY

The federal security agency was established in 1939 by grouping
together various boards, offices, and services under the supervision of an
administrator. More particularly it includes the social secu- OLD-AGE
rity administration which was created a few years earlier to PENSIONS

administer the federal social security laws relating to old- f* 1HER

* *-* SOCIAL

age pensions and unemployment benefits, as well as to SECURITY
administer aid to dependent children and the needy blind MATTERS -
through federal grants to the states. But the federal security agency also
includes the food and drugs administration (which was taken over from
the department of agriculture), the public health service, the office of
education, and the United States employment service. It does not have
the handling of funds which are accumulated from the contributions of
employers and employees for the payment of old-age pensions. The ad-
ministration of the social security funds is devolved upon a board of
trustees of the federal old-age and survivors' trust fund of which the
secretary of the treasury is the "managing 55 trustee.

(F) THE FEDERAL POWER COMMISSION

Another regulatory board of a permanent character is the federal
power commission. This body now consists of five commissioners ap-

! See pp. 414-416.

240 THE GOVERNMENT OF THE UNITED STATES

pointed by the President and Senate, and its chief function is to administei
the provisions of the Federal Water Power Act and other measures which
ITS ORGANI- Congress has passed for the conservation of the country's
ZATION AND water-power resources. These statutes also represent a
FUNCTIONS. desire to promote the improvement of navigation and its
development in streams subject to federal jurisdiction, while at the same
time protecting power users against unreasonable rates. It should be
explained that all navigable streams, wherever situated in the United
States, are subject to this control by the federal government. In order to
protect the consuming public and to promote the financial stability of
water-power enterprises which have been licensed by the national
government, the commission is authorized to regulate their rates and
conditions of service whenever they are engaged in interstate business,
or in business wholly within a state if the state has no regulatory agency
of its own.

It is also provided by the federal laws that the United States, or any
state or municipality designated by it, shall have the right to take over
any private water-power enterprise at the expiry of its license term,
upon payment of the net investment which must not exceed the fair
value at the time of the taking over. To make this "recapture" provi-
sion effective, the commission requires all licensees to keep an approved
system of accounts, and each year it figures the* net investment currently.
During the Second World War, the commission was charged with the
additional task of stepping up the country's power facilities to meet the
needs of the war emergency and of protecting them against hostile acts

II. THE PERMANENT SERVICE AGENCIES
(A) THE UNITED STATES TARIFF COMMISSION

Then there are various boards, bureaus, and offices with functions

which are not regulatory in the usual sense, but rather serve to facilitate

the administration of various important federal laws. The

HISTORY, OR- tariff commission is one of these. A quarter of a century or

GANIZATION, , ., A 're 1 J' 'A

PURPOSES more ago, when the tarin was a leading issue in American
\ND POWERS, politics, Congress authorized the establishment of this
board, which was subsequently given additional powers
and considerably reorganized in 1930. It is now made up of a chairman,
a vice-chairman, and four other members, all of whom are appointed
by the President and Senate in the usual way for a six-year term, with
one term expiring each year. Not more than half 3 * the membership may
be drawn from one political party. The commission's primary function

INDEPENDENT ADMINISTRATIVE SERVICES 241

is to investigate and report on tariff matters in general and to make such
special studies as the President or the appropriate committees of Congress
may require. For example, the staff of the commission compiles classi-
fications of imported articles which are comparable with those of Amer-
ican production, and ascertains the import costs of such commodities.

Likewise the tariff commission investigates the difference between the
production costs of commodities in the United States and abroad, using
these investigations as the basis of recommendations to the ITS FUNG .
President in connection with the "flexible clause" of the TION IN RE-
American tariff. 1 The commission, finally, serves as a source if?<* T0

1 HE FL.EX~

of information and advice in connection with the negotia- IBLE
tion of foreign trade agreements, insofar as these involve GLAUSE "
tariff modifications.

It is scarcely necessary to point out that the tariff commission does not
frame the tariff. That function belongs to Congress, which is supposed to
utilize the commission's knowledge of the subject, but has never done
this to any large extent. Tariff schedules have usually been framed by
congressional committees, with more reference to political pressure than
to expert advice concerning economic requirements. And in any event,
the tariff, as a political issue, has dropped far into the background during
the past twenty years. One may read the newspaper headlines day after
day without ever seeing a mention of it. Most Americans, apart from
importers of goods, have almost forgotten that there is a tariff. The reason
for all this, is the general dislocation of international trade which has
resulted from wars, economic depressions, and the use of the quota system
by totalitarian states. 2

(B) THE CIVIL SERVICE COMMISSION

The civil service commission is one of the oldest among the independ-
ent boards, having been established more than sixty years ago. Its chief
function is to administer the national laws relating to

i i -r * i * f .^11 ADMINIS-

appomtments in the classified service. More specifically, TERING THE
it makes the rules relating to civil service competitions and MERIT

^^ SYSTEM

supervises the holding of the examinations. The commission
keeps a file of service records covering all persons in the classified service
and passes upon the qualifications of all such persons who are proposed
for transfer from one classified position to another. The scope of the com-
mission's work may be judged from the fact that at the end of 1940, when
the executive branch c5f the civil service included over 1,1 19,000 persons,

1 See pp, 404-405. 2 For an explanation see pp. 405-406- 8 See pp. 258-263.

242 THE GOVERNMENT OF THE UNITED STATES

73 per cent were covered by the merit system. 1 After the outbreak of
war, the percentage declined considerably. Those who are exempt from
the merit system mostly employees in the existing emergency services
now constitute the major element. They remain exempt for two
reasons: first, because these emergency services had to recruit their
employees hurriedly, without waiting for eligible lists; and second, be-
cause it is not desirable to have such employees on permanent status
when the emergency is past.

Until a few years ago, the bureau of the budget was officially attached
to the treasury department, but functioned independently. Now its
independence is complete, as it has been placed under the immediate
direction of the President. It is headed by a director whom he appoints.
This director's general duty is to receive from the heads of all administra-
tive departments and other agencies their estimates of appropriations
needed for the coming fiscal year. These, in consultation with the
President, are then revised, reduced, or increased as may seem advisable
and combined into a provisional budget along with estimates of national
revenues. 2 In doing his work, the director of the budget is responsible to
no one but the President, and can be overruled by him alone. But after
the budget has been transmitted to Congress, the latter has a free hand
to do what it pleases with the figures.

(D) AGENCIES FOR THE CONTROL OF BANKING AND CREDIT

As will be explained in a subsequent chapter, the American system of
banking and credit is a very complicated affair. Even bankers of long
experience do not fully understand it. There are more banks, and of
more varieties, than in any other country. The supervision of these
numerous and varied institutions has required the setting up of regula-
tory agencies in both the national and state governments. Among the
former the comptroller of the currency is an important figure with the
function of directly supervising all the national banks that is, all
banks that have their charters from the national government. Then
there is a board of governors of the federal reserve system, which includes
seven members appointed by the President with the approval of the
Senate. In selecting these seven members, the President is required to

1 At the close of the Hoover administration, the percentage was 80. During the first four
years of the New Deal, it sank to 63; during the next four years, it rose to 73; and under the
emergency of war, as the total passed 3,000,000, it sank once more with great rapidity.

* For a discussion of budgetary procedure in Congress see pp. 386-392.

INDEPENDENT ADMINISTRATIVE SERVICES 243

afford fair representation to the financial, agricultural, industrial, and
commercial interests as well as to the various geographical divisions
of the country. 1 Likewise, there is a farm credit administra- WAt>

FARM CREDIT

tion, which provides credit for agriculture through the ADMINISTRA-
federal land banks, production credit corporations, inter- TION>
mediate credit banks, district banks for cooperatives, and the federal
farm mortgage corporation, which aids in financing the lending opera-
tion of the federal land banks. The farm credit administration, headed
by a governor, operates through 12 regional farm credit units. Since
1939 it has been attached to the department of agriculture.

The federal deposit insurance corporation was created on the heels of
the banking emergency of 1933, but is being retained as a permanent
federal instrumentality. Its board of directors consists of
three members, including the comptroller of the currency. pJ^ ERAl '
The chief function of the F D I G is to insure the deposits INSURANCE
of all banks which are entitled to the privilege of deposit
insurance under the federal laws. Incidentally to this
function, the corporation may act as receiver for closed banks or may
operate new national banks for a limited time in order to make available
to depositors in closed banks the insured amount of their deposits. 2

The foregoing do not exhaust the list of federal agencies which have
to do with banking. There is the Export-Import Bank of Washington
which itself makes loans or occasionally guarantees private loans to
facilitate foreign trade. Various other national authorities exist to super-
vise the hundreds of nationally chartered savings and loan institutions
throughout the country and the nationally chartered credit unions. Still
others have supervision over loans made by private banks which are
insured or otherwise guaranteed by the government.

(E) MISCELLANEOUS INDEPENDENT AGENCIES

Adding to the perplexities of anyone who tries to thread his way
through the mystic maze of Washington officialdom are numerous
independent agencies of a permanent character which do THE
not lend themselves to any grouping. The duties of each, LIBRARY OF
however, are fairly well indicated by its title. For example, CONGRESS -
there is the Library of Congress which is now the largest depositary of
books in the United States, and probably the largest in the world. With
its collection of nearly nine and a half million books, pamphlets, period-
icals, maps, manuscripts, engravings, and other items, this library is

1 Cf. Chapter XXVI. 2 Sec also pp. 432-433.

244 THE GOVERNMENT OF THE UNITED STATES

administered as a separate agency under a librarian who is appointed by
the President. Originally established for the convenience of Congress, the
institution has become a national library which attracts research scholars
from all parts of the country. Incidentally, it has charge of the granting
of copyrights.

The national government does all its own printing, maintaining for
that purpose the world's largest printing plant. All bills introduced into
THE GOVERN- Congress, all reports and journals, and the daily issues of
MENT PRINT- the Congressional Record are printed by this establishment.
ING OFFICE. rpj^ ft ecor( j con tains a stenographic report of proceedings
in both Houses. The post office department, however, is the largest
customer of the government printing office for post cards, money order
applications, change -of-address cards, etc., although postage stamps
are made by another government agency, the bureau of engraving. Other
departments, together with the various independent agencies and emer-
gency services, also make heavy demands on the government printing
office, which provides them not only with printed material but with
blank paper, inks, and various other supplies. The office is headed by
the public printer whose appointment comes directly from the President
with the approval of the Senate. All his subordinates are selected under
civil service regulations.

The office of the superintendent of documents supervises the distribu-
tion of all publications of the federal government. Such publications,

for the most part, are sold, not given away. The superin-
THE SUPER- . . , , , , ,r . i . i , -

INTENDENT tendent is appointed by the public printer and is under his

OF DOGU- general direction, but the office is independent in the sense
MENTS. . . .. r ~

that it receives its own direct appropriation irom Congress.

Any government publication can be obtained from the superintendent
of documents at the listed price. Free copies are supplied to a selected
list of libraries throughout the country.

One of the little known but interesting agencies in this list is the
Smithsonian Institution. More than a hundred years ago, an Englishman
THE SMITH- named James Smithson bequeathed a half-million dollars
SONIAN IN- to the United States of America to found "an establishment
STITUTION. f or t j ie j ncrease anc j diffusion of knowledge among men."
Why he did this nobody knows, for Smithson had never been in America.
He was born in France, educated in England, and died in Italy. At any
rate Congress accepted the bequest, created the Smithsonian Institution,
and in 1904 did honor to the benefactor by bringing his bones from
Genoa to rest in American soil. The institution ie governed by a board
of regents consisting of the Vice-President of the United States, the Chief

INDEPENDENT ADMINISTRATIVE SERVICES 245

justice, three senators, three members of the House, and six citizens
appointed by joint resolution of Congress. It has under its operating
direction various scientific, literary, and artistic activities including the
bureau of American ethnology, the national zoological park, the United
States national museum, and the national gallery of art.

Then there is the veterans' administration into which have been con-
solidated all federal agencies dealing with veterans' affairs. In 1930 it
took over the old bureau of pensions which for many years ET ,
was included in the department of the interior. In brief, the ADMINIS-
veterans' administration administers all laws relating to TRATION -
pensions, relief, insurance, hospitalization, and other benefits provided
for former members of the military and naval forces or for their widows
or dependents. The head of the veterans' administration is an admin-
istrator appointed by the President. Some idea of the extensive work
which this administration performs may be gleaned from the fact that it
has 43,500 employees.

A score or more of other bodies, varying in importance, have names
which generally indicate their functions. Among them are the railroad
retirement board, the inland waterways commission, the
general accounting office, the battle monuments com- AGENCIES
mission, the national archives council, the national historical
publications commission, various international boundary commissions,
the board of surveys and maps, the central statistical board, the national
research council, the science advisory board, and many others.

III. THE EMERGENCY SERVICES

The economic depression which began in 1929 was not the first of its
kind. It differed from previous depressions, however, in its wider scope
and greater severity. Likewise, there was a difference in the
procedure by which the country tried to deal with it. In all CENTAL"
previous economic emergencies (such as those of 1837, 1873, ACTIVITY IN
and 1893), the federal government left the problem of
relieving unemployment to the states and municipalities.
In the early stages of the latest depression, it tried to do the same thing;
but the critical nature of the situation dictated a change in policy, and
eventually the federal authorities found themselves loaded with most of
the burden. It became their task to provide a program of relief and
recovery legislation, with which it seemed desirable to combine a con-
siderable amount of economic and social reform. This, in turn, necessi-
tated the creation of many new commissions, boards, bureaus, offices,
and other administrative authorities the alphabetical agencies, as thev

246 THE GOVERNMENT OF THE UNITED STATES

have commonly been called. Ostensibly established on a temporary
basis, many of these have now achieved a permanent place in the system
of national administration. On the other hand, many others have already
been abolished.

Earliest among these emergency services was the reconstruction

finance corporation (RFC). It was set up by Congress in 1932 and given

functions which have been greatly widened by subsequent

THE RECON- . . . . ,_,, i- r r . r i n

STRUCTION legislation. The chief function of the reconstruction finance
FINANCE corporation is to provide emergency financing facilities for

CORPORA- various institutions and enterprises, including banks, trust

companies, building and loan associations, mortgage com-
FUNCTIONS P an ies, credit unions, insurance companies, and railroads,

as well as for a wide variety of industrial and commercial
concerns. This is done by lending money, either directly or through some
other government agency. Such loans are made upon security in the
form of bonds, debentures, notes, or preferred stock, which arc issued to
the government by the borrower. In addition, the corporation has been
authorized by law or executive order to provide funds for various special
agencies such as the farm credit administration and the federal housing
administration 1 . To provide this money the R F C is authorized to sell
its own bonds, debentures, and other obligations (guaranteed by the
government) to the extent of many billions of dollars. By a law passed
in 1948 the agency's lending operations were considerably curtailed
and it is scheduled for liquidation in 1954.

AGRICULTURAL AND INDUSTRIAL RECOVERY AGENCIES

The economic depression of the early thirties bore heavily on the farm-
ing sections. To give speedy relief, an agricultural adjustment administra-
tion (A A A) was established in 1933. Although within the
jurisdiction of the secretary of agriculture, it was placed
ADJUSTMENT under the immediate direction of an administrator ap-
TRAIION pointed by the President. The avowed purpose of the A A A

was to raise the purchasing power of American agricultural
producers and thereby promote economic recovery. This it endeavored to
do by production-adjustment programs and other activities which were
designed, for the benefit of agriculturists, to get rid of price-depressing
surpluses and to maintain a balance between production and effective
demand. This production-control program was financed

DECLARED r ?< .

UNCONSTTTU- by the levy of what are known as processing taxes.
TIONALIN jj u t many of the concerns which were subject to these
* processing taxes refused to pay and carried the matter into

INDEPENDENT ADMINISTRATIVE SERVICES 247

court, where the processing-tax feature of the Agricultural Adjustment
Act was declared unconstitutional.

The invalidation of the original Agricultural Adjustment Act by this
decision left the problem of assistance to the farmer unsolved, and
Congress immediately sought to achieve the desired ends

i i i 11 i i i i . * , THE NEW AG-

by means which would not go beyond the limits of the RIGULTURAL
Constitution. It found a solution (1936) by providing pay- ARRANGE-
ments to agriculturists for "soil conservation" and linking MENT *
production control to this program. A little later a new Agricultural
Adjustment Act (1938) was passed, and this measure widened the
effectiveness of crop control in ways which will be explained later. 1

Meanwhile, the first comprehensive attempt to speed industrial re-
covery was embodied in the National Industrial Recovery Act of 1933.
The broad purpose of this measure was to increase employ-

, . , . , * , , , NATIONAL

ment and to raise wages, which would augment the purchas- RECOVERY
ing power of the country. It also sought to procure the ADMINISTRA-
elimination of unfair competition by placing all members
of the same industry on an equal basis as regards maximum hours of
labor and minimum wages. To achieve these ends, it was provided that
each industry should agree upon a code of fair competition applicable
to itself and submit this code to the national recovery administration
for approval. It was provided that each code, upon approval, would
have the effect of a federal statute, the enforcement of the code provisions
being vested in the first instance in a code authority, chosen within the
industry itself, but ultimately in the national recovery administration.
But here again the Supreme Court (this time by unanimous decision)
intervened to declare the National Industrial Recovery Act unconsti-
tutional primarily on the ground that it delegated to industries, under
the supervision of a national administration, the right to make the laws
of the land.

The invalidation of the Recovery Act disappointed organized labor
because the act had provided that codes, to be approved, must guarantee
collective bargaining between management and employees. NATIONAL
Accordingly, in 1935, largely at the behest of the labor LABOR RELA-
unions, Congress enacted a special measure, the National TIONS BOARD -
Labor Relations Act, commonly known as the Wagner Act, which made
protection of labor's rights in collective bargaining a permanent national
policy. Doubts as to the constitutionality of this legislation were set at
rest in 1937 when the Supreme Court, by a bare majority, rejected its
own settled doctrine of some forty years' standing and sustained the

1 See p. 465.

248 THE GOVERNMENT OF THE UNITED STATES

Wagner Act as a proper regulation of interstate commerce. Enforce-
ment of the act was entrusted to a national labor relations board of
three members appointed for five years by the President and Senate.
To promote collective bargaining, the board was authorized to hold a
secret ballot among workers to determine which of any rival unions
should represent them. It also had power to investigate unfair labor prac-
tices by employers such as discrimination against an employee for union
activity or interference with employees' rights to bargain collectively.
If the board found that complaints of such practices were justified, it
could issue cease and desist orders which might be subsequently chal-
lenged in a circuit court of appeals. It will be noted that the Wagner
Act sought to prohibit misconduct only on the part of management; it
placed no prohibitions on possible abuses by unions. The unilateral
character of the law was inevitably reflected in the work of the board
which, in subsequent years, came in for a good deal of criticism par-
ticularly from employers. 1

It was this one-sided character of the Wagner Act, together with
mounting criticism of alleged abuses by labor organizations, that moved
CHANGES Congress in 1 947 to enact the Taft-Hartley Labor-Manage-

UNDER ment Relations Act over the veto of President Truman and

HARTLEY over the violent protest of organized labor. This new legis-
AGT - lation amends and greatly extends the Wagner Act. By in-

terdicting certain unfair practices on the part of labor unions and by
liberalizing some of the restrictions previously directed against employ-
ers, the proponents of the act sought to secure more equal treatment of
management and labor in the field of industrial relations. The new law
enlarges the national labor relations board to five members, provides
that the board's general counsel shall be appointed by the President
and Senate and not by the board itself and makes that official largely
independent in initiating prosecutions under the law, extends the board's
duties to include the new regulations affecting organized labor, and pro-
vides for an independent federal mediation and conciliation service.

When it became apparent, in 1933, that the states and municipalities
could not carry the burden of relief due to unemployment, Congress
FEDERAL authorized a large appropriation to aid the states in meeting

EMERGENCY their relief costs. In due course a nation-wide public works
MINISTRA- program was also developed under the public works
TION. administration, and the national government decided that

1 This board must not be confused with the national war labor board, which was set up
and attached to the office for emergency management by executive order early in 1942.
The function of the N W L B was to adjust and settle labor disputes which might interrupt
work contributing to the effective prosecution of the nation's war effort.

INDEPENDENT ADMINISTRATIVE SERVICES 249

all employable persons on direct relief were to be transferred to work
projects, leaving the unemployables to be supported by the states and
municipalities.

To administer this program, for which Congress provided appro-
priations running up into the billions, the public works administration
(P W A) was set up, which was succeeded by a works progress admin-
istration (W P A). These bodies gave employment to millions during thc
depression years by undertaking or subsidizing all manner of public
improvements, such as roads, public buildings, parks, and so on. The
usual arrangement has been for the states or municipalities to plan the
project and supply the materials while the national government has paid
for the labor. With the growth of demand for labor in connection with
the national defense program and the consequent rise in employment,
the public works enterprises have diminished greatly in number and in
scope. Both P W A and W P A were liquidated in 1943.

The federal public works program has been supplemented since 1937
by housing enterprises under the provisions of the United States Housing
Act which Congress passed in that year to promote slum clearance and
low-cost housing. The public housing administration (1949), under th.
provisions of this act, does not make loans to individuals but assists any
properly constituted public bodies such as state housing authorities or
municipalities to undertake low-cost, low-rental, large-scale housing
projects. Groups of sponsoring private citizens, organized on a nonprofit
basis, may also be aided in this way. When housing projects are con-
structed by the federal authorities, they may be leased to and managed
by local groups on approved terms. This work should not be confused
vvith that of the federal housing administration, which was established
under the provisions of the National Housing Act in 1934. Its function is
to insure banks and other lending institutions against losses on loans
made by them for house construction and home renovation. No loans
to individual borrowers are made by the F H A. It merely guarantees to
reimburse banks and other credit institutions for a certain percentage of
the losses which they may incur through making loans to private indi-
viduals within the limitations prescribed. To obtain the benefit of this
insurance, all loans must have the approval of the F H A at the time
that they are made.

Two federal agencies that were liquidated in 1943 deserve passing
mention. The civilian conservation corps won widespread approval.
It was designed to provide work and vocational training for unmarried,
unemployed young men, between the ages of seventeen and twenty-
three, and to a limited extent, for war veterans and Indians. Original

250 THE GOVERNMENT OF THE UNITED STATES

enrollment for six months might be extended to a maximum of two
years, the period of service actually averaging about ten months. Three
hundred thousand young men, distributed among 1,500
SERVATION camps in the several states and outlying possessions, devoted
CORPS AND themselves to the conservation of our natural resources:
YOUTH AD- they built roads, planted trees, fought forest fires, made
MINISTRA- firebreaks, combated soil erosion. Meanwhile, either in con-
nection with their work or in classrooms after work hours,
they were prepared for some useful employment (such as bridgebuilding
or forestry). The national youth administration had a double purpose.
In the first place, it paid small monthly wages to hundreds of thousands
of students, who otherwise might have had to leave high school or college,
for work assigned by the educational authorities. In the second place, it
prepared out-of-school youths for private employment. In thousands of
workshops it gave an opportunity to gain practical experience with
electricity, automotive mechanics, riveting, welding, lathing, etc. In this
case also, N Y A paid a small monthly wage.

The number of civilian emergency services has shrunk somewhat
during the recent years. In the process of reorganization, some have been
THE abolished; some, merged with others under a new name;

EXISTING some, transferred to this or that department. The abolition

SITUATION. of W P A, P W A, N Y A, and C C C has been noticed. It is
unnecessary to catalogue here either the numerous defunct agencies or
the forty-odd agencies that still retain their independence. The situation
changes rapidly one might say, from month to month; and curiosity
can best be satisfied by consulting the United States Government Manual,
which gives fairly complete data and keeps abreast of new developments. 1
In the appendix of recent editions appears the succinct history of some
300 "abolished and transferred agencies."

Even before America's actual entry into the Second World War, the
regular civilian establishments were augmented by a whole flock of
NATIONAL special defense and wartime agencies, and their number
DEFENSE grew by leaps and bounds after Pearl Harbor. Some of the

AGENCIES. better known were the war production board, the office of
price administration, the national war labor board, the foreign economic
administration, the office of war mobilization, etc. These agencies were
regarded as vital to the successful prosecution of the war. They employed
huge staffs and exercised an unprecedented degree of control over the

1 Sold by the superintendent of documents, Washington, D. C., at $1.00. A more compre-
hensive volume is the Congressional Directory (two editions annually; price, $1.25). While it
contains more varied material, smaller type and larger pages enable it to describe the ad-
ministrative services as fully as does the Manual.

INDEPENDENT ADMINISTRATIVE SERVICES 251

nation's economy and over the daily concerns of the people. The ac-
tivities of some of them are touched upon elsewhere in this text. 1 Several
of the more important of these wartime agencies were abolished almost
as soon as peace returned, for example, the war labor board, the war
production board, and the foreign economic administration. Others were
continued temporarily to aid in the task of reconversion; but their
ultimate disappearance appears fairly certain.

The administrative services of the United States now constitute a huge
and highly complicated mechanism, which has spread itself from the
national capital into every nook and corner of the land.

^ . , 111 - CONCLUSION.

Every department, bureau, board, and commission has its
functionaries scattered all over the country. Despite assurances to the
contrary, many of these officials have been given their places as a reward
for party service. Consequently, they do not always represent a high
standard of administrative efficiency. It is a commonplace that laws are
no better than the men who administer them, but no commonplace of
statesmanship has been more flagrantly disregarded than this one. The
most immediate need of the American governmental system today is not
a conveyance of greater powers to the national government, or more
laws, or more executive orders, or a further elaboration of the administra-
tive machinery. More urgent than any of these is the need for a more
competent and better-trained administrative personnel in all ranks of
the government service.

This improvement can only be secured by making the public service
a career of such attractiveness and security of tenure that it will draw
young men of ability into it and keep them there. It is futile to talk of
effective, long-range economic or social planning so long as we maintain
in full vigor a spoils system which is the very negation of all that planning
implies. It is idle to expect that the economic life of the nation can be
guided into proper channels by men whose chief claim to a place in the
public service is the fact that they have failed to make headway in private
vocations. No new deal in this or any other country will prove an endur-
ing success until the thousands of subordinate public officials to whom
the routine work of administration is entrusted are chosen on a merit
basis, accorded a reasonable degree of security, and properly trained in
the work which they are expected to do.

REFERENCES

GENERAL. In addition to the references cited at the close of the preceding
chapter, the following may be consulted: R. E. Cushman, The Independent Regula-

* See pp. 446, 451, and 496.

252 THE GOVERNMENT OF THE UNITED STATES

tory Commissions (New York, 1941), C. A. and William Beard, The American Levia-
than (New York, 1930), W. K. Doyle, Independent Commissions in the Federal
Government (Chapel Hill, N. C., 1939), and E. P. Herring, Federal Commissioner s, a
Study of Their Careers and Qualifications (Cambridge, Mass., 1939).

SPECIAL STUDIES. Here the reader is again referred to the series of about seventy
small volumes known as the Service Monographs of the United States Government.
These deal in an authoritative way with the various permanent boards, bureaus,
and offices. Prepared by the Institute of Government Research, they are pub-
lished by the Brookings Institution, Washington, D. C. Attention should also be
called to I. L. Sharfman, The Interstate Commerce Commission (4 parts, New York,
1931-37), Walker D. Hines, The Interstate Commerce Commission (New York, 1930),
T. C. Blaisdell, Jr., The Federal Trade Commission (New York, 1932), D. M. Keezer
and Stacy May, The Public Control oj Business (New York, 1930), P. M. Warburg,
The Federal Reserve System (2 vols., New York, 1930), Lewis Mayers, The Federal
Service (Washington, 1922), and the article entitled "Federal Communications
Commission, Government by Commission," in Fortune Magazine, Vol. XXVII
(May, 1943). See also the references given at the close of Chapters XXV,
XXVII, and XXVIII.

THE EMERGENCY AND WARTIME AGENCIES. L. F. Schmeckcbier, New Federal
Organizations (Washington, 1934), W. F. Ogburn and others, Social Change and
the New Deal (Chicago, 1934), C. Wilcox and others, America's Recovery Program
(New York, 1934), David Lawrence, Beyond the New Deal (New York, 1934),
C. A. Beard and G. H. E. Smith, The Future Comes (New York, 1934), L. M.
Hacker, American Problems oj Today (New York, 1938), Harold L. Ickes, Back to
Work: The Story of the P W A (New Yoik, 1935), Julia E. Johnsen (compiler),
Federal Price Control (New York, 1942), Joseph Rosenfarb* The National Labor
Policy and How It Works (New York, 1940), Leroy C. Merritt, The United States
Government as Publisher (Chicago, 1943), Elmer Davis and Byron Price, War In-
formation and Censorship (Washington, 1943), C. Herman Pritchctt, The Tennessee
Valley Authority; a Study in Public Administration (Chapel Hill, N. C., 1943),
Clarence L. Hodge, The Tennessee Valley Authority; a National Experiment in
Regionalism (Washington, 1938), and John McDiarmid, Government Corporations
and Federal Funds (Chicago, 1938).

ADMINISTRATIVE PROCEDURE F. F. Blachly and M. E. Oatman, Administrative
Legislation and Adjudication (Washington, 1934), and the same authors' Federal
Regulatory Action and Control (Washington, 1940), Walter Gelhorn, Federal Admin-
istrative Proceedings (Baltimore, 1941), J. M. Landis, The Administrative Process
(New Haven, 1939), J R Pennock, Administration and the Rule of Law (New York,
1941), C. G. Haines, M. E. Dimock, and others, Essays on the Law and Practice of
Government Administration (Baltimore, 1935), Herbert O. Eby, The Labor Relations
Act in the Courts (New York, 1943), and Joseph P. Chamberlain, Noel T. Dowling,
and Paul R. Hays, The Judicial Function in Federal Administrative Agencies (New
York, 1942).

Those who have occasion to make use of official material issued by the numer-
ous agencies mentioned in the foregoing chapter will find Lawrence F. Schrneck-
ebier, Government Publications and Ttieir Use (revised edition, Washington, 1939),
a helpful volume.

CHAPTER XVI

THE CIVIL SERVICE AND ADMINISTRATIVE

PERSONNEL

The government of Great Britain is in fact carried on, not by the cabinet, nor even
the individual ministers, but by the civil service. Sidney and Beatrice Webb.

Constitute government as you will, its efficiency in action will largely
depend upon the competence and integrity of the thousands of men and
women who serve in its subordinate ranks. Among students VITAL ROLE
of political science there has been much discussion concern- OF THE CIVIL
ing forms of government whether this or that form is the SERVICE -
better. Questions relating to the size of Congress, the method of nominat-
ing candidates for Congress, the simplification of legislative procedure,
the powers of the Supreme Court, not to speak of single-chamber legis-
latures for the states and proportional representation in city councils
such questions have been hotly debated as though the effectiveness of a
government depended in large measure upon its organization at the top.
It depends, in the long run and in larger measure, on its organization
at the bottom. For each individual man or woman in Congress helping
to make the laws and to vote the money, there are several thousand
other men and women whose function it is to administer these laws
and spend the money.

It would seem to follow from this fact that the utmost care should be
exercised in recruiting, appointing, and supervising the million or more

subordinate members of the federal administrative service.

. MUCH DE-

Every effort should be made to insure that selections are PENDENT ON

made on a merit basis, as provided by civil service regula- METHOD OF

, , . r 11 i i ii SELECTION.

tions, and that promotions follow the same rule, regardless
of purely political considerations. Probably nine tenths of the American
people would agree with that general proposition. The other tenth
comprise the practical politicians, who want to get jobs for their friends,
whether meritorious or otherwise, together with the considerable number
of people who are interested in, and who profit by, the lax admin-
istration of the laws. There is no reason, for example, why subversive

253

254 THE GOVERNMENT OF THE UNITED STATES

elements of any sort should be anxious to have the employees of the federal
bureau of investigation appointed or promoted on a strictly merit basis.

Now, if there is a fairly general agreement among honest citizens that
public employment should be based on merit rather than upon political
WHY OLD favoritism, why is it that more than one third of all federal
ABUSES employees still remain outside the merit system? Why do we

PERSIST. leave so many positions, high and low, to "be filled by the

seekers of patronage? Despite all the progress of the past sixty years there
are more federal positions exempt from the civil service laws today than
there were when the first civil service law was passed in 1883.

There are three answers to that question. The first is that most laymen,
unfamiliar with governmental activities in detail, do not appreciate how
great is the need for skill and intelligence in most of these public positions.
They think of administrative work as routine which almost anyone can
perform. The second answer carries back into history: the spoils system
got a foothold more than a hundred years ago, and a tradition of that
age is hard to eradicate not only from the laws, but from the psychology
of the public. The third answer is that howsoever excellent the merit
system may seem to be as a plan on paper, its functioning in practice
usually leaves much to be desired. Selection and promotion by merit,
and by merit only, is the end in view; but by whom and by what means
shall relative merit be determined, on what kincf of ratings shall pro-
motions be based, what shall be done with the employee who gains his
place by merit but lapses into inefficiency thereafter these and a
dozen other problems of a practical nature have to be faced and solved
before a civil service system can be made to operate satisfactorily.

Some things which have been mentioned in the foregoing paragraph

deserve a further word or two. The popular idea that public employment

is largely a matter of routine duties, requiring no more skill

EXPERTS or intelligence than the average citizen can muster, is not an

ARE unnatural one. Most of the erovernment employees with

NEEDED. . . . . ' ,

whom the average citizen comes into contact, the post
office clerks for example, seem to be doing that kind of work. Rarely
does the citizen come into immediate contact with the thousands of
accountants, statisticians, economists, architects, engineers, chemists,
biologists, entomologists, meteorologists, geologists, foresters, bank
examiners, and so on, whose work is far from simple. With the increas-
ing complexity of governmental activities, especially in connection with
the regulation of business, the need for technical expertness in the public
service has become steadily greater, and it cannot be secured otherwise
than by setting up strict qualifications for appointment.

THE CIVIL SERVICE 255

But the merit system has had to make its way against a firmly en-
trenched American tradition the idea that places on the public pay
roll are spoils of victory, to be distributed to the workers GENESIS OF
in a successful political campaign. In the early days of the THE SPOILS
Republic there was no spoils system because there were no SYSTEM -
spoils, at any rate not enough to be worth fighting for. 1 When the capital
was moved to Washington in 1 800, a dozen years after the Constitution
had gone into force, there were only a few hundred employees. Two
departments, state and post office, had in each case a staff of nine; the
navy, 15; war, 18. The treasury staff of 69 was larger than the others put
together. 2 But the number began to increase, and it kept increasing
until, a quarter of a century later, it was up in the thousands. 3 There
developed a feeling, moreover, that too many of these positions were
being given to appointees from the seaboard states, the new West being
overlooked. So, in 1828, when Andrew Jackson emerged from Tennessee
and "swept over the land like a tropical tornado," as Henry Clay ex-
pressed it, he proceeded to dismiss large numbers of federal officeholders.
The positions thus vacated were promptly filled with supporters of the
new frontier democracy. By this action the spoils system was given a
foothold, and the public imagination has attributed its fatherhood to
Andrew Jackson. That is not altogether fair, because the spoils system
was already rampant in some of the states, especially New York and
Pennsylvania, and in most of the large cities. Jackson's administration
merely adopted it, fully and frankly, as a national policy.

This was in the days immediately following Jackson's first inauguration
(1829), and for the next fifty years the spoils system had a recognized

place among the practicalities of American politics. It

r , i i r i i ITS GROWTH

smeared all branches ol administration national, state, IN FH E NINE-

and local. Virtually all positions in the government service TEENTH GEM-
were treated as booty, to be parceled out among the stal-

1 The fact that danger lurked in the appointing power, however, did not escape the eyes
of the Fathers. Impeachment, Madison said, would provide an antidote to serious abuses.
Washington pledged himself to nominate only "the best qualified"; and he adhered to that
policy except that, with the rise of organized parties, he (and still more his successor) tended
to find the best qualifications among Federalists. Jefferson made room for some of his sup-
porters by removing Federalist incumbents, but he did not do this in any systematic way.

2 Today more than 2,000 clerks are engaged in signing checks to meet the obligations of
the United States. How small the business of the post office department was in those early
days may be gathered from the fact that, when President Washington appointed the first
postmaster general, there were only 75 post offices in the country and that, as late as 1812,
the post office at New York had only four clerks. In 1 943 the post office department employed
more than 330,000 persons

3 It reached 50,000 at the* time of the Civil War; 100,000 about twenty years later, 500,000
after we entered the First World War, a million in 1940, two million in 1942, and three
million in 1944.

256 THE GOVERNMENT OF THE UNITED STATES

warts after each election. When a new administration came in, virtually
all who had government jobs went out, making room for a fresh swarm
of pay roll patriots. Post offices in towns and villages throughout the land
became ambulatory; in each quadrennium they moved from one end of
Main Street to the other, following the politics and preferences of the
postmaster. Nowhere in the government service during these years did
personal competence count for much. Applicants for public employment
were not asked to state what they could do but what they had done
for the party. Candidates for Congress found it necessary to make all
sorts of promises during the election campaign, and then had to fulfill
these promises, if they could, by wheedling patronage out of the higher-
ups in Washington.

Under such conditions the whole public service became demoralized.

The President and members of his cabinet had to spend a large part of

their time listening to the importunities of senators and

ITS EVIL . .11

EFFECT UPON representatives, who came in endless succession urging
THE PUBLIC appointments for their constituents. Then, in turn, these

SERVICE. u j ^ i- l u r ^u

congressmen had to disburse much of their energy in an
effort to pacify those supporters in their home districts who wanted to
batten themselves on the public treasury. Patronage, which included not
only government jobs, but contracts, purchases, and favors of all kinds,
developed into political mendicancy on a nationwide scale and dulled the
self-respect of everyone connected with it.

Yet this spoils system, notwithstanding its obvious evils, was supported
by various plausible arguments. Some of its friends pointed out that,
ARGUMENTS since political parties were essential in a democratic scheme
IN ITS of government, it was the duty of such governments to

(iTsusTE- support and strengthen political parties. This could only
NANCE IN be done by giving them recognition in the form of patron-
PARTIES. a g e Without this means of sustenance, parties would

weaken and ultimately fade out of the picture.

