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THE MACMILLAN COMPANY
NEW YORK • CHICAGO
DAI I AS • ATI ANTA • SAN FRANCISCO
IONDON • MANII A
THE MACMILLAN COMPANY
OF CANADA, LIMITED
TORONTO
GOVERNMENT
OrTHE UNITED STATES
THE GOVERNMENT
OF THE UNITED STATES
NATIONAL, STATE, AND LOCAL
BY WILLIAM BENNETT MUNRO
CALIFORNIA INSTITUTE OF TECHNOLOGY
FIFTH EDITION
WITH THE COLLABORATION OF ARNOLD J. ZURGHER,
NEW YORK UNIVERSITY, AND THE LATE
EDWARD M. SAIT, POMONA COLLEGE
THE MACMILLAN COMPANY - NEW YORK
Fifth Edition Copyrighted, 1946, by The Macmillan Company
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^ASNOF 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 agO when 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 a»e 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 the 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 *NroA
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- caj 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" caucuses, 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 His
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 word»as 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
ONEDIFFICULT t'ie vari°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
fery 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)? and 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^ Amcrican 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 THL 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 jg tjie 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$ disauoweci 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 ancj ^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. pcr moncy 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. jet thingS drift 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 REVIVED
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. tjie use Qf tiiem A war Of 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 ha(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 jt 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 LEM 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, 1690—1740 (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 wiM 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 ^RDC^"
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- £jQ fjxecj quota 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, uhe 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 "a»pale 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 yer> rcasoned 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 pitiless 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 WE^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 By
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 weejcs 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) £H1f^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 CONSTI-
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 forty-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 Porches> 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_tagkx 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. jeft iargeiy Or 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 BLACKSTONE'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 ^ tjie ciosjng 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 in England at the time the Constitution of the United
SUPREMACY. 0 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 lodSed 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 executive5' (presumably the
President and the Vice-President), together with "a convenient number55
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).
2J. 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, edu£ation, 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. ^QH18510^?-
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 constitute011 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 Yorkv
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). Jonn 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 Pate a^ contingencies, they did not try to do so, but trusted
CONSTITUTION that future Congresses would enact such detailed provisions
™LODPE~D: as might 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, cession 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 law1)
(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, LAWMAKING.
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 year£lt 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- Pass *°r a *on& t*me unchaUenged> 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 greatiy 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 ment; 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 Adams5(*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- AMENDMENT.
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. rc 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. made 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 may be 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.
•rioNJoRLIZA" T*10 aPplicant 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 REASONs 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^DTHE rights, as there stated, include (i) the right to be immune
NATIONAL from punishment by any bill of attainder or ex post facto
CONSTTTU- jaw^ ^ to jiave the 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 scruples 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 laws- 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 frce government. The citizens of a democracy who act upon
NEED EM- the assumption that popular government imposes no duties
PHASIS. wjjj -m tjme have 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. jt^ ancj even so aj3}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 THL
new freedmen. Congress, by the Reconstruction Act of 1 867, FIFTEENTH
J TVT £T Al_ ^ ^ 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 laws55 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 protection55 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 Of 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. many 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^mS 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, heris 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, CITIZENSHIP
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: away 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 p£r^s To
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 rnajce 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- for 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 of 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
xThe 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- l884*
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 IJ£AGVE
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
°^ Pr°Perty 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 tkan somc votcrs 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 ioud. On the other hand, if every man thought differ-
TABLE. en^ £_^ h}s fellowSj there would aiso 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 t£e 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 Jmbd 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. party js> gut 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. rpQ achieve this 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 PARTY o*-
becamehptbeds of political discussion during the stormy
days ofstamp taxes and tea par tics. (ThebestJ known among them(was
the T^au£us_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. 546—547.
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 cicction literature, and print ballots)— for until about
ELABORA— t ,
TION OF sixty years ago the ballots were not officially printed; they
INTERNAL Were 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. faan 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 ^ad 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 behavior55 ; 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
jn 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 lo§t 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 uname 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&&£-STJ^
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 eclual 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 m£etin£ 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- and 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. xThe 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. office? ancj 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. presidents» .
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 is1 "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??lCAL;,
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** mS ^at t"lcy 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 Predicted 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 h°Pe 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. 5j)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 QiJALI?l9A"
, „ . , . 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°!Lt:,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!Lmay> 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. \ ENCE
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 PRESI-
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^JLAGTI'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 gress js 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 overmuch 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 exceedingvthat 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 jn 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, 1789—1943 (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. 449—466 (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 sh°uW function as part of the system of checks and bal-
PROBLEM OF ances, able to hold Congress within bounds if need be. To
POWERS. faat encj ke should 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?0?? 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 and 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 arevthese 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 ^HE 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-
lThis 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 party1 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- officials to make room for party henchmen — it should not
AGE STILL be supposed that patronage has been wholly abolished in
REMAINS. ^e fec[erai 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 which the framers of the Constitution gave so much
DENT AND reverence, would require the exclusion of the executive
CONGRESS. £rom ajj sjiare jn 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*ed 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 Py ^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. jet jt ke macje 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^coNsri1^ 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 and 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
cu§Jpm, 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
2D. 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 entire1 cabinet from the North or the South, the
^J^p1" 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 ^ resuit ^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. Qf agriculture 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 years 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 eack other 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^ onjy jias 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- ancj 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.
A™™TCTI>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 performec[ 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. ing' 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. 453~458-
3 For a discussion of currency matters, see pp. 422-426.
4 See pp. 393-396-
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- net? 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- the ajr 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£ jaw 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£ countieSj 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. peOpie who 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 FUNCTIONs
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 uholding 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 wouid 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- REASONs 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 in£ 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. created 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 THE 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
1The 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
/ 0 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
* *-* SOC«IAL
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 "managing55 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 half3* 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^ ftecor(j contains 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. for tjie jncrease ancj 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 Panies, 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
administration1. 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 jjut 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 FHE 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. age 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 steppin3 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 maY be from the same political party. The com-
THE "CLASSI- mission is charged with the duty of examining all candidates
ioED"SERV" *°r P08^0118 in 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 0^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 (1920—1939) 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 veterans5 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
yet ^ ^as nowhere 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
. . . TAri 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 PUBLIC
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 xMacaulay 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. tjie Wh0ie 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^irlhe^ 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 THE
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 nati°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:
uMr. 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^ suck 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 I3i5oo9oo°) 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 m£n, 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- jtg 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 ING 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 gOOCj cjeai of 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. while 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 FREEDOM
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
1Sec 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
1 789 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
l87°- 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
!913' 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
APPOINTMENTS1
(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 the 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°und themselves on the horns of a dilemmaJ If they gave
PROVAL OF the President sole power to make treaties, they would endow
TREATIES. Yiim 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-
MAKiNQEATY" 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.0 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. jn tjieory) the 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, 1789—1817
(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 jias tke rig^ to vote for 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 make 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. ker js assigneci 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 v7! 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*0" way t^iat t^ie interests °f ^e dominant political party will be
"GERRY- served. This practice of "gerrymandering" is very old; it
MANDER- took jts 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 Gerrymander1' 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 way he 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. jng previousiy 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, tneY 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 plan> and 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 T933' ^ 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 actual 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 kas 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
MENTIRE" °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. CI 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 ali 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 easy 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 OF
quence. The House is too busy to hear orations or even read ROUTINE
them. The mechanical work of winnowing the chaff from LEAVES8
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. jt js tme tkat tkc rujes 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 I787 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- floor) 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.
