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Full text of "The Government Of The United States"

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OUP 391 29-4-72 10,000. 

OSMANIA UNIVERSITY LIBRARY 

Call No. f)> <? Accession No. 

Author 

Title 

. * 
This book should be returned on dr before the date last marked below. 




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 

All rights reserved no part of this book may be reproduced in any form 

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, 

^w 

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- 

13 



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 

34 



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 

i 

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 

66 



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 

c 

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 

81 



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- 

c 

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 

98 



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 

t 

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 

4 

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. 

~v 

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 

(c) THE FEDERAL COMMUNICATIONS COMMISSION 

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. 

(c) THE BUREAU OF THE BUDGET 

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. 

I 



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. \ 

i 

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 

fj 

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 DIREGT 
years. The national government has depended at all times TAXES. 
for the bulk of its revenue upon other forms of taxation, EXCISES OF 
particularly upon customs duties, excises, and more recently ALL SORTS - 
upon corporation taxes, individual income taxes, estate or inheritance 
taxes, gift taxes, excess profits taxes, pay roll taxes, and a variety of 
miscellaneous taxes. Until after the beginning of the twentieth century, 
the revenue from import duties and excises formed the most important 
factor in the federal government's income, but during the past forty years 
the inflow from other sources has steadily increased until today more 
than half the total comes from the taxation of corporate and individual 
incomes, while levies on inherited estates and on pay rolls bulk large in 
the balance. 

In recent years the national government has levied taxes totaling over 
forty billion dollars per year, or approximately three hundred dollars 
per capita of population. 2 Customs duties, as has been said, 

r 11 <* i i T^ PRESENT- 

bring in a very small percentage of this total. Excise taxes on DAY 
alcoholic liquors, tobacco, cigars, cigarettes, playing cards, FEDERAL 
cameras, firearms, gasoline, theater tickets, club dues, tele- 
graph and telephone tolls, railway and Pullman car tickets, stock trans- 
fers, cabaret bills, and what not these yield a much larger fraction. 
Taxes and surtaxes on the net incomes of individuals and corporations 
bring in many billions. So do the taxes on the excess profits of corpora- 

1 Hcald v. The District of Columbia, 259 U. S. 114 (1922). 

2 Here are some recent yields: 

Receipts 

1945 1946 1947 

Income taxes $35,173,051,000 $30,884,795,000 $29,305,568,000 

Miscellaneous internal revenue . . 6,949,449,000 7,724,778,000 8,049,467,000 

Social security taxes 1,494,463,000 1,418,148,000 1,644,31^,000 

Taxes on carriers and employees . 285,037,000 282,610,000 380,057,000 

Customs duties 354775> oo 435>475>o 494,078,000 

Other revenue 3,469,548,000 3,479,869,000 4,815,042,000 

Total , , . $47>7a6,323,ooo $44,225,675,000 $44,688,52 7,oor 



376 THE GOVERNMENT OP THE UNITED STATES 

tions. The estate tax and the gift tax also produce a good deal, but more 
in some years than others, depending on the number of large estates 
which become taxable through the decease of their owners. Mention 
should also be made of the excises which were levied on certain products 
in process of manufacture, as a means of promoting soil conservation 
through curtailment of agricultural production. 1 Finally, the national 
treasury receives a considerable amount Of miscellaneous revenue in the 
way of fees, fines, penalties, profits on the coinage, money received from 
the sale or lease of public lands, etc. 

The war on two fronts, into which the United States was plunged 
during the closing days of 1941, demanded an enormous increase in the 
national revenues. Income taxes and surtaxes were heavily increased; 
exemptions were lowered; taxes on excess profits were raised to topnotch 
figures, and prospects for a federal sales tax loomed into view. With the 
increase of industrial employment and with higher wages, the proceeds 
from pay roll taxes for social security soared upwards. Even so, the total 
revenues did not nearly suffice to defray the wartime expenditures. Bil- 
lions upon billions had to be borrowed by the issue of bonds. 

It is sometimes said, and with a modicum of truth, that in the United 

States we have no "system of taxation." The taxing powers of the states 

overlap those of C