More than a generation ago a Tammany district leader, George

Washington Plunkitt, summarized the case against civil service reform

in imperishable rhetoric: "First, this great and glorious

PLUNKITT S r . P

PHILOSOPHY country was built up by political parties; second, parties
OF SUSTE- can't hold together if their workers don't get the offices

NANCE

* ' when they win; third, if the parties go to pieces, the govern-
ment they built up must go to pieces too; fourth, then there'll be h

to pay. Could anything be clearer than that? Say, honest now, can you
answer that argument? . . . Let me tell you that patriotism has been
dying out fast for the last twenty years. Before then when a party won,

THE CIVIL SERVICE 257

its workers got everything in sight. That was somethin' to make a man
patriotic. Now, when a party wins and its men come forward and ask
for their reward, the reply is, 'Nothin' doin', unless you can answer a list
of questions about Egyptian mummies and how many years it will take
for a bird to wear out a mass of iron as big as the earth by steppin 3 on it
once in a century.' " l

Another argument was based upon the principle of responsible
government. When the people elected a new administration, it was said,
they voted for a change all the way down the line, not

(2 ) MAKES

merely for a change at the top. If the higher officials in GOVERNMENT
government are to be held responsible for carrying out the TRULY
mandate of the people, they cannot fairly be asked to do RESPONSmLE -
this through subordinates whom they have not appointed (3) CHARAO
and in whom they may have no confidence. The spoils TERISTICALLY
system, again, was lauded as a truly American way of doing
things; it gave everyone a chance to serve his country in peace as well as
in war. "Ah, how many young men," to quote Plunkitt again, "have
had their patriotism blasted" by running up against a civil service
examination !

A final argument for the spoils system was that it could be counted
upon to prevent men from acquiring a life tenure in public office and
behaving accordingly. In his first annual message to Congress, President
Jackson wrote: "Office is considered as a species of property, and govern-
ment rather as a means of promoting individual interests than as an
instrument created solely for the service of the people. Corruption in some
and in others a perversion of correct feelings and principles divert govern-
ment from its legitimate ends and make it an engine for the support of
the few at the expense of the many. The duties of public office are, or at
least admit of being made, so plain and simple that men of intelligence
may readily qualify themselves for their performance, and I cannot but
believe that more is lost by the long continuance of men in office than is
generally to be gained by their experience." He therefore urged that
appointments should generally be limited to four years. "Offices were
not established to give support to particular men at public expense. No
individual wrong is, therefore, done by removal, since neither appoint-
ment to nor continuance in office is a matter of right." Rotation, he
added, constitutes a leading principle in the republican creed. 2

These various arguments, although they sound rather hollow now-
adays, carried weight with large bodies of voters two generations ago.

1 William L. Riordon, Plunkitt of Tammany Hall (New York, 1905).

2 Richardson, Messages and Papers of the Presidents, Vol. Ill, pp 101 1-1012.

258 THE GOVERNMENT OF THE UNITED STATES

As a practical matter, the vicious circle of politics, power, and patronage
is always hard to break. Patronage assists men to success in politics; this
success places them in power, where they can assure the
continuance of patronage. Reformers tried for a long time
SERVICE to break the circle, but without much success until 1881,

R ORM) when a tragic happening shocked the country and roused its

people to the need for action. This was the assassination of
President Garfield by an office seeker whose demands had been refused.
Things had come to such a pass that a President could not refuse patron-
age except at the risk of his life. A wave of resentment swept over the
country. In 1883 Congress passed the nation's first comprehensive civil
service law, commonly known as the Pendleton Act. 1

As subsequently amended, and greatly widened, this law provides for a
federal civil service commission of three members appointed by the
President and confirmed by the Senate. Not more than two
f them ma Y be from the same political party. The com-
THE "CLASSI- mission is charged with the duty of examining all candidates
ioE D " SERV " * r P 08 ^ 0118 i n what is known as the "classified service."
At the outset this category included hardly ten per cent of
the federal government's employees, chiefly clerks in Washington, but
it has now been greatly expanded. This expansion has not been regular
and steady, but spasmodic. Sometimes a marked ^advance by the merit
system has been followed in the next presidential administration by a
retreat of almost equal proportions; but the gains, on the whole, have
exceeded the losses in almost every decade.

Setbacks for the merit system and a resurgence of the spoils system are
always likely to occur when, after an interlude of wandering in the
wilderness, one of the major political parties reaches the promised land
of executive power. It is true, of course, that even then a resolute Presi-
dent may manage to fend off the commando raids on the public pay roll.
President Wilson, being committed to uphold the merit system, did in
fact restrain the more avaricious among his supporters. But President
Harding, when he came into office, had no such scruples. During the
first four years of the New Deal (1933-1937) when many new agencies
were set up as a means of combating the depression, the percentage of
classified employees (that is, employees within the civil service classifica-

1 Earlier legislation in 1853, 1855, and 1871 had been tentative, limited in scope,
and ineffective. It was British practice that focused American attention upon the merit
system. Shortly before Guiteau shot President Garfield, a highly influential book had ap-
peared, Dorrnan B. Eaton's The Civil Service in Great Britain. Fortunately and somewhat
surprisingly, when his political background in New York is considered President Arthur
gave civil service reform strong support.

THE CIVIL SERVICE 259

tions) fell from 82 to 64. The second four years, however, were marked
by a reverse swing, which brought the percentage back to 73.

Then the war intervened. Within less than three years the number of
civilians in the employ of the national government was more than
doubled; and the proportion of classified employees declined sharply.
The extent of the decline cannot be ascertained because of wartime
changes in procedures and activities. Under normal conditions, it seems
altogether probable that the merit system will resume its progress and
eventually include all civilians in the employ of the federal government,
except those whose work is of a policy-determining character, such as the
heads of departments or bureaus, members of administrative boards, etc.,
whose numbers would probably not exceed a few thousand in all.

THE MECHANICS OF THE CIVIL SERVICE SYSTEM

How are appointments in the classified service now made? With the
exception of a relatively few positions of a special or emergency nature
which are filled by recommendation of the civil service ^ WMWWM?

' LiCJMPt I n IVE

commission on a noncompetitive basis, all are filled by EXAMINA-
some form of open competition. These competitions are TIONS -
announced by the commission and are conducted in various parts of the
country by examining boards appointed for the purpose. For clerical
and other routine positions the applicants are examined in groups, but
for posts which require technical proficiency (e.g., in the bureau of soil
chemistry) the practice is to rate the candidates individually on a basis
of their training and experience rather than to give them a written
examination in groups. Tests of this kind are commonly known as
"unassembled" examinations.

One should not make the error of thinking that civil service examina-
tions of either of the foregoing types are academic in character or bear
much resemblance to those given in colleges. The laws re- j^^
quire that they be "practical" in character and related to PRACTICAL
the work which the appointee would be expected to do. This NATURF -
requirement, however, has certain disadvantages, which will be con-
sidered shortly. At any rate, it demands that the examinations be of great
variety, there being different ones for each kind of position to be filled;
in fact the commission has set as many as seventeen hundred separate
types of examinations. The questions are prepared by experts, either
from the regular staff of the civil service commission, or selected from
the department in Which the successful candidates will be placed, or
chosen from the outside The results of the examinations are graded on a

260 THE GOVERNMENT OF THE UNITED STATES

percentage basis; and the names of those who have passed satisfactorily
are then placed on an eligible list, called "the register." There is an eligi-
ble register for each type of work.

So, when an accountant, stenographer, or some other classified em-
ployee is needed in any department, the civil service commission trans-
mits the names of the three persons who stand highest on the appropriate
list of eligibles. The appointing authority takes his choice from among
these three. 1 The other two keep their places on the list. As the names at
the top are taken off by successive appointments, the names farther down
get their chance. The process goes on until the eligible list is nearly
exhausted, whereupon a new examination is held. According to a new
rule (1939), the life of an eligible register ends in one year unless the
commission formally extends it for a second year. Under previous prac-
tice a register was sometimes maintained for five or six years. Those who
receive appointments by civil service procedure are deemed to be serving
on probation for six months (in some cases for a year) ; and permanent
tenure does not begin until the end of this probationary interval.

In conformity with a statute of 1919, the rules of the merit system have
been relaxed for the benefit of veterans; and against this relaxation there
PREFERENCE ^ as been much complaint. The term "veteran," as used in
GIVEN TO this connection, is not restricted to men who have had active

VETERANS service in wartime. It includes, for example, all honorably
discharged, or retired, members of the armed forces, reservists, graduates
of Annapolis and West Point, coast guard cadets, etc.; their widows; and
the wives of disabled veterans. Ten per cent is added to the earned ratings
in the case of all disabled veterans (or their wives when the disability
prevents the husband from working), and their widows. All other
"veterans" get a five per cent bonus. And all are placed on the eligible
register if, with their preference added to the earned rating, they attain
the passing grade of seventy; and disabled veterans are then ranked
above all other eligibles. In addition, the age limit is waived except for
certain "junior" and "apprentice" posts; and, in the case of disabled
veterans, so are physical requirements, unless such a relaxation of the
rules would seriously impair the veteran's efficiency or tend to endanger
fellow employees or unduly jeopardize the retirement and compensation
funds. 2

1 If he rejects all three, he must give adequate reasons. Under the British system only one
name is presented.

2 During the first twenty years of this preference (19201939) almost a quarter of all ap-
pointments under the merit system went to veterans, or, to be exact, 234,853 or 24.3 per cent.
See the table on p 405 of James G. O'Brien and Philip P. Maremberg, Tour Federal Civil
Service (New York, 1940).

THE CIVIL SERVICE 261

When the system of veterans 5 preferences was first established, there
was no idea that it would work such havoc with the principle of open
competition. What has actually resulted is the setting up of
a privileged class, not merely of war veterans, disabled or
otherwise, but of peacetime soldiers and their widows as
well. Civilian applicants with ratings of 75 or 80 are often edged out of
the way by men and women who could not have qualified at all without
+heir five or ten per cent preference. When the civil service commission,
a few years ago, set up a new category designed to attract recent college
graduates, the first fifty places on the eligible register were taken by
veterans (for whom the age limit had been waived), although 40 per
cent of them made the passing grade only with the help of their ten per
cent preference. Few people will disagree with the proposition that men
who have served in the armed services during a war are entitled to some
special consideration at the hands of their country, but surely there are
better methods of according it than by encumbering the public service
in this way.

Those appointed under the merit system are given, at the end of their
probationary term, what is known as permanent tenure. They may be
disciplined for chronic lateness, neglect of duty, or infraction
of the rules by measures of varying severity, which include
rcprimand, reduction in rank, and suspension without pay DISCIPLINE

AND RE ~

for a maximum period of seventy clays. But they hold their
posts as long as they give satisfactory service. Dismissals for
religious or political reasons are specifically forbidden. When the head
of a department wishes to dismiss any employee who is in the classified
service, he must state his reasons in writing and permit the employee to
make a written reply so that the whole matter shall be en record. But the
employee is not entitled to a formal hearing nor does he have any right
of appeal to the courts. In this respect the national practice differs from
that followed in those states and cities which have adopted the merit
system. There formal hearings are usually required, and an appeal to the
courts is sometimes permitted. This arrangement has often been criticized
as tending to impair discipline in that it becomes very difficult to dismiss
any classified state or municipal employee, however incompetent, if he
chooses to fight the issue with aggressive lawyers on his side.

Officials and employees of the federal government (except those in
policy-determining positions) are forbidden to take any active part,
directly or indirectly, in political management or political campaigns.
They must not serve as* delegates to party conventions or use their official
positions to further the party interests in anv wav. The Hatch Act of

262 THE GOVERNMENT OF THE UNITED STATES

1939 included these sweeping provisions and various other restrictions
upon the political activity of federal officers, whether in the classified
POLITICAL service or outside it. This, of course, does not prevent them
ACTIVITY from voting at elections or attending political meetings, pro-
ICAL CON?"" vided they do not serve as organizers or speakers. The act was
TRIBUTIONS later amended ( 1 940) to include employees of a state or its
FORBIDDEN. subdivisions when engaged in an activity being financed in
whole or in part by the United States or one of its agencies. Other federal
laws prohibit congressmen and other federal officers from soliciting civil
servants for political contributions and any other person from doing so
in a federal building. These prohibitions have not been entirely effective,
and some political activity on the part of federal officeholders still goes
on in an unobtrusive way; but the Hatch Act represents a long stride in
the direction of keeping the national administrative service aloof from
partisan politics.

The merit system, to be true to its name, must make provision for
promotions as well as for initial appointments. Otherwise every employee

will feel under obligation to accumulate enough political
PROMOTIONS: . . .

influence to effect his advancement when the time comes.

Theoretically all promotions should be made on a strictly merit basis,
without any regard to political pressure; but the problem of carrying this
sound theory into practice is an extremely difficult one. As
y et ^ ^ as now h ere been completely solved. One method is
to use competitive promotional examinations. Then arises
the question of whether the competitors should be restricted to persons
already in the service or open to outsiders as well. Should they be, in fact,
restricted to persons already serving the department or bureau in which
the promotion is being made? On the one hand, it is contended that
young men and women will be discouraged from entering the public
service in the lower ranks, if outsiders are allowed to come and step into
the higher positions. On the other hand, it is argued that, if an outsider
can rank higher in a promotional examination than those who have had
the advantage of several years' inside experience, he ought to have the
place under anything that ventures to call itself a merit system.

In any event, the competitive examination, whether closed or open, is
2 BY EFFI- rather generally regarded as an inadequate means of de-
CIENCY termining fitness for promotion. 1 Such qualities as diligence,

RATINGS. loyalty to superiors, punctuality, tact, and real interest in

1 Reliance upon examinations as a basis of promotion has been quite generally condemned
in Great Britain. Experience seems to show that such written tefts are inadequate in the case
of older persons, and that younger men are diverted from official duties by the work of prepa-
ration.

THE CIVIL SERVICE 263

one's work can hardly be determined by any type of formal examina-
tion. They disclose themselves in the actual performance of the job.
Accordingly, it has become the practice to keep an efficiency record or
rating sheet for each employee and to use these, in part at least, as the
basis for determining promotions. Among the available candidates within
a department or bureau the ones with the best efficiency records are
submitted to the administrative chief, and he makes the selection from
these, with or without a formal examination, as he deems best. The rating
sheets contain the detailed record of each employee, as indicated by his
immediate superiors, during the time he has been in the service. When
impartially compiled, these efficiency records arc of the greatest value,
but complaint is often made that opportunities for favoritism still remain
in the hands of those who determine the ratings. In any event, most
promotions in the classified service of the national government are
actually left to the discretion of the department head or bureau chief,
which means that they are in some degree open to political influence;
but, in the main, the selections are made from among those who have
rendered good service in the lower ranks.

Every position in the federal service carries a stated rate of pay. 1 In
many instances this rate was fixed by Congress at the time the posts were
created, but during recent years some progress has been
made in the way of classifying and standardizing the pay
of positions which involve the same kind of work (all junior
accountants, for example) irrespective of the department to which they
may be attached. This has helped to reduce the considerable variations
in salary scales which formerly existed; but even yet many government
employees receive different rates of pay for performing exactly the same
duties. In most cases there are stated increases for length of service, with
a definite maximum. For some years the civil service commission has
been working on the huge task of preparing a comprehensive classifica-
tion of posts according to duties, covering the entire service, so that some
approach to a complete standardization of salaries may be achieved.

Congress, in the last analysis, determines the remuneration which
public employees shall receive, and it is naturally susceptible to the
political pressure which these hundreds of thousands of

. / . , , . i i r i \ ORGANIZA-

government workers (with their relatives and friends) can -HQN OF
bring to bear. In private employment the workers bring CIVIL

, IT- j IT i SERVANTS.

pressure through their unions, and in public employment
the workers have learned to do likewise. For many years the tendency
was to discourage the unionization of federal employees; but towards the
1 See the list in the Annual Report of the United States Civil Service Commission.

264 THE GOVERNMENT OF THE UNITED STATES

end of the last century, letter carriers, postal clerks, and railway mail
clerks organized and soon began to make demands, which their numbers
rendered formidable, for increase of pay and decrease of hours. President
Theodore Roosevelt forbade the exercise of such pressure upon Congress,
the penalty for disobedience being dismissal. Considerable resentment
followed in the wake of this action. Eventually Congress was persuaded
to pass an act (1912) which conceded the right of federal employees to
organize, petition for increased pay or for improved working conditions,
and even affiliate with national labor organizations, providing such
affiliation did not carry with it any obligation to strike.

This permission to organize for the promotion of their own interests
has been extensively utilized by employees in various branches of public
administration, especially by those in the postal service. 1 Their capacity
to exert political pressure has been correspondingly expanded, and their
lobbying activities in Washington have become conspicuous. With the
steady increase in the number of public employees, this concentrated
pressure could become a serious danger, especially if normal lobbying
activities were supplemented by resort to the strike. Conscious of this
danger, Congress, in enacting the Taft-Hartley Labor-Management Re-
lations Act in 1947, specifically forbade strikes among federal employees.
Any employee who strikes in violation of this prohibition is subject to
immediate dismissal, forfeits his civil service status, and cannot get back
on the federal payroll for at least three years.

Workers in private employment have a general impression that men

and women who hold government jobs are pretty well treated; and, on

the whole, this impression is not without some basis. Em-

RETIREMENT i ,, i . c , , , , r ,

ANNUITIES ployees in the classified service have short hours of work,
security of tenure, lenient discipline, the right to organize,
and rates of pay which, under normal conditions, do not compare un-
favorably with what is paid for similar work elsewhere. In addition there
is a civil service retirement fund, to which both the employees and the
government contribute, and from this fund retiring annuities are paid
to those who reach the age limit. The system of retirement annuities was
established by Congress in 1920 rather hesitantly and under pressure
from organized groups of federal employees. Something of the sort was
badly needed because old employees, who had saved little or nothing out
of their salaries, could not afford to retire and clung to their places like

1 Outside the postal service, the chief organized groups are the national federation of
federal employees (founded in 1917), which was affiliated with the A. F. of L. till 1931, the
American federation of government employees (1932), which resulted from a schism in the
national federation and which inclines towards the CIO; and the united federal workers of
America (1937), which is affiliated with the CIO.

THE CIVIL SERVICE 265

barnacles to the hull of a tramp steamer. To a degree, therefore, the
public pay roll became a pension list. Now the employee contributes
five per cent of his salary to an individual retirement fund which the
government credits with interest at four per cent compounded annually,
and to which it also adds enough to increase the annuity by $900 per
year. 1 In 1942, Congress set up an alternative system which allows an
employee a retiring annuity, amounting to one seventieth of his average
salary during any period of five years multiplied by his years of service
not to exceed thirty-five. This has made it possible for employees in the
high salary brackets to retire on a pension of several thousand dollars.

The salaries of public employees, usually fixed by law, are difficult
to change when the cost of living goes up. With a rising level of prices,
therefore, the real remuneration of government workers
undergoes a decrease and may be, for a time, below the
prevailing rates in private enterprises. This is particularly TIONS IN THE
true of the printers, carpenters, draftsmen, and other me- COST OF
chanical tradesmen, whom the national government em-
ploys in large numbers. But such discrepancies do not remain very long
Congress can usually be persuaded to adjust wages upward when the
cost of living soars. It is not so ready to adjust them downward (in the
interest of economy) when the cost of living drops, as it did during the
years 1932-1937.

So long as the spoils system reigned triumphant, there was no occasion
for public service training. The spoilsman argued that any citizen in a
democracy was competent to help govern his fellow citizens

. . . TA ri i i i TRAINING

without training or experience. Why, moreover, should one FOR THE
train himself for a place in the public service, so long as it PUBLI C
carried no security of tenure, and from which the incumbent
was reasonably sure to be ousted in four years, if the fortunes of politic s
changed? Even with the advent of civil service regulations, it was not
deemed essential that preliminary training should be required of those
taking the competitive tests. But it was soon discovered that applicants
who were obviously unqualified to pass any sort of rigid examination
came forward in such numbers that a preliminary sorting out was
necessary. So it became the practice to stipulate, in the announcements
of the more technical tests, that applicants must have a designated

1 Recent legislation allows employees to increase their retirement funds by contributing
annual sums that do not exceed ten per cent of their salary; and also to substitute for the
normal annuity a form called "joint and survivorship." The joint annuity was designed mainly
for the benefit of widows. An act of 1942 made retirement compulsory at seventy, after fifteen
years of service; optional for certain classes at sixty-two and sixty; and likewise optional at
fifty-five* after thirty years of service, but wiin a reduced annuity.

266 THE GOVERNMENT OF THE UNITED STATES

minimum of education, training, or experience. Many of the competi-
tions are now open only to those who have qualified themselves by #
stated amount of formal education in law, engineering, public health,
forestry, statistics, accounting, or some other specialty. This preparation
is obtained at universities and professional schools; the national govern-
ment maintains no institution for the training of those who desire to
enter its civil service (as it does for its military and naval service), and it
would be difficult to do so, because of the almost infinite varieties of
preparation required. The suggestion has often been made that the
federal government should establish a civilian West Point or Annapolis,
and that the graduates of such an institution should be given commissions
in the civil service. But because of the difficulties involved in training the
many thousands of men and women who are needed each year by the
government service in so many different specialties, it has been deemed
better to leave this responsibility to the regular universities and colleges
of the country.

Programs of study designed to prepare for the public service have been
established at a considerable number of these institutions. Such prepara-
tion includes, more particularly, formal instruction in the
COMPETENCE field of public administration. But it is coming to be recog-
NEEDED FOR nized that, while training in the technique of public
PUBLIC administration is valuable, the impoftant thing is that those

SERVICE .

who expect to make the public service a career, and to
secure advancement in it, should first acquire a competence in some
professional or vocational field. There are not many opportunities in the
classified service for the bright young man, just out of college, who has
taken a couple of courses in public administration and feels himself
prepared to administer anything. What most worth-while government
jobs call for is an accountant, a statistician, an engineer, a chemist, a
forestry expert, a trained social worker, a health officer, a lawyer, or
someone else who has become versed in at least one of a hundred different
specialties. To possess a knowledge of public administration does not
have much value unless one has this primary qualification as well. In
other words, the need is, first of all, for a civilian competence in some
field that the government can use.

Despite its shortcomings and handicaps we owe much to the merit
system. The placing of appointments on a merit basis has been of un-
doubted advantage to the public service. It has dampened

OiTR DEBT

TO THE the ardor of office seekers and given the heads of government

MERIT departments time for more urgent duties than the distribu-

IYSTEM

tion of loaves and fishes. While no one can properly claim

THE CIVIL SERVICE 26?

ihat civil service tests invariably select the best among a roomful of appli-
cants, it is at least beyond peradventure that they do eliminate the
worst which is what the spoils system never did. In fact, our whole
experience seems to show that there is no surer method of getting incom*
pctents upon the public pay roll than the plan of asking politicians to
recommend their friends which is what the spoils system means.
Unhappily, the laws have placed a serious obstacle in the way of the
merit system by requiring that civil service tests shall be "practical" in
character and directly related to the work which the appointee will have
to do. This makes it necessary for the examiners to prepare tests which^
in the nature of things, give an advantage to the candidate who has
merely crammed himself full of facts, procedures, and other routine
connected with the particular job, rather than to a candidate of greater
ability and wider training. American civil service laws seem oblivious
to the fact that men and women who enter the public service (in any but
routine positions) do not expect to stay forever at their initial jobs. These
appointees hope for promotion to better positions in the service, with
more responsibility and greater scope for their all around abilities. Be-
cause of legal limitations which have survived since 1883, the civil service
system is virtually forced to recruit appointees who can do a designated
job rather than those who, by reason of unusual intelligence and broad
education, are likely to prove themselves quickly available for promotion*
It ought to be self-evident that such examinations as the civil service
laws now require test immediate fitness for a job rather than future
promise or capacity for growth. Almost a century ago, in
devising a system of competitive examinations for the civil
service of British India, Lord x Macaulay insisted that no APPLICATION
place be given to such subjects as native languages and OF IT DE "
institutions. These, he said, could be picked up later on
or mastered in the course of local experience. It was his belief that
ambitious young men, with good prospects of a successful career in
private employment at home, would hesitate to spend a lot of time on
Moslem law and Hindu social organization when, if they failed on the
examination, they would find this knowledge virtually useless to them.
Macaulay's plan for British India was later extended, in its essential
philosophy, to the administrative branches of the civil service in Great
Britain. It still has an important place in that system and is perhaps the
chief feature which differentiates it from the American plan. Of this
American practice, Professor Leonard D. White (himself a former mem-
ber of the United States civil service commission) says"*

1 Introduction to the Study of Public Administration (revised edition, New York, 1939)9 p.

268 THE GOVERNMENT OF THE UNITED STATES

On any impartial view it is extraordinary that these examinations have
gone their way with so little regard to selecting, year after year, the brightest
secondary school and college or university graduates for public service careers.
The examinations of the federal Civil Service Commission for junior professional
and scientific positions and for junior civil service examiner are geared, some-
what inadequately, to college graduation, but these are rare exceptions. A career
service places less emphasis on specific preparation, more on general education
and mental alertness; less emphasis on practical experience, more on capacity
to learn on the job and to progress. These considerations suggest the closer
coordination of public education and public service.

During recent years some progress in this direction has been made.
The United States civil service commission has inaugurated a signifi-
cant experiment by establishing an eligible list of "admin-
PERIMENTS istrative assistants." Competitions for places on this list are
WITH open only to young college graduates, and the tests are

GENERAL "intended to measure general alertness and capacity to

learn different types of work readily." Their purpose is not
merely to discover what the candidates happen to know about the work
of some designated position, but what promise they can demonstrate in
the way of becoming capable public officers, wherever they may be
placed. Successful candidates are assigned as administrative assistants
to whatever departments, bureaus, or offices happen to need young men
or women of this type. Unfortunately, however, 'this experiment is not
likely to achieve much permanent success unless the existing rules relat-
ing to veterans' preference arc changed. During many years in the future,
unless the scope of these rules is narrowed, it is to be feared that young
men and women in the annual crop of college and university graduates
will have little chance of any appointments in any branch of the national
civil service as against the millions of both sexes whose service, not neces-
sarily in war but in wartime, will have automatically qualified them for
places near the top of the eligible list.

REFERENCES

For a history of civil service reform, attention is called to Carl R. Fish, The
Civil Service and the Patronage (New York, 1905), M. F. Halloran, The Romance of
the Merit System (2nd edition, New York, 1929), and F. M. Stewart, The National
Civil Service Reform League; Its History, Activity, and Problems (Austin, Texas, 1929).
The work of the United States civil service commission is explained in Service
Monograph No. 4$, by D. H. Smith, entitled "The United States Civil Service
Commission."

On the organization and operation of the civil service system and on various
aspects of public personnel administration, the following books will prove help-
ful: E. B. K. Foltz, The Federal Civil Service as a Career (New York, 1909), Better

THE CIVIL SERVICE 269

Government Personnel, a report of the Commission on Better Government Personnel
(New York, 1935), Carl J. Friedrich and others, Problems of the American Public
Service (New York, 1935), L. F. McMillin, Women in the Federal Service (Washing-
ton, 1938), O. C. Short, The Merit System (Baltimore, 1928), L. D. White, The
Civil Service in the Modern State (Chicago, 1930), and the same author's Government
Career Service (Chicago, 1933), and F. W. Reeves and P. T. David, Personnel
Administration in the Federal Government (Washington, 1937). Three books by
Lewis Meriam deserve mention, namely, Principles Governing the Retirement of
Public Employees (New York, 1918), Public Service and Special Training (Chicago,
*936)> an< 3 Public Personnel Problems, from the Standpoint of the Operating Officer
(Washington, 1938). Other useful volumes are W. E. Mosher and J. D. Kingsley,
Public Personnel Administration (revised edition, New York, 1941), L. Wilmerding,
Government by Merit (New York, 1935), Morris B. Lambie, Training for the Public
Service (Chicago, 1935), Oliver P. Field, Civil Service Law (Minneapolis, 1939),
and James C. O'Brien and P. P. Maremberg, Tour Federal Civil Service (New York,
1940).

Further titles may be secured in Sarah Greer, A Bibliography of Civil Service
and Personnel Administration (New York, 1935), and in A. D. Brown, List of
References on Civil Service and Personnel Administration in the United States: Federal,
State, Local (Washington, 1936).

A bimonthly magazine, devoted to the cause of civil service reform, is pub-
lished by the National Civil Service Reform League (521 Fifth Avenue, New
York City).

CHAPTER XVII
THE SENATE: ITS ORGANIZATION

All legislative powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and a House of Representatives. U. S. Con-
stitution.

^/It was by no mere slip of the pen that the first article of the Constitu-
tion, in establishing a Congress of two chambers, gives the Senate
THE priority of mention. The men who framed this document

"UPPER" most of them looked upon the Senate as the backbone of

HOUSE. t j ie W h i e federal system. They intended it to be a body

which would give the states, as states, a dominating share in the govern-
ment of the nation. They had in mind something that would be more
than a second chamber or a co-equal branch of Congress. To that end
they gave the Senate some very important spefcial powers such as the
approval of treaties, the confirmation of presidential appointments, and
the trying of impeachments powers in which the House of Representa-
tives was given no share. ^/

-fThe Constitution invariably uses the term "Congress" in its correct

sense, but the average American does not. By Congress he means, in most

cases, the House of Representatives. He will tell you that

A TERMI

NOLOOIGAL somebody served three terms in Congress and then went to
INEXACTI- the Senate. Or he will remark that there are too many
members in Congress when what he really means is that the
House of Representatives has grown too large. This habit of using
political terms carelessly ought to be avoided because a lack of precision
in language often leads to a lack of precision in thought. A political
misconception is never so firmly entrenched as when it becomes rooted
in the common speech.

{The Congress of the United States is a bicameral legislative bodyibut
its American predecessors were not of that type. The Continental Con-
gress, which functioned during the Revolutionary War, consisted of a
single chamber; and the same is true of the Congress of the Confedera-
tion during its brief span of existence. But the results in both these cases

270

THE SENATE; ITS ORGANIZATION 271

Veft much to be desired, andJt was quickly decided by the constitutional
convention of 1 787 thatjthe ji^j^oyemment^ should provide a legisla-
tive body of two chambers. This decision wa_ reached

--_ ^- . - ~ ; "- - - WHY THE

practically unanimously, as it seemed jn^gvisable tojvest DOUBLE-
in a siH^~"cham^i r lhe^ great legislative authority which CHAMBER
would ultimately be exercised by the new federal govern- FIRST
ment. The makers of the Constitution were also influenced, ADOPTED:
no doubt, by the fact that most of the states, in setting up K IN TH E
their new governments after the Declaration of Independ- INTEREST
ence, had adopted the bicameral system for their state F SAFETY *
legislatures. All except Georgia and Pennsylvania had done this. 1 ^^^

vfurthermore, there was a strong desire to provide, in the new national
government, some hostage for the future integrity of the states} Otherwise
the time might come when a single house, directly elected
by the people, would crowd the state legislatures out of the
way and usurp the whole field to itself. This couldjbest ^ , ISLATIVE
prevented by giving the states, as states, derinitecontrol CENTRALIZA-
over one of the new federal chambers. In other words, the
adoption of the double-chamber principle was dictated, in part at least,
by the feeling that there were two elements to be represented, namely,
the states as states, and the people of the country without reference to the
states in which they lived. Accordingly, the state legislatures were to
choose the senators, while the people would elect the members of the
House of Representatives. ^

^The bicameral system, again, partly reflected a strong desire for stabil-
ity in government. In 1 787 the country was tired of strife, turmoil, and un-
certainty. It had been given its new deal and was satisfied. T0 EN-
For twelve years it had been keyed up by one excitement SURE CON-
after another; the news that dribbkd through from one SERVATBM -
state to another sounded like comn&rmues from a battlefront. The leaders
of the people wanted a governmenFthat would keep the country at peace,
maintain order, protect private property, and let the citizen alone. All
this called for the creation of a second chamber which would serve as a
checkrein on a volatile body of legislators directly chosen by the people
for short terms, which the House of Representatives was destined to be.
Members of this upper chamber would be chosen in a different way and
would reflect a more deliberate point of view. Incidentally, there was the
practical consideration that only by setting up two chambers could the

1 In addition, Vermont entered the Union in 1791 with a single chamber. But Georgia
abandoned the single-chamber organization in 1789, Pennsylvania, in 1790, and Vermont,
in i8q6.

272 THE GOVERNMENT OF THE UNITED STATES

terms of the first compromise of the great convention be carried into
effect. 1 It is true that a double-chamber system had been agreed upon
before the quarrel which led to this compromise became acute, but tl^e
compromise sealed the matter beyond the possibility of reopening it.

'"So, a Senate and House of Representatives were established to form
the Congress of the United States. It is of interest to ask whether this
arrangement has matched up to the expectations of the
REASONS men who planned it in 1 787. For the most part it has. The

PROVED House has been a reasonably good mirror of the popular

mind, although at times inclined to drive ahead too fast.
As long as members of the Senate were chosen by the state legislatures,
as was the case down to 1913, they represented a more conservative
group, but since the adoption of the seventeenth amendment (1913).
with the senators elected by direct popular vote, the differentiation
between the two Houses, in their general inclination, is no longer what it
used to beCToday one cannot say that either chamber is likely to be more
conservative or more radical than the other. It remains a fact, neverthe-
less, that the necessity of obtaining approval from two chambers is some-
thing of a deterrent to hasty and ill-considered legislation even when both
are/politically like-minded.

"The philosophy of representation in the Congress of the United States
has remained unchanged since 1 787, despite the seventeenth amendment.
THE CONSTI- CThe people of the states, as such, are equally represented
TUTIONAL in the Senate each state having two senators. The people
REPRESENTA- ^ ^ e na ti n > on the other hand, are represented by a vary-
TION IN ing number of representatives in the lower branch of

CONGRESS. Congress, the House of RepresentativesjBut representatives,
like senators, are apportioned to states and not to congressional districts.
Then the state legislatures, acting in conformity with federal law, decide
how the congressional districts shall be laid out. They may fail to act
because the two houses disagree, or the governor may interpose an
effective veto. In either case, some or all of the representatives will be
elected at large, this depending on whether the state delegation has been
enlarged or reduced. 2 It is not wholly accurate, therefore, to say that
senators are 'elected by states while representatives are always elected by
districts.

The Constitution, in its original form, provided that senators should
be chosen by the legislatures of the several states. In adopting this
method, two purposes were in view. First, there was a hope that the
senators, chosen in this way, would constitute a body of men who had

1 Sec pp. 42-43 2 Sec p. 311.

THE SENATE: ITS ORGANIZATION 273

gained political experience in their own states men who had served
in state legislatures or in other public officesjDemagogues might win at
the polls and get seats in the House, but they would not

_ . \ .11 1-1 i t REASONS FOR

find it easy to cajole the state legislatures by oratory and THE ORIGINAL
promises. (Thus, the Senate would serve as a check upon METHOD OF

,. , . r i T> j i 11 CHOOSING

executive dictatorship, if the President should ever try to SENATORS:
become a dictator, and it would also be a counterfoil to the
dictatorship of a popular majorit^A if the House should ever SIRE FOR EX-
succumb to mass emotion, as expressed at the polls. "Give PERIENGED
all the power to the many," said Alexander Hamilton, "and
they will oppress the fe <v. Give all the power to the few, and they will
oppress the many." (JJafety could be achieved, therefore, by having
senators chosen by the few and representatives by the many.)
HTn the second place, there was a very practical reason for entrusting
the selection of senators to the legislatures of the several states, namely,
that this would guarantee the permanence of these legis- 2 T0 GUAR .
latures themselves. It would provide an assurance that the ANTEE THE
state governments would never be snuffed out^This possi- OF^TATE^^
bility was feared by a great many people in 1787, and, as LEGISLA-
a way of guarding against it, the framers of the Constitution TURES -
geared an important wheel in the national machine directly to the
mechanism of state government. This meant that the state legislatures
could never be eliminated without bringing down one branch of Con-
gress as well. For, if the time ever came when there were no state legis-
latures, there could be no senators. This link between the Senate and the
state legislatures was broken by the seventeenth amendment in 1913,
but not until the state legislatures had lessened their apprehension of
being crowded out by the expansion of federal power. The happenings of
the past thirty years, however, have resurrected their fears to some extent.
These reasons for giving the state legislatures the right to elect the
senators were good reasons in 1 787, and the practice of legislative election
encountered very little objection for many years thereafter. OLDER PIAN
During more than a century the state legislatures did the OF CHOOSING
choosing, but not always in a way that met with popular SENATORS.
approval, and in time a feeling developed that senators, as well as repre-
sentatives in Congress, ought to be chosen by direct popular vote. Some
agitation for such a change began as early as Andrew Jackson's day, but
it did not make much progress until after the Civil War. Then it gained
momentum from several sources. The country began to feel that there
was too much "invisible government" in the selection of senators, too
mucli log rolling, too much spending of money, too much bossism.

274 THE GOVERNMENT OF THE UNITED STATES

There were good reasons for this feeling. The real selection was not
usually made by the legislature in open session, but by a secret caucus of
the majority members. Often it was the result of deals and
dickers which would not bear the light of day. Partisan
service, or the support of some great financial interest,
without any other qualification, placed many senators in their seats.
The dictation of political bosses counted for more with members of state
legislatures than the promptings of their own judgment or the call of
public opinion. Sometimes, moreover, the process of election broke
down, ballot after ballot being taken for months in a state legislature
with no one obtaining a clear majority. In this way a state was occasion-
ally deprived of its representation in the Senate over considerable periods
of time.

As a result of these various objections, the old method of choosing
senators became steadily more unpopular, and proposals for a change in
the Constitution to permit direct election by the people
gained increasing support during the closing decades of the
nineteenth century. 1 Several times the House of Repre-
sentatives passed, by the requisite two-thirds vote, a proposition to
submit such an amendment to the states for their approval, but the
Senate refused concurrence until the pressure of public opinion ulti-
mately compelled it to give way in 1912. Then the seventeenth amend-
ment was submitted and adopted. It provides that senators shall be
chosen directly by the voters of the several states, not by the legislatures.
But the six-year term and the requirements for eligibility remain as
before. A senator must be at least thirty years of age, a citizen of nine or
more years' standing, and, at the time of his election, an inhabitant of
the state from which he is chosen.