I9°9~I9I *• 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* uThe 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 Vote 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. ™^!tRTY
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^iLLs00 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 until 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 ariY °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 jn committee Of t}ie wholc" (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 cAye' "; and then, "As many
as arc °PP°sed saY '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 MORE 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- levY 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. jty to approve or reject 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
viEwLT°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 THE
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 af
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 skaU make." 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 !JHE
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 POWERS
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 ^ke 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 WITHOUT
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^^lf8
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^ tkejr 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 PORTs 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 AppoR-
... , . /-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 0^ 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
STAGES78 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
(1913)- °f the 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:
0
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
f»j
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- ancj the 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 TAXJNG
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 354»775>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 Congress, for the states are at liberty to tax practically
everything except imports, exports, and the income from
THE WIDEN- r i i i i * * r i i
ING FIELD federal bonds. Most oi the states now have inheritance taxes
OF FEDERAL ancj taxes upon corporations, while several have imposed
personal income taxes as well. Some of them have sales
taxes which cover commodities on which a federal excise tax has already
been imposed, for example, on gasoline, liquors, and tobacco. In fixing
their respective rates of taxation, moreover, the nation and the states
pay little or no heed to each other. Each regards its own necessities.
This is hard on the taxpayer because the cumulative burden falls on
him. The taxation of property, incomes, inheritances, and sales ought
somehow to be planned for the country as a whole and not left at the
mercy of competing governments. Competition for revenues between
rival taxing authorities, each of which endeavors to gather all it can from
the same sources, can never be made the basis of sound public financing.
On more than one occasion there has been an attempt to promote some
sort of agreement between the nation and the states whereby each would
be given its own separate sphere of taxation, but success has not yet
attended this effort.
The future of federal taxation ought to have a word because certain
' See p. 464.
NATIONAL TAXATION AND REVENUES 37?
features of national policy in this field are now becoming clear. It is
unlikely that tariff duties will ever again contribute a large THE FUTURE
proportion of the total revenue. Excises will undoubtedly OF TAXA-
be continued and possibly stiffened, especially upon TION*
luxuries. We may look for the continuance of heavy taxes on individual
incomes and on the profits of corporations. The pay roll tax for social
security will doubtless be increased. The imposition of a federal sales
tax has been proposed and such a tax would undoubtedly yield a large
sum, even at a low rate. The objection to a sales tax is that it places an
unduly heavy burden on the low-income groups. It would also tend to
reduce retail purchases and might, in some measure, accentuate an
economic depression. A general sales tax, moreover, is frowned upon by
many legislators as being of a too high visibility. They prefer a tax that
can be placed upon all the people without most of the latter realizing it.
This prompts the suggestion that on no subject is there so much opacity
in the public mind as on questions of taxation. On none is there so much
muddled thinking. Most Americans seem to take for
granted that a tax stays where you put it, and hence that ™£ PUBLIC
when you tax a hotel, a store, or a factory, the money comes EDUCATION
IN TAX
out of the owner's pocket. When the taxes on an apartment
r . L MATTERS.
house go up, the tenants sometimes chuckle because they
think that only the landlord is out of luck and it serves him right.
Now nothing could be farther from sound economics than this idea
that all taxes stay where they are put. Landlords and storekeepers are for
the most part only the middlemen who pay the taxes in the THE INCI_
first instance and then collect the money, every dollar and DENCE OF
more, from their tenants and customers. Nearly all taxes, of A TAX*
whatever sort, percolate into the cost of living. There is almost no such
thing as a nontaxpaycr — at any rate, not outside the prisons and poor-
houses. Everybody who smokes cigarettes, for example, pays taxes. What
he smokes, indeed, is mainly taxes, not tobacco; because more than half
the cost of this commodity is made up of excises levied by Uncle Sam and
sales taxes imposed by the state.
A government, of itself, produces no income. It earns no money, saves
no money, accumulates no capital, makes no profits, and pays no
dividends. A government merely lives off the earnings of A GREAT
the country, the whole country. It simply takes a part of AMERICAN
what its citizens have earned and gives them in return such DELUSION-
services as it thinks they ought to have. Hence it is folly to imagine that
taxes come only from the pockets of the well to do and place no burden
upon the average man. It is supreme folly, because most of our extrava-
378 THE GOVERNMENT OF THE UNITED STATES'
gance in government is attributable to the popular delusion that only
the well to do are mulcted because of it. Who pays the taxes on gasoline,
on admissions to motion-picture houses, on beer, on tobacco? Doesn't an
excise on processed wheat go into the price of bread, and the income tax
on dentists' earnings into the cost of dentistry? Who is there to pay the
excises on jewelry or radios except the people who buy the products?
If the average voter would ask and answer such questions for himself,
there would be a more widespread interest in governmental economy.
The work of collecting the national revenue is in the hands of the
secretary of the treasury, but is chiefly performed by two agencies in his
COLLECTING department: namely, by the bureau of internal revenue and
THE the customs service. For the collection of duties upon im-
REVENUE. ports, the country is divided into customs districts, each with
a main port of entry in charge of a collector or deputy collector of customs.
Imports can be sent "in bond" to interior parts of the country and the
duties collected there by local collectors of customs. For the collection
of internal revenue taxes, the country is divided into a larger number of
similar areas, each also in charge of a collector. The work of these
officials includes not only the collection of excises but of corporation and
individual income taxes as well. All collections are deposited to the
credit of the United States in the nearest federal reserve bank or in
other banks which have been approved as government depositories. In
order to qualify as a depository, a bank must fulfill certain statutory
conditions. Money deposited in these banks is paid out on checks issued
by the disbursing section of the treasury department. In addition to its
funds for current use, the national government owns a huge reserve of
gold and silver coin and bullion. Most of this is kept in heavily guarded
storage vaults built for that purpose in Kentucky, in Colorado, and at
West Point, New York.
The accounts of every officer connected with the collection of revenue
are regularly audited by officials of the general accounting office under
the direction of the comptroller general. This official is
AND°AUDrrs. appointed by the President, with the approval of the Senate,
for a fifteen-year term. He is irremovable except by im-
peachment or by a joint resolution passed by both Houses of Congress.
On one occasion, President Franklin D. Roosevelt requested Congress
to change the laws so that the comptroller general would be subject to
removal by the President at any time; but Congress declined to do this.
The auditing functions of the general accounting office cover expendi-
tures as well as collections. Its duty is to see that no payments are made
for salaries, supplies, materials, etc., except where money to cover such
NATIONAL TAXATION AND REVENUES 379
expenditures has been duly appropriated by Congress. If all this checking
had to be done before the payments were made, it would delay the latter
unduly; hence, it has become the practice to let many of the payments
go through and do the checking later. Then, if anything is found to be
wrong, a refund of the amount is obtained.
The general accounting office is independent of all departments, thus
ensuring impartiality in the conduct of its work. This work of auditing,
it need scarcely be added, is of huge dimensions, because almost every
bureau or office in all departments of the government is receiving money
from some source — in taxes, fees, charges for patents, copyrights,
steamboat licenses, fines in the federal courts, proceeds from the sale of
property, or confiscated merchandise, etc. The number of checks issued
in payment for expenditures likewise runs into the millions every year.
REFERENCES
GENERAL. General discussions of public finance and financial problems may be
found in W. F. Willoughby, The Financial Condition and Operations of the National
Government, 1921-1930 (Washington, 1931), and Davis R. Dewey, Financial
History of the United States (i2th edition, New York, 1934), as well as in such books
as H. L. Lutz, Public Finance (3rd edition, New York, 1936), Clyde L. King,
Public Finance (New York, 1935), M. S. Howard, Principles of Public Finance
(Chicago, 1940), C. C. Plehn, Introduction to Public Finance (5th edition, New York,
1926), M. H. Hunter, Outlines of Public Finance (revised edition, New York, 1926),
J. P. Jensen, Government Finance (New York, 1937), A. G. Buehler, Public Finance
(2nd edition, New York, 1940), Paul Studenski, Chapters in Public Finance (re-
vised edition, New York, 1935), Elmer D. Pagan and C. W. Macy, Public
Finance (New York, 1934), C. J. Bullock, Selected Readings in Public Finance (3rd
edition, Boston, 1924), Robert C. Brown, Cases and Other Materials on the Law of
Taxation (Indianapolis, 1938), and M. C. Mills and G. W. Starr, Readings in
Public Finance and Taxation (New York, 1932).
TAXATION. Among useful books for consultation on tax matters are E. R. A.
Seligman, Essays in Taxation (roth edition, New York, 1925), as well as the same
author's Shifting and Incidence of Taxation (5th edition, New York, 1927), W. R.
Green, The Theory and Practice of Modern Taxation (2nd edition, Chicago, 1938),
Paul Studenski (editor), Taxation and Public Policy (New York, 1936), Alzada P.
Comstock, Taxation in the Modern State (New York, 1929), Sidney Ratner,
American Taxation; Its History as a Social Force in Democracy (New York, 1942),
Randolph E. Paul, Selected Studies in Federal Taxation (Chicago, 1938), Harold
M. Groves, Financing Government (New York, 1939), G. T. Altman, Introduction to
Federal Taxation (revised edition, New York, 1940), D. T. Seiko, The Federal
Financial System (Washington, 1940), and W. J. Shultz, American Public Finance
(3rd edition, New York, 1942).
Among the numerous books dealing with special types of taxes and recent
trends in taxation, the following may be singled out for mention: Roswell
Magill, The Impact of Federal Taxes (New York, 1943), the Twentieth Century
380 THE GOVERNMENT OF THE UNITED STATES
Fund's Studies in Current Tax Problems (New York, 1937) by Carl Shoup and
others, A. L. Powell, National Taxation of State Instrumentalities (Urbana, 1936),
R. G. and G. G. Blakey, The Federal Income Tax (New York, 1940), H. M. Groves,
A Tax Policy for the United States (New York, 1934), and the same author's Federal
Tax Plan for High Employment (New York, 1944), Garl Shoup and others, Facing
the Tax Problem (New York, 1937), P. J. Strayer, Taxation of Small Incomes (New
York, 1939), Garl Shoup, Federal Finances in the Coming Decade (New York, 1941),
W. Warren and others, Financing the War (Philadelphia, 1942), A. Handy,
Inheritance and Other Like Taxes (New York, 1929), A. L. Harding, The Double
Taxation of Property and Income (Cambridge, Mass., 1933), and G. O. Hardy,
Tax-exempt Securities and the Surtax (New York, 1926).
The Tax Research Foundation, with headquarters in Chicago, issues at in-
tervals a publication entitled Tax Systems of the World which will be found useful
in making comparative studies.
REVENUE AND ACCOUNTING AGENCIES. In the scries known as Service Mono-
graphs of the United States Government, there are volumes devoted to The
Customs Service (No. 33), The Bureau of Internal Revenue (No. 25), and The General
Accounting Office (No. 46). The organization and work of this last-named office
are also explained in D. II. Smith, The General Accounting Office (Baltimore, 1927).
and in VV. F. Willoughby, The Legal Status and Functions of the General Accounting
Office (Baltimore, 1927). Attention should also be called to Harvey Mansfield,
The Comptroller General (New Haven, 1939), and to the article by C. K. Shaw,
"Supervision of the Field Services in the United States Revenue Administra-
tion," American Political Science Review, XXVII, pp. 930—942 (December, 1933)
CHAPTER XXIV
NATIONAL EXPENDITURES AND THE
NATIONAL DEBT
It is impossible for the King to have things done as cheap as other men. — Samuel
Pepys
Back in 1916 it cost less than three quarters of a billion dollars to cover
a year's expenditures by the national government. Twenty years later,
in 1936, it cost more than nine billions. In neither of these THF RISING
years was the country engaged in war. Why should there COST OF
have been such an extraordinary rise in national expendi- GOVERNMENT-
tures within the space of two decades?
The answer is easy enough. Modern government is conducted under
the law of increasing costs per capita. The more populous a country
becomes, and the higher its general standard of living, the
larger is the cost of government for every unit in its popula- THK REASONS
tion. National greatness is an expensive luxury. It might be
thought, offhand, that when a government (either national, THE LAW
OF INCREA
ING COSTS.
state, or local) does things on a large scale, it would be able
to do them more cheaply, which is what usually happens in
the case of business. concerns, but it is not so in public enterprises. Take a
commonplace example — the cost of policing a city. With a population
of 50,000 this work is found to be costing so much per capita. But let the
city double its population within ten years (as some American cities have
done), will this mean that its police cost per thousand of population can
be lowered? Quite the contrary; it will be increased. The larger the city,
the higher its per capita cost of government in all departments. The
reason is that the people who live in bigger and more progressive cities
demand better, and hence relatively more expensive, services than those
who live in smaller and more backward cities.
This demand for new services, as well as for the improvement and
extension of old ones, is largely responsible for increased public ex-
penditures in nation, states, and cities alike. To get some realization
of this, one need only look over the list of new responsibilities which
381
382 THE GOVERNMENT OF THE UNITED STATES
the public authorities have assumed during the past twenty or thirty
years. To enumerate all of these would take several pages of this book;
nor is there any need to do it, because everyone who reads
ERN^ENTAL t'ie newsPaPers must have sensed the rapidity with which
ACTIVITIES the expansion has been going on. In the promotion of agricul-
ARE ture, the regulation of industry, as well as in such matters as
public health, social security, the control of radio broadcast-
ing, the supervision of stock-exchange operations, labor relations, and
in a dozen other fields, the extension of governmental activity has been
apparent to everybody. Even before the United States entered the
Second World War, this expansion was proceeding at a rapid rate.
New governmental activities rarely start full blown. They begin, as a
rule, in a small way. Something seems to call for help from the public
authorities, with very little expenditure involved. Or the
^"HAPPENS assistance is merely needed to tide over an emergency. But
the new service starts growing like a sycamore tree, sending
out its branches in all directions, so that its roots must presently receive
more nourishment. The emergency passes; but those who are administer-
ing the new governmental activity are not easily pried loose from their
jobs. They hang on, like barnacles to a ship, and their friends use all
manner of political pressure to help them do it. If the, work for which they
were appointed becomes no longer needed because of changed circum-
stances, they will seek and find something else that needs to be done and
argue that they are the best ones to do it. A single illustration will
suffice. During the economic depression of the thirties, for example, it
was found advisable to set up civilian conservation camps as a way of
providing work for the thousands of able-bodied young men who could
not obtain employment on the farms or in the factories. But in the early
forties, when the war program was providing plenty of jobs, the pica was
put forth that the project should be continued as an agency for youth
education, and only after a stiff fight against formidable administrative
opposition did Congress manage to force the abolition of these camps.
Few things are more tenacious of life than a government board or
bureau. Were there no restraints on their multiplication and longevity,
it is hard to say how large a percentage of the people would become
officials of government and regulators of the nation's way of life. This
prompted Prime Minister Winston Churchill to say, not long ago: '"'Let
us beware of trying to create a society in which nobody counts for any-
thing except politicians and officials, a society in which enterprise gets
no reward and thrift no privilege."
Three hundred years ago Samuel Pepys, the English diarist, who had
NATIONAL EXPENDITURES AND DEBT 383
managed to anchor himself on the public payroll for a goodly portion of
his life, remarked that the king's business was always an
rr • T 11 11 i i i THE HIGH
expensive afiair. It could not be done as cheaply as other COST OF
business. That remark has held true in all ages and in all PUBLIC
governments, whether monarchical or republican. In gov-
ernmental expenditures the pressure is almost always in one direction.