{jOne third of the Senate's membership is renewed every two yearlTn
hence no state elects both its senators in the same year, unless some
unexpected vacancy occurs in one of the senatorsftiips.
TOEjNEw The choice is made by the voters at the regular state elec-
tion. But Congress itself may at any time prescribe the
method of conducting this election; 2 and this power extends to the
nomination of candidates as well as to the election itself. 3 * In practice,
however, candidates for election to the Senate are nominated according
to whatever procedure is provided by state law in most cases by direct

1 George H. Haynes, The Election of Senators (New York, 1906).

1 Article I, section 4, of the Constitution.

8 United States v. Classic, 313 U. S. 299 (1941). Twenty }ears earlier, in Newberry v.
United States (256 U. S. 231), the court had thrown some doubt on the power of Congress to
regulate primaries.

THE SENATE: ITS ORGANIZATION 275

primaries, but sometimes by conventions. Ultimate authority in this
matter rests with Congress; but a^ long as Congress does not intervene,
the states are free to lay down the methods of nomination and the pro-
cedure at elections. They may even limit, or leave unrestricted, the
amount of money that an aspirant for the nomination may spend in his
pre-primary campaign?^

(^According to the Constitution, the Senate is given the right "to be the
judge of the elections, returns, and qualifications of its members." This
means that a newly elected senator cannot take his seat until
the Senate, either by affirmative action or by Acquiescence,
has adjudged him to have been properly elected and quali- TO SEAT
fied. Not until then is the newly elected senator permitted
to take the oath of office^On more than one occasion the
Senate has declined to permit the taking of this oath by persons whom it
deemed to have gained election by improper means. Thus Frank
L. Smith of Illinois and William S. Vare of Pennsylvania were elected
to the Senate in 1926 by voters who were reasonably well aware that
large expenditures had been made on their behalf in the primaries. 1
In neither of the two states did the law place any limit upon the size of
primary campaign funds. Yet the Senate, by a large majority in both
ca^es, refused these two senators-elect the right to take their seats.
(jThis power to refuse anyone a seat because a legislative body does not
like the way in which he was elected might become an open door to
serious abuses^) If a majority in the Senate can refuse the
oath of office to any newly elected member because it does POWER
not approve his electioneering methods, there is no good B ING
reason why it cannot refuse the oath on any other ground
because the newly elected senator is a socialist, a pacifist, an "economic
royalist," or a political boss. The intent of the Constitution is that each
state shall choose its senators, subject only to the qualifications which the
Constitution lays down, and in accordance with methods of election
which the federal laws prescribe. Was it ever intended to give the Senate
a right to veto a state's selection by refusing the oath of office to anyone
whose political record might be disapproved by a majority of the senators
from other states?

1 Smith spent $253,000; his opponent, McKinley, a much larger sum. In behalf of the
Vare-Beidelman ticket (Beidelman sought the office of governor) the expenditure ran beyond
$800,000; for an opposing ticket the figure was roughly $1,805,000. One senator said:
u Mr. Smith and Mr. Vare may have the law on their side, but we have the jury. No man in
politics will dare to seat either of them, regardless of the right of the Senate to delve into a
state primary." See George H. Haynes, The Senate of the United States: Its History and Practice
(2 vols., Boston, 1938), Vol. 1, pp. 144-154.

276 THE GOVERNMENT OF THE UNITED STATES

(Under the provisions of the seventeenth amendment, when a vacancy

occurs through the death, disqualification, or resignation of a senator
from any state, the governor "shall issue" a writ of election
VACANCIES to fi^ suc k vacancy.\But this requirement, although manda-
tory in form, is discretionary in fact. There is no process
whereby a governor can be compelled to issue such a writ unless he
chooses to do so. And, when the date for a regular election is not too far
away, he usually issues no writ but makes a temporary appointment.
This he may do, under the provisions of the amendment, if the legislature
of his state has so empowered him, as virtually all the state legislatures
have done.

C5"he seventeenth amendment made no change in the equal representa-
tion of the states, although, with the present great disparity of population

o A IT among the various commonwealths, this equality has now

OFREPRE- become a conspicuous anomaly.X Nevada, with 110,000
SENTATION population, has two senators, while New York, with nearly
SENATE I 3i5 oo 9 oo ) has the same number. The population of

MUST RE- Illinois is about the same as that of all the New England

states combined; but Illinois has two senators, while New
England has twelve. Put together the states of Arizona, Delaware, Idaho,
Maine, Montana, Nevada, New Hampshire, New Mexico, North
Dakota, Oregon, Rhode Island, South Dakota* Utah, Vermont, and
Wyoming. Here are fifteen states, controlling almost one third of the
Senate. Yet their total population is only about seven per cent of the
national figure. On the other hand, the five most populous states of the
Union (New York, Pennsylvania, Illinois, Texas, and California) have a
third of the national population, yet elect only ten senators out of ninety-
six.

All this is an outcome of the principle that states, like mn, are created
equal. Nevertheless, the provision for equality was the result of a bargain
between the larger and the smaller states in 1 787 and was
^NOT coN- IT Bended to be irrevocable. As evidence of this, the Consti-
STITUTION- tution contains an express guarantee that no state, without
ALLY BIND- j tg consent) 5^^} ever be deprived of its equal representation
in the Senate/JfJt is true, of course, that if one constitutional
amendment repealing the restriction and a second changing the equal
representation of the states in the Senate were to be passed by a two-
thirds ^ote in both Houses of Congress and ratified by three fourths of
the states, both would be held valid; but there is hardly a chance that
three fourths of the states would ratify either proposal. The smaller states
1 Article V.

THE SENATE: ITS ORGANIZATION 277

set a high value upon their prerogative of equal representation, and there
are enougn of them to prevent the adoption of any amendment which
would take it away V}

(In any event, one should not be too much disturbed by anomalies
in government. Every country has its share of thern^ Indeed, it might
almost be said that the better a country's government, the
less logical its structm e is likely to be. Even if it were possible I NG ANOMALY
to rationalize the basis of representation in the United States HAS SOME

MERITS

Senate, there is no certainty that such action would prove
advantageous in the long run.|Jhe Senate represents areas; the House
represents numbers. rA majority of the House membership comes from
ten states of the Union. Were it not for the principle of equal representa-
tion in the Senate, these ten states could control the legislative policy
of the nation. But, under the present arrangement, it takes twenty-five
states to control a majority^The country east of the Mississippi and north
of Mason and Dixon's line dominates the House, but it does not control
the Senate. A combination of West and South can outvote it there. Thus,
the principle of balance and counterpoise, both numerical and sectional,
is established and preserved.

One should not think of Congress as the parliament of a homogeneous
nation, but rather as the governing organ of a league of states. For in the
United States we have a much greater sectional diversity
than most Americans realize. North Dakota and Louisiana DEFENDED
are under one flag, but they are as unlike in physical con-
ditions, in social texture, and in economic interests as are Denmark and
Portugal. The Senate represents this diversity, within the borders of the-
land, in a way that the House does not. It is not people alone, but land
and people, that make a nation. New Jersey does not necessarily have
twice the importance of Kansas in the nation's life because she has twice
the population. From this point of view the equal representation of the
states can be defended. -L

Qrhe Senate of the United States holds its regular sessions each year in
Its own chamber at the national capital. It may also be called by the
President in special session, even when the House of ORGANIZA .
Representatives is not sitting. This is because the Senate TION OF THE
has some special functions which are not shared by the other SENATE - ,
branch of Congress; namely, the trial of impeachments, the confirmation
of presidential appointments, and the approval of treaties. Such special
sessions have been called on a number of occasions to confirm treaties;
but no special session of the House of Representatives has ever been
summoned without the Senate being also called, for there is nothing of

278 THE GOVERNMENT OF THE UNITED STATES

general importance that the House can do without the Senate's con-
currence.^^

^By the terms of the Constitution, the Vice-President of the United
States is the Senate's presiding officer, and he possesses the ^ustomany
duties of a presiding officer. But he appoints no committees
an( ^ has no vote, except in the case of a tieAIn the earlier
days of the Union, when the Senate We." a small body of less
than thirty members, tie- votes were not uncommon; butJnowadays, with
the membership increased tc ninety-six, the Vice-President rarely gets
the opportunity to give a casting vote. In the absence of the Vice-
President, the Senate elects a president pro tempore, who continues
to vote as a regular member, but has no power to break a tie- vote. It also
chooses its other officers, sergeant-at-arms, chaplain, and clerks.^
^The Senate makes its own rules of procedure, 1 and, on the ( whole,
these rules are simple, far more so than those of the House. They require
that every bill or joint resolution shall receive three readings
CEDURE" before being passed, but the first two readings are merely

nominal and are given before the bill is referred to the
appropriate committee. The real contest, if any, comes upon the occasion
of the third reading, when the bill is considered in committee of the whole,
and amendments may be offeredHNo general priority is given in the
Senate, as in the House, to any class of measures, except that appro-
priation bills have a certain precedence^ Debate in the Senate is not
limited, as in the House; there is ordinarily no limit on the time that a
senator may occupy, and no way of bringing things to a vote by moving
the previous question. But it is possible for the Senate, by a two-thirds
vote, to restrict the amount of time that the debate on any measure may
occupy ?y

The Senate is a somewhat less docile body than the House. There are
floor leaders who have charge of measures, but they do not dominate the
EFFECT OF debates as floor leaders do in the House of Representatives.
PROCEDURE The senators are an individualist group; most of them have
UPON WORK, j^j a g OOC j c j ea i o f political experience; they know their
way around (or think they do) without having to be directed. The rules
of the Senate, moreover, do not help the maintenance of party discipline.

1 The Senate's rules are permanent. They do not have to be readopted at the beginning of
each Congress, as is the case with the rules of the House of Representatives. This is because the
Senate is a continuous body, with two thirds of the membership holding over from one Con-

t gress to another.

2 Senate Rule, No. 22 (adopted in 1917). The rule provides % that any sixteen senators may
file a petition to close the debate, and when the Senate votes by a two-thirds majority to do
go, no dilatory morions are in order and no amendments save by unanimous consent. This
rule causes the debate to be limited to as many hours as there are senators desiring to speak.

THE SENATE: ITS ORGANIZATION 279

Being a relatively small body, the need for firm leadership is not so urgent
as in the House, which is over four times as large.^Most of the Senate's
meetings are public^but it may vote at any time to go into "executive
session" behind closed doors. This it sometimes does when the con-
firmation of appointments is under discussion.^Jreaties, on the other
hand, are considered in open session.")

^Cl-ike all legislative bodies, the Senate does a large part of its work
through committeesTjAs one result of the Legislative Reorganization
Act of 1 946, many of the less important of these committees
were abolished and their number reduced from thirty-three m COM "

MITTEES.

to fifteen.J.Of these, probably tfjie most important are the
committees on finance, appropriations, foreign relations, the judiciary,
the armed services, and interstate and foreign commerce. The first two
have consideration of all measures affecting revenue and expenditures
respectively; the next two owe some of their importance to the fact that
all the President's appointments to the diplomatic service and to federal
judgeships are referred to thenjjj Likewise the committee on foreign
relations considers all treaties before they are discussed by the Senate
as a wholCj^SThe committee on interstate and foreign commerce, among
other duties, has the preliminary consideration of measures relating to
the supervision of the railroads and other interstate utilities. Before 1947
it was not unusual for a senator to sit on as many as six standing com-
mittees and on certain special committees as well.\DUt since the reduction
of the standing committees to fifteen, no senator sits on more than three
standing committees and the maximum assignment for the great major-
ity of senators is only two such committees.^

(The choice of Senate committees is macle at the beginning of each
new Congress^ but the work of selection has been reduced to a formality.
According to one of its rules, the Senate shall " proceed by HOW COM _
ballot to appoint severally the chairmen of each committee, MITTEES ARE
and then, by one ballot, the other members necessary to CHOSEN -
complete the same."j)For the past century, however, this rule has always
been suspended by unanimous consent. The Senate merely accepts the
proposals which the Democratic and Republican caucuses, after receiv-
ing the reports of tl^eir respective committees on committees, have
agreed upon. Before a list of committee assignments can be drawn up,
however, the party in control must decide how many Democrats and
how many Republicans shall serve on each committee. Invariably it
will insist upon a safe margiii^nd in any case upon a ratio higher than
its relative strength in tlie Senate would justify. Thus while the Republi-
cans formed less than 54 per cent of the Senate in 1947, on all standing

280 THE GOVERNMENT OF THE UNITED STATES

committees their minimum percentage was 55; on some it was as high
as 61. In assigning places to a new senator, the committee on committees
will consider his experience, aptitudes, and personal wishes; but still more
weight may be given to factors that make for harmonious cooperation
within the party. Thereafter he rises towards the top towards the
coveted post of chairman wholly through length of service.

This rule of seniority, in its operation, has sometimes led to widespread
criticism. In 1917, Senator Stone of Missouri became chairman of the
committee on foreign relations in spite of his pro-German
OF THE attitude; and in 1941, Senator Reynolds of North Carolina

SENIORITY became chairman of the committee on military affairs in
spite of his having opposed the lend-lcase bill, the repeal of
the arms embargo, the extension of the draft, and other items in the
President's program of national defense in both cases because of
seniority. Advancement by seniority is said to discourage able men from
entering or remaining in the Senate; it also avails, at times, to place in
positions of authority men who are not in sympathy with the leaders of
their party. On the other hand, long experience in a certain field may
offset individual mediocrity. Under any system other than that of senior-
ity^ the selection of chairmen, every two years, might be the result of
log rolling and factional combinations. An occasional departure from
the seniority rule, nevertheless, might be advantageous.

The party caucus or "conference" l is not an official Senate committee.
It is a committee of each political party, not of the Senate. The same is
THF true of the steering committee which is maintained by each

STEERING political party in the Senate. These steering committees,
COMMITTEE. w hile not an innovation, have shown new vitality in the past
twenty years. But they still function without conspicuous success, because
individual senators cling to their tradition of independence and resist
any attempt to whip them into line. So a steering committee cannot
dictate to them, but must gain its ends through concessions and per-
suasion. The majority party relies more heavily upon its committee,
appointed by the chairman of its own caucus or conference relies
upon it to determine what measures need most urgently to be passed
and then to "steer" those measures through the Sgnate; but the minority
also finds such a "general staff" of value in devising defensive tactics.

(The unique freedom of debate which prevails in the Senate has some
advantages in that it encourages full discussion; it gives minorities a
chance to fight for compromise and to hold up action until public

1 In 1913 the Republicans formally adopted the term "conference" in order to disarm
critics of "gag rule"; and in recent years the Democrats have shown a preference for it also.

THE SENATE: ITS ORGANIZATION 281

opinion has had an opportunity to make itself fejlf) But so great a lati-
tude in debate may easily be abused, and it sometimes has been abused.
Jjt has occasionally given a factious minority the opportunity FREEDO M
to wear out the endurance of the majority by conducting o DEBATE
a "filibuster," as it is called/) When the Senate's session is ^ N .
drawing to its close, this permits a relatively small group of ITS MERITS
senators to defeat a measure by resorting to dilatory tactics AND DEFEGTS -
(such as making long speeches, proposing amendments, demanding roll
calls, and so forth), and many measures have perished in this way. Indeed
it can fairly be said that legislation in the closing days of the Senate's
session requires virtually unanimous consent. Everyone who is old enough
will remember, for example, how "a little group of wilful men in the
Senate" (as President Wilson called them) determined to prevent the
arming of American merchant vessels for self-protection in the spring of
1917, when German submarines were sinking neutral shipsjThis action
caused the Senate to adopt its famous, but not altogether effective,
Rule No. 22 which makes possible the placing of a one-hour limit on
speeches. 1

The filibuster has been harshly condemned, but there are times when
it is justified. It has been condemned as abusing freedom of speech, as
derogating from majority rule, and as lowering the prestige ABUSED BY
of the Senate. Occasionally it has made the Senate appear OBSTRUG-
ridiculous. On one occasion, Senator Tillman of South TIONISTS -
Carolina spent hours in reading Childe^Iarold to his fellow senators and
threatened to continue with other compositions of Byron, including the
somewhat risque Don Juan. Senator Hefiin of Alabama once regaled the
Senate with his own poems, which were not masterpieces, and followed
this by reading dozens of telegrams and letters from his admiring friends.
Shortly before his assassination^ Senator Huey Long of Louisiana enter-
tained the Senate, or a few of its members, by discoursing at length on
recipes for "potlikker," fried oysters, coffee, and turnip_greens. But even
he did not equal the performances of the earlier Senator Robert M. La
Follette of Wisconsin, who delighted in reading to the Senate prosy
passages from the reports of the interstate commerce commission. On one
occasion La Follette h,pld the floor for eighteen hours and 23 minutes,
which is believed to be a record, although^ m theTTIibuster against the
ship purchase bill of 1915, six obstructionists spoke for more than eleven
hours each. So many bills perished at the end of one Congress, because
of a filibuster, that Vice-President Marshall, it is said, adjourned the
Senate sine deo instead of sine die.

1 See p. 278, footnote.

282 THE GOVERNMENT OF THE UNITED STATES

In some quarters, however, the filibuster has been defended. Some-
body once characterized it as an appeal "from Philip drunk to Philip
sober," in other words, from the caprice of a transient

YET THE . \ 7 i ! A i/Vi-

FILIBUSTER majority to the court ot mature public opinion. And(Jili-
HASSOME busters, it is true, have occasionally defeated bills which
would have served little purpose except to arouse bitter
sectional resentmenn(A senator once asserted that filibusters have "never
kept any desired or desirable legislation off the statute books.") That is
probably true in the long run. Rule 22 is still on the books^ out it has
not proved effective in limiting debate. Allowing each senator to speak
for not more than an hour, it has been enforced only four times in the
past quarter of a century, and its enforcement has been denied (through
lack of a two-thirds vote) no fewer than nine times. On the other hand,
the twentieth amendment has tended to limit dilatory tactics. It abolished
the old short session, 1 and in a long session filibustering is likely to wear
itself out. )

Notwithstanding the opportunity for long speeches, the Senate's
debates do not now reach the high standards of bygone days the days
QUALITY f Webster, Clay, Calhoun, Hayne, Benton, Douglas,

OF THE Seward, and Sumner. Speeches of sterling quality are still

DEBATES. occasionally delivered when some matter of special solem-

nity provides the occasion; but senators nowadays do not set out to con-
vert their colleagues by eloquence. If a senator has the urge to unburden
himself of a great oration, he chooses a banquet or a convention, with a
radio hookup, as the best place for his effort. Strangely enough, it is
sometimes easier for a senator to reach the ears of the people than those
of his own colleagues. Incidentally, it is not the practice of the Senate,
as it is of the House, to give members by unanimous consent the right to
"extend their remarks," and under that pretext publish in the Congres-
sional Record speeches which they have not delivered ; but it does give "leave
to print" public addresses, newspaper articles, documents, correspond-
ence, etc. Then the senator has copies struck off by the government
printing office and sent to people in his own state. Nowadays he pays for
these copies (although not for the postage) and prints on them, in order
to keep his record clear, the legend "Not printed <# the public expense."

The party whip cracks as frequently in the Senate as in other legislative
chambers, although not so sharply. Its custodian is the caucus or con-
INFLUENGE ference. Each party majority or minority (as already men-
pLmT tioned) has its own caucus or conference, made up solely

SPIRIT. of its own members, and through that agency tries to find a

1 Sec p. 316.

THE SENATE: ITS ORGANIZATION 283

common basis of action. The majority senators, whether Republicans or
Democrats, agree as to the measures which they will support; the minority
members, on the other hand, map out their counter-operations, deciding
whether to oppose, offer amendments, filibuster, or to let things go
through.

Democrats, on the whole, have submitted to control by the caucus
more readily than have Republicans. Thus, by a rule of 1903, all Demo-
cratic senators were bound by a two-thirds vote of the ___ ....**

I rlh, CiAUdUS

caucus on pain of being excluded from it in the future. SYSTEM IN
Thirty years later they made it a rule to be bound by a THE SENATE -
majority vote of the caucus to support all measures of the then-existing
Roosevelt administration on final passage. Republicans have been more
lenient. During a debate on "caucus domination" in 1915, Senator
Gallinger of New Hampshire asserted that, throughout his service of
almost twenty-four years, the Republican caucus had never sought to
bind its members on any question whatever. Not long afterwards the
binding force of resolutions adopted by the Republican conference was
abolished altogether. But there are other, if less obvious, ways of imposing
ecclesiastical discipline than by burning the heretics. If a majority
caucus, through the medium of free debate and persuasion, can induce
its members to cooperate in support of a measure, the ultimate issue is
virtually sealed. The majority, being thus pledged by caucus resolution
to stand together, can ensure its enactment. Not infrequently, however,
the Senate includes a number of insurgents who will not attend any
caucus and hence are not bound by what the caucus of either party may
do. These in trac tables may caucus by themselves, or they may leave each
rebel to decide for himself. If there are enough of them, as sometimes
happens, they can force a regular caucus to make compromises with
them. Sectional allegiance among the senators often proves stronger
than party allegiance.

CThe Senate possesses the customary rights of a legislative body, and
its members enjoy the usual immunities. They are privileged from
arrest on civil process during their attendance, in going to,

, . 'I"" f- i t- i PRIVILEGES

and in returning from the sessions\ror what a senator may AND XMMU-
say in the course of a debate, moreover, the Constitution NITIES OF
provides that he "shall not be questioned in any other
place"; in other words, he is not subject to the ordinary law of libel as
administered by the courts. But the Senate itself can punish a member
for disorderly conduct and, by a two-thirds vote, even expel himl It may
compel the attendance of absent senators, may conduct investigations,
may summon witnesses, and, in the event of their refusal to appear or

284 THE GOVERNMENT OF THE UNITED STATES

answer questions, may cite them to the courts to be punished for con-
tempt.(This power to conduct investigations has been freely used by the
Senate in recent years through the appointment of investigating com-
mittees^The scope and importance of this power will be explained a
little later. 1

In political influence and prestige, the Senate was, for a time, inferior

to the House. The House, in. the early days of the Republic, took the

initiative in legislation of all kinds, while the Senate devoted

THE PLACE . . ... r i

OF THE its time to revising the measures which came up irom the

SENATE IN lower chamber rather than to originating bills of its own.
POLITICAL It was a small body, regarded by the public as a council of
HISTORY. provincial notables which young statesmen of brilliant

i FROM political talents did well to avoid. 2 There was a common

1 7 8 9 T0 impression that senators had little freedom to decide ques-

l83 * tions for themselves, but that, like envoys, they merely

followed the instructions of their own state legislatures.

But during the era of Andrew Jackson, this situation began to undergo
a change. The abolition of the congressional nominating caucus, which
the House through sheer weight 'of numbers always con-
1830 TO trolled, reduced the influence of that body. 3 The Senate

l8 7- began to come into its own. Men of power and reputation

entered the Senate during the era which intervened between the in-
auguration of Jackson and the Civil War Webster, Clay, Calhoun,
Hayne, and others. The outstanding political questions of this epoch
were connected with slavery and states' rights; hence the Senate, as the
chamber representing the states, became the chief forum of controversy.
(2 After the Civil War came the inevitable reaction. By its undue
emphasis upon "senatorial courtesy" and its attempt to exercise a
virtually complete control over presidential appointments,
1870 TO the Senate overreached itself) Presidents Grant and Garfield

! 9 13 ' each took a hand in clipping its wings: the former, by re-

buffing its claims to any control over removals from office; the latter, by
defying its rule of courtesy. 4 Questions of economic policy, moreover,
now came to the front, and in its handling of these the sectional spirit of
the upper chamber cropped out too conspicuously. The growth of large
corporations and of great fortunes brought new elements into its mem-
bership. Senators who owed their selection either to personal wealth or
to the fact that they were backed by railroads or other corporate interests

1 See p. 302.

2 Henry Jones Ford, The Rise and Growth of American Politics (New York, 1898), pp. 260-261.
9 For an account of this caucus and its abolition see p. 1 35.

4 See p. 192.

THE SENATE S

THE SENATE: ITS ORGANIZATION 285

began to invade the upper chamber and to dominate it. With this
development the Senate began to stamp itself upon the public imagina-
tion as the stronghold of vested interests and the foe of popular rights.

It was this feeling that eventually led to a change in the method of
electing senators, as provided by the seventeenth amendment. The older
group of senators, so closely allied with big business, began

Q . i i r u 4- SINGE

to drop out, presently giving place to men of more 'pro- ; 9I3
gressive" outlook, as they liked to put it. (During the past
twenty-five years it can hardly be said that the Senate has shown itself
to be the more conservative chamber. It has kept within its fold a very
influential group of liberals from both partiejp

Among the whimsical political philosophers of a decade or two ago,
the late Will Rogers had no equal. He used to say that "it's easy to get a
reputation as a humorist: just keep your eye on the Senate
and report the "facts." But it has not been quite so bad as
that. 1 he Senate is unduly tolerant of rebels, obstructionists,
dissenters, and even rabble-rousers of the Ben Tillman and Huey Long
variety, all of which has tended to create a popular" misapprehension
concerning the normal quality of its debates. Moreover, the Senate's
relations with the nation's chief executive frequently occasion bizarre
headlines in the newspapers; although, for the most part, these two
branches of the government work together in harmony. Since the .
Senate is a sharer in the executive power, it naturally becomes strong
when a weak-willed President occupies the White House; and the
converse is also likely to be true.QChere has never been a time, however,
and probably never will be, when the second chamber of Congress can
be termed a secondary chamber. The Senate is not likely to meet the
same fate that the House of Lords has encountered in the parliament of
Great Britain. Its constitutional powers arc too far-reachingl)

REFERENCES

Useful books on the Senate are C. H. Kerr, The Origin and Development of the
United States Senate (Ithaca, N. Y., 1895), G. J. Schulz, Creation of the Senate
(Washington, 1937), Lindsay Rogers, The American Senate (New York, 1926),
R. J. Dangerfield, In Defense of the Senate (Norman, Okla , 1933), Henry L. Myers,
The United States Senate; What Kind of Body? (Philadelphia, 1939), George H.
Haynes, The Senate of the United States; Its History and Practices (2 vols., Boston,
1938), and Henry Cabot Lodge, The Senate of the United States (New York, 1921).
The title of the last-nam?d book is misleading, for only the first chapter has
anything to do with the Senate. G. W. Pepper, In the Senate (Philadelphia, 1930),
Lynn Haines, Tour Servants in the Senate (Washington, 1926), and James E. Wat-

286 THE GOVERNMENT OF THE UNITED STATES

son, As I Knew Them (Indianapolis, 1936), deal with Senate personalities and
episodes.

Spencer Ervin, Henry Ford vs. Truman H. Newberry; a Study in American Politics.
Legislation, and Justice (New York, 1935), and Carroll H. Wooddy, The Case of
Frank L. Smith: A Study in Representative Government (Chicago, 1931), deal with two
well-known cases involving the Senate's power to determine the qualifications of
its own members.

For comparisons of the Senate with second chambers in other countries,
reference may be made to G. B. Roberts, The Functions of an English Secona
Chamber (London, 1926), J. A. R. Marriott, Second Chambers (new edition, New
York, 1927), R. A. MacKay, The Unreformed Senate of Canada (New York, 1926),
H. B. Lees-Smith, Second Chambers in Theory and Practice (London, 1923), and
H. W. V. Temperley, Senates and Upper Chambers (London, 1910).

The Manual of the United States Senate, which can be obtained from the govern-
ment printing office, contains the Senate rules and other informative data.

Among biographical works which deal with the experiences of notable sena-
tors, mention may be made of George F. Hoar, Autobiography of Seventy Tears
(2 vols., New York, 1903), John Sherman, Recollections of Forty Tears (2 vols.,
Chicago, 1895), Thomas C. Platt, Autobiography (New York, 1910), Herbert D.
Croly, Marcus Alonzo Hanna (New York, 1912), N. W. Stephenson, Nelson W.
Aldnch (New York, 1930), Robert M. La Follette, Autobiography (6th edition,
Madison, Wis., 1913), Alfred Lief, Democracy's Norns (New York, 1939), and Os-
car W. Underwood, Drifting Sands of Party Politics (New York, 1931).

CHAPTER XV 111
THE SENATE: ITS SPECIAL FUNCTIONS

We shall exult if they who rule the land
Be men who hold its many blessings dear,
Wise, upright, valiant; not a servile band
Who are to judge of danger which they fear,
And honor which they do not understand.

Wordsworth.

Senate, as has already been said, was intended to be more than an
upper house of CongressTTThe framers of the Constitution designed it to
be, in a sense, the American counterpart of the English privy council;
that is, a body whose "advice and consent" would be required for certain
executive actions.) And Washington, during his first term as President,
expected that the Senate would act as an advisory council, for he sought
to have it join with him in considering certain treaties with Indian tribes.
The Senate at this time had only twenty-six members, and was not too
large for confidential discussions. But the senators did not like the idea of
having the President sit with them in executive session and declined the
proposed. So Washington gave up his plan of personal conferences with
the Senate and substituted the practice of sending business to it in written
communications. Thereupon the Senate ceased to be anything like a
privy council. Its prerogative became one of consent rather than
advice.

^Nevertheless, this drift of emphasis may easily be exaggerated. Before)
making a nomination, the President does consult the senators of his
party from the state concerned, or the representatives, or the national
committeeman; and, in the preliminary stages of treaty-making, he may
give a few senators some share in the negotiations. In any event he is very
unwise if he does not keep in close touch with the members of the foreign
relations committee) On the other hand, senators have little reason to
grumble that their constitutional right to advise as well as to consent seems
to have been abridged.* It was the Senate itself which set the precedent a
great many years ago.

287

288 THE GOVERNMENT OF THE UNITED STATES

APPOINTMENTS 1

(The appointing power is one of the greatest powers that an executive
can have too great, it was felt, to be vested in the President alone.

An unscrupulous President might use it to perpetuate
FUNCTIONS himself in office. He might fill the administrative positions
OF THE ; n th e national government with men whose appointments

proceeded, as Hamilton said, "from state prejudice, from

' THE family connection, from personal attachment, or from a

CONFIRMA- ' . r ;

TION TO view to popularity. 2 In other words, he might use the

APPOINT- appointing power to build up a personal machine. So the
Senate was given a share in the appointing authority for
the higher offices), Provision was made, however, that Congress might by
law vest the appointment of "inferior" officers in the President alone, or
in the courts of law, or in the heads of departments. In such cases the
consent of the Senate is not required. 1 ^

/With respect to the higher offices, nomination must precede appoint-
ment. The President has virtually unrestricted freedom of choice when
NOMINATION nominating judges of the Supreme Court or cabinet officers
BY i HE or ambassadors. But, when the functions of an office are

PRESIDENT. discharged within a single congressional district or within
some larger area of a state, he is expected to consult, respectively, with
the representatives and senators of his own party; or, failing them, with
the national comrnitteeman, or other political leaders of the state. Thus
the federal patronage enjoyed by a senator may be extensiveT)In Indiana,
some years ago, one Republican senator in a Republican administration,
virtually controlled not only the state-wide offices, but also the offices
in eleven of the thirteen congressional districts, these having gone Demo-
cratic. The President must rely upon local advice; he cannot visit every
state of the Union, find out the reputation of candidates in their own
communities, or cross-examine them as to their fitness. Yet good citizens
wonder that a conscientious President should sometimes pick for high
office mediocrities who are little respected where they are best known.
The reason is that he does not, in reality, do the picking. Of course, when
recommendations reach him, he may have some inquiries made; for, if
he is a sophisticated politician, he must know that, in the pursuit of
public office, leg muscle and effrontery often count for more than fitness
and character.

1 The role of the Senate in making appointments has already been discussed in connection
with the powers of the President. See pp. 191-192.
a The Federalist, No. 76.

THE SENATE: ITS SPECIAL FUNCTIONS 289

On any event, the President sends to the Senate his nominee for the
post and takes all the responsibility for it. The nomination is at once
referred to the appropriate committee. If it is the nomina- (

tion of a federal judge, it goes to the judiciary committee;
if that of an ambassador, to the committee on foreign
relations^ These committees may, and often do, assign the nomination to
subcommittees for investigation. If there are objections to the nominee,
the committee (or subcommittee) hears such objections, and in due
course a report is made to the whole Senate. Then comes the vote to
consent or to refuse consent. After the vote has been taken, two days of
actual session must be allowed to elapse before the action of the Senate
is comnlunicated to the President. This provision in the Senate's rules
is intended to afford time for reconsideration if the senators so desire. 1
Jhe Senate is not bound to follow the recommendations of its committees
in the matter of confirming appointments; but it does so, except in rare
instances. If the Senate's approval is refused, the President may submit
the same nomination a second time, but this is not usually done/>

Rejections have not been numerous, on the whole, but they have at
times developed considerable bitterness, especially when the President
is determined to force his nominations through. Much
depends, of course, upon whether the Senate contains a TICNS^^'
majority representing the same political party as the Presi-
dent. ^It is now generally conceded, however, that the responsibility
for making the original selections ought to rest upon the President's
shoulders, and that the Senate should not impair this responsibility
by refusing to allow him to have the subordinates whom he desires.
It should, and usually does, content itself with adverse action in those
cases where it believes that the President has proposed someone with a
dubious past record or present reputation. It is not the Senate's business
to guarantee fitness, but to keep the unfit out. Only the more important
appointments, in any event, require any action from the Senate. The
majority of federal positions are now filled by the heads of departments,
usually under civil service rules, as has been already explained. 2

Has the requirement of senatorial confirmation proved to be a wise
one? It has divided the responsibility and has sometimes tied the Presi-

1 A peculiar case of reconsideration arose in 1931. The Senate, having confirmed three
nominations to the federal power commission and so informed President Hoover, decided,
some days afterward, to reconsider its action. Hoover refused to return the documents in the
case, maintaining that the appointments had been lawfully made. Nevertheless, the Senate
persisted in its course. It confirmed two of the nominees, but rejected the third. The Supreme
Court subsequently held the rejection invalid (United States v. Smith, 286 U. S. 6, 1932).

See p. 193.

290 THE GOVERNMENT OF THE UNITED STATES

dent's hands in his endeavor to find capable men for high public posi-
tions. Time and again, even in recent years, men whom the President
has invited to accept appointments have told him that they
CONFIRMING would not risk the humiliation of being rejected by the
POWER BEEN Senate. Most Presidents would have done as well, or better.

WISELY USED? . . . A r i 111 i

without the restriction. A few, perhaps, would have done
worse. The chief objection to the plan is that a President occasionally
finds himself forced to smother his conscience in the case of some appoint-
ments in order to get others through. Moreover, the custom of senatorial
courtesy, to which allusion has already been made, has virtually trans-
ferred to individual senators an influential share in the choosing of
federal officers in their respective states.

But not all the blame for the unsatisfactory workings of the confirma-
tion arrangement can be laid at the Senate's door.f Presidents have
sometimes tried to circumvent the constitutional require-
ment by making recess appointments and then renewing
such appointments after the Senate has rejected themJ)The
rules with respect to these recess appointments have already been
explained (p. 191) and they are reasonable enough. But Presidents have
not always been minded to observe them in spirit. Occasionally they
intentionally leave posts vacant until after the Senate has adjourned in
order that appointees, whom the Senate would not have confirmed, may
be put into office.

TREATIES

(.The second executive power shared by the Senate is that of approving
treaties.) In dealing with this matter, the framers of the Constitution
2 THE AP- ' f un d themselves on the horns of a dilemmaJ If they gave
PROVAL OF the President sole power to make treaties, they would endow
TREATIES. Yii m with an absolute control over foreign affairs, including
the power to enter into secret military alliances. They were riot prepared
to concentrate such far-reaching authority in the hands of any one man.
On the other hand, they realized that "perfect secrecy and immediate
despatch" are sometimes needed in the making of treaties. 1 And these
essentials, it was easy to see, would be impossible if the President were
forced to submit his negotiations, step by step, to a body of men repre-
senting all the states in the Union. 'In the end,(a compromise was worked
out by giving the President the power with the advice and consent of
the Senate, to make treaties, provided two thirds of the senators present
concur." Thus, two separate powers with respect to treaties were estab-

1 The Federalist, No. 64.

THE SENATE: ITS SPECIAL FUNCTIONS 291

lished: the President being given the right to initiate and conduct the
negotiations, while the ultimate fate of these negotiations was made
dependent upon the willingness of the Senate to approve them by a
two-thirds vot^j At any rate, the language of the Constitution has been
so interpreted.

The two-thirds requirement was adopted because a somewhat similar
provision had existed in the Articles of Confederation and because the
framers of the Constitution thought of the Senate as a small

11 i i i T i i ^< REASONS FOR

body a council, not a legislature. Inasmuch as the Con- THE TWO-
stitution was to go into force if nine states ratified it, there THIRDS RE-
would be eighteen senators as a minimum. Ten would then ^ UIREMENT -
suffice to make a quorum. With traveling conditions as they were in
those days, it was anticipated that on some occasions hardly more than a
quorum would be present. That had been the experience in the congress
of the confederation. It would be questionable prudence to allow a very
few senators, along with the President, to commit the country to a treaty
of alliance: hence, the two-thirds precaution. The framers of the Consti-
tution did not envisage the possibility that some day it would take more
than sixty senators to get a treaty confirmed under the two-thirds rule.
*\In treaty negotiations, as in the selection of persons for appointment
to office, the Senate's advice is not asked in any formal way. Nevertheless,
a wise President will not go ahead and conclude the terms HOW THE
of an important treaty without feeling out his ground. He PRESIDENT
will keep in touch with the leaders of the Senate, especially ^^^ORS
with the chairman of its committee on foreign relations, and SHARE THIS
ascertain in advance what the action of the Senate is likely POWER -
to be)) If he does not do this, he runs the risk of having the Senate reject
his work, as it did with the peace treaty which President Woodrow
Wilson submitted to it in 1919. It was no doubt with this example in
mind that President Roosevelt appointed two members of the Senate
foreign relations committee as delegates to the international conference
at San Francisco, which in the spring of 1 945 undertook the preliminary
drafting of a world peace charter.

It has sometimes been remarked that a treaty goes into the Senate with
the numerical chances two to one against it. In most cases its chances
are not even as good as that, for the Senate has all sorts of suspicions
about treaties and looks for loopholes in them. It behooves the President,
therefore, to take the Senate leader frankly into his confidence at an
early stage; otherwise he is likely to find a stillborn treaty on his hands.
Several Presidents havfe had to learn this lesson. President Wilson was by
no means the first among them, for the Senate had already rejected

292 THE GOVERNMENT OF THE UNITED STATES

important treaties submitted to it by Presidents Pierce, Grant, Cleveland,
Taft, and Theodore Roosevelt.