Nearly everyone stands to gain by pushing the budget upwards — every-
one except the taxpayer. Within the governmental circle there is hardly
anyone whose chief function is to see that the taxpayer receives full value
for what he pays. And this is not surprising, because government depart-
ments are spending money which they have not had to earn or raise.
In the national budget of a wartime year, expenditures for the armed
forces are vastly larger than for all other items combined.1 Even in 1947
with the nation ostensibly at peace, defense expenditures
THE C*HrEP
accounted for almost 1 5 billions or more than a third of the ITEMS IN THE
total and they may well go higher in future years. Interest NATIONAL
BUDGET
on the national debt now takes about five billion dollars
per annum.2 Assistance to agriculture in one form or another absorbs
another two billions. Public works of all kinds, including highways,
make heavy demands each year on the nation's pocketbook. Since World
War II much has been paid out annually in loans and grants to foreign
nations. Benefits paid under the social security system, including old-age
annuities and grants for unemployment insurance, grow larger each
year. Veterans' pensions and benefits cost more than a half billion dol-
lars annually before World War II. In 1947 more than six billion dollars
was budgeted for the veterans' administration. Then there is the long
list of regular civil departments and agencies, no one of which requires
a very large appropriation; but, in totality, their expenditures mount
up to about two billions. Strange as it may seem, the outlay for the sup-
port of Congress, the President's office, and the whole system of federal
courts, is relatively small — less than fifty million dollars per annum.
War itself, not to speak of its aftermath of pensions, exacts a heavy
financial toll. Military and naval expenditures, which soar above
receipts, bloat the national debt as with a dropsy. We
WAR COSTS
entered the First World War in April, 1917, but for months
before that time had been expanding and equipping our armed forces
in preparation for war. Figures for the fiscal years 1916-1919 tell a
graphic story.
1 Four times as large in 1942, almost twelve times in 1943, over fourteen times in 1944,
and almost eleven times in 1945.
2 It rose from $1,260,000,000 in 1942 to $1,808,000,000 in 1943* to $2,609,000,000 in 1944;
to $3,617,000,000 in 1945; and to $4,957,000,000
384 THE GOVERNMENT OF THE UNITED STATES
Expenditures Debt
Tear fatal Per Capita Total Per Capita
1916 $ 734,056,000 $ 7.29 $1,225,145,000 $11.96
1917 1,977,681,000 19-36 2,975,618,000 28.57
1918 12,697,836,000 122.58 12,243,628,000 115.65
18,522,894,000 17640 25,482,034,000 246.09
Peacetime economies brought expenditures down to $30 per capita in
1927, after which, over a period of six years, the amount gradually in-
creased by a third. Similarly, the debt was reduced almost to sixteen
billion dollars or $131.38 per capita in 1930. Expenditures averaged less
than $37 per capita during the four years of President Hoover, but over
$68 during the first eight years of the New Deal, which, having to cope
with the severe economic depression, poured forth from the treasury
colossal sums, both to relieve the unemployed and to " prime the pump"
of industry. The debt rose to twice the wartime peak of 1919. Then, after
the attack on Pearl Harbor, we went to war with the Axis powers. Per
capita expenditures mounted to $242 in 1942; $594 in 1943; $716 in
1944; and $767 in 1945. This, of course, was reflected in the rapid
growth of the national debt, which, by 1948, was in the neighborhood
of $250,000,000,000, or about $1,700 per capita.
War also brings in its train the danger of something worse than heavy
taxation and debt. Without judicious financing its cost may take the
catastrophic form of inflation. The causes of inflation are
complicated: consumer goods become scarce as industrial
plants turn to warlike activities; wages rise as the reservoir
of workingmen approaches exhaustion; prices soar as men bid against
each other for the limited supply of commodities; and, failing to under-
stand the cause of the deep-seated malady, a government may try the
desperate expedient of issuing additional amounts of paper money in
order to offset the rise in prices. Then, the value of this money, in terms
of goods and services, sinks lower and lower, which is merely another
way of saying that the value of goods and services in terms of money
(i.e., the general level of prices) goes higher and higher. The premonitory
signs of inflation reveal themselves early, however; and the government
may intervene to check the rise in prices. Late in April, 1942, President
Roosevelt urged Congress to act along this line. His program included
seven main points: heavier taxation, price ceilings, stabilization of wages,
a return to parity in agricultural prices, the rationing of scarce essential
commodities, restrictions upon credit and installment-buying, and a
nation-wide drive for the sale of government bonds to private indi-
viduals, which would reduce excess purchasing power as well as help
NATIONAL EXPENDITURES AND DEBT 385
finance the war. These measures, most of which were put into operation,
helped to keep inflation in bounds during the war years.
THE BUDGET SYSTEM - PAST AND PRESENT
How is the allotment of money to various governmental purposes
determined each year? It has long been a principle of sound admin-
istration that no public money shall be spent except after
i • • i i • r i i A i HOW APPRO~
authonzation by the representatives 01 the people. Accord-
ingly, there is a provision in the Constitution of the United ARE AUTHOR-
States that "no money shall be drawn from the treasury but
in consequence of appropriations made by law." The most essential step
in all national expenditure is, therefore, that Congress shall make an
appropriation in the form of a law. These appropriation laws are often
elaborate affairs — sometimes with thousands of items. But before an
appropriation bill can be submitted to Congress, there are some pre-
liminary steps, the first of which is the preparation of estimates.
Most of the national government's functions (such as aid to agri-
culture, public works, pensions, the administration of justice, social
security, work relief, etc.) are in the jurisdiction of some
administrative department, board, bureau, or office. Each E™MATES
of these agencies makes an estimate of the amount of money
that it will require for the ensuing fiscal year. Such estimates are not
mere guesswork, but arc figured with a good deal of care by taking the
previous year's expenditures as a basis. Prior to 1920 all the estimates
were sent to the secretary of the treasury, who merely turned them over
to the Speaker of the House without any revision or comment. Along
with these figures the treasury department likewise transmitted its own
estimate of the probable revenue that would come in under the existing
tax laws.1
Then the Speaker distributed the estimates of expenditure to various
committees, eight or nine of them — the committee on military affairs,
on post offices, on agriculture, etc., each eretting the esti-
t 50 > 5 no THE OLD
mates in its own field. These committees thereupon reviewed PLAN Op
the figures and submitted to the House various appropria- CONSIDER-
1 .,1 i i . . . , ING THEM.
tion bills based upon their own conclusions as to what
money ought to be voted. But each committee did its work independ-
ently: no one of them knew what the others were doing. One committee
1 Yet (though the President did noi avail himself of the authority) Congress had, in 1900,
empowered him, in case of an estimated deficit, to propose means of balancing the budget,
either by reducing expenditures or increasing revenues. E. E. Naylor, The Federal Budget
System in Operation (Washington. 1941), p. 18.
386 THE GOVERNMENT OF THE UNITED STATES
might be trying to economize, while another was cutting loose with
extravagance. It was a very unsystematic way of doing things.
To make matters worse, each committee found itself beset by lobbyists,
department heads, and bureau chiefs — all urging increased appro-
priations. This and that congressman, moreover, came
RESULTS importuning the committee for something that would please
the voters in his own district — a new post-office building,
a harbor improvement, a naval repair station, an army hospital —
anything that would please the home folks. To use the vernacular of the
day, everybody tried to "dip his paws into the pork barrel," and the
waste involved was enormous. Only a rich and prosperous nation could
have endured it. But as long as a large amount of revenue came in,
chiefly from the proceeds of the protective tariff, it was hard to impress
the country with the need for budgetary reforms which would promote
economy.
The entry of the United States into the World War of 1917-1918 put
a different face on things. National expenditures went up so rapidly that
the cry for "economy and efficiency" resounded from all
BROKE DOWN corners of the land. Congress was somewhat slow to move,
but, in 1920, it was induced to pass an act which provided
for a regular national budget system. President Wilson vetoed this meas-
ure because it contained certain objectionable provisions, but in 1921 the
Budget and Accounting Act was readopted with some of the objection-
able features eliminated.
The national budget system continues to rest on the provisions of this
measure. First of all, the act set up two new agencies of financial control:
THE NEW namely, the general accounting office and the bureau of the
BUDGETING budget. To the first of these it gave the function of auditing
AGENCIES. tne accounts of a\\ tnc national services, as already ex-
plained.1 But, in addition, it gave the comptroller general, who is at the
head of the general accounting office, the right to investigate all matters
relating to revenues and expenditures. The other new agency, the
bureau of the budget, received a virtually independent status, although
it was nominally attached to the treasury department. In 1939, after this
arrangement had been found unsatisfactory, the bureau was transferred
to the executive office of the President, where it continues
DIRECTOR to be. Its head, the director of the budget, is appointed for
OF THE an indefinite term by the President (without confirmation
BUDGET. , f N . .
by the .Senate) and is responsible to him alone. He is, in
fact, the President's personal adviser on all matters relating to national
i See p. 378.
NATIONAL EXPENDITURES AND DEBT 387
expenditure. So long as the director has the President's confidence, he
virtually determines what items of expenditure shall be recommended to
Congiess and what ones shall not. Thus, the director of the budget, rather
than the secretary of the treasury, has become a modified copy of the
English chancellor of the exchequer.
What is a budget? It may be defined as a plan of financing for the
incoming fiscal year.1 This involves an itemized estimate of all revenues
on the one hand and of all expenditures on the other. A
A BUDGET
properly constructed budget should, under normal circum- DEFINED.
stances, be balanced, that is, the anticipated revenues should
11.., f. i r BALANCED
at least equal the anticipated expenditures and preferably AND UN-
should show a small surplus in order to be on the safe side. BALANCED
,Ar. . , ~ . t . . BUDGETS.
When estimated revenues are insufficient to cover the antici-
pated expenditures, the budget is said to be unbalanced, for the outcome
will be a deficit which has to be liquidated by borrowing. A succession
of unbalanced budgets will inevitably result in an increase of public
indebtedness. That is what happened during the period 1930—1946.
Year after year there was a heavy deficit, which could not be avoided in
view of the abnormal expenditures which the national government had
to make in alleviating a depression and winning a war.
The present-day procedure in making the national budget is, there-
fore, as follows: first, each department, as well as each independent
bureau, board, commission, office, or service, prepares a
i -i j r • n • i i r i • PROCEDURE
detailed statement ot its Financial needs tor the ensuing UNDER THE
fiscal year. The figures are seerceated under three headings NEW BUDGEr
. *~ SYSTEM .
— personal services, supplies, and capital outlays — but
within each group the expenditures are. itemized. For example, the
salary of every employee must be set forth individually. All these data are
typewritten on standard forms which then go to the bureau of the budget
where they are assembled and put in shape for revision.
The director of the budget goes over the figures, makes note of the
various requests for increased appropriations, and confers with heads of
departments or other officials concerning their reasons for
asking for more money. This work, as a matter of fact, is
largely done by the members of his staff, usually by special-
ists who are known as examiners. Rarely does it happen that any depart-
ment or bureau fails to ask for more money. Bearing in mind that the
bureau of the budget is likely to trim his figures, the official who submits
the estimates is likely to ask for more than he expects his department or
bureau to get. Not infrequently there is disagreement as to what he ought
1 The fiscal year, in American national finance, begins on July i.
388 THE GOVERNMENT OF THE UNITED STATES
to get, and when such divergence arises on any important item, the
question is usually referred to the President for decision; but, under the
law, the director of the budget has the power to make whatever changes
he ddems advisable. While this is going on, the director of the budget
also obtains data from the treasury as to revenue and prepares an item-
ized report showing the anticipated national receipts for the fiscal year,
including revenues from existing and proposed taxes.
When this work of revising and compiling is completed, the whole
array of figures is combined into a ponderous document of several hun-
dred paeres which is thenceforth known as the budget. After
Q THF
EXECUIIVL approval by the President, it is printed by the government
RECOMMKN- printing office and then sent to Congress. In sending it, the
DATIONS. President may, and sometimes does, call attention to the
more important increases, explaining the reasons therefor and suggesting
that additional revenues be provided to take care of the higher expendi-
tures. Thus the executive branch of the government has now become
almost fully vested with the initiative in planning the nation's finances.1
Then comes the next step.2 The House of Representatives receives the
budget from the President. Without debate the appropriations section of
the document is referred to its committee on appropriations,
TIVEEACTION which consists at present of forty-three members. This com-
mittee — after making a general survey and perhaps insist-
ing upon certain economies — in turn refers the various groups of items
to several subcommittees for detailed study and public hearings. These
subcommittees which are organized along departmental lines, work on
the figures and, whenever necessary, call in the various executive officials
to explain their respective needs and requests. Sometimes these officials
are questioned in great detail. Those opposing an appropriation may
also be heard. Then, when the study has been completed, each subcom-
mittee drafts its own bill and reports it to the general committee. The
latter, after a further review, during which it may make considerable
changes, sends the various appropriation bills to the House.
In this way the House gets the whole story, but not all at once. It
receives a dozen or more appropriation bills in succession, and debates
1 For one exception see p. 391.
2 Since 1947 there has been an intermediate step. At the beginning of each regular session
of Congress, the House committees on ways and means and appropriations meet with the
Senate committees on finance and appropriations to formulate the "legislative budget " This
contains estimates of deficiency expenditures as well as the estimated expenditures of the
President's budget and indicates whether the total will exceed or be exceeded by the esti-
mated revenues Congress then adopts a concurrent resolution fixing the total of such esti-
mated expenditures as the maximum to be authorized during the fiscal year and recommends
appropriate increases or decreases in the public debt, depending on whether the estimated
expenditures exceed the estimated revenues or vice versa.
NATIONAL EXPENDITURES AND DEBT 389
these one after another. Meanwhile, the ways and means committee of
the House busies itself with the task of studying new tax levies to meet the
increased costs. It holds hearings, and, when these are concluded, it
reports one or more revenue measures to the House. As far as the House
of Representatives is concerned, therefore, two committees control the
presentation of all financial measures. The House itself, however, may
make changes in either the appropriation or tax measures when these
come to it on the floor, and sometimes it docs so.
Not all the anticipated national expenditures for the year, of course,
can be embodied in these regular appropriation bills. In preparing these
estimates, some things are always overlooked by the various SUPPIE.
departments, no matter how careful they may try to be. MLNTARY
Wholly unexpected needs will sometimes appear on short *^*LDI~
notice. Floods, droughts, and depressions may upset the APPROPRIA-
best-laid plans. Moreover, new proposals of legislation, TIONS-
some of which involve the expenditure of money, are introduced by
individual congressmen at every session. For congressmen have jealously
reserved their right to introduce bills and resolutions of every nature,
whether involving expenditure or not. Such proposals of expenditure
do not go to the bureau of the budget, but are first sent to the specialized
committees (e.g., foreign relations, post offices, or interstate commerce)
for consideration on their merits. If favorably reported on by one of these
committees, the bill is then transmitted to the committee on appropria-
tions for approval of the expenditure involved.