(Treaties do not come to the Senate for formal action until all their
provisions have been put in final shape. Then the document is referred

to the Senate's committee on foreign relations, which may

hold hearings and listen to objections from any source.
DEALING When its deliberations have been concluded, the committee

TREATIES recommends that the treaty be approved, rejected, or

approved with reservations. Before accepting this recom-
mendation, the senators usually insist on going over the treaty, item by
item, in committee of the whole^They may consume many days in doing
this. The discussion usually (but not always) takes place in open session,
with the galleries filled. 1 Until 1929 the rules required that treaties be
considered in closed session unless the Senate voted otherwise; but in that
year the old rule was abandoned. Now the debates are open unless a
majority of the senators vote otherwise. Such procedure gives opportunity
for obstruction and delay, while making secrecy quite impossible. If
approval is finally given, the treaty is put into force by an exchange of
ratifications with the other country; but if the Senate's approval is
refused, its action is final and the labors of the treaty-makers have been
in vain.

What happens if the Senate amends a treaty, in other words, if it
approves the treaty with various "reservations" attachedP^The Supreme

Court has ruled that the Senate, by reason of its consti-
TIONS " tutional power to give the President its advice as well as its

consent, has the right to qualify its approval with reserva-
tions or modifications. 2 When the Senate attaches such reservations, the
treaty does not necessarily die. The President, reopening negotiations if
he so desires, may persuade the other signatory to accept the amended
form. The outcome will depend mainly upon the nature and scope of
the reservations)

The Senate may, either alone or jointly with the House of Repre-
sentatives, request the President to negotiate with a foreign power on any

matter. It has occasionally done so; but the President is
under no legal obligation to comply. The initiative in
DENT TO treaty-making lies exclusively within his discretion. On the

? E ^?J? E other hand, the President may recall a treaty from the

A TREATY. * '

Senate after he has submitted it and may decline to ex-

1 The Senate may decide, by majority vote, that a treaty {shall be considered in closed
executive session; but even then any senator may make public how he voted.

2 Haver v. Yaker, q Wallace, ^? (1870).

THE SENATE: ITS SPECIAL FUNCTIONS 293

change the final ratifications with the other country, even after the
Senate has voted approval^) This, of course, he would not do unless
conditions had changed in the interval.

^A treaty, when duly approved and ratified, becomes the law of the
land, and the judges in every state are bound thereby, anything in the
constitution or laws of any state to the contrary notwith- LEGAL
standing. No state may make a treaty or enforce any law STATUS OF
which contravenes a treaty made by the national govern- A TREATY -
ment. The national government, on the other hand, may conclude
treaties covering matters on which Congress would have no power to
pass lawsj/The right of foreign citizens to acquire and hold property in
the United States, for example, is a proper subject of a treaty provision,
although the regulation of landholding in any state does not come within
the legislative jurisdiction of Congress. For example!ongress cannot, by
passing a law, give aliens the right to own land in any single state. But
the President and the Senate, by making a treaty with a foreign country,
could presumably grant this privilege to its citizens in all the states?

CStrictly speaking, the House of Representatives has nothing to do with
treaties, but occasions may arise in which action on its part is virtually
necessary to make a treaty effectived No money can be

. ' S ' RELATION

appropriated fof any purpose, no laws passed, no changes OF THE
made in the tariff, without action on the part of the House. HOUSE TO

m . ii -11 i -i TREATIES.

1 rcaties sometimes provide that money will be paid, or
that reciprocity in tariff matters will be granted by the United States.
The treaty with Russia, whereby the United States purchased Alaska
in 1867, is an example; likewise the treaty with Spain in 1898, which
provided for the payment of twenty million dollars in connection with
the transfer of the Philippine Islands.

But what if the House of Representatives had refused to join in appro-
priating the money stipulated by the terms of these treaties? That is a
very old constitutional question, for it was raised and AN OPPOR _
discussed in connection with the Louisiana Purchase of IUNITY FOR
1803, and it has been debated several times since; but it is FRICTION -
still an unanswered question because the House has, thus far, never failed
to do its part. To be sure, it has occasionally asserted its right to refuse,
but it has always voted the money. Legal opinion inclines to the view
that, while the refusal of the House to implement a treaty might place
the nation in an awkward predicament, the House would be quite
within its constitutional rights if it should take that stand.

It is sometimes said that treaty-making arrangements such as exist
in the United States would be intolerable in any European land. In

294 THE GOVERNMENT OF THE UNITED STATES

England treaties are made by the secretary of state for foreign aftairs
without the necessity of submitting them to anybody outside the
cabinet. In various countries of Continental Europe cer-
MAKiNQ EATY " ta * n treat ^ es have required legislative approval, but not the
POWER AND ones which require secrecy. Military alliances and other
SECRET far-reaching international agreements have often been made

DIPLOMACY.

by European chief executives alone. The people, through
their direct representatives, have rarely been asked for advice; in some
cases they have not even been informed of military alliances already
made. Bismarck, the iron chancellor of the German Empire, once spoke
of public opinion as "the great enemy of efficient diplomacy." It was an
absurdity, he thought, to Tet the general public Icnow anchinterfere with
the game that was being played by experts on the diplomatic chessboard.
If that is true, American diplomacy can never be very efficient, for more
than a hundred persons have a share in it the President, his cabinet,
and ninety-six senators. It might seem as though so many cooks would
be sure to spoil the broth, but the situation at least requires American
diplomacy to be aboveboard and permits it to be honest.

Secret diplomacy is not yet a thing of the past in Europe, despite the

fact that members of the League of Nations, during its twenty-years'

existence, were required to register their* treaties; but it

VALUE OF

THE ought to be, for there is little to be said in defense of it.

AMERICAN The men of 1 787 were wiser than they knew when, without

SAFEGUARD. . . . i i i

having that purpose in mind, they set up a barrier against
final validation of secret treaties of any kind, so far as America is con-
cerned. 1 At times, no doubt, the requirement that treaties must go
before the Senate has been a handicap. It has occasionally prevented the
President from making a good bargain. It has compelled him to enter
negotiations with one hand tied behind his back. Secretaries of state
have fumed and fussed about the Senate's interference. Thus John Hay,
secretary of state in the McKinley administration, groaned bitterly
that a treaty entering the Senate was like a bull going into the arena:
no one could say just how or where the final blow would fall; but one
thing was certain it would never leave the arena alive. 2 But in making
this complaint, Hay pressed his point too far. He was thinking of a few
notable treaties notable because of the public interest taken in them.
Less than fifteen per cent of all our treaties have failed because the
Senate did not act upon them or rejected or mutilated them. The

1 The Fathers did, however, recognize that the negotiations leading to a treaty should be
conducted in secret, as the debates of the convention frequently rhow; they even thought that
the Senate, because of its small size, would not betray confidential information.

2 W. R. Thayer, The Life and Letters oj John Hay (2 vols., Boston, 1925), Vol. II, p. 393.

THE SENATE: ITS SPECIAL FUNCTIONS 295

necessity of senatorial concurrence has been on the whole salutary. It
has held impulsive Presidents in bounds. It has kept the nation on its
course without entangling alliances. Since the Constitution went into
force, the United States has never concluded a single "secret treaty' 3 of
any sort. 1 No other great country can say the same.

Nevertheless, it may be questioned whether the requirement of a
two-thirds vote in the Senate has not outlived its usefulness. Would it
not be better to substitute a requirement that treaties be
ratified by a majority vote in both Houses? This would seem to TWO-THIRDS
provide an adequate safeguard, and it would have logic PROVISION

. .1 r i.rr r r j i ^ BE MODIFIED?

on its side, for a treaty has the force of a federal statute so
far as the application of its provisions by the courts is concerned. Treaties
and federal statutes are on the same plane of authority. One may repeal
the other. Both, when constitutional, are equally the supreme law of
the land. When a treaty and a statute are inconsistent, which supersedes
the other? The one which is later in point of time prevails. Moreover, as
has just been pointed out, there are some cases in which the provisions
of a treaty cannot be carried into operation without action on the part
of both Houses. 2

IMPEACHMENTS

Senate, as the Constitution declares, has "the sole power to try
all impeachments." Several important questions arise with respect to the
nature and scope of this impeachment powerA How did
this process of impeachment originate? Why did the framers POWER TO
of the Constitution establish it in the United States? Who TRY IM -

i - i i r i ^ rr i i i PEACHMENTS.

may be impeached, lor what onenses, and what are the
penalties in the event of conviction? Does the procedure in impeachments
differ from that of an ordinary trial by jury? Can a pardon be granted
after conviction? And to what extent has the impeaching power been
used in the national government of this country?

Impeachment is of English origin. It dates back into mediaeval times;
and for several centuries, before the development of cabinet responsi-
bility, it afforded the only means whereby an adviser of the
crown could be brought to account by the House of Com-
mons. The Commons preferred the charges; the House of
Lords heard the evidence and gave its decision. Many high executive

1 But it has come rather close to it at times. Attached to the Lansing- Ishii Agreement of
191 7 between the United States and Japan was a secret protocol which, except for one clause,
has never been published. Afe to subject-matter, there was nothing to distinguish this agree
ment from a treaty; yet because called an agreement, it escaped submission to the Senate.

* See p. 293.

296 THE GOVERNMENT OF THE UNITED STATES

officials who used their power oppressively were brought up with a sharp
turn in this way. An impeachment, however, should be clearly dis-
tinguished from a "bill of attainder," which provided a way of condemn-
ing men to death by ordinary legislative process, without formulating
definite charges or giving them any sort of trial. Bills of attainder are
prohibited by the Constitution of the United States, and they have long
since become obsolete in England.

The English impeachment procedure, on the other hand, commended
itself to the pioneers of the American political system as a necessary
WHy safeguard against the exercise of arbitrary power. They

ADOPTED found difficulty, however, in determining just how the

IN AMERICA. English impeachment system could best be adapted to the
needs of a purely representative government. According to Alexander
Hamilton

A well-constituted court for the trial of impeachments is an object not more to
be desired than difficult to be obtained in a government wholly elective. The
subjects of its jurisdiction are those offences which proceed from the misconduct
of public men, or, in other words, from the abuse or violation of some public
trust. They are of a nature which may with peculiar propriety be denominated
political, as they relate chiefly to injuries done immediately to the society itsdf
The prosecution of them, for this reason, will seldom fail to agitate the passions
of the whole community, and to divide it into parties* more or less friendly or
inimical to the accused. ... In such cases there will always be the greatest
danger that the decision will t>e regulated more by the comparative strength of
parties, than by the real demonstrations of innocence or guilt. 1

For this reason it was suggested that the impeachment power should
be given to the Supreme Court, or to the Supreme Court and the Senate
sitting together. But there were practical objections to both these alterna-
tives. Would it be wise, for example, to have an impeachment of the
President tried by judges whom he himself had appointed? So the
convention decided to follow the traditional English practice of allowing
the lower House to prefer the charges and the upper House to hear
them. Its members were well aware that this was by no means an ideal
arrangement. But if mankind, as one of the delegates sagaciously re-
marked, "were to agree upon no institution of government until every
part of it had been adjusted to the most exact standard of perfection,
society would soon become a general scene of anarchy, and the world a
desert."

^JVho may be impeached? "The President, Vice-President, and all civil
officers of the United States," says the Constitution. The list of civil

1 The Federalist, No. 65.

THE SENATE: ITS SPECIAL FUNCTIONS 297

officers obviously includes, in its higher ranges, 1 such public servants as
diplomats, members of the cabinet, and judges of the federal courts/
Does it include senators and representatives in Congress? TTAT5T ~~

^ LIABILITY

Before preferring charges against Senator Blount in 1797, TO IMPEACH-
the House decided, after thorough debate, that he was an MENT -
impeachable officer. The attitude of the Senate, on the other hand, was
ambiguous. After ordering his arrest and preparing for the trial, it
expelled Blount by an almost unanimous vote, then declared him exempt
from impeachment, and finally (by a majority of three) dismissed the
charges for want of jurisdiction. So this precedent is of doubtful value.
Does it mean more than this: that a senator who has been expelled from
his seat is not impeachable after such expulsion? Does it imply that a
member of Congress is not a civil officer of the United States; that, if
this is so, he must be an officer of one of the states; and that, on either
assumption, he is not liable to federal impeachment?

Perhaps the question is academic. The Blount case has sometimes been
distorted into a clear precedent of immunity which either House can

defend successfully, because, with this one exception, no

; , r ^ 11 DOES IT IN -
attcmpt to impeach a member or Congress has ever been CLUDE MEM-
made. Certain points, however, deserve a word of emphasis. BERS OF

T 1 n ^ i v J * - CONGRESS?

In the first place, senators and representatives are not state
officers. In two election contests waged before the Senate, the authorities
that were cited legislative and judicial, federal and state seem to be
conclusive on this point. 2 Second, they may not be "civil officers of the
United States." Two provisions of the Constitution support this view.
One bars them from appointment to any civil office under the authority
of the United States during the period for which they were elected; the
other bars them, and any person holding office under the United States,
from serving as presidential elector. The phraseology suggests that
appointment, as against election, is the essential mark of "civil office"
or even "office." In more recent times both the President and members of
Congress appear as elective federal officers, though not as "civil" officers,
in statutes and judicial decisions. 4 And third, whatever difficulties the
phrasing of the Constitution may raise, there is evidence that the Fathers,

impeachment has never been considered appropriate to the lower ranges. Removal by
president and prosecution in the courts afford an adequate remedy for the misconduct
l^Dostmaster or a collector of internal revenue

^ 2 Cited by Senator Walsh in the case of Frank P. Glass (1913) and by Senator Goff in the
case of Gerald P. Nye (1925-1926)

3 Constitution, Article I, Section 6, and Article II, Section i.

4 In the case of KX parte Varbrough (no U. S. 651, 1884), the court was puzzled over
terminology. "The office (of congressman), if it be properly called an office, is created by the
Constitution and by that alone."

298 THE GOVERNMENT OF THE UNITED STATES

and some of their eminent associates, took for granted the liability of
legislators to impeachment. The opinions which they expressed in The
Federalist and in the ratifying conventions should prevail over any biased
reading of the Senate's resolutions in the Blount case. 1

' May/a civil officer of the United States be impeached for an offense
committed while holding office, even though he is no longer in office
is RESIGNA- when the impeachment proceedings begin) That was one of
TION A the points raised in the Belknap Case (1876). Belknap was

BAR * secretary of war during Grant's second administration. He

was charged with having received money from the profits of trade at one of
the Indian posts under his jurisdiction. When the charge was made
public, impeachment proceedings were begun in the House; and Belknap
tried to sidestep them by resigning. President Grant accepted the resigna-
tion, but the Senate voted by a majority (37-29) to proceed with the
impeachment, which it did. For lack of the requisite two-thirds majority,
however, Belknap was not convicted. So the question cannot be looked
upon as having been decisively settled. 2

The Constitution sets forth the offenses for which a civil officer may
be impeached; but it does not do this with absolute clearness. (The
grounds for impeachment, as therein stated, are "treason,
bribery, or other high crimes and misdemeanors.^) The first
two words of this clause are definite efiough, but the remain-
ing part of it is ambiguous, and this ambiguity has given rise to some
difference of opinion, for a misdemeanor in the eyes of the law is a
relatively trivial oflfense.(Jt is now commonly understood, however, that
civil officials are not to be impeached except for grave misconduct, dis-
honesty, or malfeasance in office. General incompetence, or bad judg-
ment, or the unwise use of discretion are not grounds for impeachment^
When a public official is convicted by the Senate, he cannot be
punished to any further extent than by removal from office and dis-
qualification from holding a civil office ever again under
" the national government. He cannot be put to death, im-

prisoned, or fined. But conviction upon impeachment does
not prevent additional proceedings against a civil officer in the ordinary
courts of the land if he has committed an indictable offense(L\ two-thfcds

1 In The Federalist, Hamilton (No. 66) and Jay (No. 64); in ratifying conventions, Randolph,
Mason, C. C. Pinckney, Patrick Henry, and others. <*\

1 For an argument that such officers are not liable to impeachment, see Joseph Story,
Commentaries on the Constitution of the United States (5th edition, 2 vols., Boston, 1891), Sec. 801.

8 Yet District Judge English (1926) was charged with partiality and favoritism. In the
case of President Johnson, the tenth article charged him with "bringing his high office into
contempt by speeches denunciatory of Congress. In ten of the twelve cases of impeachment
the charges included other than indictable offenses.

THE SENATE: ITS SPECIAL FUNCTIONS 299

vote of the Senate is necessary in all cases for conviction on impeachment;
and no pardon from any human source is possible in the case of one so
convicted. The Constitution makes this single exception to the President's
pardoning power for the obvious reason that it would not do much
good to impeach a presidential adviser if the President retained his
prerogative of pardon in such cases.")

The procedure in impeachments may be briefly outlined. First, the
accusation is made by some member of the House of Representatives
from the floor of that body. A committee of the House is
then appointed to investigate the charges. If it finds that CEDURE~
an impeachment should be proceeded with, the committee
so reports to the House; and the latter may vote to accept this recom-
mendation. In this case^cirticles QTimpeachment are prepared and trans-
mitted to the Senate. The Senatehas no discretion as to whether it will
accept these articles or not. It merely sets a date for the trial and furnishes
the accused official with a copy of the charges preferred against him. In
hearing an impeachment, the Senate sits as a court, the senators being
"placed on oath or affirmation" before the proceedings begin, p

jlie Vice-President of the United States presides over the Senate,
except when the impeachment is directed against the President, in which
case the Chief Justice of the United States presides. This
provision is made for a self-evident reason: namely, that the
Vice-President would not be an appropriate chairman, since
the outcome of the trial might determine his own promotion to the presi-
dency. In impeachments the usual rules of evidence are observed; the
accused official is allowed to be heard in his own defense; he may
summon witnesses and may have his own counscLJThe proceedings are
public until the senators are ready to vote upon a verdict. While deliber-
ating upon its decision, the Senate may direct the doors to be closed. 1
V There have been twelve federal impeachments in all, five of them
within the last forty years. The most notable were those of William
Blount, senator from Tennessee (1797-1799); Andrew

FAMOUS

Johnson, President of the United States (1868); and IMPEACH-
William Belknap, secretary of war (1876), none of whom MENTS.
was convicted. 2 Senator Blount was charged with having BLOUNT
taken part in a conspiracy to stir up trouble in Florida
and Louisiana, which at that time belonged to Spain. The Senate

1 See "Rules o| Procedure and Practice in ... Impeachment Trials," in the current
edition of the Senate Manual (Government Printing Office, Washington).

2 The first conviction (1804) was that of John Pickering, a federal district judge, who
was charged with ' 'drunkenness and profanity on the bench." He was probably insane.
The second (1862) > as that of another district judge, West H. Humphreys, who WA* charged

300 THE GOVERNMENT OF THE UNITED STATES

expelled him from its membership, but refused to convict him for reasons
which have been already explained. Secretary Belknap, as

BELKNAP. , . .11 i i

has already been said, was charged with corruption:
namely, the acceptance of money from a trader whom he had appointed
co an Indian post. The Senate, after hearing all the evidence, failed to
reach a verdict of conviction.

Finally, most conspicuous of all, there was the Johnson case. Andrew
Johnson of Tennessee was not elected President. He succeeded to the

office on Lincoln's death and found a hostile Congress in

readiness for him. More particularly, he disagreed with the
radical Republicans over the procedure to be followed in reconstructing
the southern states. The two ends of Pennsylvania Avenue began hurling
1 brickbats at each other. The charges ;igainst President Johnson were
eleven in all, most of them having to do with "discourtesy to Congress"
and with violations of the Tenure of Office Act, which Congress had passed
over the President's veto in 1867. This act forbade the dismissal of certain
public officers without the Senate's approval. It was clearly an uncon-
stitutional statute and was later repealed. President Johnson was justified
in refusing to be controlled by its provisions, but he was not politically
discreet in permitting himself to be drawn into a knockdown fight with
Congress when he might have avoided it by a reasonable admixture of
conciliation and adroitness.

So Congress made up its mind to get rid of the President. His trial was
conducted in an atmosphere of intense bitterness. While it dragged on,

the whole country ranged itself into two carnps. At its
ACQUITTAL conclusion the Senate voted thirty-five to nineteen for

conviction, which was only one vote short of the required
two thirds. It was a close call. At the ensuing presidential election, a few
months later, Johnson was not a candidate; and the incoming of Presi-
dent Grant ended the strained relations which had existed between the
executive and legislative branches of the government.
/An impeachment is, at best, a cumbrous and costly proceeding. It is
not a method to be used if there is any simpler way of securing an officer's

dismissal. But in the case of the President, or of federal
RESORT judges who hold their offices during good behavior, or of

cabinet members whom the President may decline to dis-

with having "engaged in rebellion against the United States," as he had thrown in bis lot
with the Confederacy without resigning his judgeship. The third (1913!) was that of Judge
Robert W. Archibald of the short-lived Commerce Court, charged wi?h having accepted
"presents" from persons who had cases before him. The fourttt ('936) was that of Halstcd
L. Ritter, district judge, charged with various improprieties which wt re alleged to have
brought his court into disicpute

THE SENATE: ITS SPECIAL FUNCTIONS 301

miss, it may be the only way of forcing anyone out of office immediately^
Threats of impeachment are made from time to time when members of
the cabinet or other high officials become unpopular with congressmen,
but most of these are mere political vaporings. Impeachment is a pro-
cedure that should never be utilized except as a last resort. The British
parliament has not used it since 1805.

THE SENATE'S SHARE IN LAWMAKING

Cjn addition to its three special prerogatives as above enumerated, the
Senate has a general power which is more important than all of these
combined. It is not only an advisory council and a court of A co . EOU4kL
impeachment, but a legislative body as well. It is a co- BRANCH OF
ordinate, not a subordinate, branch of the American CONGRESS -
Congress and divides with the House of Representatives the function of
making the national laws. Aside from one relatively unimportant excep-
tion, its legislative authority is exactly co-equal with that of the House.
This exception relates to measures for raising revenue, all of which, by
the terms of the Constitution, must "originate" in the House of Repre-
sentatives. However, the Senate "may propose or concur with amend-
ments as on other bills."^

This bestowing of an exclusive privilege upon the House in the matter
of revenue bills was suggested by an old parliamentary rule in England.
The larger states demanded in 1787 that it be made a TIIE SENATE
constitutional rule in the United States. Otherwise, they AND REVENUE
feared, the smaller states, through their control in the BILLS -
Senate, would promote measures of taxation placing most of the burdens
on the larger commonwealths. But, in practice, (the limitation on the
Senate's right to "originate" revenue bills has proved to be of very little
importance, for the Senate can virtually initiate new revenue proposals
under the guise of amendments.^ Some years ago, for example, the House
originated and sent to the Senate a tariff bill and a tariff bill is a
revenue measure, if anything is. On receiving it, the Senate struck out
everything in the bill except the enacting clause. 3 Then it inserted a new
tariff of its own and transmitted the measure back to the House "as
amended." The House grumbled for a while over this evasion of its own

1 With respect to the lower federal courts, the judiciary committee of the House proposed
in 1937 an alternative method, trial by three judges of the circuit court of appeals, these
three judges to be selected by the Supreme Court. This proposal failed of adoption, but a
similar one passed the House in 1941.

2 By a "revenue bill" is meant a measure primarily designed to raise revenue, not one which
aims principally at some othe^r purpose and incidentally brings in revenue.

8 This is the introductory clause which stands at the head of every measure: "Be it enacted
by the Senate and House of Representatives of the United States in Congress assembled."

302 THE GOVERNMENT OF THE UNITED STATES

special privilege, but, in the end, accepted the tariff which the Senate
had virtually originated. On another occasion when a tariff measure,
originated and passed in the House, came back from the Senate, there
were no fewer than 847 amendments clinging to it. 1 So the Senate has
originated revenue measures in fact, if not in form. It has found a way of
doing what the Constitution did not intend it to do.

On the other hand, the Constitution gives the House no exclusive
power to originate expenditure bills, or appropriation bills, as they are
APPRO- called. No constitutional prohibition prevents the Senate

PRIATION from originating appropriation bills, including even a
BILLS. national budget, if it chooses to do so. But the House at an

early date assumed the exclusive right to originate such bills, and this
power it guards with great jealousy. The Senate occasionally ventures
to originate a measure which incidentally carries an appropriation of
money for a single purpose; but the annual budget, and all general
appropriation measures, are first submitted in the House.
^JJn all other matters the powers of the two chambers, both by the
Constitution and by usage, are equal in scope. No bill can become a law
without the Senate's approval?\At various times and on

LEGISLATIVE . 11^11 i i

POWERS OF various matters, one chamber or the other may have the
THE SENATE greater amount of legislative influence because of its better
HOUSE^RE organization or stronger hold upon* public opinion. It is
SUBSTAN- sometimes asserted that the Senate, taking its legislative

history as a whole, has originated more important legis-
lation than the House, and this statement is probably true.
Nor is it surprising, for the senators are for the most part, more experi-
enced in lawmaking than are their colleagues of the lower House.

("Attention should be drawn to a legislative function which the Senate
has developed to rather large proportions in recent years: namely, that
SENATE f undertaking special investigations into matters of all sorts.

INVESTIGA- This is called a legislative function of the Senate^because,
TIONS. j n t j ieor y ) t h e various investigations are undertaken to

secure data that will be of service to the Senate in the framing of future
legislation. If it is urged that a law be passed to crush the evils of stock-
market speculation, for example, the senators desire to discover at first
hand what these evils are and why they exist. So they appoint a com-
mittee to make an investigationj(Jn a strict sense, the Senate has no right
to conduct any investigation except insofar as it may seem necessary to
determine whether some new legislation is desirable, and, if so, what
legislation. This, however, affords ample basis for any investigation that

* Henry Cabot Lodge, The Senate of the United States (New York, 1921), p. 9.

THE SENATE: ITS SPECIAL FUNCTIONS 303

the senators wish to startj and they have started a good many during the
last dozen years.

The usual plan is to pass a resolution ordering an investigation of oil
leases on government lands, or telephone companies, or holding cor-
porations, or the expenditure of money in elections, or some
other matter that seems to call for remedial legislation. The
resolution also designates a committee of senators to conduct
the inquiry. 1 The committee may sit in Washington, or it may go about
the country hearing testimony, "on a fishing trip," as it is called. Such
committees have power to summon witnesses, compel the production of
papers, take evidence under oath, and in general to exercise the probing
authority of a court. To say that they are merely seeking data as a basis
for legislation is to use the words with Pickwickian versatility. What they
are often seeking is ammunition that can be used in the next election
campaign .\TJae power of investigation, when used by a legislative com-
mittee in this way, is susceptible of serious oppression and abuse, j

the Senate and the House fail to agree on any measure, oner or the
other must give way, or a compromise must be arranged by both giving
way in part. This is effected by means of a conference com- DISAGREE-
mittee actually a bifurcated body on which the group MENTS BE-
from each House votes as a unit and varies in size from three I^^^J^f

1 \V\J \jttlAtn""

to eleven. 2 In these compromises the Senate has a reputation BERS HOW
for getting the better of the bargain. And this is not surpris- SETTLED -
ing, for the Senate is usually represented on conference committees by
stronger personalities, by men of greater skill in bargainingAAs a rule,
moreover, the Senate gives its conferees a firmer degree of support.
Something depends, of course, upon the reaction which comes from the
country while the measure is in conference. This may be strongly in favor
of the House attitude, in which case the senators, with their ears to the
ground, are likely to recede. Or it may be such as to stiffen them in their
attitude.

The older senators, who guide the upper chamber in its work, are
men who have usually acquired a nation-wide reputation. Naturally
they are inclined to regard themselves as the senior law- THE
makers of the land, and to look upon most members of the SENATORIAL
lower House as neophytes who have a good deal to learn. PRIDE -
Even upon the President, as Woodrow Wilson once remarked, the

1 On this general question, see E. J. Eberling, Congressional Investigations (New York, 1 928),
M. E. Dimock, Congressional Investigating Committees (Baltimore, 1929), and George H. Haynes,
The Senate of the United States: Its History and Practice (new edition, 2 vols., Boston, 1938),
Chapter xv.

2 For a further discussion of conference committees see p. 333.

304 THE GOVERNMENT OF THE UNITED STATES

veteran members of the Senate look with "unmistakable condescension."
But if this is the case, it is not because the Constitution intended senators
to have more prestige than members of the House, but rather because
the Senate is a more compact body, better organized, with a longer term
of membership, and perhaps less amenable to the fluctuations of public
opinion. "Obedient to the law of political gravitation," as one writer has
remarked^ "it draws new particles of power whenever opportunity
affords.'^/

REFERENCES

The Senate's procedure and its special activities are described by Lindsay
Rogers, The American Senate (New York, 1926), Robert Luce, Legislative Procedure
(Boston, 1922), and in the Manual of the United States Senate. Special aspects of its
procedure are more fully discussed in A. C. McCown, The Congressional Confer-
ence Committee (New York, 1927), Clarence- G. Dill, How Congress Makes Laws
(revised edition, Washington, 1939), M. N. McGeary, The Development of Con-
gressional Investigative Power (New York, 1940), and Franklin L. Burdette,
Filibustering in the Senate (Princeton, 1940).

FOREIGN RELATIONS AND TREATIES. For the Senate's special powers in con-
nection with foreign relations, particularly treaties, the following may be con-
sulted: S. B. Crandall, Treaties, Their Making and Enforcement (2nd edition,
Washington, 1916), C. H. Butler, The Treaty Making Power of the United States
(2 vols , New York, 1902), Ralston Haydcn, The Senate and Treaties, 17891817
(New York, 1920), D. F. Fleming, The Treaty Veto of the American Senate (New
York, 1930), Kenneth Colegrove, The American Senate and World Peace (New York,
1 944)5 W. S. Holt, Treaties Defeated by the Senate (Baltimore, 1933), and Edward
S. Corwin, The Constitution and World Organization (Princeton, 1944). Pertinent
material may also be found in the books by Edward S. Corwin, John M.
Mathews, and Quincy Wright, which are listed at the close of Chapter XII.

IMPEACHMENTS. The Senate's function and procedure in connection with
impeachments are explained in Alexander Simpson, Jr., A Treatise on Federal
Impeachments (Philadelphia, 1916), Roger Foster, Commentaries on the Constitution
of the United States (Boston, 1895), pp. 505-632, and D. M. DeWitt, The Impeach-
ment and Trial of Andrew Johnson (New York, 1903).

APPOINTMENTS AND REMOVALS. On the Senate's power in relation to the con-
firmation of presidential appointments and removals, reference may be made
to the volume by Lindsay Rogers on The American Senate (previously cited) and
to Edward S. Corwin, The President's Removal Power under the Constitution (New
York, 1927).

See also the references at the close of the preceding chapter.

CHAPTER XIX

THE HOUSE OF REPRESENTATIVES: ITS
ORGANIZATION

The republican form of government is the highest form of government; but because
of this it requires the highest type of human nature, a type nowhere at present existing.
Herbert Spencer.

House of Representatives was intended to be a reformed and
popularized House of Commons: in other words, to serve as the direct
reflector of popular opinion in the nation's government. At
the outset it was the only branch of the national government "POPULAR
that drew its mandate directly from the people, hence the BRANCH" OF

TT r T ^ , , i i cc GOVERNMENT.

House oi Representatives became designated as the popu-
lar branch" of Congress^ But this difference has long since been swept
away. The senators are now chosen quite as directly, although not at
such frequent intervals, as are the members of the House.

CThe frarners of the Constitution took for granted that any body of
directly elected representatives would be too easily swayed by public
emotion. Reason would not always be its guide. It would THE EARLY
be temperamental in a large sense. Consequently these DISTRUST
founders of the national government were inclined to be dis- OF IT '
trustful of what one of them called a "House of Demagogues." On the
other hand, the establishment of a popular chamber in the new national
legislature was regarded by everyone as an absolute necessity of practical
politics.*) To create a federal government with no branch of it directly
responsible to the voters was out of the question. In all the colonies
popular assemblies had grown up, and all the states in 1 787 had provided
for at least one such body in their new legislatures. A Constitution without
provision for one directly elected chamber would never have had a
chance of being ratified. In view of the bitter protests which had been
raised against taxation without representation in Revolutionary days,

1 James Madison and Janqes Wilson, the most persuasive pair of delegates in the conven-
tion, argued that despite the dangers involved in popular representation no plan of free
government could hope to endure unless one branch of the legislature was made directly
accountable to the people, that is, to the limited electorate of that time.

3Q5

306 THE GOVERNMENT OF THE UNITED STATES

moreover, the claim of the people to direct control over the u taxing
power" was one which could not be denied.

(jhe Constitution, accordingly, provides that "the House of Repre-
sentatives shall be composed of members chosen every second year by

the people of the several states." In accordance with a com-

promise which had been agreed upoq, it was further
SENTATION stipulated: first, that the several states should be represented
IN THE according to their respective populations; and, second, that

in estimating this population, all persons other than free
white persons were to be counted on a three-fifths basis^in other words,
that negro slaves were to be counted at only 60 per cent of their numer-
ical strengthCThe first House of Representatives was to have sixty-five
members, distributed among the states in a way which was assumed to
be roughly proportional, but a census was to be taken forthwith, and a
redistribution on a more accurate basis arranged on the official figures.
Further provision was made that a similar redistricting should take place
after each decennial census, but with the limitation that the House
should never contain more than one member for every thirty thousand
population. Every state, however small its population, must nevertheless
be given at least one representative. Within these limits the size of the
House is left to the discretion of Congress itself.)

As to who should have the right to vote at congressional elections, the
framers of the Constitution did not venture to decide. There were, at

the time, wide differences among the states in the matter of

WHO VOTE rr i i i . i i

AT CON- suffrage requirements, and it was not deemed advisable to

GRESSIONAL impose upon any of them a provision which might be out of

ELECTIONS? , . , , . . , , . .. ,

accord with their own practice and thus establish two
different electorates within the same state. So the members of the con-
stitutional convention, being resourceful politicians, neatly evaded the
difficulty by passing the problem to the states, each one to decide for
itself. This was hardly a logical thing to do, for the suffrage is a funda-
mental factor in government and ought not to differ from place to place
in the same election; but logic gave way to practicalities in this as in
many other provisions of the national Constitution,
f Each state, accordingly, is given the right to determine who shall vote
at congressional elections, but subject to the restriction that the require-
EACH STATE nients must be the same as those for voting at elections to
DECIDES FOR "the most numerous branch" of its own legislature. Who-
ITSELF. ever j ias t k e rig^ to vote f or members of the state assembly

must therefore be given the right to vote for members of the national

THE HOUSE: ITS ORGANIZATION 307

House of Representatives. 1 Strictly speaking, there is no national suffrage
in the United States, as in other countries? Federal officers do not register
the voters in any state, or provide the polling places, or print the ballots,
or count them. State and local officials do it all. Representatives in
Congress are chosen by election machinery which the states provide, pay
for, and supervise The fifteenth and nineteenth amendments to the
federal Constitution do not, in a literal sense, confer the suffrage on
anybody; they merely provide that it must not be denied on certain
grounds.

The framers of the Constitution not only evaded the problem of a
uniform suffrage, but they sidestepped several other questions relating
to the organization of the House. They did not decide
whether the election in each state should be by congressional TERS RELAT-
districts or by the voters of the state at large. They did not ING T0

it t . , i i i , , it t , CONGRESS ON

even stipulate that elections should be by ballot, much less WHICH THE
by secret ballot, or that they should be held in all the states CONSTITUTION
on the same day. They merely left the "time, place, and
manner of holding elections" to be decided by the individual states, each
in its own way; but gave the national government a trump card to play,
if ever need should arise, by providing that "Congress may at any time
make or alter such regulations, except as to the places of choosing
senators." 2

The first House of Representatives, which met in 1 789, contained sixty-
five members which was one representative for every 30,000 people.
When the Constitution came before the states for ratifica- GROWTH OF
tion, there was some complaint that this quota of repre- THE HOUSE
scntation had been set too high. It seemed absurd to those IN SIZE '
critics that any congressman should expect to represent as many as
30,000 people. With the then-existing facilities for getting around and
making acquaintances, he could hardly hope to reach half that number.
Today the quota of representation is more than ten times as large; the
average congressman represents more than 350,000 people. At any rate,
the House soon began to grow like Jonah's gourd. Within thirty years it
more than trebled in size. Although this rapidity of growth did not con-
tinue, the membership increased after every census, except that of 1840,
during more than one hundred years. By 1911 it had reached 435. There

1 See p. 99.

2 Article II, Section 4. The reason for the exception in the last clause is that the senators
were to be chosen by the state legislatures at the state capitals, and it was not deemed wise
that Congress should have power to compel the legislatures to meet for this purpose at some
other place.

308 THE GOVERNMENT OF THE UNI1ED STATES

has been no enlargement since that time because of the general beliei
that the House had grown too large for the efficient handling of business.
Indeed, a statute of 1929 (which can, of course, be repealed) fixed the
size of the House permanently at that figure.

How are these seats apportioned among the states#-The Constitution

provides that they shall be distributed among the states upon the basis of

their respective populations as shown by the last decennial

THE APPOR- r r f J

TIONMENT OF census. 1 Every ten years, therefore, it is the duty of Congress
SEATS. to ma k e a reapportionment of seats. The methods of doing

this have varied. In the first half of the nineteenth century, the repre-
sentation of each state was determined by fixing a quota in advance,
dividing the state population by it, and except when a state was
awarded the constitutional minimum of one seat ignoring fractions. 2
In the latter half of the century, the process began by fixing the size of
the House, which invariably meant increasing it^)Then, to obtain the
quota, the population of the whole country was divided by the number
of seats^ At first glance this redistribution of seats appears to be an easy
problem of simple arithmetic.

For two reasons, however, the problem is not quite so easy as it looks.
In the first place, the Constitution requires that every state shall have at
A ^ r least one representative, even though its population is less

A PROBLEM A ^

IN ARITH- than the quota of representation. 1 Consequently, one mem-
METIC. k er j s ass ig nec i to each of the forty-eight states, and the

remaining seats (387) are left to be assigned to the states in proportion to
their respective populations. But here arises the second difficulty: when
the population of any state is divided by the quota of representation there
is always some population left over almost enough, in some cases, to
give an additional seat, and in others, not nearly enough. To put it in
another way, the dividing of 3ach state's population by the quota of
representation leaves a major fraction in some cases and a minor fraction
in others. What is to be done about these? The problem has been solved
(as indicated in the footnote below) by a plan whereby the quota o'f
representation is now fixed at such a figure that every state with more

1 Although the original Constitution stipulated that persons other than "free white per-
sons" should be counted on a three-fifths basis, this provision was eliminated by the fourteenth
amendment.