A proposal to increase the membership of the interstate commerce
commission, for example, would go first to the committee on interstate
and foreign commerce. If favored by that committee, it
1111 i • 111 • EXAMPLES.
would then have to be reviewed by the committee on appro-
priations, inasmuch as an increased membership would involve a larger
expenditure for salaries. The common practice of the committee on
appropriations is to take a number of these individual proposals and
combine them into a single appropriation bill. Thus, it will be seen that
what begins as a unified budget winds up as a whole scries of separate
measures, a dozen or more of them. The opportunities for waste and
extravagance have been greatly reduced by the existing budget pro-
cedure, as contrasted with those of the old days, but they are still numer-
ous enough. The privilege of proposing new expenditures, which every
congressman retains, opens the door to considerable abuses.
Sometimes one of these special appropriations, in order to facilitate
its consideration by the House, is tacked on to a general measure as a
"rider." For example, a bill to deepen the harbor in some favored con-
390 THE GOVERNMENT OF THE UNITED STATES
gressman's district may be attached to the appropriation for the defense
department, thus giving it momentum which it would not obtain by
traveling through the House under its own steam. Since
RIDERS. ; , . . ?, r i • -i • •
1946, this privilege of tacking rider-appropriations onto
general bills has been circumscribed, especially in the Senate. To keep
the budget in balance, it would probably be a good thing if no proposal
of expenditure could be suggested except on the initiative of the appro-
priations committee of the House or Senate.
Upon being reported to the House by the committee on appropria-
tions, the regular appropriation bills are put through their required
readings and discussed by the House in committee of the
STAGES IN whole. The House has a right to insert, strike out, increase,
THE HOUSE. Qr Decrease items at its discretion; but from the nature of
things this right is not easy to exercise. A body of four hundred and
thirty-five members cannot, as a practical matter, give detailed con-
sideration to the long lists of figures contained in these measures. And, in
any event, the dreary columns of digits do not afford much enlighten-
ment or inspiration to debate. Few congressmen want to see appropria-
tions reduced; on the other hand, they realize that if they begin increas-
ing them, everyone will want to have a hand in it. Consequently the bills
usually go through without a great deal of change from the committee's
recommendations, although minor alterations are* frequently made.
Having passed the House, the various appropriation bills go to the
Senate. There also they are referred to a committee on appropriations;
but provision is made for adding to that committee three
APPROPRIA~ * . i .
TION BILLS IN members from each of six important legislative com-
THE SENATE. mittees (e.g. foreign relations, agriculture, etc.) when
matters affecting their special fields are being considered. Before this
Senate committee on appropriations, anyone may appear and urge
changes in the bills, so heads of departments, and others who have had
their estimates reduced in the House, sometimes renew their impor-
tunities before the Senate committee. Even members of the lower
chamber, who have failed to impress their own colleagues with the merits
of their requests for appropriations, do not always hesitate to appear
before the Senate committee and reiterate their arguments, although
their efforts are not usually attended with much success.
When the bills are reported to the whole Senate, a few further changes
in individual amounts are sometimes made Then the appropriations
APPROPRIA- are sent back to the House for concurrence, and if the House
TION BILLS doeg not agree to the Senate's changes, they are referred to
FERENGE. a committee of conference made up of selected senators and
NATIONAL EXPENDITURES AND DEBT 391
representatives. It is the function of this conference committee to adjust
the items and get an appropriation bill into such shape that both the
House and the Senate can agree on every word of it. Compromises are
made here and there; the conferees report their agreements to their re-
spective chambers, which finally pass the bill and send it to the President
to be signed.
When an appropriation bill has been passed by Congress, the President
has virtually no alternative but to accept it. He can veto the whole bill
if he chooses to do so; but he cannot veto any individual
items in it, leaving the rest to stand. To veto a whole
appropriation bill is a very drastic step. Such action, unless PRESIDENT
the bill were passed over his veto, would leave important ON APPRO~
1 m . . . ' r PRIATIONS.
branches of administration without any funds until a new
bill could be put through the various stages; and Congress might ad-
journ before that could be done. Consequently the President, as a rule,
blurts out his objections to the offensive items and then signs the bill all
the same. The result is that the presidential veto, as far as the spending
of public money goes, is greatly weakened. This situation is embarrass-
ing to the President and costly to the taxpayers. Public opinion holds the
President responsible for all the items in any bill which he signs even
though he may be strongly opposed to some of them.1
The national budget system is not yet in all respects what it ought to
be, but its establishment marked a long step forward. The bureau of the
budget has saved the country a great many millions, par-
ticularly by its careful investigation of departmental QRDINATORS
expenses and its constant discovery of ways in which the
taxpayer's money may be saved. With an increased staff it would be able
to do more in this direction. Nevertheless, the control of national ex-
penditures in the United States is not yet strict enough. The director of
the budget has been given the initiative in recommending appropriations,
but neither he nor the President has the sole initiative. Congress does not
regard the national budget system as having placed any limitations upon
its own ultimate authority, either in proposing or sanctioning appro-
priations. The result is that complete responsibility belongs neither to the
executive nor to the legislative branch of the government; it is divided
between the two. The President may pledge economy, but unless he
obtains the cooperation of Congress he cannot redeem his pledge. From
time to time measures involving large expenditures have been passed
against the President's recommendation and even over his veto —
1 On the question whether the President ought to be given the power to veto individual
items, see pp. 179-180.
392 THE GOVERNMENT OF THE UNITED STATES
because congressmen have considered such action politically advanta-
geous to themselves.
Much unhappiness comes to individuals by reason of their lack of
careful planning in money matters. The nation which tolerates similar
incaution in its public finance will eventually get itself into
lIlRlJrl AS A A / v_j
NATIONAL trouble also. Thrift is a national, as well as a personal,
VIRTUE. virtue. We look at the national expenditures and say:
"What are even forty billions a year to a hundred and thirty million
people?" But a little mental arithmetic will disclose that it figures out to
more than 8300 per capita, or about a thousand dollars a year for th,%
average American family. If every employed person in the United States,
man or woman, were to give Uncle Sam a bright new dollar every clay
in the year, it would not cover the cost of the national government. Nor
should it be forgotten that forty-eight states are also taking money from
the citizen's pockets and spending it; so are a great host of counties,
cities, towns, boroughs, townships, and local-improvement districts.
There are at least fifty thousand taxing and spending authorities, big and
little, in the United States. So the total cost of governing the American
people is not merely a dollar a day for every person who is gainfully
employed; it is a good deal more than that.
Of course the wage earner does not realize that he pays at that rate, or
anything like it. He knows, to be sure, that his earnings go into rent,
grocery bills, gas bills, street-car fares, as well as into payments for gaso-
line, tobacco, liquor, motionpicture shows, etc. — but not always docs
he realize that taxes, all kinds of taxes, are a component part of these
payments, so that every time he unsheathes his pocketbook he pays
taxes. He complains about the increased cost of living, but does he
appreciate the fact that the reason for this, in part at least, is the increased
cost of government? If he did, he would show more concern about public
expenditures.
THE NATIONAL DEBT
Not all national expenditures are defrayed out of income. Extraordi-
nary undertakings which involve great outlays, such as the financing of a
PURPOSE OF war or ^e re^ef °f unemployment during an economic
THE BORROW- emergency, cannot be financed out of taxes alone, Govern-
ING POWERS. mentSj u^ individuals, should try to live within their
incomes as a normal policy and should not borrow to meet their current
needs. That is an axiom of financial policy on which all statesmen seem
to be agreed, although they do not always observe it in practice. But
from time to time there are situations which require the raising of
NATIONAL EXPENDITURES AND DEBT 393
extraordinary sums — to build the Panama Canal, for example. To do
this by greatly increasing the current taxes would be unjust as well as
unpopular. Governments, like business corporations, should have the
right to incur indebtedness for large capital expenditures; they are also
justified in borrowing when serious emergencies arise, and no one can
foretell how great such emergencies may be. The Constitution of the
United States, therefore, gives to Congress, without any restriction, the
right "to borrow money on the credit of the United States."
This is one of the few congressional powers upon which the Constitu-
tion places no limits whatsoever. Congress can borrow as much as it
pleases and in whatever manner it deems expedient. There
. • o r • • ^i i-i-i ABSENCE OF
was a good reason in 1707 tor giving Congress this latitude LIMITATIONS
because the national credit was then so low that difficulty UPON IT.
was likely to be encountered in borrowing on any terms. BEGINNINGS
The new national government started its career with heavy OF THE
obligations. Bonds had been issued during the Revolution- NATIONAL
ary War both by the confederation and by the several states.
The former would certainly be a charge upon the new Union, and the
latter would probably have to be taken over as a part of the national
debt. As a matter of fact, they were taken over.
The funding of these various obligations, which amounted in all to
about $55,000,000, was the work of Alexander Hamilton, who served as
secretary of the treasury during the years 1789-1795. To
Hamilton also was due the beginnings of a system of federal ™^ LEGACY
revenues which not only provided for the ordinary expenses REVOLUTION-
of government, but looked to the gradual extinction of the ARY WAR:
initial debt. During the War of 1812 some new bonds were ALEXANDER
issued, but twenty years after the close of this war the entire HAMILTON'S
national debt had been virtually paid off. Not only that, but ^^G ^
there was a surplus in the federal treasury which Congress
distributed among the states! For twenty-five years, 1836-1861, the
United States was the only great country in the world without a national
debt of any consequence. Then came the Civil War; and, during the
years 1861-1865, the debt rose to what was regarded as a staggering
figure.
At the close of the Civil War the interest-bearing indebtedness of the
nation stood at about three billions of dollars; but this does not tell the
whole story, for much borrowing had taken place in a
roundabout way through the issue of paper currency. The
financial legacy of the Civil War was steadily reduced,
however, and during the next twenty years it was brought down to
394 THE GOVERNMENT OF THE UNITED STATES
about a billion and a half dollars. Then the pendulum began to swing
once more in the other direction. In the second Cleveland
THE NA- i . . .11 . i 1.11 11
TIONAL DEBT administration bonds were issued to replenish the gold
SINGE THE reserve in the treasury, and later, during the war with
Spain, there were additional borrowings. The building of
the Panama Canal added something to the total, yet the national debt
on the eve of America's participation in the First World War was only
about a billion and a quarter.
Viewed in the light of later developments this little billion of a genera-
tion ago now seems microscopic. The borrowings for the two war years
1917-1919 alone amounted to over twenty-five billions.
About ten billions were loaned to the European countries
WAR i AND which were associated with the United States in the war —
notably to Great Britain, France, Italy, Russia, and
Belgium. But presently the government began paying off
these war bonds and made good progress until 1 930, when the country
began to feel the onset of the economic depression.1 The total debt at
that date had been reduced to about sixteen billion dollars. Then, with
the policy of borrowing to finance the relief and recovery programs, the
figures mounted rapidly again. By the end of the fiscal year 1939, the
national debt had risen to about forty billions; two years later, the ex-
penditures of the defense program had pushed it up nearly ten billions
more; and with the active entry of the United States into the war the
nation's indebtedness shot upwards at an unprecedented speed.2 Congress
lifted the debt limit to astronomical figures — to one hundred twenty-
five billions in 1942 and then to three hundred billions in 1944. In 1949,
the actual debt was approximately two hundred fifty billion dollars. Nor
does this gigantic figure portray the real magnitude of the burden which
governmental indebtedness has placed upon the American people, for
the states also have debts, and so have the counties, cities, and towns. No
one knows, with any degree of exactness, what the grand total now is.
How great a burden of public debt can the people of any country
bear? No precise answer can be given to this question, although it is
WHAT is self-evident that somewhere there must be a point at which
THE TOP governmental solvency will be endangered. The burden of a
LIMIT. public debt depends on how much it costs to carry the load,
in other words, upon the rate of interest which has to be paid on it.
1 W. F. Willoughby, Financial Condition and Operations of the National Government, 1921-1930
(Washington, 1931).
2 The foregoing figures do not include obligations guaranteed by the United States, such
as the bonds of the home owners' loan corporation, the farm loan bonds, the National Housing
Act guarantees, etc.
NATIONAL EXPENDITURES AND DEBT 395
And in the United States this rate has been coming down. It also depends
upon the wealth and earnings of the people, because it is from this wealth
and these earnings that the money to pay interest on the debt is obtained ;
and it is from this source also that public debts have to be paid off. The
total earnings of the whole population of the United States amounted
to over a hundred and fifty billions in the year 1945, so that the national
debt limit represents the entire earnings of the people at the present
high rate for two whole years.
How does the national government "borrow money on the credit of
the United States"? The most common plan is to issue bonds. These
bonds are promises to pay on the expiration of a designated THE MECH.
period, say, twenty, thirty, or forty years, with interest at a ANISM OF
stated rate during the lifetime of the bond. For the most BORROWING-
part these bonds have been sold to banks, insurance companies, cus-
todians of trust funds, and similar concerns. But government bonds are
also sold direct to private investors and, to facilitate such sales, they are
available in small denominations. During recent years much use has
been made of so-called savings bonds. Purchasers of these bonds do not
receive interest at regular intervals: the interest is added to the face value
of the bond — for example, a savings bond purchased for $750 will be
worth $1000 in ten years.
From time to time the United States has also borrowed money by the
issue of treasury notes or bills. These arc issued in varying denominations
and mature within a short time, usually from three months
to five years. These bear a very low rate of interest, much
lower than is paid on government bonds which have a long
maturity. Treasury notes and bills are purchased largely by banks and
other financial institutions as a means of keeping their surplus cash in-
vested without tying it up for a long period. The national government
has also issued in recent years what are known as "tax anticipation
notes." These are interest-bearing notes which corporations or in-
dividuals arc permitted to buy and then turn in (at face value plus
interest) in payment of their federal taxes.
Government borrowing by an inflation of the currency was extensively
pincticed in various countries of Continental Europe during the First
World War and after it. There is nothing in the Constitution
of the United States that prevents resort to the same practice BY AN Wm
by Congress. During the Civil War the national govern- FLATION
ment paid a portion of its war expenditures by issuing
"greenbacks," which were merely paper notes with no
adequate reserve of gold or silver behind them, and its right to make this
396 THE GOVERNMENT OF THE UNITED STATES
money legal tender in payment of private debts was subsequently upheld
by the courts.1 During the Second World War there was also a vast
increase in the amount of paper currency placed in circulation; but
this time it was adequately backed by the nation's reserve of gold and
silver.
In no case has there ever been a repudiation of the American national
debt or any part of it. Repudiation of the debts owed by some of the
individual states, however, has occurred on several occa-
TION OF sions.2 Where such action takes place, the holder of a
PUBLIC repudiated bond has no effective legal redress. He cannot
DEBTS
sue the state except in its own courts, and even there he has
no status as a plaintiff unless the state gives it to him, which it is not
likely to do. He cannot enter suit in the federal courts, because the
eleventh amendment prohibits the federal courts from hearing any
citizen's suit against a state.