2 In 1842 an additional seat was assigned for a major fraction of the quota.

3 On one occasion by 50 seats.

4 There are now four states with only one representative Delaware, Nevada, Vermont,
and Wyoming, with populations ranging from 1 10,000 to 359,000; and nine states with only
two representatives, New Hampshire, having the smallest population (491,000), and Rhode
Island, the largest (713,000).

THE HOUSE: ITS ORGANIZATION S09

than half this quota gets an additional seat and there are exactly enough
seats to go around. 1

With its present membership of 435, the House is too large. Business is
impeded by its bulk. There should be a reduction to 400 or less. But such
a reduction, as a matter of practical politics, is difficult to
bring about. No state likes to have its allotment of congress- ^ Y E

t -^ SI/^E OF

men cut down. The congressmen from states which are THE HOUSE
likely to suffer can be counted upon to combine in oppo- Is HARD

' A L r TO REDUCE.

sition to any such proposal. The best that can be hoped for,
then, is to keep the House from growing largerNwen at that some states
lose seats after each decennial census, 2 for the mpidly growing regions of
the country become entitled to more, which means that other sections
must be content with less. After the census of 1920, it became evident
that an increase in the size of the House could not be avoided except by
reducing the representation from several states. These states put up a
stiff fight and succeeded in preventing any reapportionment at all, thus
forcing Congress into the evasion of an express constitutional mandate.
In connection with the census of 1930, a continuing reapportionment
law was passed. It provides that the size of the House shall be perma-
nently fixed at 435 members and directs the census bureau to furnish
Congress with tentative apportionments based on alternative methods.
Then, if Congress fails to select one of these alternatives, the method last
used (ten years earlier) shall be applied. This is intended to prevent a
repetition of what happened after the census of 1920: namely, the failure
of Congress to take any action whatever.

Congress allots representatives to states, not to districts. A state is given
one, two, three, twenty-five, forty-two seats whatever its THE CON-
allotment may turn out to be. Then the state legislature GRESSIONAL
(when the state has more than one representative) makes DIS1RIGTS -

1 The method of major fractions, used after the censuses of 1910 and 1930, works out this way:
the population of the several states is divided successively by i^, 2^, 3^, etc These numbers,
or quotients, are then set down in the form of a scries, the highest number first; the next high-
est, second, the next highest, third, and so on, down to the lower numbeis One seat is first
allotted to each of the foitv-eight states. Then the state having the number which is first or
highest on the list is allotted the forty-ninth congressman; the next highest is given the fiftieth,
the next, the fifty-first, and so on, until the seats are exhausted By using this method, each
state receives one representative for each full quota and an additional one for a major fraction
of the quota.

An alternative plan, known as the method of equal proportions, was used in the last appor-
tionment. Its only difference is that the population of the several states is divided successively
by v 7 ! X 2, Va X 3, V^ X 4, and so on, instead of by i, 2^, 3^, etc.

2 Nine, after the census of 1940, twenty-one, after the census of 1930, this exceptionally
large number being due to the fact that Congress failed to pass an apportionment act ten
years earlier.

310 THE GOVERNMENT OF THE UNITED STATES

the division into congressional districts7)The task is assigned in the first
instance to a committee of its own members, appointed for this purpose,
and the recommendations of this committee then come before the state
legislature to be acted upon. So far as practicable, an effort is usually
made to have the districts fairly equal in population and made up of
contiguous territory. 1 Likewise, an effort is made to respect local bound-
aries by placing an entire city or town in one congressional district, but
at times it becomes necessary to place one part of a municipality in one
congressional district, while the remaining part is placed in another. In
rural areas the aim is to put whole counties into the same district,
wherever it is feasible to do so. To accomplish all these things, and yet
have districts approximately equal in population, is sometimes a difficult
problem. It demands careful study and absolute fairness.

Too often, unhappily, it receives neither. State legislatures are partisan
bodies, and so are their committees. Because of their intense partisanship,
the attempt is frequently made to lay out the districts in such
TICE or* " wa y t ^ iat t ^ ie i nterests f ^e dominant political party will be
"GERRY- served. This practice of "gerrymandering" is very old; it

MANDER- too k j ts name from Governor Elbridge Gerry of Massa-

chusetts, who sanctioned one of the first flagrant cases of
partisan district-making in that state. 2 Thereby he set a fashion which
persisted for many years, and has not yet entirely disappeared. By adding
one town or county and taking off another, by shaping the district in
some distorted way, so that its nearest resemblance may be to a starfish
or a lizard, it is often possible to make the area yield a comfortable
majority for the candidate of the right political party. The hostile voters,
on the other hand, can be "hived," or massed, into a few districts which
are likely to go to the opposition party anyhow. 3 In a word, the art of
gerrymandering is to spread the majorities of your own party over as

1 Because the apportionment act of 1929 omits such restrictions, the Supreme Court has
decided that federal laws no longer require districts to be composed of compact and contiguous
territory containing as nearly as practicable an equal number of inhabitants.

2 Mr. John Fiske has given the following account of the incident: "In 1812, when Elbridge
Gerry was governor of Massachusetts, the Republican legislature redistributed the districts
in such wise that the shapes of the towns forming a single district in Essex County gave to the
district a somewhat dragon-like contour. This was indicated upon a map of Massachusetts
which Benjamin Russell, an ardent Federalist and editor of the 'Centinel? hung up over his
desk in his office. The celebrated painter, Gilbert Stuart, coming into the office one day and
observing the uncouth figure, added with his pencil a head, wings, and claws, and exclaimed
'That will do for a salamander!' 'Better say a Gerrymander 1 ' growled the editor; and the
outlandish name, thus duly coined, soon came into general currency."

8 One district in Illinois was long known as the "saddlebag" ^congressional district because
it comprised two groups of counties at opposite ends of the state with a thin strip connecting
them. On the history of gerrymandering in general, see E. C. Griffith, The Rise and Development
of the Gerrymander (Chicago, 1907).

THE HOUSE: ITS ORGANIZATION 311

many districts as possible and concentrate the strength of your opponents
into as few districts as you can. The gerrymander has been a pernicious
factor in American politics, and popular sentiment has been slowly
developing against it. Today it often proves a boomerang to the party
that attempts it.

Sometimes a state legislature does not complete its redistricting before
a congressional election comes. In that case, one of two things will
happen. If the representatives of the state have been in- SURPLUS
creased, the old districts will choose one congressman each, MEMBERS AT
while the additional congressmen will be chosen at large. LARGE -
But if the representation of the state has been reduced, all the remaining
seats must be filled on a state-wide basis, the old districts being disre-
garded until the new ones can be established. This explains the reason for
occasional references to a congressman at large. 1

(Candidates for election to the House are nominated as the laws of each
state may provide. Two states still retain the plan of nomination by
conventions of party delegates; the rest have now provided
for direct primaries^The change, it was thought, would
bring forth candidates of a better type, but it has apparently
resulted in no perceptible improvement. The quality of the House mem-
bership has not visibly changed since the voters took into their own hands
the function of nominating candidates. As primary campaigns are
expensive, a great advantage goes, under the direct primary system, to
the candidate who commands an ample campaign fund.

^Congressional elections are held throughout the country on the same
day: namely, on the Tuesday following the first Monday of November in
every alternate year. 3 The voting must be by secret ballot,

i , . i 111 I- i ELECTIONS. ,

but this does not preclude the use of voting machines.
Candidates for other offices, state or national, are usually chosen at the
same election and on the same ballot, the j$o-called Australian type of
ballot being the one which is generally used^ Almost all the states make
provision for absent voting.fBy this arrangement those voters who are
absent from their homes on election day are allowed to vote by mail or,
in some cases, to mark their ballots before leaving

1 In the Seventy-eighth Congress, elected in 1942, examples were furnished by Connecticut,
Florida, Illinois, New York, Pennsylvania, and three of the nine states having only two
representatives.

1 For an explanation see Chapter XXXVIII.

3 A few states which could not accommodate themselves to this arrangement without
amending their state constitutions were exempted from the general rule. Maine still holds
her congressional elections in September and thus attracts a good deal of attention as affording
an indication of what is likely to happen in the rest of the country at the subsequent November
balloting. Hence the saying, "As Maine goes, so goes the Union." 4 See p. 1 1C

312 THE GOVERNMENT OF THE UNITED STATES

Early in 1944 discussion arose over the need for federal legislation
permitting members of the armed forces and auxiliary services stationed
^OTERS IN overseas to vote in the prospective general election. Much
THE ARMED of the discussion hinged upon the question of whether or not
FORGES. Congress could authorize a federal ballot. In a compromise

measure, it was provided that absent servicemen, and others engaged in
war work overseas, might vote for President and congressmen on a federal
"short" ballot, if the state where they normally voted had no absentee
voting law or failed to transmit a state ballot on request, provided tjie
governor of the state certified that state authorities could count the
federal ballot. Many thousands of servicemen and others overseas voted
under the provisions of this measure.

^JVhen any dispute arises in connection with the validity of an election,

the House of Representatives is the deciding authority, having the sole

power to judere "the elections, returns and qualifications of

CONTESTED f , ,, r i , r *

ELECTIONS ^s own members. The procedure, in such cases, is for the
AND defeated candidate to serve notice upon the one who has

RECOUNTS. , , , . r i i i r i

been reported as elected, setting iorth the grounds of his
protest. To this the latter makes a formal reply, and the papers are trans-
mitted to the clerk of the House. The matter is thereupon referred to
the standing committee on House administration, and this committee
hears the evidence in the case. When this is concluded, the committee
reports to the House, where its recommendation is usually accepted?
Incidentally, it may be mentioned that disputed congressional elections'
are not common in the United States. 1 It is accounted good sports-
manship to accept the results of the balloting as announced when
the polls are closed. When the successful candidate's lead is very small,
however, a recount of the votes is sometimes asked for and granted under
such conditions as the election laws provide.

^The qualifications of a representative in Congress, as set forth in the
Constitution, are merely that he shall be a citizen of seven years' stand-
ing, at least twenty-five years of age, an inhabitant of the
TIONS OF state from which he is elected, and not a holder of any

REPRESENTA- office under the authority of the United States.^Even army

TIVES s"^

and navy officers are regarded as coming within the scope
of this prohibition as to officeholding. It will be observed that nothing
is said about the candidate's being a resident of the congressional district
from which he seeks election. It is legally permissible for a congressional

1 On the average about half a dozen for each Congress. V. M. Barnett, Jr., "Contested
Congressional Elections in Recent Years," Political Science Quarterly Vol. LIV (1939), pp. 187-
215-

THE HOUSE: ITS ORGANIZATION 313

district to elect a nonresident, and on some occasions *his has happened:
but there is a natural prejudice against the outsider, or "carpetbagger,"
who enters the field against "a local man," since the latter, presumably,
"knows the needs of the district better." Local pride takes offense at the
idea that a scarcity of home-grown material requires any district to go
outside for a congressman.

(Jhis insistence on a local man, who will know the "needs of his
district," is something that began in the days of the spoils system. It is
closely related to the popular notion that all congressional

WHY LOCAIj

districts, being created free and equal, should have their CANDIDATES
rightful quota of spoils and patronagtf) Every congressional ARE FAVORED

, . . , . . , ^J , . IN AMERICA.

district desires to participate in the annual appropriations
for federal buildings, or for the improvement of rivers, harbors, and
roads. It wants to acquire or to keep, a navy yard, aviation field, power
project, training camp any one or more of the many things which are
in the discretion of the national government to give. Its aspirations along
these lines can best be promoted, the voters believe, by a go-getter type
of local man who is working for his own district first, last, and all the
time.

This prompts a query as to the proper function of a representative,
whether in Congress, in a state legislature, or in any other elective body.
Is it his duty to act in accordance with his own conception

THF I OGIGAL

of the general welfare, regardless of whether this may serve FUNCTION OF
the interests of his own particular district? Or is it the sole AREPRE-

r r cc -n i i SENTATIVE.

function ol a representative to represent, in other words
to discover what his district wants and to direct his energies accordingly?
These are questions which every representative must face at times. A
legislator may be personally opposed to compulsory military training in
time of peace, let us say; but if a majority of the voters in his own district
are known to be strongly in favor of such measures, how should he vote
upon the question? Should he stultify his own convictions, or should he
disregard the wishes of those who sent him to be their representative?
Is it conscience or constituents that ought to determine his vote? Con-
gressmen are often confronted by this dilemma. Students of political
philosophy, too, have wrestled with it, but have reached no agreement of
opinion.

It may not be inappropriate to quote in this connection the dictum of
Edmund Burke in his address to the voters of Bristol. He was defending
certain unpopular votes which, as their representative, he

i j -ITT' r /^ CCT '^'J THE DICTUM

had given in the House ol Commons. 1 maintained your OF BURKE>
interests against your opinions," he declared. "A repre-

314 THE GOVERNMENT OF THE UNITED STATES

sentative worthy of you ought to be a person of stability. I am to look
indeed to your opinions; but to such opinions as you and I must have five
years hence. I am not to look to the flash of the day.'(jThe American leg-
islator does not talk in that strain. His job, as he usually conceives it, is
to find out what the people want him to do and do it quickly. 1 He keeps
his ear close to the ground so close, as someone has said, that he "gets
it full of grasshoppers."^

The brevity of the congressman's term is partly responsible for this.

He is chosen for two years only. He does not have time to make a broad

record by which he may be fairly iudged. His home folks

CONGRES- . . ....

SIGNAL are likely to be guided, in their estimate of his work, by the

TERMS ARE wa y h e votes in Congress on the few outstanding measures

TOO SHORT. , . , - A j v 11 x i r r

which happen to come up during his all-too-briet span of
service. So he cannot afford to take the chance of antagonizing them on
any one measure, even though he would be able to satisfy them on a
hundred others, if his term were long enough. His constituents will also
judge him by what he gets, or fails to get, in the way of governmental
benefactions for his own district. He is expected to fetch home a new
post-office building, or an appropriation for dredging some local harbor,
or a mail airport, or something else that will at least serve to indicate his
alertness at Washington. He must also get places on the public pay roll
for some of his prominent supporters. If he comes back empty-handed,
he gives his opponents a talking point in the next campaign. The test of a
congressman's success is his ability to keep somebody else from being his
successor in Congress.

Fewer than one fourth of the members, As a rule, are first-termers. 2
Even these have usually had political experience as members of state
PERSONNEL legislatures or city councils. It is only on rare occasions that
OF THE anyone is elected to either branch of Congress without hav-

HOUSE. j n g p rev i ous iy served in some other public office. A large

fraction of the membership is composed of lawyers, usually about sixty
per cent. The percentage of lawyers in both Houses has always been
considerable and has sometimes been the subject of complaint. 3 The

1 A congressman once admitted that it was his custom to put in one pile all the letters and
telegrams which came from his district in favor of an important measure. Then, in another
pile, he put all the telegrams and letters opposing it. When the time came for voting on the
measure he took a glance at the two piles and, unless he found some good reason to the con-
trary, voted with whichever was the higher.

2 In the Seventieth and Seventy-first Congresses, indeed, the new members constituted only
twelve and fourteen per cent respectively. Formerly the situation was different. According to
James G. Elaine, who served in ten successive Congresses down to 1875, tne Y always consti-
tuted at least a majority in his day.

* Thomas Jefferson, for example, remarked in his Autobiography: "If the present Congress
errs in too much talking, how can it be otherwise in a body to which the people send one hun-

THE HOUSE: ITS ORGANIZATION 315

remainder includes persons of every conceivable occupation physi-
cians, dentists, teachers, journalists, merchants, farmers, locomotive
engineers, steel workers, and (last but not least) professional politicians.
The average age is about fifty years. A considerable majority of the
members are college graduates or graduates of professional schools,
although such graduates form only about two per cent of the country's
entire population. If being a college graduate is a handicap in politics,
as some practical politicians have asserted, the figures do not seem to
bear it out.

(jQie House of Representatives holds one session a year, so that there are
two sessions between elections. By the terms of the original Constitution,
it was provided that the regular annual session must begin m SESSIONS .
on the first Monday in December, unless Congress should THE OLD
choose to appoint a different day, which it never did. At any PLAN *
time during the previous nine months, the President could, of course,
call a special session. Otherwise, the first session of a new House did not
begin until thirteen months after its members had been elected. They
were chosen in November to take office the following March, and then
assembled in December. Meanwhile, the members of the old House met
in December, immediately following the election, and held what came
to be known as a " lame-duck" session until their terms expired in March. 1
The nickname of this session was inspired by the fact that it always con-
tained a number of congressmen who had been defeated at the November
elections^

Perhaps this old arrangement can be made clearer by an example
In November, 1930, a new House of Representatives was elected to take
office on March 4, 1931. But a session of the House, under
the terms of the Constitution, was called for the first Mon- TRATION "
day in December, 1930. Newly elected members could not
attend this session since their terms of office did not begin until the follow-
ing March. So the old members returned to Washington and legislated
for three months. Then, in December, 1 93 1 , the members who had been
elected thirteen months earlier met for a long session which lasted until
the midsummer of 1932.

Under this arrangement, moreover, the two sessions were always of
unequal length. The session which began a month after a congressional
election had to be a short one because the terms of members would

dred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by
the hour? That one hundred and fifty lawyers should do business together, ought not to be
expected."

1 It may be noted that the outgoing House, in its "lame-duck" session, elected the President
if no candidate had won a majority of votes in the electoral college.

316 THE GOVERNMENT OF THE UNITED STATES

officially expire in the following March; but the other session could be
continued for a whole year if need be. 1 There were obvious disadvantages
OBJECTIONS to *kk pl an > an d sometimes it was found necessary to call
TO THE a special session immediately after the inauguration of a new

OLD PLAN. President because there were problems of legislation which
could not wait until the next December. This took place, for example,
in March, 1933, when President Franklin Roosevelt assumed office in the
throes of a banking crisis. At once he called Congress together for a brief
special session to pass emergency banking laws.

{In order to correct this situation, to abolish "lame-duck" sessions, and
to make all congressional sessions of potentially the same length, the

twentieth amendment was added to the Constitution in
TWENTIETH T 933' ^ provides that Congress shall assemble each year on
AMENDMENT the third of January, unless it shall by law appoint a dif-
AND THE ferent date. Provision is also made that the terms of senators

and representatives shall begin on January 3, and those of
the President and the Vice-President on January 20. Under this new
arrangement the members of the House of Representatives, who arc
elected in November, take office during the first week of January and
immediately begin a first session which can continue for a full year if
so desired; and the second session can be of the same length. 2 Lame-duck
sessions, as well as the alternation of long and short sessions, have been
reduced to a minimum.^

VThe debates in the House of Representatives are not of a high order.
Nor are they so good as they used to be^ Why should this be so? For

one thing the membership has gradually increased to 435.

The actua l difficulty does not lie with the size of the House
RATE IN THE (the British House of Commons once had 707 members and
HOUSE. now k as 615), but with the size of the quorum. {The Const i-

AFFECTED BY tution prescribes that a majority shall constitute a quorum
THE QUORUM to do business a majority, according to the precedents
MENT IRE " f ^e House, "of those members chosen, sworn, and living,

whose membership has not been terminated by resignation
or action of the House. '^JThe requirement seems unduly exacting
when compared with practice in Great Britain (40 members), Canada

1 Each new Congress, wien it assembles, is designated in all its official acts by a series
number The one which convened in 1789 was known as the First Congress, the one now in
existence (1949) is the Eighty-first Congress. This explains the reference in ollicial docu-
ments to ''Fifty-fourth Congress, first session," or "Sixty-eighth Congress, second session," etc.

2 Service in both houses of Congress is nov\ virtually a full-time job. Compensation of
senators and representatives is $12,500 per annum and an "expense" allowance of $2,500.
In addition, legislators are eligible for pensions.

THE HOUSE: ITS ORGANIZATION 317

(20 members), or Australia (a third of the members); and, by way of
escape, a new rule of 1890 reduced the quorum in the committee of the
whole house, to which the constitutional requirement does not apply,
from a majority to loo.lffn order to make a quorum in the House,
members may attend unwillingly or under compulsion. They take little
or no interest in the proceedings and often drown the voice of a speaker
in a hum of conversation. He, in turn, far from being stimulated by a
sympathetic audience, may have trouble enough in reaching the ear of
the official stenographer. That a smaller quorum would lead to an im-
provement in debate is suggested by experience in the committee of the
whole house and in foreign legislative bodies/

For half a century before Thomas B. Reed became Speaker, the
quorum, as fixed by the Constitution, opened the way to serious, if only
occasional, abuses. When the two parties were of nearly equal strength,
it was impossible because of absences for one alone to furnish a
quorum. The minority could then prevent the transaction of business by
refusing to respond during a roll call. Speaker Reed stopped that prac-
tice. When the Fifty-first Congress met, the Republicans had the quite
slender majority of eight in a House of more than 330 members. They
proceeded to unseat nine Democrats. When the first disputed election
case was called up, the minority first demanded a roll call, then refused
to vote, and finally raised the point of "no quorum." Thereupon, Reed
directed the clerk of the House to record the obstructionists. 2 Upon
appeal the House sustained the Speaker's decision and shortly afterwards
embodied it in the rules. Indeed, the precedents of the British House of
Commons and of American state legislatures gave overwhelming support

1 Under the Third Republic, the French Chamber of Deputies fixed the quorum at a
majority of the membership, vacancies not being deducted. The difficulty of maintaining
so Idige an attendance is shown by this rule that, if a vote failed for want of a quorum, the
>ame question could be brought forward at the next sitting and decided irrespective of the
number present For the purpose of technical compliance, the Chamber sometimes adjourned
for fifteen minutes and then began a new sitting.

2 Almost unparalleled disorder followed. The Democrats, filled with impotent rage, k< ex-
haustcd the vocabulary of vituperation in their attacks upon the Chair. 'Tyrant,* 'Czar,'
'despot,' were among the milder oratorical projectiles hurled at the Speaker. Reed sat serene
and confident. The occasional protest of an individual member could at times be heard above
the din. C I deny the right of the Speaker to count me as present,' shouted McCreary of Ken-
tucky. With that unfailing touch of humor which so often turns wrath into mere protest,
Reed replied, 'The Chair simply stated the fact that the gentleman from Kentucky appears
to be present; does he deny it?' An 'arbitiaiy, corrupt, and revolutionary action' was the de-
nunciatory comment of Breckenridge of Kentucky The folly of verbal protest being apparent,
. . . members dodged under their desks, behind screens, bolted for the doors. In the mad rush
for the exits, members lost alj sense of official dignity and some of them incurred physical
injuries. Upon the order of the Chair, the doors were bolted; and with each test of the quorum
count, the defiant minority spent their anger in madly raving about the chamber pictures
of furious inefficiency." H. B. Fuller, The Speaker* of the House (Boston, 1909), pp 220-221.

318 THE GOVERNMENT OF THE UNITED STATES

to his position. And why does the Constitution say that a minority may
be authorized to compel the attendance of absent members, if their
attendance cannot be made effective? The old doctrine of the "disappear-
ing quorum" of physical presence and constructive absence, was a
procedural absurdity.

rilie character of the debates is also affected by the great size and bad
acoustics of the chamber in which the sessions are held. Only a leather-
lunged orator can make himself heard in every part of it.
NOT*WELL "^ does not always happen that a powerful mind and a
ADAPTED TO powerful voice are combined in the same individual, and
A^^VT^ often the member with a real message cannot be heard,

ARGUMENT.

while the member with nothing to say has no difficulty in
filling the chamber with sound. "^ From its galleries the House does not
strike the spectator as an impressive body. There is too much inattention,
interrupting of speakers, and general clatter. A generation ago the situa-
tion was much worse, 2 but the auditorium has now been reduced in size
and otherwise improved. The acoustic qualities remain, nevertheless,
the worst of any great legislative chamber in the world.
^To some extent, again, the dearth of good speeches is due to the strict
limitation upon the time during which any speaker may keep the floor,
and something may be attributed to the custom of allowing
EASIER TO a member to have his speech printed without delivering it
PRINT at a li N Why should congressmen make carefully prepared

SPEECHES 7^ i i i i i i- i i

THAN TO speeches, or why should others listen to them, when it is so

DELIVER eas y to print what anyone has to say, and then place it

(at the public expense) in the hands of whoever desires to
read it? Members, therefore, ask for "leave to print," or for "leave to
extend their remarks in the Record" and this request, while it requires
unanimous consent, is almost always granted. Copies of such speeches,
often written for the congressman by his versatile secretary, are printed
without ever having been delivered. Then thousands of copies are struck
off by the government printing office and sent through the mails, free of

1 S. W. McCall, The Business of Congress (New York, 191 1), pp. 108-109.

2 Before the construction of the first House office building a second was provided later,
the cost of both marble structures aggregating about $13,000,000 members used their
individual seats and desks as a workshop. They paid little attention to debates, transacted
routine business, wrote letters and speeches, slammed desk lids, clapped their hands to sum-
mon pages. "All this," said McCall (p. 109) "serves to increase the disorder and imparts to
the hall the appearance of a vast business office, with its multitude of clerks, rather than of a
legislative chamber of a great nation.*' Such a shocking condition could not last indefinitely.
The removal of the desks occurred when the first office building had been finished and when,
after the census of 1910, the addition of forty-four members required a more compact arrange-
ment of seats. A luxurious office building for senators, connected with the capitol by a subway
and monorail electric car, cost (with later enlargements) over $7,000,000.

THE HOUSE: ITS ORGANIZATION 319

postage, to voters in the districts from which the congressmen come.
The "franking" privilege, or right to make free use of the mails for all
official business, has been grossly abused in this way. Magazine articles
and even whole books have sometimes been reprinted and distributed
by congressmen at the public expense. 1

All these things contribute to the absence of much genuine oratorical
effort in the House, but they do not account for it entirely. The stu-
pendous mass of routine business which comes before the
House day after day is the greatest of all barriers to elo- PRESSURE O F
quence. The House is too busy to hear orations or even read ROUTINE
them. The mechanical work of winnowing the chaff from LEAVES 8
the wheat among the grist of bills and putting the residuum LITTLE TIME
through their various stages takes almost every moment FOR SPEEGH "

~ & 7 MAKING.

of its time. At its two sessions the House receives from ten to
fifteen thousand bills and joint resolutions. Of this total less than fifteen
per cent are reported from committees and placed on the appropriate
calendar; less than six per cent enacted into law. Speaker Reed once
remarked that the House was a " deliberative but not a deliberate body."
He was not intending to be facetious but merely to point out that there is
a difference between having the function of deliberation and having
the time in which to perform it. If the House held itself to a deliberate
consideration of every measure, it would never get its work done by
sitting twenty-four hours every day in the year. Accordingly, it is essential
to place strict time limits on the speeches of those members who have
failed to equip themselves with terminal facilities.

<{So the House of Representatives is not so much a lawmaking as a law-
killing body. There is a large amount of imperative busijiess (voting of
appropriations, particularly) which must be given the right
of way .^ And no one can wax oratorical over an item for

AND PRAO

putting a wing on the post office at Keokuk, or new desks in TICAL
the Indian school at Big Creek, or fathometers on the vessels ^^ roERA "
of the iceberg patrol, or the other minutiae of a segregated
budget. fience only matters of uncommon interest and importance
become the inspiration of a real debate on the floor of the House itself/
Visitors go to the gallery, sit there an hour, and usually come away
disappointed. They tell you that anyone can hear better speeches, with
better attention paid to them, at Rotary Club luncheons or college foot-
ball rallies. Emerson once wrote, after a visit to England many years

1 In deference to public criticism, congressmen now usually pay for their reprints and
emblazon boldly on the covers the words "Not printed at the public expense." But the free
mailing privilege is still generally used.

320 THE GOVERNMENT OF THE UNITED STATES

ago, that "a kind of pride in bad public speaking is noted in the House
of Commons, as if the members were willing to show that they did not
live by their tongues." Today this might be written of the House of
Representatives, although it has ceased to be true of the House of
Commons.

REFERENCES

D. S. Alexander's History and Procedure of the House of Representatives (Boston,
1916) contains the best short sketch of the evolution of the House. W. F. Wil-
loughby, Principles of Legislative Organization and Administration (Washington,
1934) contains valuable discussion and an excellent bibliography. Other useful
books are Robert Luce, Congress: An Explanation (Cambridge, Mass., 1926), the
same author's Legislative Assemblies (Boston, 1924), G. R. Brown, The Leadership
of Congress (Indianapolis, 1922), P. D. Hasbrouck, Party Government in the House of
Representatives (New York, 1927), E. C. Griffith, The Rise and Development of the
Gerrymander (Chicago, 1907), and L. F. Schmeckebier, Congressional Apportion-
ment (Washington, 1941). Mention should likewise be made of the brilliant
study first published many years ago by Woodrow Wilson entitled Congressional
Government (new edition by R. S. Baker, Boston, 1925).

The Congressional Directory, giving information about the membership of
Congress, is published for each session by the government printing office.

See also the references listed at the close of Chapter XX.

CHAPTER XX
THE HOUSE OF REPRESENTATIVES AT WORK

Liberty, to be enjoyed, must be limited by law, for where law ends tyranny begins,
and the tyranny is the same, be it tyranny of a monarch, or of a multitude nay, the
tyranny of the multitude may be the greater, since it is multiplied tyranny. Edmund
Burke.

Both Houses of Congress meet in the Capitol, a monumental building
of marble and sandstone surmounted by a great dome, which is situated
at one end of Pennsylvania Avenue, about a mile away from WHERE THE
the White House. The hall of the House of Representatives HOUSE
is in the south wing of the Capitol. It is arranged in audi- MEETS -
torium fashion, with the seats in a semicircle facing the Speaker's plat-
form. Until 1913, every member had his own seat, assigned to him by lot
at the beginning of the session. But, with the removal of desks from the
House and the provision of offices in an adjacent building, the practice
changed. Members now take any vacant places that suit their fancy.
They move around a great deal and carry on conversation even when a
debate is proceeding. It is only when the buzz becomes too audible that
the Speaker bangs his ebony gavel on the marble slab in front of him.

vWhen a newly elected House assembles, its first duty is to organize.
The roll is called to determine the presence of a quorum, and during this
first roll call the clerk of the last House presides. The oath HOW THE
of office is then administered to the members. If the validity HOUSE
of any member's claim to a seat is questioned, he does not ORGANIZES -
take the oath until after the House has been organized and the matter
decided on its merits. Then the election of a Speaker is in order. The
House also chooses its other officers, including the chaplain, sergeant-at-
arms, clerk, and doorkeepers. The rules, usually those of the preceding
Congress, are provisionally adopted to stand until altered ; and the House
is then ready to proceed with the business of legislation. At this point the
House joins the Senate -in sending a committee to notify the President oi
their readiness to receive any communication that he may desire to

make. N

J 321

322 THE GOVERNMENT OF THE UNITED STATES

LThe House of Representatives has full power over its own rules of
procedure^ The first House, in 1789, adopted a set of rules based largely
upon those which had been used in the congress of the
confederation. These, again, had been modeled on the rules
of the colonial assemblies, which harked back to the pro-
cedure of the English House of Commons. Each succeeding House since
1 789 has readopted these original rules with various changes from time
to time. On a few occasions there has been some revision, but many of
the provisions which were adopted in 1789 still remain unaltered. The
rules of Congress, therefore, are not the work of any one man. They are
an evolution, the growth of many centuries of legislative experience.
Some of them, such as, for example, the provision that a bill shall be
given three readings, go back to mediaeval days in English parliamentary
history. In 1837 the House adopted a provision, which is still in force,
that it should be guided by Thomas Jefferson's famous Manual in all
matters not covered by its own rules and not inconsistent therewith, but
this compendium is now rarely referred to. 1 The House has developed
its own long series of rulings and precedents which cover almost every
contingency that can possibly arise.

Much dissatisfaction has been expressed from time to time with the
existing rules of the House. Complaint is made that they are needlessly
THEIR COM- complicated and place too much power in the hands of the
PLICATED House "machine," which is made up of the majority leaders.
CHARACTER. j t j s tme t k at t k c ru j es anc [ precedents are numerous and

complicated; but the work of the House is complex, and the rules must
adapt themselves to this circumstance. It is also true that the rules give an
advantage to the majority leaders, but is that not in accordance with a
sound theory of lawmaking? If we are to have legislation by majorities,
is it unreasonable to provide the majority leaders with the means of
making this principle effective?

/Mi rules of legislative procedure have two purposes, and only two:
the first is to expedite business; the second is to ensure that business shall
not be rushed through without giving the minority an
opportunity to express its dissent. Obviously it is difficult
to frame rules which will serve both these purposes equally
well. Without some limitations on the freedom of debate, a small minor-
ity could delay business unduly and thus defeat the purpose of representa-
tive government. That is why the House rules, for more than a century

1 When Jefferson was Vice-President (1797-1801), he prepared this compilation of parlia-
mentary procedure to assist him in his duties as presiding officer of the Senate. It vas based
largely on English practice.

THE HOUSE OF REPRESENTATIVES AT WORK 323

and a quarter, have permitted debates to be brought to a close by
"moving the previous question." If such a motion is supported by a
majority, the question which is being debated must then be voted on by
the House without further dela^\Likewise, the rule which permits the
presiding officer to reject any motion which he regards as dilatory owes
its origin to the same problem of getting business done without needless
delays. The Speaker, by the way, though assumed to carry a knowledge
of all the rules and precedents in his head, does not have any such
miraculous gift of memory. Such an aptitude, if he possessed it, would be
in truth phenomenal, for the House precedents in printed form occupy
no fewer than eight large volumes. 1 So the Speaker keeps at his right
hand an assistant known as the parliamentary clerk, or " parliamenta-
rian," whose sole duty is to become thoroughly conversant with this
formidable mass of material and advise the chair whenever difficult
questions of procedure arise.

THE SPEAKER OF THE HOUSE

jhe Speaker, who presides over sessions of the House, is its central
figure. His office is both ancient and honorableTJIn the English House of
Commons the office of Speaker originated long before
America was discovered. The Speaker was dominated by
the crown during the strong monarchy of the Tudors; but in
the seventeenth century, as civil war approached, the office threw off this
dependence and became an instrument of the Commons. On one occa-
sion well known to students of English history, Charles I strode into the
House with a body of soldiers and demanded that the Speaker point out
to him five of its members whom he intended to arrest. But the Speaker,
at considerable risk to himself, replied that he had "neither eyes to see
nor tongue to speak save only as this House doth command." The king,
finding himself balked in his quest, withdrew in high dudgeon from the
chamber. fjhe speakership was naturally transplanted to the colonial
assemblies in America, and here also its tradition continued to hold
good. Accordingly, a provision was written into the Constitution of the
United States that "the House of Representatives shall choose their
Speaker.^

But the office of Speaker in America presently came to differ from that
which had so long existed in the land of its origin. In the House of Com-

1 These precedents are brought together in Asher C. Hinds, Precedents of the House of Repre-
sentatives of the United States (5 yols., Washington, 1907), and Clarence Cannon (Vols. VI-VIII,
Washington, 1935). One might mention here Henry H. Gilfrey's Senate Precedents (Washington,
1909).

324 THE GOVERNMENT OF THE UNITED STATES

mons the Speaker has been gradually stripped of partisanship, debarred
by custom from engaging in debate or displaying favorit-
ism to one side or the other. In time he became an abso-

OF THE lute neutral in the discharge of his functions, never giving

' members of his own party the slightest preference or allow-
ing himself to be drawn into any controversial discussion.
When required to give a casting vote, he does it by rule, and not accord-
ing to any preference of his own^Whether the makers of the
Constitution, when they gave the House of Representatives
the right to choose its own Speaker^ had in mind something
of this sort, we do not know.^Fn any event, they placed no restrictions
upon the office, but left it to develop its own traditions. And it was no*
very long before the Speaker of the House began not only to be a strong
partisan but to gather power into his own hands. Throughout the nine-
teenth century he gradually gained a place of influence in the majority
party and eventually became the most powerful figure in national
administration, next to the President himself.^}

Why and how did this development of the Speaker's authority take
place? Well, to begin with, it arose out of the fact that the Constitution
provided the House with no official leadership. Apparently
the statesmen of I 7 8 7 took it for granted that the House
THE would lead itself. At any rate, they ^departed from long-

SPEAKERS standing British practice by prohibiting the heads of the
various executive departments from becoming members of
Congress. In their desire to establish a system of checks and balances,
they forced the executive and legislative branches of the government
apart, leaving both Houses of Congress to work out their own plans for
leadership as the need might arise.

This lack of official leadership was not seriously felt by the House at

the outset, because it was a relatively small body and did not have a great

deal to do. But, as the population of the country increased,

THE NEED . ... ... .

FOR LEGIS- so did its membership. With this expansion in size, and with
LATIVE the even more rapid growth of legislative business, the need

LEADERSHIP. r . .. . . , , , A71 ,

oi a guiding hand became more urgent. What more natural,
therefore, than the gravitation of leadership into the hands of the Speaker
the only officer chosen by the House from its own membership? That,
at any rate, is what happened. Beginning with Henry Clay, the Speaker
gradually became the recognized leader of the majority party, and hence
of the House as a whole. He became the man on whom the majority

1 M. P. Follett, The Speaker of the House of Representatives (New York, 1904).

THE HOUSE OF REPRESENTATIVES AT WORK 325

depended for getting its measures safely through the maze of rules.
More and more authority was absorbed into his hands until he became a
virtual dictator of legislation. From time to time there were vigorous
protests against this concentration of powers in the chair, but not until
1910-191 1 was the process brought to an end, and the authority of the
Speaker substantially curtailed.

Before explaining the Speaker's powers, past and present, a word
should be said concerning the method whereby he is choscn.^Tn theory,
the choice is always made by the House itself at the begin- TT ^ T r ,

' ' i HOW THE

ning of each Congress, that is, every second yeai^Jn prac- SPEAKER
tice, however, it is always agreed upon, before the House IS CHOSEN -
meets, by a caucus composed of members of the majority party. If the
same political party controls the House, and the Speaker in the last
Congress comes back for another term, it is customary to reelect him. To
be chosen Speaker is a high honor, one which goes only to a man of
considerable experience in Congress and of undoubted prominence in
his party. If a change takes place in the relative strength of the parties
as the result of an election, the next Speaker is likely to be the man who
served as floor leader of his party when it was in the minority. In either
case, it is the majority caucus that makes the choice. The House simply
ratifies it^

((At the outset the rules and usages of the House merely authorized the
Speaker to preserve order, to sign bills and documents, and to put
questions to a vote. As a regular member of the House, he
has always had the right to vote on all questions, not merely
in ease of a tie. The regulations of the House, likewise, have
permitted him to call on any other member to take the i- TO PRE-
the chair temporarily. But many other prerogatives grew RECOGNIZE
out of these. As the House became larger, and debates grew
more partisan, the Speaker's power to "recognize" members developed
in importance. With limitations upon the time available for the dis-
cussion of any subject, and several members desiring to be heard, the
Speaker found himself able at times to direct the course of debate in
favor of his friends. For no member can address the House without first
obtaining the Speaker's recognition. When two members rise to be
recognized, the Speaker keeps his eyes under perfect control; under some
circumstances he has entire discretion to see one congressman and not
the other?)

But this power of recognition has less importance than is sometimes
attributed to it. Its scope has been gradually reduced by the rules and

326 THE GOVERNMENT OF THE UNITED STATES

precedents of the House. 1 One illustration may suffice: On Calendar
Wednesday, when the name of a particular committee has been reached.,

its chairman calls up a bill. He is recognized automatically
RECOGNITION f r one hour. During that hour he may yield time to sup-
NOW OF porters and opponents of the bill, and, before losing the

LITTLE IM- fl oor) move the previous question. On the other hand,

if the bill is controversial and needs more thorough dis-
cussion, the committee chairman and the ranking minority member of
the committee, with the approval of the House, may assign a period of
less than two hours for general debate. Each controls half the period,
yielding small portions of it to various representatives. In such cases the
Speaker has little or no discretion in recognizing one member instead of
another. The situation is much the same when privileged committees
exercise their right to report at any time, or when the rules committee
brings in a special order.

Even in older days the power of the Speaker to use his own judgment
in recognizing members had something to be said for it. Before the setting

up of the "consent calendar" in IQOQ, members of the House

WHY REPRE

SENTATTVES frequently tried to secure the passage of pet bills, bills
CURTAILED designed to improve their chances of reelection, by unani-
mous consent; that is, without scrutiny and debate. They
relied upon the good nature of their fellow memjpers to interpose no
objection. But the Speaker, as a member of the House, could object;
and he often did so from a sense of responsibility to prevent what was
becoming a serious abuse. Unless the measure had been explained to him
beforehand, and unless its sponsor could demonstrate that it was un-
objectionable, the Speaker would merely decline to recognize anyone
asking passage by unanimous consent. 2 Members of the House did not
like this way of doing things, feeling that it gave the Speaker too much

1 According to the House Manual (754) "he is not a free agent in determining who is to
have the floor. The practice of the House establishes rules from which he may not depart . . .
It is because the Speaker is governed by those usages that he often asks, when a member
seeks recognition, 'For what purpose does the gentleman rise?* By this question he determines
whether the member proposes business or a motion which is entitled to precedence."

2 "Congressman Sulzer of New York once applied to Speaker Reed for recognition to
pass a pension bill for an old soldier. Mr. Reed took the bill, read it over, and then said to Mr.
Sulzer: 'This man is not entitled to a pension under the law. I am worried nearly to death
with these pension bills.' 'I know it/ good-naturedly replied Sulzer, 'but just think of it,
Mr. Speaker, if I do not pass this bill it will be the death of this poor old soldier. Recognize
me and I will get it through in a few minutes, and I will save two lives, yours and his.' Sulzer
had scarcely descended the steps from the Speaker's chair, when Mr. Reed announced
'The gentleman from New York is recognized to pass a pension bill. All in favor signify by
saying "Aye"; those opposed "Nay." The bill is passed and two lives are saved the old
soldier's and that of the gentleman from New York.' The House laughed, but only the Speaker
and Sulzer understood the joke." H. B. Fuller, The Speakers' of the House (Boston, 1909),
p. 240.

THE HOUSE OF REPRESENTATIVES AT WORK 327

power, so they took this privilege away. The consent calendar (see
p. 341), which was established by the House rules in 1909, has done away
with the Speaker's discretion in according or denying recognition when
unanimous consent is being asked.

(Like the presiding officer of any gathering, the Speaker of the House
has the right to call members to order. This he does by a word of
caution or by banging his gavel. The rules of the House 2 TQ
with respect to order are strict^ Members must keep within MAINTAIN
bounds in their references to one another, must address the ORDER -
chair respectfully, must not wear hats or smoke in the House, and must
obey the Speaker's rulings. If the Speaker calls a member to order, he
must immediately sit down unless, on the motion of another member,
he is permitted to explain. After such explanation the House decides the
case without debate. In case of recalcitrance, the House may pass a vote
of censure or apply appropriate punishment. In extreme cases the Speaker
may suspend business until his rulings are obeyed, or he may instruct the
sergeant-at-arms to quiet any disorder in the House. But the Speaker
cannot censure or punish a member. Only the House itself can do that.

Qrhe Speaker has always had the right to interpret the rules of the
House and to settle disputes arising under therr^ Yet, contrary to English
practice, appeal may be taken against most of his decisions.
On many matters the rules are quite explicit, and the TERPRET AND
Speaker has no choice but to accept their obvious meaning. APPLY THE
He is also under a certain obligation to follow the estab- RULES *
lished precedents, although it is within his power to dis- HE MAY
regard them and to create new ones, provided that the
House acquiesces. This power to make precedents, and to
break them, is one of the things which enabled the Speaker to gain
because the House acquiesced in it a dominating influence over the
course of business. The process was gradual, sometimes depending upon
the initiative of the House, sometimes upon the initiative of the Speaker
himself. It was the Speaker, for example, who first refused to permit
motions that he deemed dilatory in purpose and who, in determining
the presence of a quorum, counted all members actually present. No
succession of weak men could have brought the office of Speaker to this
pinnacle of power. The men who occupied the chair during the greater
part of the nineteenth century were strong in will and personality. They
were, for the most part, men of dominating character, although by no
means always of high political standards. 1

1 The list includes Henry Clay, Schuyler Colfax, James G. Blaine, Samuel J. Randall
John G. Carlisle, Thomas B. Reed, and Joseph G. Cannon.

328 THE GOVERNMENT OF THE UNITED STATES

JNor was it merely a matter of strong personalities. The Speaker's
power grew hand in hand with the growing authority of the committee
on rules, of which he was chairman. Originally the com-
R^LATION mittec on rules was a special (not a regular) committee, its
TO THE only function being to recommend a set of rules for the

COMMITTEE House at the beginning of each new Congress^ This task

ON RULES. i i -i

was a relatively inconsequential one, because the committee,
as a matter of custom, merely recommended that the rules of the preced-
ing Congress be adopted with perhaps a few minor changesfln time, how-
ever, the practice developed of referring to this committee all proposals
for alterations in the rules during the course of each session; it then
became one of the regular standing committees of the House and pre-
sumably received the right to report a new rule at any time or for any^
purpose, thus enabling it to intervene and cut a knot whenever business
in the House became tangled. In this way the committee on rules, with
the Speaker as its chairman, developed a rule-proposing power which
amounted to a virtual control over the progress of all measures in the
House. With the committee on rules ready to do his bidding, and a
majority of the House on his side, the Speaker could secure at any time
the adoption of a special rule to advance measures which he favored,
or to delay measures which he opposed^

The House could not be expected to tolerate thi5 legislative dictator-
ship forever, and the muttcrings against it became louder as time went
THE "REVO- ky. Members found that they had to make terms with the
LUTION OF Speaker before their measures had any chance of passage.
I 99~ I 9 I * Some relief was afforded in 1909 by establishing Calendar
Wednesday and the consent calendar, but not until 1910 did the House
secure a favorable opportunity to strike a more severe blow at the
autocracy of the gavel. In that year a group of insurgent Republicans
combined with the Democrats to clip the Speaker's wings. As the out-
come of a House rebellion, they took from him the power to appoint the
all-important committee on rules, increased this committee's member-
ship, and provided that the Speaker should henceforth be ineligible to a
place on it. The committee on rules is now made up of twelve members
(eight belonging to the majority) who are chosen, like other committees
(nominally at least), by the House itself. Its powers remain as before,
but the Speaker is no longer in a position to dictate what this committee
shall do.

The "grand remonstrance" of 1910, moreover, did not end the wing-
clipping process. There was another prerogative of the Speaker which
the rebellious House decided should also be taken away from him. This

THE HOUSE OF REPRESENTATIVES AT WORK 329

was his power to appoint the chairman and members of all other House
committees. In theory, this power had always belonged to the House
itself, but, as a matter of convenience, the duty of appoint-
ing committees had been turned over to the Speaker in POINTMENT
days when the House was small and the work of its com- OF GOM "

. . . T MITTEES:

mittees relatively unimportant. In the course of time, how-
ever, and for various reasons, the real control of business THE OLD

IP ITT 11- 11 i P , METHOD.

passed from the House as a whole into the hands of its stand-
ing committees those numerous "little legislatures" which settled the fate
of bills in an atmosphere of secrecy and irresponsibility. Both political
parties for many years acquiesced in this drift of affairs; but in the early
years of the twentieth century, a group of Republican insurgents decided
to join with the Democrats in a war of liberation directed chiefly against
the powers of the Speaker. By packing the committees with his own
friends and by appointing a docile chairman, they complained, the
Speaker could control the course of legislation; for when he gave the word
of command, these chairmen, as his creatures, usually obeyed. This was
not lawmaking by due process, they said, but by decree. 1 Emboldened by
the victory which they won at the polls, and now in control of a House
majority, the Democrats decided to go a good deal farther than they and
their insurgent Republican allies had gone in 1910. In April, 1911,
accordingly, they proceeded to change the rules in a way which took the
selection of standing committees and committee chairmen entirely out of
the Speaker's hands, by providing that all such appointments should
henceforth be made by the House itself.

COMMITTEES OF THE HOUSE

House, as has been said, does most of its work through standing
committees. These committees are now ostensibly elected by the House
itself. But what really happens is this: when a new Congress
assembles, the members of each political party in the House MFTHOD
hold a caucus or "conference." Each caucus selects a group
of its own members to participate in the work of slate-making. The
Republican caucus (or conference) appoints a "committee on com-

1 As a matter of fact, most Speakers had exercised no such autocracy as these critics asserted
Most of them followed the principle of seniority, just as the House itself has done since it
changed the rules; but Speaker Cannon (1903-191 1) broke away from the seniority principle
at least a half dozen times in appointing committee chairmen, and on three of these occasions
the new chairman was a congressman who had never served on the committee at all. He just
went over the heads of men who had been serving on the committee for years. As a measure
of discipline he likewise removed one chairman, demoted one committeeman, and removed
two others. For a discussion of Cannon's highhandedness see C. W. Chiu, The Spriker of the
House of Representatives since 1896 (New York, 1928).

330 THE GOVERNMENT OF THE UNITED STATES

mittees," which arranges the assignments of Republican members to all
the standing committees\The Democratic caucus does not set up a
special committee on committees but merely selects jjthe Democratic
members of one standing committee, namely, the committee on ways
and means, and they in turn proceed to determine the assignments of
Democratic members to all other committee^ The numerical superiority
which the dominant party maintains orv-atrcommittees depends some-
what, but not entirely, on its relative strength in the House as a whole. 1
Hie two selecting groups work independently and then their lists are put
together into a combined slate. Thereupon the final slate is submitted by
each group to its own caucus, and having been approved there, is reported
to the House, which accepts it without change. So, while it is technically
accurate to say that the House elects all its regular committees, the actual
selection is in the hands of relatively small groups representing the
majority and the minority parties^

(Certain long-standing customs are observed in' assigning members to

the various committees. It is well understood, for example, that seniority

should be recognized in making up the lists. Chairmanships

USAGE IN , r i . . iruiu

THE SELEC- go to members of the majority party who nave had the
TION OF lonerest continuous service on their respective committees.

COMMITTEES. _, r , . ,1 rii j * U

This being so, leaders of both majority and minority show
CHAIRMAN- great caution in placing representatives on important

SHIPS. 11 i .. u

committees; as a rule, they reserve judgment on character
and capacity until they have had candidates under prolonged observa-
tion) The best that a new member can ordinarily expect is to be assigned
to one of the less influential committees. Then, if he is reelectcd to the
next Congress, and if a vacancy occurs on one of the more important
committees, he may hope to fill that vacancy. In time, if his party re-
mains in control of the House, and his own district continues to rcclect
him, he may rise to be the ranking member of the committee and eventu-
ally its chairman.(Various considerations besides seniority are also taken
into account. Geography, for example, is a factor. Not all the members
of any major committee arc ever selected from one section of the country A
Likewise a congressman's personal preferences are taken into account. "

1 In the Eightieth Congress (elected in 1946) the Republicans held 56 per cent of the
House seats. When the House was organized they received 8 of the 1 2 places on the rules
committee, 25 of the 43 places on the appropriations committee, generally 15 places on
other committees of 25 members and 16 places on other committees of 27 members. The
Republicans' numerical superiority on committees in this Congress was relatively the same
as that held by the party majority in earlier Congresses even when that majority was less
than 56 per cent.

* However, key chairmanships of a Democratic House usually go to the Solid South; of
a Republican House, to the Northeast and the Middle West.

THE HOUSE OF REPRESENTATIVES AT WORK 331

But his individual ability and his qualities of leadership rarely have much
to do with it. In order to become chairman of a committee, therefore,
a congressman need only live long enough, get himself continually re-
elected, and stay on the same committee.

Qn many ways this is unfortunate. It holds back men who have a
natural aptitude for committee work, and pushes forward others who
have little or no administrative ability. The House depends

r , r . . . OBJECTIONS

upon its various committees lor the success ol its work, and T0 THE
the committees, in turn, lean on their chairmen!! Sometimes "SENIORITY"

" - ^ RULE

they find themselves leaning on a slender reed, for length of
service is no sure guarantee of anything except a congressman's capacity
to get votes in his home district. All this is well recognized, and from time
to time there have been proposals to abandon the seniority rule. But it
is not certain that the gain would outweigh the loss. The procedure of
Congress has become so complicated that none but experienced members
can thread their way through its meshes; hence the senior congressmen
are bound to be influential, no matter how the committees are made up.
If the seniority rule were abolished, there would probably be a long and
bitter fight over the assignments at the beginning of each new Congress,
thus delaying and rendering more difficult its work during the remainder
of the session.

In the Seventy-ninth Congress, which expired at the end of 1946, the
House still had some 48 "standing" or regular committees. The next
Congress, in accordance with the policy of the Legislative
Reorganization Act, consolidated a few of these committees COMMITTEES
and abolished others, reducing the total to 19. Victims of
this housecleaning were chiefly unimportant committees which met
rarely but which had been continued year after year because member-
ship on them was a source of prestige. Moreover every committee is
entitled to an office, an allowance for clerk hire and various other per-
quisites. Congressmen are usually sagacious enough to realize the possi-
bilities thus afforded by even the most insignificant committee of placing
members of the distaff side of their respective families or some relative
on the congressional payroll to the benefit of the family exchequer.
QOf the 1 9 standing committees which continue to operate in the reor-
ganized House, the most important are those on rules, ways and means,
appropriations, judiciary, interstate and foreign commerce, THE MOST
armed services, public works, post offices and civil service, IMPORTANT
banking and currency, agriculture, public lands, education COMMITTEES -
and labor, veterans' affairs, merchant marine and fisheries, and expendi-
tures in the executive departments. In most cases the functions of these

332 THE GOVERNMENT OF THE UNITED STATES

committees are indicated by their titles. They vary little in size, except
for the rules committee with 12 members, the armed services committee
with 33, and the appropriations committee with 43; most of the others
have either 25 or 27 members! The number of committees to which a
representative may be assigned depends somewhat upon the relative
strength of the parties; in the Seventy-eighth Congress (elected in 1942),
in which the Democrats had a majority of 10, many of the Democratic
representatives served on five or six committees as the only means of
maintaining their party's preponderance of 15 to 10 on all committees.
But under the new regime inaugurated in 1947, with the number of
committees vastly reduced, the great majority of representatives have
only a single regular committee assignment. A few may serve on two;
but the second is likely to be relatively unimportant. It is assumed that
by thus reducing the representative's committee responsibilities he will
devote himself to one field of possible legislative action and become
an expert in that field. Thus even the congressman is to accommodate
himself to the contemporary demand for the specialist, and become a
legislator who knows more and more about less and less.

fEven when the House had 48 committees so much work was thrown
upon the more important ones for example, on the committee on

appropriations that a good deal of it had to be appor-
COMMITTEES tioned among subcommittees. The drastic reduction of the

number of standing committees and the broadening of their
jurisdiction will undoubtedly result in more frequent use of such sub-
committees. These are appointed by the main committees, usually
through their chairmen, and are given a specific matter to deal with,
for example, the overhauling of the income-tax schedules or the revi-
sion of the postal laws. Occasionally subcommittees hold hearings on
a measure, thus saving the time of the other committee members. Sub-
committees always report to the main committee and not to the House?
/The development of the standing committee system has reduced the
need for special or select committees although the House sometimes

creates one of these to deal with some unusual question. In
COMMITTEES * 947? ^ or example, there were three such committees. Like

the Senate, the House also has the right to appoint com-
mittees of investigation and occasionally it does so. Such committees are
empowered to summon witnesses, examine them under oath, and compel
the production of papers. The rules of the House still allow the Speaker to
appoint such committees when they are authorized, and also to name the
House "managers," or conferees, on committees of conference with the
Senate. v

THE HOUSE OF REPRESENTATIVES AT WORK 333

(These conference committees are special committees in that they are
appointed to perform a single definite task and, when that is done, they
immediately dissolve. This task of adjusting differences
between the two Houses may take them only an hour, or it
may drag on for weeks. The reason for committees of con-
ference has been already explained: namely, that, when the House and
the Senate fail to agree upon any measure, one of them having passed
the measure with amendments which the other declines to accept, it
becomes necessary to hold a conference of representatives from both
chambers with a view to reaching a compromise. So the presiding officers
of the Senate and the House each appoint a small group of conferees,
sometimes as few as three, sometimes as many as eleven, and not neces-
sarily the same number for each House. This joint committee of con-
ference then meets behind closed doors and tries to work out something
that both the Senate and the House can be persuaded to accept. The
problem of doing this may be an easy one merely splitting the differ-
ence on a few items. Or it may be that there are many differences to be
taken up, one by one, and adjusted by the process of give and take?"?

A conference committee is not supposed to put into a measure any-
thing that is not already there, but sometimes this limitation is dis-
regarded and a general reshaping of a bill at the hands of the committee
is found essential in order to make it acceptablej(Sometimes, on the other
hand, the conferees arc unable to agree at all, in which case the whole
measure fails of enactment, unless both Houses agree to appoint another
conference committee, which they rarely do. But if the conferees reach
an agreement, they report it to their respective chambers and generally
it is accepted. A report from a conference committee is privileged; it may
be presented at any time, and no amendments to it arc in order .J

Mention should also be made of one other House committee, the
committee of the whole. This is merely the entire membership of the
House sitting as one great committee. The purpose is to COMMITTFE
expedite business, and to this end there are several impor- OF THE
tant differences between the House in committee of the WHOLE -
whole and in regular session. In committee of the whole the Speaker
does not preside, but calls upon some member to act as chairman; the
strict rules of procedure do not apply; the previous question may not be
moved; one hundred members make a quorum; there arc no roll calls;
and, after general debate, for which the House has previously arranged
the details, no member may speak longer than five minutes except by
unanimous consent in a word, the arrangement enables the House to
debate informally and push ahead. Large use is made of this facility, and

334 THE GOVERNMENT OF THE UNITED STATES

the House probably sits a larger number of hours in committee of the
whole than in regular session. All bills raising revenue or appropriating
money, directly or indirectly, must go to the committee of the whole.

REFERENCES

BIBLIOGRAPHY. The best general list of up-to-date references on the procedure
and work of Congress is included in Appendix A of W. F. Willoughby, Principles
of Legislative Organization and Administration (Washington, 1934), pp. 627-643.
This list is especially valuable for its inclusion of public documents.

GENERAL METHODS AND PROCEDURE. D. S. Alexander, History and Procedure of
the House of Representatives (Boston, 1916), S. W. McCall, The Business of Congress
(New York, 1911), H. G. Remick, The Powers of Congress in Respect to Membership
and Elections (Princeton, 1929), and George R. Brown, The Leadership of Congress
(Indianapolis, 1922), all deal with matters which have been outlined in the fore-
going chapter. Four books by Robert Luce, a congressman of long experience
and wide knowledge, deserve special mention because of the wealth of material
which they contain. These volumes, some of which have already been cited in
earlier chapters, are Legislative Procedure (Boston, 1922), Legislative Assemblies
(Boston, 1924), Legislative Principles (Boston, 1930), and Legislative Problems
(Boston, 1935). See also the references at the close of Chapter XIX. The rules of
procedure may be found in the House Manual and Digest.

THE SPEAKER. On the position and powers of the Speaker the reader is referred
to H. B. Fuller, The Speakers of the House (Boston, 1909), M. P. Follett, The Speaker
of the House of Representatives (New York, 1904), C. R. Atkinson, The Committee on
Rules and the Overthrow of Speaker Cannon (New York, 19*11), W. A. Robinson,
Thomas B. Reed, Parliamentarian (New York, 1930), W. L. Webb, Champ Clark
(New York, 1912), S. W. McCall, The Life of Thomas B. Reed (Boston, 1914),
L. W. Busbey, Uncle Joe Cannon (New York, 1927), and the article by C. R.
Atkinson and C. A. Beard, entitled "The Syndication of the Speakership,"
in the Political Science Quarterly, XXVI, pp. 381-414 (September, 1911).

COMMITTEES. The congressional committee system, in its earlier stages, is
described in L. G. McConachie, Congressional Committees (New York, 1898).
A. C. McCown, The Congressional Conference Committee (New York, 1927) is
valuable on the special subject with which it deals. The committee system is
especially well treated in W. F. Willoughby, Principles of Legislative Organisation
and Administration (Washington, 1934), pp. 330-427.

CHAPTER XXI

SOME FEATURES OF CONGRESSIONAL
PROCEDURE

For this reason the laws are made: that the stronger may not have power to do all
that they please. Ovid.

Except when the House is sitting in committee of the whole, the
Speaker is in the chair. As has already been explained, he has a limited
power of recognition limited because the rules give the

right of way to certain committees at certain times and G OFFICER
because those controlling the time for general debate
(perhaps the chairman and ranking minority member of a committee)
yield it piecemeal to various supporters. There are, however, many
requests for unanimous consent to address the House briefly or to extend
remarks ("speechless speeches") in the Record. Any member wishing to
make such a request customarily arranges in advance with the Speaker
(either directly or through a floor leader) to be recognized when he
rises; but he has a right to ask recognition without this prearrangement
and take his chance of receiving it. He merely rises and addresses the
chair: "Mr. Speaker, Mr. Speaker." * Turning to him, the Speaker asks:
"For what purpose does the gentleman rise?" This is to determine
whether the member's purpose is in order. Then the Speaker, if he

1 Back in the time of Speaker ("Czar") Reed the power of recognition was sometimes put
to strange uses, as the following incident shows* u The leader of the minority was known to
have ready for presentation a resolution recognizing Cuban belligerency. The floor of the
House was almost deserted, and the member rising from his seat, and calling 'Mr. Speaker,'
stood out conspicuously. 'Mr. Speaker, 5 again repeated the leader of the minority. Meanwhile
Dmglcy of Maine was seated at his desk, paying no attention to the surrounding affairs, and
clearly absorbed in some tariff statistics. Reed, ignoring the member insistent upon recognition,
gazed into space Without any further activity on the floor of the House, the nasal drawl of
the Speaker could be heard 'The gentleman from Maine moves that the House do now
adjourn. Do I hear a second? The motion is seconded. The question is now on the motion to
adjourn. All in favor will say "aye." Those opposed, "no." The "ayes" have it. The House
stands adjourned,' punctuated with the shaip rap of the gavel. Dingley, awakened from
his study by the noise, looked up with an inquiring air. He had uttered no sound, nor had
there been an audible 'second.' Indeed the Republican members had been so completely
unconscious of the proceedings that not over ten voted on the motion. Still the House stood
adjourned." H. B. Fuller, The Speaker* of the House (Boston, 1909), pp. 234-235.

335

336 THE GOVERNMENT OF THE UNITED STATES

decides to accord recognition, raps his gavel and announces, "The
gentleman from Illinois," or "The gentleman from Texas.". Members
of the House are not addressed by name from the chair (except by way of
reprimand) or by one another in debate. After being thus recognized, a
member launches into his speech, but may be interrupted by any other
member and asked to "yield the floor" so that some explanation or brief
interpolation may be made. Whereupon the Speaker inquires, "Does the
gentleman yield?" The member having the floor may then yield or not
as he chooses, but the custom of the House is that a member usually does
so when requested.

The Speaker may himself take the floor, and occasionally does so, but
not so often as in the old days. 1 When the Speaker desires to participate
in the discussion, he calls some member to take the chair
SPEAKER temporarily. But whether in the chair or out of it, he has a

MAKES A V ote on all questions, for by becoming Speaker he loses

none of his rights or privileges as a member. Having once
voted on a question, he may not, however, vote again to break a tic.
In the case of a tie, if the Speaker has already voted, the motion is con-
sidered defeated. In roll calls on ordinary measures the clerk does not
call the Speaker's name unless the latter requests it; but in calling the roll
to determine the presence of a quorum, or to pass a measure over the
President's veto, the Speaker is expected to vote. 2

Leadership in the House of Representatives is exercised not only by
the Speaker but by the floor leaders. Each party has its floor leader,
selected by a caucus of its members at the beginning of every
Congress. He is the official strategist of his party. When an
important debate is in the offing, the two floor leaders get
together and agree upon the amount of time which is to be allotted to
each side for general debate. Then they make up a list of those who are
to take part in the debate, so that the Speaker may recognize both sides
fairly. Normally the chairman of the committee which has reported
the bill and the ranking minority member control the time equally.
Each uses a part of his time, but yields most of it, by prearrangcment,
to various supporters for periods of time of ten minutes or longer.
Debating in the House is not left to run its course haphazard. So far as

1 Participation in debate, whether from the floor or from the chair, varies with the per-
sonality of the Speaker In eight years Cannon spoke eight times in the House, six times in
committee of the whole, Clark, 18 and 45 times respectively. In six years Gillett spoke five
times altogether, Longworth, n Floyd M. Riddick, Congressional Procedure (Boston, 1941),

P- 59-

2 According to the rules of the House, he is not required to vote except when his vote would
be decisive; that is, when it would create or break a tie or a two-thirds majority or establish
a quorum.

CONGRESSIONAL PROCEDURE 337

is practicable, everything is cut and dried in advance. The floor leaders
are expected to keep things moving, yet not to let them get out of hand.
If matters seem to be reaching a point where the floor leaders are
unable to hold their followers in line, there is always the party caucus
to fall back upon. A floor leader can call his party members
into caucus at any time to decide upon a course of action. ^!t RTY

CiAUdUS.

Congressmen are not obliged to attend a caucus of their
own party, although such an attitude may prove costly for example,
in the matter of committee assignments; but, if they do attend, they are
regarded as being morally bound to abide by its decision. According to
the Democratic rules, they are bound on a matter of policy or principle
by a two-thirds vote of those present and voting at a caucus, if that two
thirds constitutes a majority of the full Democratic membership of the
House. 1 Caucus action is not usually taken except on measures which
have become party issues. On bills of a routine sort, or which cross party
lines, the members are left free to decide their votes for themselves. A
good deal of criticism has been showered upon this practice of binding
members by caucus decisions, but something of the sort has been found
essential in the legislatures of all countries which have the party system.

STEPS IN THE PROCESS OF LAWMAKING

Having noted the functions of the Speaker, the floor leaders, the
caucus, and the committees, we are now in a position to follow more
easily the several steps in the process of lawmaking.

Tir i iriTT THE STEPS

In the nrst place any member ot the House may present a IN TIIE

bill or resolution. It may be one that he himself has pre- MAKING OF
pared and favors, or it may be one that some outside

individual or organization has asked him to introduce, i. HOW

BII LS AR]
INTRODUCED.

Strictly speaking, there are no "government measures" BIILSARE

in either the Senate or the House. Neither the President
nor any member of the cabinet can introduce a measure directly, but
they can always get some friendly senator or representative to introduce
it for them and announce that the administration desires to have the bill
passed. In this way measures, all drafted in detail, sometimes come from
the White House or from one of the administrative departments. If a
congressman desires assistance in drafting a bill, there is a legislative
reference service at his disposal, with expert draftsmen attached to it.

1 There is a further proviso: no member shall be bound by a vote which involves a con-
struing of the Constitution or upon which he made contrary pledges to his constituents prior
to his election.

338 THE GOVERNMENT OF THE UNITED STATES

Literally thousands of bills and resolutions are introduced in the early
days of each session. Every member of Congress puts in a batch of
WHERE THEY t* 16111 ? usually in compliance with requests from somewhere.
"ORIGI- Organizations of every sort, and even individual citizens,

NATE< ask congressmen to serve them in this way. Ninety per cent

of these bills call for the spending of money. Of the rest, the majority call
for favors to somebody. They represent an ambition, a grievance, a hope,
a cause, or a crusade. It is merely a play upon words to say that bills
"originate" in Congress. The real initiative in lawmaking belongs to
militant organizations in every corner of the land organizations of
farmers and workers, organizations of manufacturers and merchants,
and a multitude of organizations whose main function is to promote this
or that novelty in legislation.

The procedure in introducing a measure is simplicity itself. The con-
gressman merely writes his name on the bill and places it in a capacious

box which reposes expectantly on the clerk's desk. If he feels
op^iLLs 00 doubtful about the merits of the measure, he takes care to

write "introduced by request" above his name. This relieves
him from the responsibilities of fatherhood. The freedom with which
bills may be introduced contains both good and bad features. It gives
reality to the constitutional right of petition and encourages new legis-
lative ideas. On the other hand, it permits Congress'to be swamped with
all manner of bizarre proposals which have no chance of ever being
adopted, or even of getting to a vote on the floor. Many of these hardy
perennials sprout every year, sometimes for a whole generation. Some
have merit, but no influential support; some have influential support,
but no merit. Only a few hundred bills out of the many thousands have
both. And they are the only ones that ever get beyond the initial stages.

Presently, however, all the bills and resolutions are sorted out, given
serial numbers, and referred to committees. The "first reading" is

supposed to occur when the number and title of the bill or

o REFER

ENCE OF resolution are printed in the Journal and the Congressional

BILLS TO Record. In the case of so-called private bills (see p. 341), the

COMMITTEES. . , . ^ , . Jf.,. . ,. i

member who introduces the bill indicates the committee
which he thinks ought to deal with it. All other bills have their destina-
tion decided by the Speaker. If he has any serious doubt as to what com -
mittee should receive a particular bill, he may settle the problem by
dividing the bill between two committees. Meanwhile the measure is put
into printed form at the public expense. If it is a bill which covers a
variety of important matters, the committee to which it is referred may
assign different parts of it to subcommittees. Committee hearings are

CONGRESSIONAL PROCEDURE 339

usually public, but the subsequent discussion by members of the com-
mittee is conducted behind closed doors.

In any case, the committee or subcommittee will hear all who want
to be heard either for or against the bill. This is done as a matter of
courtesy, not of constitutional right as many people seem to COM _
think; but the opportunity to be heard before a committee MITTEE
is practically never denied to anyone. Each committee has HEARINGS -
the use of a large room with seats for the public. If many persons desire
to appear before the committee, the hearings may last for weeks. Some-
times, when the hearing is on a very important bill, the room is jammed
with advocates, opponents, and newspaper men. Lobbyists and paid
attorneys may appear and argue for or against the measure, so that the
committee room sometimes takes on the atmosphere of a court. The
members of the committee ask questions and sometimes enter into
argument with the individuals who are addressing it. Occasionally
there are sharp passages while the chairman raps loudly for order.
Stenographers take down the proceedings so that the committeemen
may study the material at their leisure which they rarely do. Com-
mittees sit in the forenoon, because no committee, except the committee
on rules, may hold meetings while the House is in session unless it secures
special permission. When a hearing is finished, the committee decides,
either at once or on a later day, whether it will report the measure to the
House.

Members of the committees get a good deal of information (and
misinformation) from these hearings. They also obtain data in other
ways. Each committee has a professional staff to advise it.
The well-stocked Library of Congress is close at hand and
the specialists on the Library's legislative reference service
provide the congressmen with information on any potential legislative
matter. Many congressmen use none of these resources but trust to their
own sagacity in winnowing the wheat from the chaff in what they hear.
A committee may also call upon one or more of the administrative de-
partments for data and information.

But information about the merits and defects of a measure is not the
only thing that the average congressman wants to obtain. What his own
voters think about it is important also, and this cannot be THE PRES .
discovered by listening to expert testimony or reading in SURE FROM
the library. The congressman's secretary, who opens and OUTSIDE -
reads his telegrams and mail, can give him better information on that
point. Sometimes he gets hundreds of these communications in a single
day, for the practice of stimulating voters to "write or wire your con-

340 THE GOVERNMENT OF THE UNITED STATES

gressman" has developed to enormous proportions in recent years.
Most of these communications, however, are the outcome of activities
carried on by self-interested pressure groups. Their identical wording
often proves this. Every member of the House soon learns to discount
a good deal of what comes to him over the wires or through the mails.

Several courses are open to a committee with reference to bills which

it has under consideration. The committee may report a bill just as it

stands. In that case the measure will have a good chance of

4. WHAT . . .

ACTION THE passing, especially it the report ol the committee is unam-
COMMITTEE mous. Or the committee may approve the bill with some

MAY TAKE. , r . A i i i

amendments of its own. As a third alternative, it may
redraft the measure and submit it in greatly altered form. This is fre-
quently done. The committee may even present an entirely new bill,
bearing only a slight resemblance to the original. In any event, when a
favorable report is made upon any measure, either in its original, revised,
or new form, the report goes to the clerk of the House, who enters it upon
the Journal, and in due course it is set upon one of the calendars for a
second reading. 1 Certain committees have the privilege of reporting at
any time directly from the floor of the House, although this is not usually
done.

When a committee fails to be impressed by the merits of a measure, it
does not go to the trouble of making a report at all. The bill is merely

"pigeonholed," that is, supposedly pushed into the discard
PHYXIATION compartment of the chairman's roll-top desk. That is what
OF BILLS IN happens to most of the measures which a committee rc-

COMMITTEE. A . , i r i -11 i i

ceives. Among the many thousands ol bills introduced at
each session of Congress, the great majority have no chance of ever
receiving a place on the House calendars. On the average, a committee
reports between 15 and 20 per cent of the bills referred to it; 2 the rest
clutter the chairman's desk for a while and are then carted down to the
Capitol furnace.

The simplest way to kill any measure, therefore, is to have a committee
refrain from reporting it, because no bill can be acted upon by the House
INSTRUCTING unt il a committee sends it up. It is possible, by a procedure
A COMMITTEE which will presently be explained, for the House to "dis-
TO REPORT. charge" a committee that is, to call up a bill from its
hands and act upon it; but this is not done except in rare instances. In
a negative sense, therefore, a committee's decision is virtually final.

1 Nominally the first reading took place when the title of the measure was printed in the
Congressional Record.

2 Fifty years ago the percentage ran as high as 30.

CONGRESSIONAL PROCEDURE 341

Favoraole action by a committee does not mean that a bill is assured of
passage; but unfavorable action, which is no action at all, becomes a sort
of automatic asphyxiation. There is a good deal of complaint about this
suffocating process, especially from those whose favorite measures have
met a premature demise; but, if any sizable fraction of the bills ever
reached the floor of the House, the whole legislative machine would be
stymied by congestion.

When a measure is reported to the House by a committee, it goes
immediately on one of the three calendars. The first of these, known as
the union calendar, 1 contains all favorably reported meas-
ures relating to revenue, appropriations, and public prop- PROGEDURE
erty. A second, called the house calendar, includes all public HOUSE:
bills not included in the foregoing category. For their

I THF

second reading, all bills on the union calendar go to the CALENDARS%
committee of the whole house; those on the house calendar
are considered by the House itself. The third, known as the calendar
of the committee of the whole, or more commonly as the private calen-
dar, makes a place for all measures of a nonpublic character. 2 Private
bills come before the House "as in the committee of the whole, 5 ' the
procedure being a compromise between that of the House and that of
the committee. There are also two calendars to which public bills may be
transferred from union or house calendar: the consent calendar and the
discharge calendar.

The consent calendar affords special facilities to minor noncontro-
versial bills. On the first and third Mondays of each month the clerk
reads the titles of bills which have stood on the calendar for

, . ! , Tr ., , ,. , ,. , LAWMAKINO

tnree legislative days. 11 there is no objection to immediate BY CONSENT
consideration, a bill is passed without debate, without
amendment, and without a second or third reading. If there is objection,
the bill remains on the calendar until reached a second time. It now
takes objections from at least three members to prevent its being passed.
In case of three or more objections, the bill is stricken from the calendar
for the rest of the session unless restored by unanimous consent. This
consent calendar, as already noted, is a device that was originally
adopted as a means of checking the "autocracy" of Speaker Cannon.

1 Its full title is "calendar of the Committee of the Whole House on the State of the Union "

2 For example, bills granting pensions to designated individuals, or removing political
disabilities, or providing for the survey of individual rivers and harbors. Thus a woman whose
automobile was struck by a mail truck on one occasion sought and received compensation
amounting to $2,000 by means of a private bill. More recently, President Roosevelt vetoed a
private bill which would have given several hundred dollars' reimbursement for time and
travel expenses to a woman who, seeking appointment as a nurse in Alaska, journeyed from
Scranton to Seattle and there failed to pass the physical examination.

342 THE GOVERNMENT OF THE UNITED STATES

The discharge rule, also originating in 1910, has a similar purpose. It
enables the House to take a bill out of the hands of a standing committee
and bring it to the floor. A discharge motion requires the signatures of
half of the entire House membership and can relate only to a bill which a
committee has held for at least thirty days without reporting it. On the
second or fourth Monday of the month a discharge motion may be
debated for twenty minutes, but only if the bill in question has stood upon
the discharge calendar for seven legislative days or more. If the discharge
motion carries, the House proceeds at once to consider the bill. But these
requirements are rigid and difficult to meet. Consequently, very few
bills ever get consideration in this way. Not oftener than once in two years
does a discharge motion prevail; only once in four years on the average
does the House pass a bill under the discharge rule.
' Getting bills on the floor by way of the discharge calendar should not
be confused with the procedure known as "calling up bills." There are
various ways of pushing a bill ahead of its regular place on
UP BILLS ari Y f ^ e thcr calendars. A half dozen privileged commit-

tees including the committee on appropriations and on
ways and means have a certain right of way for their bills, although
on some days the regular order of business cannot be displaced except by
a two-thirds vote. Special days are set apart for ^designated classes of
measures the first and third Mondays for the consent calendar and
motions to suspend the rules; the second and fourth Mondays for business
relating to the District of Columbia and for discharge motions; the first
and third Tuesdays for the private calendar; calendar Wednesdays for the
call of committees (unprivileged public bills). Resort to suspension of
the rules occurs rarely nowadays; for a two-thirds vote is normally
difficult to obtain. 1 The consent calendar takes care of minor, non-
controversial measures; calendar Wednesday clears a path for unprivi-
leged public bills and special orders from the rules committee. These
special orders, for which the backing of a mere majority is sufficient,
enable the dominant party to expedite the passage of its chief legislative
proposals. The use of special orders, which limit debate and are highly
privileged, has grown steadily in the past forty years. 2

In summary, then, the regular order of daily business in the House is

1 Suspension of the rules limits debate to 40 minutes and does not permit amendments
The Speaker's power to withhold recognition, although now much restricted, applies fully
when members wish to offer motions to suspend the rules.

1 In the Sixtieth Congress, when Speaker Cannon still controlled the rules committee,
only nine special orders were adopted; in the Sixty-sixth, 57; in the Sixty-seventh, 68. The
number did not rise above 45 dunng the next ten years; but, in the first Congress of the
Roosevelt administration, it reached 61.

CONGRESSIONAL PROCEDURE 343

about as follows: first comes the routine opening, with a prayer by the
chaplain and the reading of the previous day's Journal. THE OPEN .
Then the House takes up any business that is on the ING PRO-
Speaker's table (such as a message from the President, or a GEEDINGS -
bill that has come back from the Senate with amendments), after which
it proceeds with unfinished business from the day before. 1 Formerly, after
the completion of unfinished business, the " morning hour" THE
began. At every daily session there was a morning hour "MORNING
(it might be an hour or, if no other business pended, a HOUR -
whole afternoon). The standing committees, which the Speaker called in
regular order, brought forward bills for consideration. But the morning
hour became obsolete after the establishment of calendar Wednesday.
Since that time certain days have been preempted for particular kinds of
business, as has been explained, and on these days the House takes up
the matters in hand, unless diverted therefrom by action which is
explained in the next paragraph. Privileged committees take what is
left, which is a good deal; and, towards the end of the session, they take
almost everything if the majority floor leader and his steering committee
think they need it.

The regular order of business is nowadays varied more often than it
was fifty or sixty years ago. For although certain days have been set
aside for special purposes, the House may, by a two-thirds
or unanimous vote or by a special order from the committee
on rules, hand over any or all of these days to privileged
committees. Indeed it can fairly be said that, towards the end of a
session, the regular order of business is now almost wholly disregarded in
the general stampede for a place in the front line. Every congressman,
in these end-of-the-session days, is working frantically to get his own
cherished measures out of the legislative jam. Not all of these projects
are worth salvaging; so the House selects the ones that seem to be most
deserving, or which have the largest backing among the members, and
these it shoves ahead of the rest. "Congress," it has been aptly said, "is
a single-track road." 2 Passenger trains (important or urgent bills) get
the right of way. There is so much traffic that a lot of perishable freight
has to be shunted to the sidings.

Every bill, of whatever sort, is nominally given three "readings."
The first reading merely involves the publishing of the bill's title in the

1 The term "unfinished business," strangely enough, does not include business that was
left unfinished in the committee of the whole or on days set aside for special purposes (calendar
Wednesday, consent calendar, private calendar, District of Columbia, etc.).

- D S. Alexander, History and Procedure of the House oj Representatives (Boston, 1916), p. 222.

344 THE GOVERNMENT OF THE UNITED STATES

Journal and Congressional Record. The second reading of public bills which
raise revenue or make appropriations of money takes place in the com-
3 THE mittee of the whole; of other public bills, in the House;

THREE and of such private bills as may still come up, in the House

READINGS. as j n comm i ttee O f t } ie w holc" (this involving a hybrid
procedure). At the second reading amendments may be offered. In fact,
the real discussion of the bill, aside from its preliminary consideration
by a standing committee, takes place at its second reading. When the
committee of the whole has finished with a money bill, it reports back to
the House. Thereafter the proceedings are usually of a formal nature.
The Speaker says: "The question is on engrossment and third reading of
the bill as amended." l Then the Congressional Record ', in its next issue,
announces that the bill was ordered to be engrossed and read a third
time, was read the third time, and passed. 2 As a matter of fact it is not
read a third time, except by title, unless some member (perhaps for
purposes of obstruction) requests that it be read in full. When a bill is
strongly opposed, however, the question of ordering engrossment and
third reading may involve further debate and additional amendments
with roll calls on each of these amendments and at the time of final
passage. But when bills are considered under suspension of the rules, no
amendments are in order. And when they are being considered under
special orders from the committee on rules, permissible amendments
are often limited to those enumerated and described in the orders.
After final passage by the House all bills are signed by the Speaker, and
transmitted to the Senate for concurrence.

Four methods of voting arc used in the House of Representatives. The
most common method is the viva voce vote. The Speaker says, first,
"As many as are in favor say c Aye' "; and then, "As many
as arc PP se d sa Y 'No.' " The result may be inconclusive.
On one notable occasion Speaker Cannon ruled that,
although the Ayes made obviously more noise, the Noes had it. In case of
doubt any member may demand a rising vote, technically known as a

1 Engrossment means the typing of the bill exactly in the form that has been given to it
before third reading and final passage.

2 Senators pride themselves on being more leisurely and deliberate They were shocked
when Vicc-Prcsidcnt Garner imported practices that had grown familiar to him as Speaker
of the House. In swiftly tumbling words (according to an Associated Press report of April i,
1933) he announced. "The question is, Shall the bill be engrossed, read the third time, and
passed? There being no objection, the bill is passed." Or, in another case, "Without objection
the committee amendment will be agreed to, and, without objection, the bill as amended will
be considered ordered engrossed for a third reading, read a third time, And passed." On this
occasion the Democratic floor leader demanded a reconsideration of the vote in order to have
the purpose and content of the bill explained. The explanation lasted several hours without
resulting in any amendment.

CONGRESSIONAL PROCEDURE 345

division. First those in favor rise to be counted; then those opposed. The
Speaker thereupon declares the count and his announcement cannot
be disputed or appealed. But one fifth of a quorum may demand the
appointment of two tellers, one from each side of the question; and these
tellers count the vote as the Ayes and Noes successively pass between
them at the head of the center aisle.

Finally, the Constitution provides that, if one fifth of the members
present ask for it, the Yeas and Nays shall be recorded. A roll call must
always take place, likewise, when the passing of any measure over the
President's veto is being decided. If a member expects to be absent at the
time when the vote is, to be taken, he pairs off with some member on the
other side who also expects to be absent. This " pairing" is arranged by
notifying the clerk. The pairs are published in the Congressional Record
immediately after the announcement of a yea-and-nay roll call.

When the House has finished with a measure and transmitted it to the
Senate, what does the latter body do with it? It may do any one of four
things: it may pass the measure without change, pass it in
amended form, reject it outright, or let it die at the hands
of a Senate committee. Senate committees, like those of the SENATE FOR
House, have the privilege of pigeonholing all measures CONGUR "
which they do not like. More often, however, the measure
will pass the Senate after having been amended, in which case it must
come back to the House for a vote of acceptance of such amendments.
If the House accepts them, well and good; but if it declines to do so, the
matter goes to a conference committee as has already been explained. 1
No bill or resolution can become a law unless both Houses have con-
curred upon every word of it.

Finally, when a bill has passed its various stages in both chambers, it
is laid before the President for his approval or veto. If signed by the
President, or if allowed by the efflux of ten days to become THE FINAL
a law without his signature (as the Constitution provides), STEPS IN
it goes to the archives of the state department and in due ^ONA*^"
course is published in the statute book of the nation. That, LEGISLA-
in brief, is the biography of a law. On the way to its des- TION *
tination, there are hills to be climbed and streams to be forded, so that
among the myriad bills that start their journey, it is only the most robust
that survive to the end.

The House of Representatives was created in conscious imitation of the
House of Commons, and it still bears, in many respects, the imprint of
its paternity. Look down from the gallery and you will notice, standing

1 See p. 333.

346 THE GOVERNMENT OF THE UNITED STATES

in a marble pedestal beside the Speaker, a gilded staff surmounted by

an eagle. When the House adjourns, you will note that the sergeant-at-

arms takes this staff from its place and carries it out. When

A CHILD OF , ,,..,, T A Ti i

THE "MOTHER the House resumes, he brings it back. When he is com-
OF PARUA- manded by the Speaker to restore order, he shoulders this

V* pjij'pe J5

mace (as it is called), for it is his symbol of authority. But
how many congressmen know that the mace, and all the ritual pertaining
to it, developed in England long before America was discovered? There,
it was originally a symbol of the royal presence in the House of Commons
while the king presided in person at sessions of the House of Lords. The
mace at Westminster with its gilded crown, and th^mace at Washington
with its gilded eagle they are kinsfolk across the seas.

REFERENCES

In addition to the references at the close of the previous two chapters, attention
is called to the following works on legislative procedure : Joseph P. Chamberlain,
Legislative Processes; National and State (New York, 1936), Harvey Walker, Law-
making in the United States (New York, 1934), F. M. Riddick, Congressional Pro-
cedure (Boston, 1941), Clarence G. Dill, How Congress Makes Laws (2nd edition,
Washington, 1939), and John Q. Tilson, Parliamentary Law and Procedure (Wash-
ington, 1935). The effect of party discipline on procedure is covered in such
works as P. D. Hasbrouck, Party Government in the House of Representatives (New
York, 1927), George R. Brown, The Leadership of Congress (Indianapolis, 1922),
and Roland Young, This is Congress (New York, 1943).

LOBBYING. The activities of lobbyists and piessure groups are fully described
in E. P. Herring, Group Representation before Congress (Baltimore, 1929), Peter H.
Odegard, Pressure Politics (New York, 1928), and K. C. Crawford, The Pressure
Boys; the Inside Story of Lobbying in America (New York, 1939). The entire issue of
the Annals of the American Academy of Political and Social Science for July, 1929
(CXLIV) is devoted to articles on the subject of lobbying.

The House Manual and Digest and the Manual of the United States Senate contain
the formal rules of procedure of the two chambers. Decisions on parliamentary
law built up in the House of Representatives over the years by various Speakers
and committee chairmen can be found in Ashcr C. Hinds, Parliamentary Precedents
of the House of Representatives (5 vols., Washington, 1907), and supplementary
volumes prepared in 1919 and 1935 by Clarence Cannon. The 1935 supplement,
in three volumes, is entitled Cannon's Precedents of the House of Representatives of the
United States.

CHAPTER XXII
THE GENERAL POWERS OF CONGRESS

The basis of our political system is the right of the people to make and to alter their
constitutions; but the constitution which at any time exists, until changed by an explicit
and authentic act of the whole people, is sacredly obligatory on all. Washington.

The Senate and the House of Representatives together constitute the
national legislature or Congress of the United States. Before attempting
to explain what this combined body does, or can do, in the CONGRES .
way of raising and spending money, regulating commerce, .SIGNAL
promoting agriculture, providing for the national defense, POWERS -
etc., it is desirable to present a general view of congressional powers as a
whole their nature and source, their scope and limitations, as well as
theclirection in which they have been moving during recent years. *
f Congress is commonly spoken of as the lawmaking branch of the
national government, but it is a good deal more than that. Broadly

regarded, it is the instrument by which the people frame,
, , , . , i - r i - T i M O RE THAN

declare, and supervise the policies of the nation. It not only A LAW .

lays down the law but conducts investigations to find out MAKING
what the law ought to be and whether it is being properly
administered.^ t may even punish for contempt any person^ who refuses
to give information during these investigations. 1 Thus \it possesses a
quasi-judicial power. It may, by action on the part of both its Houses,
impeach and remove any civil officer of the United States. It may
initiate proposals to amend the Constitution. It canvasses the electoral
votes every four years; and under certain circumstances, as already
explained, its individual Houses may choose the President and Vice*
President^ FinallyHtjdeclares war^ by joint resolution, not by statute.
It does many thingfctfther than tKe making of laws. \

1 McGrain v. Daugherty, 273 U. S. 135 (1927). See also M E. Diinock, Congressional Invests
gating Committees (Baltimore, 1929); E. J. Eberling, Congressional Investigations (New York, 1928);
and M. N. McGeary, The Development of Congressional Investigative Power (New York, 1940).
In the American Political Science Review, Vol. XXXI (1937), pp. 680-685, appears an article
by the last-named author on investigations occurring in the first term of President F. D.
Roosevelt.

347

348 THE GOVERNMENT OF THE UNITED STATES

Nevertheless, with all its vast endowment, the authority of Congress
is in no sense an unlimited power. Unlimited power cannot be exercised
by any branch of the American federal government executive, legis-
lative, or judicial or even by all three acting together. There are more
limitations than in any other country, and the greatest of these limitations
upon the powers of Congress arises from the theory of the Constitution
itself.;

(The Constitution of the United States, as has been already shown, is a
grant or delegation of powers. In that respect it differs from the con-
stitutions of the several states, for in the states all powers
OF^NGRESS ex * st as a resu ^ f the states' original sovereignty. By the
ARE DELE- national Constitution, Congress gets only what is therein
GATED given; by the state constitutions every state legislature gets

whatever is not taken away. This difference is of vital
importance, so vital that it can scarcely be overemphasized. The national
Constitution is the source of all the authority possessed by Congress.

(Occasionally it has been argued that, since the United States is a

sovereign nation in its dealings with other countries, its legislative body

(Congress) must have all the powers which go with inter-

ARE THERE

"INHERENT" national sovereignty whether they are conferred by the
POWERS OF Constitution or not. 1 Among such powers are the right to

INTERNA- . . i r

TIONAL acquire new territory, to set up consular courts in foreign

SOVER- countries, and to restrict immigration. But nearly all the

authority which a sovereign nation would commonly
exercise in its dealings with other countries is already given to Congress
by the power to regulate foreign commerce and the other broad powers
which the Constitution lodges in the federal government.

From time to time, likewise, the theory has been advanced that, since

there is a no-man's land intervening between the jurisdiction of the

states and that of the federal government, the latter is

TWILIGHT entitled to take possession of this area. In other words,

ZONE OF .Whenever there is a problem which would ordinarily fall

AUTHORITY. >~~ , -j i * r + ^ U * u- u

into the residual category ot state powers, but which is in
fact beyond the active power of a state to handle in such cases, the
national government should be permitted to deal with the problem.
President Theodore Roosevelt argued for such a doctrine in one of hi?
books. 2 Other writers, within the past few years, have gone so far as to

1 See W. W. Willoughby, The Constitutional Law of the United States (2nd edition, 3 vols.,
New York, 1929), Vol. I, p. 90.

1 The New Nationalism (New York, 1910).

THE GENERAL POWERS OF CONGRESS 349

contend that Congress has power to do anything which the " general
welfare" may requireT)

A word of comment on this general welfare clause seems desirable.
Apparently it was not originally intended to enlarge the powers of
Congress, but to limit the purposes for which Congress

11 T * j- i i i - ,1 MADISON ON

might levy taxes. James Madison took that position, and he - IHE GENERAL
knew as much as any man about what the framers of the WELFARE
Constitution intended. He wrote: "The enemies of the new
Constitution in their anxiety to prevent its adoption were professing to
find in the above-quoted clause 'an unlimited commission to exercise
any power which may be alleged to be necessary for the common defense
or general welfare. 5 " 2 But, as Madison pointed out, there would be no
reason for enumerating a long list of specific powers in the Constitution
(Art. I, Sec. 8) if Congress had such a comprehensive power to provide
for the general welfare. The latter would surely include all the specific
powers given to Congress and many more besides. It may be mentioned,
moreover, that the expression "common defense and general welfare"
was copied from the Articles of Confederation which provided that "all
charges for war and all other expenses that shall be incurred for the
common defense and general welfare . . . shall be defrayed out of the
common treasury." Yet no ope ever suggested that the congress of the
confederation obtained from this provision any comprehensive powers of
general welfare promotion.

The question as to what is a general welfare purpose has often been
presented to the courts for interpretation. May taxes be imposed to pay
bounties to growers of suear beets or some other commodity

WHAT IS A

which Congress desires to encourage? May Congress raise "GENERAL

money by taxation to construct irrigation works in a single WELFARE"
, , . , , . . , . PURPOSE?

state, or help a city celebrate its centennial, or assist some

section of the country that happens to have a crop failure? In such
matters the courts have held that incidental private benefits or sectional
advantages do not preclude the main purpose from being a general
welfare purpose. On the other hand, the Supreme Court held in 1936
that the processing taxes which were levied by Congress in the Agri-
cultural Adjustment Act (1933) were unconstitutional. 3 One weakness of
these processing taxes from a constitutional standpoint (but not the

1 James F. Lawson, The General Welfare Clause (Washington, 1934). The "general welfare"
clause appears at the beginning of Section 8, Article I, of the Constitution. It reads- "The
Congress shall have power to lay and collect taxes, duties, imports, and excises, to pay the
debts and provide for the common defence and general welfare of the United States."

2 The Federalist, No. 41. s U. S. v. Butler, 297 U. S. i (1936).

350 THE GOVERNMENT OF THE UNITED STATES

only one) was that the proceeds from these taxes were not to be merged
with the general revenues and then expended for any general welfare
purpose which Congress might determine, but were definitely earmarked
for payment without special appropriation to those farmers who would
restrict their agricultural production and thus reduce a temporary sur-
plus of farm products. Too much importance should not be attached
to this decision, since it did not imply that a tax imposed by Congress,
as a means of augmenting its general revenues, would be declared un-
constitutional because the proceeds were thereafter appropriated by it
for the benefit of agriculturists alone.
The majority decision (6 to 3) declared:

The view that the clause grants power to provide for the general welfare,
independently of the taxing powei, has never been authoritatively accepted. . . .
The true construction undoubtedly is that the only thing granted is the power to
tax for the purpose of providing funds for the payment of the nation's debts and
making provision for the general welfare.

But according to the minority:

As the present depressed state of agriculture is nationwide in its extent and
effects, there is no basis for saying that the expenditure of public money in aid
of farmers is not within the specifically granted power of Congress to levy taxes
"to provide for . . . the general welfare." *

The next year (1937), however, the Court sustained the constitution-
ality of the Social Security Act by a bare majority, which included the
three dissenters of the previous year. 1 Mr. Justice Cardozo, in delivering
the opinion of the Court, had this to say about the controversial clause:

It is too late today for the argument to be heard with tolerance that, in a
crisis so extreme, the use of the moneys of the nation to relieve the unemployed
and their dependents is a use for any purpose narrower than the promotion of
the general welfare.

This reversal on the part of the Supreme Court did not evoke any wide-
spread protest from the states, yet one can hardly escape the conclusion
that if the dictum of Justice Cardozo is maintained "When money is
spent to promote the general welfare, the concept of welfare or the oppo-
site is shaped by Congress, not the states" then there will be an almost
unlimited opportunity for invasion of the reserved rights of the states.

With respect to the various other powers which the Constitution
confers on Congress, two historic questions have arisen. The first was

1 Steward Machine Company v Davis, 301 U. S. 543 (1937), and Helvering v. Davis,
301 U. S. 619 (1937).

THE GENERAL POWERS OF CONGRESS 351

this: could the grant of authority to the federal government be revoked?
The several states, it was admitted, gave Congress certain powers in
1 787. Could these individual states resume any of the powers
which they had bestowed at that time? In other words, could
a state nullify any power which was given to Congress by
the Constitution? The second issue concerned itself with whether a state
could resume all its original powers by seceding from the Union. Nulli-
fication and secession, in other words, were tense political issues in
American history many years ago, but both of them have long since been
settled by the march of events.

South Carolina in 1832 made her famous gesture of nullification based
upon the contention that, whenever Congress went beyond the limits of
power which appeared to have been granted by the Con-
stitution, any state was at liberty to declare such action CATION^*"
unauthorized and null. 1 This doctrine found its advocate
in John C. Calhoun. 2 According to his interpretation of the Constitution,
the states could refuse to obey any federal law which they deemed to be
unconstitutional. Acting upon this conception of ultimate state sover-
eignty, South Carolina in 1832 attempted to nullify certain tariff laws
which Congress had passed. But the attempt did not succeed. The federal
government, under President Andrew Jackson's leadership, took up the
gage of battle and persuaded South Carolina to recede from her position
of defiance.

The question of whether a state had the right, not merely to refuse
obedience to acts of Congress, but to withdraw from the Union alto-
gether, and thus to repudiate the compact of 1787, came to

i c i r i 2. SECES-

the Iront in a much more serious lorm twenty-eight years SION AFAR

later. Threats of secession had been made by various states MORE DIFFI-
from time to time during the first half of the nineteenth CULT PROB "

LEM.

century, but it was not until December 20, 1860, that any

1 A somewhat different doctrine of nullification had been put forward by Madison and
Jefferson in the famous "Virginia and Kentucky Resolutions'* as a protest against the Alien
and Sedition Acts of 1 798. According to the Kentucky resolutions (second act), a nullification,
by the sovereign states, of all unauthorized arts done under pretended constitutional power
"is the rightful remedy", and, according to the Virginia resolutions, the states, as parties to
the compact of 1787, "have the right, and are in duty bound, to interpose for arresting the
progress of the evil" when the federal government exceeds its powers.

2 Calhoun's doctrine may be summarized into four propositions: i . The Union is a compact
of equal states. 2. The federal government was created by the states as their agent to carry out
the terms of this compact as embodied in the Constitution. 3. The act of an agent, if beyond
the scope of its authority, is null and void. 4 Each state has the right to decide for itself whether
an act of the federal government is beyond the scope of its powers. For a full statement of the
doctrine see his State Papers on Nullification (1834), a ^ so David F. Houston's Critical Study oj
Nullification in South Carolina (New York, 1896).

352 THE GOVERNMENT OF THE UNITED STATES

state took the actual step of seceding. On that date South Carolina once
again assumed the initiative by declaring that "the union now subsist-
ing between South Carolina and other states under the name of the
United States of America is hereby dissolved." Within a few months ten
other southern states had taken similar action.

(The right to secede from the Union, and thus reacquire all the powers
which had been surrendered by the states to Congress in 1 787, was based
CLAIMS OF upon several contentions which need not be enumerated
THE SEGES- here. They may be epitomized in the old claim that the
SIONISTS. Constitution was nothing more than a treaty or compact

among the states, and that the violation of its terms or spirit by some of
the states freed the others from the obligation of being further bound by
it.^l)aniel Webster and others replied that the Constitution was not a
compact among the states but an agreement among the people. They
pointed to the very first words of the Constitution, "We, the people of
the United States ... do ordain and establish this Constitution." The
southern statesmen retorted by pointing to the very last words of the
Constitution which provided for the establishment of the Constitution
"between the states so ratifying the same."

(During the years preceding the Civil War the question was argued
from every angle and with all manner of legal ingenuity. Both sides
appealed to history, and distorted history, to support their
OUTCOME OF respective contentions. As for the Constitution itself, it was
THESE found to be as mute as a dying gangster on the question of

whether the states could withdraw from the Union after
once entering it. Nothing was said about that matter in the convention
of 1 787, and naturally so, for the framers of the Constitution were not
worrying about how to let the states out of the Union, but how to get
them in. Along with many other far-off issues they left this one for pos-
terity to handle, if it should ever arise. And eventually it did arise. Men
argued bitterly about it in Congress, waged four years of fratricidal
warfare over it, and finally settled the issue at Appomattox.

Blood and iron gave their verdict in 1865. Since the day that Lee

offered his sword to Grant, this stormy petrel of American politics has

been at rest. No state has the right to take back any of the

PERPETUAL . . . . , . i

NATURE OF powers or functions which it agreed to give to the national
THE UNION government by the compact of 1787. These powers form

ESTABLISHED. . , r ^ r , . ,

the permanent endowment ot Congress. 1 hey can be with-

1 Jefferson Davis, President of the Confederacy, in his message to the Congress of the Con-
federate States (April 29, 1861) gave a full statement of the secessionist doctrine. This is
elaborated in his Rise and Fall of the Confederate Government (2 vols., New York, 1881), Vol. I,
pp. 1-258.

THE GENERAL POWERS OF CONGRESS 353

drawn in one way only that is, by the concurrence of three fourths of
the^states as provided in the Constitution.

(Three points, accordingly, are now well established in American
constitutional jurisprudence. First, the Constitution is a grant of powers,
and Congress has no lawmaking authority save as is therein

& & 7 SUMMARY OF

conveyed. Second^ within its own sphere, as delimited by THE CONSTI-
the Constitution, the authority of Congress is supreme. TU^ONAL

-T-i i i -i 11 -r i BASES OF

1 hird, no state has any right to nullify this supremacy by a CONGRES
refusal to recognize it, nor may individual states secede SIONAL
from the jurisdiction of the federal government.'; As Chief
Justice Marshall phrased it in one of his great decisions: 1

The government of the Union is acknowledged by all to be one of enumerated
powers. But it is emphatically and truly a government of the people, in force and
substance it emanates from them, its powers are granted by them, and are to be
exercised directly on them, and for their benefit. The people did not design to
make their government dependent on the states. Therefore, the government of
the Union, though limited in its powers, is supreme within its sphere of action.
Its laws, when made in pursuance of the Constitution, form the supreme law of
the land. It is the government of all that acts for all.

But although the powers of Congress, as Marshall says, arc limited to
those enumerated in the Constitution, this does not mean that no new
powers can be added. (Additional authority can be given

1 . V< -- r - J THE EXPAN-

to Congress by constitutional amendment; and on more SION OF ,
than one occasion this has been done. A noteworthy ex- FEDERAL

i rr i i i i i i / \ AUIHORHY.

ample was afiorded by the sixteenth amendment (1913),
which widened the taxing power of the national government. Moreover,
as has already been pointed out, the powers of Congress have been
steadily widened by the process of judicial interpretation. A government
of enumerated powers is not by any means a government of static powers?)
This is what sometimes happens: Public sentiment begins by desiring
some action which cannot be satisfactorily taken by the legislatures of
the states; then it demands action by Congress, although realizing that
Congress has no clear constitutional power so to act. (Congress, in tut,
yields to the pressure and takes the action, leaving the question of con-
stitutionality to the Supreme Court. If the Court feels that the popular
demand is not merely capricious and transitory, bat more or less mature
and persistent, and especially if it sees that a refusal to support the action
of Congress would involve it in serious controversy or loss of prestige,
it may decide to "reinterpret" the meaning of words or phrases in the
Constitution?)It may find a knothole, as Mr. Justice Harlan once said,,

1 McCulloch v. Maryland, 4 Wheaton 316 (1819).

354 THE GOVERNMENT OF THE UNITED STATES

big enough to push the doubtful measure through. The "general wel-
fare" clause may well become such a knothole.

Again why did the Supreme Court hold the National Labor Relations
Act constitutional? Many of the employees brought under this act were
not engaged in interstate commerce. But the manufacturers who em-
ployed them were; for they bought raw materials from other states and
shipped finished goods to other states. Conflicts between employers and
workers in one state, moreover, would affect production in other states,
and thus obstruct the flow of interstate commerce. 1 Or, to take another
illustration: after two federal child-labor laws had been invalidated by
the Court, and after the states had failed to ratify a child-labor amend-
ment to the Constitution, Congress accomplished the same purpose by
passing, in 1938, the Fair Labor Standards (Wages and Hours) Act.
Unanimously the Court upheld the act. 2

When Congress possesses a power, must it exercise this power directly
or can it delegate the authority to someone else? Having the power to
CAN CON- l ev Y taxes, for example, can Congress turn over to the
GRESS DELE- secretary of the treasury, or to a tax board, the function of
POWER^TO determining what shall be taxed and at what ratcs?(JThe
EXECUTIVE answer is in the negative. Powers granted to Congress by
OFFICERS. ftit Constitution cannot be farmed out, but must be exer-
cised directly/)The substance of power may not be delegated. On the other
hand, it is obvious that Congress cannot be expected to embody in statu-
tory form all the minor regulations which are needed in connection with
the administration of the laws. Hence it is allowable to authorize some
executive officer (usually the President, or the head of a department, or a
national board, such as the interstate commerce commission) to make
these detailed rules. Congress lays down the general provisions by
statute, but within the scope of these provisions it may give discretionary
power to some federal officer or board. And this discretionary power
may be of far-reaching scope, as has been demonstrated within the past
few years. 3

(^This principle that the substance of legislative power must not be
delegated was vigorously reaffirmed by the Supreme Court in the
THE Schechter Case (ig35)yThe National Industrial Recovery

SCHECHTER Act of IQ33 conferrecfupon the President extensive author-
CASE. j t y to a pp rove or re j ec t codes of fair competition prepared

by industries and submitted to him. Congress, in passing this important

1 N L R B v. Jones and Laughlin Steel Corporation, 301 U. S. i (1937).

2 United States v. Darby Lumber Company, 312 U. S. 100 (1941).
8 See pp. 525-527-

THE GENERAL POWERS OF CONGRESS 355

statute, did not set up any adequate standards whereby codes should be
approved or rejected by the President, but left the ultimate decision to
his executive judgment. The Supreme Court held that the act involved a
delegation of legislative power by Congress and for that reason was un-
constitutional. The Court also held the act to be unconstitutional for
another reason: namely, because it attempted to control industries which
were not engaged in interstate commerce. 1

Some other questions arise concerning the delegation of legislative
power. Can Congress turn over any of its powers to the states? Can it
submit laws to a referendum or vote of the people, as is done
in some of the states? QThe answer is No in both cases. DELEGATE
Power to grant patents, or to establish post offices, or to fix ITS POWERS
the standards of weights and measures (all of which powers STATES OR
arc vested in Congress by the Constitution) cannot be turned T0 THE
over or formally delegated to the state legislatures^) On the VOTERS '
other hand, without any formal delegation, the national government
may permit the state legislatures to exercise certain powers (not pro-
hibited to the states by the Constitution) until such time as Congress
proceeds to assume these powers. Some illustrations of this will be given
presently. 2 Nor is it permissible for Congress to hold a national referendum
on the adoption or rejection of any measure. But there is nothing to
debar Congress from authorizing an advisory popular vote to ascertain
the wishes of the people (on the question of declaring war, for example)
so long as it reserves to itself the final decision and action.

Having thus seen the constitutional basis of its authority and the scope
of its exercise, let us turn to the actual powers of Congress. These may be
classified in various ways.(One method of classification is
according to the form in which they are granted, whether
in express terms or by implication. Another is according OF THE

POWERS OF

to the decree of obligation imposed, in other words, whether

& & ^ ' ' CONGRESS.

they are permissive or mandatory. A third distinction relates
to exclusive and concurrent powers. Finally, and most significant of all,
is the classification of the powers of Congress according to their nature
and importance^

Does Congress possess only those powers which are granted by the
Constitution in express terms? Or does Congress also possess powers
which, though not expressly granted, may be reasonably
implied? The Constitution, for example, expressly gives AND
Congress the right to borrow money. Does that express IMPLIED
power carry with it the implied right to issue bonds, to

1 Sec p. 70, footnote 2, and pf>. 445-446. * See p. 358.

356 THE GOVERNMENT OF THE UNITED STATES

employ bond salesmen, and even to establish banks in order to facilitate
the exercise of the borrowing power? This question arose at a very early

datefHamilton and the Federalists argued that there ought
viEw LT N>S to b ^ no strict construction of the Constitution's terse

phraseology, no reading of the words with a microscope and
a dictionary. They contended that, wherever an express power had been
granted, this express grant should be construed to carry with it whatever
implied powers were "necessary and proper" to make the will of Congress

effective?) )K 2*^?
f~** ^-^ ~

\Tcfferson and the Anti-Federalists took the opposite ground) maintain-
ing that the long enumeration of express powers granted to Congress in
the Constitution was meant to be complete, and tluit otner
powers should not be added by implication. They argued
that if this implied-powers doctrine were allowed to prevail,
there would be no end to the expansion of the federal government's
authority. Congress might assume all sorts of things to be "necessary
and proper" for doing its work. The preservation of states' rights, they
felt, made it essential that Congress be kept to a strict and literal inter-
pretation of its delegated authority.

(Between these divergent views, the Supreme Court, in a most notable

decision, took a stand which upheld the Federalist claim?) "The sound

construction of the Constitution," said Chief Justice Mar-

SUPREME shall in this decision, "must allow to the national legislature

COURT'S that discretion with respect to the means by which the

DECISION. . r . . , . . ...

powers it comers arc to be carried into execution, which

will enable that body to perform the high duties assigned to it in a
manner most beneficial to the people." A narrow construction, he
declared, would hamper the operations of government and make it
incapable of performing the functions that it was established to perform.
Then Marshall drove home the Court's decision in these forceful words: 2

Let the end be legitimate, let it be within the scope of the Constitution, and
all means which are appropriate, which are plainly adapted to that end, and
which are not prohibited but consist with the letter and the spirit of the Constitu-
tion, are constitutional.

An express power, in short, may be carried beyond its own phraseology.
The doctrine of implied powers was thus given recognition in 1819, and
it has ever since been a well-established rule or principle of American
constitutional interpretation.

1 Sec Art. I, Sec. 8, par 12 of the Constitution.

2 McCulloch v. Maryland, 4 Wheaton 316 (i8iq).

(Sor

THE GENERAL POWERS OF CONGRESS 357

me of the most important functions which the federal government
performs today have their basis in "implied" powers. The right of
Congress to provide for the establishment and supervision
of national banks, federal reserve banks, and various other TH E
banking or credit institutions, is not an express power, for "IMPLIED '
the Constitution contains no mention of banks or banking.
The power is implied, or at any rate has been held by the Supreme Court
to be implied, in the express power to borrow money on the credit of the
United States. The right of Congress to regulate the food and fuel con-
sumption of the country or even to take over industries in times of
national emergency is nowhere expressly granted in the Constitution.
It is clearly implied, however, in the express power "to raise and support
armies." If it is necessary to commandeer an aircraft factory to "support"
thii^armed forces, Congress has the power to do it.Jy

\Nor, again, does the Constitution expressly give Congress the right to
regulate the stock exchanges, or the issue of securities, yet this authority
is implied in the power to regulate commerce among the several states.
The power to establish carries with it the power to maintain; the power
to regulate implies the power to create agencies of regulation; the power
to do a thing implies the right to choose the means of doing it. Bear in
mind, however, that Congress is not the judge of its own implied powers.
The Supreme Court is the final arbiter in such matters and, on several
occasions, it has denied congressional claims to implied authority. *J

(The powers granted to Congress by the Constitution are mostly
permissive in character: that is to say, Congress may or may not exercise
them, as it sees fit. It may use these permissive powers much,

,. , 11 r i , . , i i ^ MANDATORY

little, or not at all. I he clause which provides that Congress AND PER-
shall have power "to borrow money on the credit of the MISSIVF

POWERS

United States" obviously does not mean that Congress shall
go out and borrow money whether the country is in need of it or not.
Thus it is with the power "to grant letters of marque and reprisal." It has
granted none during the past eighty years. }l

On the other hand, there are some pSwers which, notwithstanding
their permissive phraseology, are mandatory in effect. Whenever, for
example, some action on the part of Congress is necessary to make a pro-

1 Many other illustrations might be given, for, as Professor J. M Mathcws has said (Tht
American Constitutional System t 2nd edition, New York, 1940), the implied powers of Congress
are more numerous and more extensive than its express powers One might ask where Con
gress got the power to punish theft of the mails and to establish the parcel post, or to provide
for unemployment compensation and old-age pensions, or to pass pure food and drug acts
In some instances, an implied power is deuvcd from an express power, not directly, but a f
second hand, one implied power having given birth to another.

8 For examples, see pp. 400-401,

358 THE GOVERNMENT OF THE UNITED STATES

vision of the Constitution effective, it can hardly be argued that th^
function of Congress is a discretionary one. To give an illustration :(the
PHRASE- Constitution provides that the Supreme Court shall have

OLOGYIS appellate jurisdiction "under such regulations as Congress

MISL^DU^G s k a U ma ke." But if Congress should establish no regulations,
ON THIS the court would then have no appellate jurisdiction and

POINT. ^e entire judicial system would be in chaos. Obviously the

words of the Constitution on this point, although they seem permissive,
ar^ in fact, mandator^O

{(lAgain, the Constitution provides for a reapportionment of seats in
the House of Representatives after every decennial census, this census to
be taken in such manner "as Congress shall by law direct." But if
Congress fails to provide the machinery and the money for taking the
census, the reapportionment prescribed by the Constitution cannot* be
made. Congress is, therefore, under obligation to provide for the taking
of a census, even though the Constitution does not specifically require it
to do soJOn the other hand, if Congress fails to have a census taken, or
neglects to provide for a reapportionment of seats after a census, as it
did after the census of 1920, there is no way of applying compulsion.
The Supreme Court will not order Congress to vote money or to pass a
law; for, if the Court were to issue such an order, there would be no way
of enforcing it. It could hardly put Congress in prison for contempt.

(Then there is the distinction between exclusive and concurrent powers.

A power is exclusive, as in the case of coining money or declaring war,

when the Constitution has granted it to Congress and also

EXCLUSIVE

AND CON- denied it to the states; otherwise it is concurrent. The states
CURRENT have concurrent power to "fix the standard of weights and

POWERS. ,, . . . r .

measures and even to regulate some phases of interstate
and foreign commerce (mainly for the protection of public health and
safety.) V But frequently the power is of such a nature that, when Congress
has acted, no room is left for any competing or supplementary legislation.
Congress has power to enact laws relating to bankruptcy, but except for
three brief periods, bankruptcy was left altogether to the states until
1898. A federal statute of that year, however, occupied the field so
completely that the earlier state laws had to be repealed or suspended;
for whenever a conflict arises in matters of concurrent power, the state
laws give way to the federal laws. (Another illustration: the Constitution
gives Congress power to "establish a uniform rule of naturalization,"
but not until 1817 did the Supreme Court, abandoning its earlier posi-

1 Cooley v. Board of Port Wardens, 12 Howard 299 (1851); Kelly v. Washington ex. rel
Foss Company, 302 U. S. i (1937).

THE GENERAL POWERS OF CONGRESS 359

tion, hold this power to be an exclusive, rather than a concurrent, power. 1
Concurrent powers, though as a general rule merely implied, may be
conferred by the Constitution upon both Congress and the states in
express terms. For example, the eighteenth amendment, which was
repealed in 1933, entrusted its enforcement to Congress and the several
states concurrently^)

Broadly speaking, all legislative powers are divided by the Constitution
into four groups: First, there are certain powers which are forbidden
to be exercised, either by Congress or by the states. Second, THE FOUR
there are various powers vested in Congress alone, to the GROUPS OF
exclusion of all state authority. Third, there are a few "

FOR
concurrent powers, which Congress and the state author- IN THE CON-

ities share. And finally, there are all the remaining powers srrruTION:
of government forming a residuum which reverts to the states. 2

The powers prohibited either to Congress, or to the states, or to both,
possess a considerable range. Some are powers which no free government
should ever exercise: for example, the power to pass bills

P . , r t i ! POWERS

ot attainder, or to enact ex post facto laws, or to deprive PROHIBITED

anyone of his life, liberty or property, without due process TO BOTH

of law. The exercise of these powers is forbidden to both AND !J HE

the national and the state governments. STATES.

But, in addition, there are other powers, not by their

nature despotic or arbitrary, which had to be vested in some PROHIBITED

central authority and hence were prohibited to the states, T0 THE

11 -11 u _i L ^ 1 STATES ONLY.

so that they might always be exercised by Congress alone.

The states, accordingly, were forbidden to make treaties, to coin money,

or to lay taxes on either exports or imports.

(The Constitution contains eighteen clauses expressly granting powers
to the national government, hence the customary reference to "the
eighteen powers of Congress. 55 There are really more than PO WERS
eighteen powers, however, because some of the clauses con- GIVEN TO
vey more than one. The section which contains the enumer- CONGRESS -

1 Chirac v Chirac, 2 Wheaton 259

2 The division may be made somewhat clearer perhaps by the following diagram:

Let the ellipse represent the totality of governmental powers. Then Circle A includes all
powers granted to the national government, Circle B all powers reserved to the states; Seg-

360

THE GOVERNMENT OF THE UNITED STATES

ation of these powers is the longest single section in the Constitution and
also the most important. J It furnishes the national government with its

ment C, the few powers which are concurrent powers, i.e., exercisablc by both federal and
state governments, Segment D, powers prohibited to the nation, and Segment E, poweis
forbidden to the states The following are some ot the more irnpoi tant powers that would be
placed within the afoiementioiied circles and segments:

NATIONAL POWERS

CONCURRENT POWFRS

PROHIBITION!* UPON

TH*. NATION

PROHIBITIONS UPON

THE SlATLS

STATF POWERS

To conduct for-

To tax.

To abridge free-

To keep troops

To make and en-

eign affairs.

To borrow

dom of worship

or ships of war

force the ordi-

To raise and

money.

or of the press

in time of

nary civil and

support armies.

To charter

or of assembly

peace.

criminal laws.

To maintain a

banks and

or of petition

To enter into

To establish and

navy.

other corpora-

To deny any of

any treaty.

control local

To regulate for-

tions.

the other piiv-

To com money

government

eign and inter-

To promote

ileges enumer-

or issue bills of

To conduct elec-

state commerce

agriculture

ated in the Bill

credit.

tions

To com money.

To foster educa-

of Rights (see

To pass any law

To regulate com-

To establish a

tion

Amendments

impairing the

merce and in-

postal service.

I-X).

obligation of

dustry within

To grant pat-

To permit slav-

contracts.

the state.

ents and copy-

ery in any ter-

To lay any tax

To protect the

rights.

ritory within

or duty on im-

life, health, and

To admit new

the national ju-

ports

morals of the

states.

risdiction.

To abridge the

people (the "po-

To abridge the

privileges or

lice power").

suffrage of cit-

immunities of

izens on ac-

citizens of* the

count of sex.

United States,

To give prefer-

or deprive

ence to one

them of life,

state over an-

liberty or prop-

other in mat-

erty without

ters of com-

due process of

merce.

law or deny to

persons withm

their jurisdic-

tion the equal

protection of

the laws.

To abndge the

voting rights of

citizens on ac-

count of race,

color, previous

condition of

servitude, or

sex

To pass any bill of attainder or ex

post facto law. To grant titles of

nobility. To levy duties on exports

1 Article I, .Section 8. But many more than a dozen of the powers of Congress are
to be found elsewhere in the Constitution, for example, the power to override the veto, admh
new states, make all needful rules and regulations respecting the territory and other property
of the United States, etc.

THE GENERAL POWERS OF CONGRESS 361

motive power, and, indeed, without this particular section Congress
would be a body of very little consequence. This section gives momentum
to^he whole national mechanism.

5<aken as a whole, the legislative powers granted to Congress in these
eighteen clauses of the Constitution may be grouped under eight headings:
i. Financial, the power to levy taxes, to vote appropria-

~ -ii HOW THESE

tions, and to borrow money. 2. Commercial, the power to POWERS MAY
regulate foreign and interstate commerce. 3. Military, the BE CLASSI-

11 i , FEED.

power to declare war; to raise and support armies; to pro-
vide for the organization, arming, and calling forth of the militia; to
maintain a navy; and to make rules for the government of the land forces.
4. Monetary, the power to coin money, to regulate the value thereof, and
to protect the currency against counterfeiting. 5. Postal, the power to
establish post offices and post roads. 6. Judicial, the power to establish
inferior courts and to determine the composition and appellate juris-
diction of the Supreme Court. J. Miscellaneous, including powers^in
relation to naturalization, bankruptcy, patents, copyrights, and 4he
government of the District of Columbia and other places (such as navy
yards) purchased with the consent of the states. 8. Supplementary, the
power to make all laws which may be found ^necessary and proper for
carrying into execution the foregoing powers/y

Not all of these powers are of equal scope and importance. The first
three categories financial, commercial, and military are of greater
significance than all the others put together. 1

(Naturally enough, no enumeration of powers retained by the states
is made in the Constitution.\There was no need for it; the states merely
retained all that they did not give away. When an indi-

4. POWERS

vidual gives a deed of certain properties, he does not think WHICH RE-
it necessary to accompany this grant with a list of all the MAIN WITH

, , T,, ii THE STATES.

properties that he retains. Ihus powers not conveyed by
the Constitution to Congress, and not prohibited to the states, are state
, powers. /The residuum of powers which remains with the states is very
large, including nearly the whole field of civil and criminal law, the
chartering of corporations, the supervision of local government, the
maintenance of order, the control of education, and the general admin-

n of many things which touch the daily life of the people. ^>
ngress is popularly said to be the nation's lawmaking body. As such
i^ enacts laws within the scope of its constitutional powers. But Congress
is also, in a very real sense, an administrative body, it controls and
directs the whole work of administering and enforcing its own laws.

1 They are dealt with in Chapters XXIII, XXIV, XXV, and XXX of this book

(^Cong

362 THE GOVERNMENT OF THE UNITED STATES

Congress provides the money without which the laws could not be ex-
ecuted or justice administered. It determines the pay of everybody in

the service of the federal government. When Congress
ADMINIS- _ . . . i i , , i . i ,

TRATIVE makes an appropriation of money to buy land and build a

WORK OF post-office building, for example, the appropriation is made

CONGRESS. i/> r 1 i i 11*

in the form oi a law; but the action is to all intents a
business deal, and the ordinary citizen looks upon it as such. Probably
three fourths of the national "laws" are simply the outer garments of
administrative action. Congress holds the purse strings and thereby
controls the mainsprings of governmentaJ^mthpHty, for without money
there is little that any government can do./

\ ffjiikewise the Congress of the United States is a supervising, inspecting,
scrutinizing, investigating body. It has a right to know, before voting
ITS SUPER- more money this year, how last year's money was spent.
VISORY It has a right to know, before voting money for new pro-

WORK. jects, whether the expenditure is necessary. To this end it

receives all manner of reports, calls for data, imposes restrictions, makes
rules, and exercises supervisory functions on a huge scale. It may in-
vestigate anybody or anything at any time. 1 When it does so, it becomes
vested with many of the functions and most of the authority of a court.
During the past few years congressional committees have probed into
government contracts, shipping facilities, flood cpiitrol, soil erosion,
aircraft production, and a dozen other matters.^

i^urveying the general powers of Congress, merefore, one might say
that they are legislative, administrative, supervisory, and investigative

with their importance in the descending: order named. We

SUMMARY

call Congress a lawmaking body because legislation is its
most important function; but that function, it should be emphasized, is
by no means the only one. If Congress did nothing but make the laws, in
the strict sense of the term, it would do its work in a few weeks every
year. 2 But it sits for a great many weeks because there are countless other
things to do. Congress, not the President, is the basis on which the
American system of national government rests, although few citizens

1 Provided that the inquiry is reasonably conducive to the wise and effective exercise of
its legislative powers (McGrain v. Daugherty, 273 U. S. 135, 1927) The Court decided in
1 880 that Congress could not promiscuously explore the private affairs of citizens in the course
of a lawful investigation (Kilbourn v. Thompson, 103 U. S. 190).

2 The term "legislature," in fact, is somewhat misleading. It is not derived from the primary
functions of early representative assemblies. Those assemblies were convoked by the executive
for the purpose of voting revenue and supply, a function that should be differentiated, even
today, from that of enacting statutes; and they developed a habit of insisting that redress of
grievances should precede supply. When Congress passes money bills or when it investigates
the conduct of the executive, its activity is, from the standpoint of history at least, fundamental.

THE GENERAL POWERS OF CONGRESS 363

realize it. For although Congress may exalt the President to a high
pinnacle of authority by giving him a wide range of discretion within
the bounds of law, it can always take away from him what it has

le powers of Congress have been growing eveAsince its first session,
not steadily, but by fits and starts. Many people have deplored this
relentless march of federal centralization. They point out
that as the pqwers of Congress expand, those of the states CROACHMENT
must contract^ This may be true, but the expansion of ON STATES'
federal authority has been the inevitable result of growth
in the size and complexity of the country's political and economic
problems. Problems which used to be local have become national.
Commerce and communication, industry and investment they have
expanded to a point where they require national regulation, as that is
the only kind of regulation that can hope to prove effective. The country,
moreover, has grown more nationally minded. The dread of a strong
central government and the old insistence on states' rights have been
passing away. People are more tolerant of federal intervention than they
used to be. The United States have become united.

But there are dangers in this tendency to look towards Washington
for a solution of all the nation's problems} Too much centralization in
the body politic may lead to a paralysis or-tKe extremities^ ^^
Moreover, there is such a thing as overburdening a govern- DANGERS
mcnt and breaking it down. No centralized administration, INV LVED -
howsoever efficient, can hope to supply the entire governmental require-
ments of 140,000,000 people in the twentieth century. It must, perforce,
leave much to local self-determination. The question is how much. As
little as it can? Or as much as the states and municipalities show them-
selves competent to do? That is an issue on which opinions will continue
to differ.

(^Congress, in the exercise of its powers, enacts too many laws. So do the
state legislatures. There are said to be about two million laws and
ordinances at present effective in the United States, or
supposed to be effective. This is a mere guess, however, for QI^AWS!^
nobody has ever counted them aff^ The enacting, revising,
amending, interpreting, and enforcing of laws has become one of our
great national industries,, There is never any depression or unemployment
in this field of activity.yjyhen industry lags, the laws increase} Statutes
fly from the forty-nine legislative capitals in the United States like sparks
from so many anvils. OuiTlegislators seem to have forgotten the beatitude
that it is more blessed to repeal than to enacK

364 THE GOVERNMENT OF THE UNITED STATES

Laws beget laws. Give a statute time and it will have its own progeny.
The increase is like that of microorganisms, by geometrical progression.
A WARNING ^k e Fathers of the Republic foresaw the dangers of over-
FROM -i HE legislation and desired to guard against it. Thus, we read
PAST - in The Federalist: l

It will be of little avail to the people that the laws are made by men of their
own choice, if the laws be so voluminous that they cannot be read, or so inco-
herent that they cannot be understood; if they be repealed or revised before
they are promulgated, or undergo such incessant changes that no man who
knows what the law is today can guess what it will be tomorrow.

We have long since passed this stage. Think of the New York police-
man who carries in his pocket a list of the seven thousand ordinances
which he is expected to enforce. He is merely the sauntering symbol of a
great city's legal helplessness. Our laws are too voluminous to be read,
too incoherent to be understood, and often too absurd to be enforced.
This is particularly true of the host of regulatory statutes which control
the way in which private business can be carried on. The situation points
to the greatest obsession of the American people: namely, a faith in the
remedial potency of legislation. Laws do not get a nation out of trouble;
sometimes they draw a country farther into it. The incessant passing,
amending, and repealing of legislation creates an atmosphere of uncer-
tainty in which "no man who knows what the law is today can guess
what it will be tomorrow."

REFERENCES

The powers of Congress are analyzed at length in such works as W. VV.
Willoughby, The Constitutional Law of the United States (2nd edition, 3 vols .
New York, 1929), C K Burdick, The Law of the American Constitution (New York,
1922), Walter Thompson, Federal Centralisation (New York, 1923), H C Re-
mick, The Powers of Congress in Respect to Membership and Elections (Princeton,
1929), J. P. Comer, The Legislative Functions of National Administrative Authorities
(New York, 1927), II. L. West, Federal Power; Its Growth and Necessity (New York,
1918), and Ernest S. Bates, The Story of Congress, 1789-1935 (New York, 1936).

Volumes dealing with special aspects of congressional power are M. N.
McGeary, The Development of Congressional Investigative Power (New York, 1940),
Charles Warren, Congress as Santa Claus or National Donations and the General
Welfare Clause of the Constitution (Charlottesville, Va., 1932), J. F. Lawson, The
General Welfare Clause: A Study of the Power of Congress under the Constitution (Wash-
ington, 1934), and Charles A. Beard, Public Policy and the General Welfare (New
York, 1941).

See also the references at the end of Chapters XVIII and XX.

1 No. 62. Recent researches indicate this essay was written by Madison.

CHAPTER XXIII
NATIONAL TAXATION AND REVENUES

Taxes are the sinews of the commonwealth. Cicero.

Having surveyed the general powers of Congress and explained the
basis upon which they rest, it is now appropriate to examine the more
important of these powers, one by one, to see how they are
exercised. First among these is the revenue power, the "one E !!f!L

^ IMPORTANT

indispensable power" that every government must have: OF ALL GOV-

for no government can function without revenue. Every ERNMENTAL

& 7 POWERS.

government must have power to tax, in other words, to

compel its people to pay for its support.

A tax may be defined as a burden or charge imposed by a legis-
lative authority upon persons or property as a means of raising money
for public purposes. Taxation, therefore, is simply the
taking of private property for public use under conditions ^^? ARE
determined by law.

Taxes differ from most other payments in two ways. First, they are
compulsory payments. No one need pay interest, rent, wages, or prices,
unless he agrees to do so; but taxes are not the result of any
bargain. They are levied without reference to the initiative
of those upon whom they fall, except, of course, insofar as SORY.
these individuals by their votes have an influence in deter-
mining the taxing policy of the government. Second, taxes W ITHOUT
are not adjusted to the amount of service rendered. The man REFERENCE
who rides a hundred miles on a railroad pays more than I^Jf^^lf 8

L ' K.t,rNlJt KJ^L).

the one who goes half that distance, because he gets more
for his money. But the man who pays a thousand dollars in taxes does not
necessarily get more in benefits from the government than the one who
pays five hundred dollars. In fact, he may not get as much. This may
appear to be unfair, but there is no way of avoiding it.

It would not be possible to base taxes upon individual benefit because
there is no way of knowing how much advantage any individual receives
from the government's work. Do some citizens obtain more advantage

365

366 THE GOVERNMENT OF THE UNITED STATES

than others from the maintenance of law and order, or do all derive

alike? Who get the greater benefit from well-kept streets those who

drive their motor cars over them, or those whose dwellings

WHY TAXES . i i . , -k T i i i

CANNOT BE front upon the highway? Is the community s expenditure
ADJUSTED TO upon the public schools solely for the benefit of those who
BENEFITS. sen ^ t k e j r children here? Can it be doubted that the raising
of the general standard of literacy is of advantage to everybody, irrespec-
tive of parental status? Taxes cannot be adjusted to service; and, even if
they could, it would be unwise to do it. The general interest requires
that everyone shall enjoy the benefits of national defense, police and
fire protection, public education, and the safeguarding of the public
health, whether able to pay or not. So taxes are levied to cover the cost
of these things by placing the burden upon those who seem best able to
bear it.

Taxes are of various sorts and may be classified in several ways.
According to their purpose, they may be designated as either fiscal or

regulative. The former are levied for the sole purpose of
CLASSIFICA- securing revenue, while the latter are intended (in part at
TAXES: least) to bring about social or economic readjustments.

Incidentally they produce revenue, but that is not their

I. ACCORD- . r^. , lit

ING TO so * c purpose. I he general property tax and the sales tax are

PURPOSE: examples of a purely fiscal tax, while a protective tariff is

FISCAL AND j . . , , '^'J' A

REGULATIVE regulative in character, since it is designed to promote
industry at home. Surtaxes on large incomes, and heavy
taxes on inheritances, are also regulative in the sense that they aim
to reduce swollen fortunes. The federal tax on narcotics is another
example of a regulative tax. Taxation may, of course, be both fiscal
and regulative in purpose, and often a tax system is so designed.

Another classification of taxes is based upon their assumed "incidence"
or final resting place. Direct taxes, such as taxes on land and poll taxes,
are supposed to stay where they are placed in the first
instance. But indirect taxes, such as customs duties, taxes
INCIDENCE: on the net income of corporations, and excises upon liquor
anc ^ tobacco, are laid upon the importer, manufacturer, or
merchant, with the expectation that they will probably be
shifted to the shoulders of somebody else, usually the ultimate consumer.
These suppositions, however, are not always in accordance with the facts.
Even direct taxes are occasionally shifted, while indirect taxes under
some circumstances may remain where they are placed. For this reason
the classification of all taxes into two categories, direct and indirect, is not
very useful.

NATIONAL TAXATION AND REVENUES 367

In general, the federal government can levy almost any kind of tax,
whether fiscal or regulative, direct or indirect; but there are certain
limitations upon its taxing power. These restrictions, which
are imposed by the Constitution, were originally deemed ON THE TAX-

to be of great importance, but they are no longer so re- ING POWER

! ! Jr , , ^ . ,. . i OF CONGRESS:

garded. ror example, the Constitution limits the purposes

for which taxes may be imposed. Congress may not levy * TAXES

c.c. 111 i i / i MUST" BE

any tax except to pay the debts and provide for the com- LEVIED FOR
mon defense and general welfare of the United States." A PUBLIC
That, of course, is not a stringent limitation because the
term "general welfare" is such a broad one. 1

In the second place, the Constitution requires that all duties, imposts,
and excises imposed by the authority of Congress shall be uniform
throughout the United States. This does not mean, however, 2 TAXES
that all the states must contribute equally. Congress, in MUST BE
the exercise of its discretion, may adjust the burden of UNIFORM -
national taxation so that more will fall upon one area or section of the
population than upon another, or more upon one class of people than on
another. A tax on stock transfers is not void for want of uniformity,
although virtually all such transactions take place in large cities and not
in rural districts. Uniformity, within the meaning of the Constitution,
means that the tax must bear with equal weight wherever the subject of
the tax is found. For example, a tax upon alien immigrants has been held
to be uniform despite the fact that more than 95 per cent of it is collected
at the port of New York. On the other hand, a tax would not be uniform
if it made discriminations between the same things in different parts of
the country: for example, if levied upon incomes or inheritances at a
10 per cent rate in some states and at a 20 per cent rate in others. But
it may be levied at different rates on incomes or inheritances of different
size. The requirement of uniformity does not prevent the imposition of
graduated tax rates on such things. As a matter of fact, federal taxes on
incomes, gifts, and inheritances are steeply progressive: that is, the higher
you go in the scale, the heavier is the rate of taxation.

The rule relating to geographical uniformity is reinforced by another
clause of the Constitution which provides that no preference shall be
given by any regulation of commerce or revenue to the

& 7/0 EQUALITY

ports of one state over those of another. This requires that AMONG
customs duties on any class of commodities shall be levied at PORT s OF

ENTRY

the same rate at every port of entry. Not only this, but the

1 Its scope and application have been discussed in the chapter on "The General Powers
of Congress." See pp. 349-350.

368 THE GOVERNMENT OF THE UNITED STATES

methods of determining valuations for duty must be the same. It should
be mentioned, however, that goods coming from a country with which
the United States has a reciprocal trade treaty are admitted at a lower
rate of duty than is imposed upon goods of exactly the same kind coming
from a country with which there is no reciprocal treaty. This does not
violate the rule of uniformity.

A third limitation upon the taxing powers of Congress relates to exports
and to internal tariffs. "No tax or duty," declares the Constitution, "shall

NO TAX ke laid upon articles exported from any state." This does
MAY BE LAID not simply mean, as the words at first glance would seem to
ON EXPORTS, imply, articles exported from one state to another state of
the Union. It includes articles exported from any state of the Union to a
foreign country. 1 Hence, Congress is prohibited from taxing exports;
and may tax imports only. This prohibition of taxes on exports, it will be
remembered, was originally placed in the Constitution at the insistence
of the southern states which feared that their commerce might be injured
if taxes were laid on the export of tobacco and other agricultural staples.
The prohibition of customs duties as between the states is even more rigid,
since a state cannot, without the consent of Congress, impose taxes upon
either imports or exports. 2

In some respects, the provision that Congress may not tax exports to
foreign countries has been unfortunate. It has deprived* the United States
ITS UNFOR- f a means whereby the depletion of natural resources might
TUNATE have been slackened. Exports of timber amounting to many

INFLUENCE. millions of dollars have gone untaxed notably to the Far
East, thus greatly diminishing our available supply. During the years
immediately preceding the outbreak of war with Japan, moreover,
countless shiploads of oil, scrap iron, and other materials went to that
country without yielding a single dollar in export taxes. It should be
mentioned, however, that the prohibition of taxes on exports does not
restrain Congress from regulating export trade otherwise than by taxing
it, or even from prohibiting such trade altogether.

As regards duties on imports, Congress has full power. It may levy
import duties of any sort and at such rates as it may determine. This

1 American Steel v Speed, 193 U. S. 500 (1904).

2 "No state shall, without the consent of the Congress, lay any imposts or duties on im-
x>rts or exports, except what may be absolutely necessary for executing its inspection laws:
ind the net produce of all duties and imposts, laid by any state on imports or exports, shall
3e for the use of the treasury of the United States; and all such laws shall be subject to the
-evision and control of the Congress " Article I, Section ro, par. 2 By means of their "use
"axes," however, some cf the states are in effect levying upon goods imported from other
itatcs.

NATIONAL TAXATION AND REVENUES 369

power to tax imports has been continuously used by Congress, as every-

one knows, since the establishment of the Republic. In

earlier days, the main purpose of a tariff on imports was

to obtain revenue and only incidentally to protect Ameri- THE POWER

can industry. But, in the course of time, this order was re- T0 TAX

versed; the tariff became primarily an agency of protection

and only in a secondary sense a means of providing the national govern-

ment with revenue. 1

A fourth constitutional limitation on the taxing power of Congress
concerns the imposition of direct taxes. There is a common impression
that the national erovernment cannot tax real estate, but

i i - r , . . 4

must leave this source of revenue to the states and munici- TAXES MUST

palitics; this, however, is not the case. Congress has power BE App o R -

... , . /-i-ii TIONED.

to levy direct taxes whenever it sees fit, but with the consti-
tutional limitation that "no capitation, or other direct tax, shall be laid
unless in proportion to the census of enumeration hereinbefore directed
to be taken." 2 In other words, Congress must first fix a specific sum to be
raised and then allot to each state its share of any direct tax according
to population not according to wealth, income, or area. Direct taxes
levied in this way would obviously place an unfair burden on those states
(Arkansas or Mississippi, for example) which have a low per capita rating
in wealth and income. Accordingly, no apportionment of direct taxes
has been made for over eighty years. 3

In due course, however, the question arose whether an income tax was
a direct tax and hence would have to be apportioned. At the time the
Constitution was adopted, a general idea existed that the

r WHAT ARE

only direct taxes were poll taxes and taxes on land. And "DIRECT"
a few years after the Constitution went into force, the TAXES IN

o ^ rr i i i i i' i THIS SENSE?

Supreme Court affirmed this idea in a decision which de-

clared that a tax on carriages was not a direct tax; that poll taxes and

taxes on land were the only forms of direct taxation; while SOME

all other taxes were included within the comprehensive ^ FARLY

phrase "imposts, duties, and excises." 4 Three of the four TAXES NOT

justices who heard the arguments in this case had been ELD TO ,, BE

members of the constitutional convention. Congress later TAXES.

1 See also pp. 403-405. 2 Article I, Section 9.

3 In 1813, 1815, and 1816, direct taxes were levied to defray the expenses of the war with
England and were apportioned among the states. In 1861 a levy of twenty million dollars
was similarly ordered by Congress and apportioned, but the southern states refused to pay and
Congress subsequently gave back to the other states the sums which they had contributed
Since 1861 no attempt to apportion direct taxes has been made by Congress.

4 Hylton v. United States, 3 Dallas 171 (1796).

370 THE GOVERNMENT OF THE UNITED STATES

levied taxes upon bank circulation, on the receipts of insurance com-
panies, and on inheritances; but it did not apportion them and the
Supreme Court held that none of these was a direct tax or needed to be
apportioned. 1

Finally, in 1862, under the stress of heavy demands for war revenue,

Congress proceeded to lay taxes on incomes without provision for

apportioning the total amount among the states according

THE INCOME , . . , ,,. r . ~ .

TAXCONTRO- to their respective populations. Ihen, lor the first time,
VERSY:ITS arose the specific question whether an income tax was a
STAGES 78 direct tax. After reviewing its attitude in previous cases,

the Supreme Court decided that an income tax was not a
i. THE IN- direct tax, and once more declared that poll taxes and

GOME TAX

LAW OF THE taxes on real estate were the only direct taxes within the
CIVIL WAR meaning of the Constitution. 2 Its decision, however, was

PERIOD. . & r i T

not given until many years alter the passage ol the Income
Tax Law of 1862 which, meanwhile, had been repealed by Congress.

This ruling might have been assumed to settle the question forever,
but after thirty years it was again revived and answered in a different

way. During the depression of 1893-1894, Congress found

2. THE IN- . \ & . ^ . f ^ a-1

COME TAX itsell once more in urgent need ol money, oo it passed a new
LAW OF income tax law imposing a levy of two per cent on all

94 ' incomes above four thousand dollars/ "from whatever

source derived." This law was promptly attacked on the ground that it
taxed the income from land, and hence, in effect, taxed the land itself.
ITSUNCON- The Supreme Court, after two hearings, upheld the con-
STITUTION- tention that a tax on the income from land is not dis-
AUTY. tinguishable from a tax on the land itself, the latter being

admittedly a direct tax. 3 Like a tax on land, therefore, it would have to
be apportioned. Thus, by a close decision, in which four out of nine
justices dissented, the Court held the Income Tax Law of 1894 to be
unconstitutional. 4

This decision aroused a storm of disapproval, especially in the agri-
cultural states, and a movement was started to remedy the situation by a
3. THE six- constitutional amendment. Not until 1913, however, was

TEENTH
AMENDM1

( 1 9 1 3)- f th e states gave their assent to the sixteenth amendment,

this agitation successful. In that year a sufficient number

1 Vcazie Bank v. Fenno, 8 Wallace 533 (1869), and Scholey v. Rcw, 23 Wallace 331 (1874).

'Springer v. United States, 102 U. S. 586 (1881).

1 A majority of the justices also held the income tax unconstitutional on other grounds as
well: e.g , because it taxed the income from state and municipal bonds. For a discussion of
this question see p 373.

4 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429 (1894); 158 U. S. 601 (1895).

NATIONAL TAXATION AND REVENUES 371

which provides that "Congress shall have power to lay and collect
taxes on incomes, from whatever source derived, without apportion-
ment among the states and without regard to any census or enumera-
tion." Immediately after the adoption of this amendment, a new federal
income tax law was passed by Congress, and during the past thirty years
a whole series of such laws has gone on the statute book, levying taxes
on the incomes of individuals, partnerships and corporations. Today, the
proceeds of these taxes form the largest single factor in the national
revenue. It should be pointed out, however, that the sixteenth amend-
ment does not relieve direct taxes, other than income taxes, from the
necessity of apportionment. A tax on land, if Congress should at some
future time decide to levy such a tax, would still be subject to the original
requirement.

The power of Congress to levy upon incomes, without apportionment,
is now beyond question; but this does not mean that no income tax law
can, henceforth, be held unconstitutional. It may be

A THF

attacked on other grounds. The Constitution provides, for PRESENT
example, that the salaries of federal judges "shall not be INCOME TAX
diminished during their continuance in office" and gives a
similar protection to the salary of the President. Does the sixteenth
amendment, in permitting Congress to tax incomes "from whatever
source derived," overrule this earlier provision? At first, the Supreme
Court decided this question in the negative. It held that, in effect, a tax
on the income of a federal judge diminished his salary and therefore
violated the Constitution, even if the income-tax law had been enacted
before his appointment. 1 But in 1939 the Court reversed itself. 2 In this
later decision it held that the independence of judges (which the con-
stitutional provision was intended to give) would not be impaired:

by making them bear their aliquot share of the cost of maintaining the gov-
ernment. . . . To subject them to a general tax is merely to recognize that
judges arc also citizens, and that their particular function in government does
not generate an immunity from sharing with their fellow citizens the material
burden of the government whose constitution and laws they are charged with
administering.

All of which seems to be common sense, for surely the framers of the
Constitution, in seeking to prevent a resentful Congress from ever cutting
a judge's salary, did not intend to relieve all federal judges from the
general obligations of citizenship. As for the President, he has never

1 Evans v. Gore, 253 U. S. 245 (1920), and Miles v. Graham, 268 U. S. 501 (1925).
*O'Malley v. Woodrough, 307 U. S. 227-

372 THE GOVERNMENT OF THE UNITED STATES

raised the issue; every occupant of the White House since 1913 has paid
his income tax without protest.

TAXING STATE INSTRUMENTALITIES

All of the foregoing limitations on the national taxing power are

expressly imposed by the Constitution. But there is an additional limita-

tion which the Constitution does not impose, but which has

!^!KIC been deemed to arise out of the very nature of the federal

LLMI 1 A 1 IDNo.

union. This is the proposition that the national government
should not tax the "instrumentalities of the states," in other words, the
salaries of state and municipal officers or the income from state and
municipal bonds. The argument has been that, if the national govern-
ment could tax the operations of the states in this way, it would have the
power to put the stcitcs out of business. If the nation and the states are
coordinate governmental entities, each having full authority within its
own sphere then it is contended that the one should have no power
to hamper the other by taxing its instrumentalities of government.

Considerably more than a hundred years ago, when a famous case in
point came before it, the Supreme Court ruled that a state could not

tax the agencies of federal administration, such as the post

THE IMPI I*

CATIONS OF offices, the customhouses, the notes of national banks, or

MccuLLocn the salaries of federal officers, 1 This decision was based

tf. MARYLAND. . 111 -r i

upon the principle that the various states, it given authority
to tax the federal mechanism, would have power to stop its wheels
entirely. For the power to tax, as the Court said in this case, "involves
the power to destroy." And logic seemed to require that such a rule must
work both ways; therefore it was held, in a number of decisions, that
Congress could not tax the salaries of state or municipal officer^ or the
income from state or municipal bonds. 2 But, during recent years, this
dual exemption has been gradually breaking down. First of all, the
Supreme Court held that where a state or municipality engages in some
money-making enterprise, such as operating a liquor dispensary or a
street railway, the earnings of employees in such work may be taxed, as
in any similar form of private business. 3

Likewise, it ruled that persons who derive an income from public
works constructed under contracts with states or municipalities are not
entitled to any exemption. 4 In other more recent cases the exemption

1 McCulloch v. Maryland, 4 Wheaton 316 (1819). See also pp. 427-428.

2 For example, in Collector v. Day, 1 1 Wallace 1 13 (1871) and in Pollock v. Farmers' Loan
and Trust Co., 157 U. S. 429 (1894) and 158 U. S. 601 (1895).

3 South Carolina v. United States, 199 U. S. 437 (1905).

4 Metcalf v. Mitchell, 269 U. S. 514 (1926).

NATIONAL TAXATION AND REVENUES 373

has been further whittled away. Finally, by reciprocal action of Con-
gress and the state legislatures, it has been agreed that the federal
government may tax the salaries of state and municipal

rr> i 1-11 i i rr i AND THE

officials, while the states, in turn, may tax the salaries of fed- MORE
eral officers residing within their borders. It is understood, REGENT

i_ ^u '*. .L- Mi U _J- REVERSALS.

however, that there will be no discriminatory taxation in

either case: that is, no heavier rates levied upon the officials than upon

private citizens receiving the same salaries.

This reciprocal arrangement has not yet been made with respect to
the taxation of income from federal and state bonds. Such obligations
still remain mutually tax-exempt, and this creates an em- INCOMF FROM
barrassing situation with respect to the raising of public GOVERNMENT
revenues. Many billion dollars in federal obligations (direct BONDS -
and indirect) remain exempt from state income taxes, while the income
derived from state and municipal bonds remains out of the federal
government's reach. This means, as a practical matter, that the rate of
taxes and surtaxes on individual incomes cannot be raised above a
certain point because the owners would then transfer their holdings into
tax-exempt securities. Suppose, for example, that a man has an income
of $ 1 00,000 per annum derived from industrial stocks and bonds which
yield him an average of 4 per cent. If the government were to place taxes
and surtaxes on his income at the rate of 50 per cent, he would find it
profitable to shift his investments into tax-exempt bonds, even if their
yield were as low as 2^ per cent. These tax-exempt bonds are now so
strongly favored by wealthy individuals that they can be sold at an
abnormally low rate of interest by the states and municipalities which
issue them. The situation ought to be corrected by a constitutional

amendment which would provide that the income from all government

bonds hereafter issued shall be subject to taxation, like the income from
the securities of any private corporation.

Possibly a constitutional amendment would not be necessary to achieve
this result. There is reason to believe that if a statute were passed by
Congress, taxing the income from future issues of state and

WHY THE

municipal bonds, it would be upheld by the Supreme SITUATION
Court as a constitutional exercise of the federal taxing IS NOT

. . , ... CORRECTED.

power. But, as a practical matter, neither a constitutional
amendment nor a statute making such a provision would be easy to
secure. The reason is that the states and municipalities (cities, counties,
towns, etc.) are naturally opposed to what would deprive them of an
important financial advantage which they now enjoy: namely, the right
to borrow money by the issue of bonds which are entirely free from

374 THE GOVERNMENT OF THE UNITED STA1ES

federal taxes on the income derived therefrom. They know that if the
exemption were eliminated they would have to pay a higher rate of
interest on all new issues of bonds, and such additional payment would
increase their own state and local taxes. So they have put up a fight in
Congress against the plan to tax their " instrumentalities of government,"
and thus far they have been . successful. It seems probable, however,
that their opposition will some day be overcome and the reciprocal
taxation of income from all government bonds permitted. 1

Two widely held impressions concerning the nation's power to tax
have no basis in law or in fact. The first is the popular belief that "double
POPULAR taxation" is unconstitutional, in other words, that the same

ERRORS. thing must not be taxed twice. There is nothing in the

ING " Constitution of the United States to prohibit double taxa-
"DOUBLE" tion; the same salary, for example, may be taxed by both
TAXATION. national and state governments. So may the same gift or
legacy or inheritance. An estate or inheritance, indeed, may be taxed
three or four times by the federal government, by the state in which
the decedent lived, by the state in which the heirs live, and by the state
in which the inherited property is located. An estate tax, that is, a tax on
the estate of a deceased person, is the most popular of all taxes from the
legislator's point of view for dead men have no votes. Gasoline taxes
are sometimes levied by both the national and state governments.
Corporations pay taxes on their net profits, and then when these profits
are distributed to the stockholders in the form of dividends, the latter are
taxed as income sometimes by both the federal and state governments.
To the taxpayer this double or triple taxation may seem unfair, and
often it is; but multiple taxation is not unconstitutional and never has
been. *

The other widespread, but erroneous, idea is that there musr be "no

taxation without representation." This notion has a good historical

lineage in the United States, but whatever its worthiness as a

2 CONCERN-

ING TAXATION slogan, it has never been the law of the land. The nation
AND REPRE- anc j th e states may tax people without giving them repre-

SENTATION. . ... .

sentation; there is nothing in the Constitution that forbids it.
The people of the District of Columbia, for example, are subject to
taxation like those in the rest of the country, yet they elect no mayor,
councilmen, or other local officers, they are not represented in either

1 To avoid any misapprehension, it should be mentioned that the federal government can
and does tax the income from its own bond? and that the states, if they have state income taxes, can
levy such taxes on state and municipal bonds. The issue relates onlv to the cross-taxation of
these securities.

NATIONAL TAXATION AND REVENUES 375

House of Congress, and they have no voice in the election of the Presi-
dent. Some years ago the Supreme Court, in a controversy which
involved this question, unanimously decided that Congress has an un-
doubted right to tax without granting representation. 1

These, then, are the taxing powers of the federal government, and the
limitations upon them as interpreted by the courts. Have they been
adequate to the raising of national revenues? It was assumed HOW
by the framers of the Constitution that Congress would fre- GRESS HAS

quently impose land taxes, or poll taxes, and apportion such EXERGISED
"i / ^ ' f . r i ITS TAXJ NG

taxes among the states, but this source of federal revenue POWERS.

has proved of negligible importance during the past hundred