The burden of a national debt may at times be lessened by the process
known as refunding. The government, when bonds are issued, reserves
THE PRAG- ^e right to PaY them otf at or after a designated date. If at
TIGE OF that date the general rate of interest has fallen, a govern-
REFUNDING. ment may then secure money to pay off the old bonds by
issuing new bonds at the lower rate of interest. If the government, for
example, borrows a billion dollars at four per cent on bonds which arc
to mature in twenty years, this does not mean that it must draw on its
current income to pay off these bonds when the twenty years are up. It
can, and probably will, "refund" these bonds by the issue of new ones,
bearing a lower rate of interest, provided interest rates have gone down
in the meantime. Thus, when interest rates are falling, it becomes
possible to lessen the burden of a national debt without actually paying
any of it off. On the other hand, if interest rates have gone up, the re-
funding operation becomes a costly one.
One sometimes hears it said that the average citizen does not need to
worry about the national debt, whether it is big or little, because so many
of the bonds are held by banks, insurance companies, large industrial
corporations, and the like. But these concerns are merely acting for their
depositors, policyholders, and shareholders who, taken together, con-
stitute a large fraction of the whole people. When a wage earner puts
1 See p. 424.
2 Between 1840 and 1883 twelve states (all but two of them southern) -epudiated obliga-
tions to an aggregate amount of more than $160,000,000. R. C. McGranc, Foreign Bondholders
and American State Debts (New York, 1935) Defaults have occurred in eight other states, in-
cluding California, Illinois, Indiana, and Pennsylvania. D. F. Jordan, Investments (New York,
1933)-
NATIONAL EXPENDITURES AND DEBT 397
money in a savings bank, or into payments on a life insurance policy,
he is really buying government bonds, whether he knows it or not —
because the bank or insurance company buys its government bonds with
at least a part of his money. When a government becomes insolvent,
therefore, almost every citizen is affected. Alexander Hamilton once said
that "a national debt, if it be not excessive, will be to us a national
blessing." That saying is often quoted by spendthrift politicians — but
usually they leave out the qualifying clause.
REFERENCES
NATIONAL EXPENDITURES. On this general subject reference may be made to
R. A. Love, Federal Financing (New York, 1931), and H. W. Guest, Public Ex-
penditure (New York, 1927). Special mention should also be made of the volumes
on The Cost of Government in the United States issued by the National Industrial
Conference Board (New York, 1936 — ) and the study of Expenditures of the
Federal Government by John A. Krout (editor), published by the Academy of
Political Science, Columbia University, in 1938. Fred W. Powell, Control of
Federal Expenditures (Washington, 1939), is a documentary history covering the
period 1775-1894. A small book by Charles Warren entitled Congress as Santa
Claus (Charlottesville, Va., 1932) deals with national grants and the general
welfare clause of the Constitution. The various books on public finance men-
tioned at the close of Chapter XXIII also deal with this general subject, and the
annual reports of the secretary of the treasury contain much interesting statis-
tical information. Condensed figures of national expenditure can be found in
such annuals as the American Tear Book, the Statesmen's Tear Book, and the World
Almanac.
THE BUDGET. The new budget system is described in C. G. Dawes, The First
Tear of the Budget in the United States (New York, 1923), A. E. Buck, Public Budget-
ing (New York, 1929), the same author's The Budget in Governments of Today
(New York, 1934), W. F. Willou^hby, The .National Budget System (Baltimore,
1927), E. E. Naylor, The Federal Budget System in Operation (Washington, 1941),
D. T. Seiko, The Administration of Federal Finances (Washington, 1937), and the
same author's The Federal Financial System (Washington, 1940). Conditions
before 1921 are described in W. F. Willoughby, The Problem of a National Budget
(New York, 1918).
For a comparison of the American budget system with those of European
countries, reference is made to the article on "Budget" by W. F. Willoughby
in the Encyclopaedia of the Social Sciences, Vol. Ill, pp. 38-44, with references
appended.
THE NATIONAL DEBT. The growth of the national debt prior to the administra-
tion of Franklin D. Roosevelt is fully set forth in Davis R. Dewey, Financial
History of the United States (i2th edition, New York, 1934). There are chapters
on the subject in all the books on public finance. H. E. Fisk, Our Public Debt
(New York, 1919), and Paul Studenski, Public Borrowing (New York, 1930),
E. Clark (editor), The Internal Debt of the United States (New York, 1933), and
H. G. Hendricks, The Federal Debt, 1919-1930 (Washington, 1934), contain much
398 THE GOVERNMENT OF THE UNITED STATES
serviceable information. More recent volumes on public debt and fiscal policy
are P. W. Stewart and R. S. Tucker, The National Debt and Government Credit
(New York, 1937), H. H. Villard, Deficit Spending and the National Income (New
York, 1941), Alvin H. Hansen, Fiscal Policy and Business Cycles (New York, 1941),
H. G. Moulton, The New Philosophy of Public Debt (Washington, 1943), Stuart
Chase, Where's the Money Coming From? (New York, 1943), Albert E. Hart and
others, Debts and Recovery (New York, 1938), and E. R. Van Sant, The Floating
Debt of the Federal Government, 1919-1936 (Baltimore, 1937). Attention is also called
to the reports of hearings before the ways and means committee of the House
of Representatives on the Debt Limit of the United States, January Qg-February
14, 1943, during the consideration of H. R. 1470, Seventy-eighth Congress,
ist session (Washington, Government Printing Office, 1943).
CHAPTER XXV
THE GOVERNMENT AND COMMERCE
The prosperity of commerce is now perceived and acknowledged by all enlightened
statesmen to be the most useful as well as the most productive source of national wealth,
and has accordingly become a primary object of their political cares. — Alexander
Hamilton.
The chaotic condition of trade during the years preceding 1787 did
more than anything else to bring the states together. No sooner had the
Revolutionary War come to a close than they began setting COMMERCIAL
up tariffs against one another and seeking preferential CHAOS BE-
trading arrangements with foreign countries. This com- FORMATION
mercial rivalry soon led to bad feeling and within a few OF THE
years it became clear to everyone that orderly trade could UNION-
not be maintained except by establishing a central authority to enforce
uniform regulations. On this point the men who framed the Constitution
were virtually unanimous.
The Constitution, therefore, gives Congress complete power to regulate
commerce with foreign nations and among the several states — subject
only to the proviso that such regulation shall not give to one
VVHAT THE
state any preference over another, and that no export duties CONSTITUTION
may be levied.1 This "commerce clause" is deceptively GIVES T0
, . . i. • i i • . CONGRESS IN
simple on its face; in reality, it has become, in application to THE WAY OF
present-day business activities, more difficult to define than POWERS OVER
COMMERCE
any other power bestowed upon Congress by the Constitu-
tion. No grant of authority to the federal government has been of greater
elasticity than that which is embodied in the phrase "to regulate com-
merce.55 These three words, as interpreted by the courts, have contained
enough latent authority to make Congress a dominating force in the
industrial life of the nation.
1 The Congress shall have power ... to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes. (Article I, Section 8 )
No tax or duty shall be laid on articles exported from any state. (Article I, Section 9.)
No preference shall be given by any regulation of commerce or revenue to the ports of one
state over those of another; nor shall vessels bound to, or from, one state be obliged to enter,
rlear, or pay duties in another. (Article I, Section 9.)
399
400 THE GOVERNMENT OF THE UNITED STATES
Obviously no member of the constitutional convention could have had
any idea of the vast possibilities which lay concealed in this simple
phrase, nor did its full import begin to be realized until a
LANDMARK generation after the Union was established. The decision of
IN THIS EX- fae Supreme Court in the case of Gibbons v. Ogden (1824)
PANSION: , r f , , , r ......
GIBBONS v. first brought home to the states the extent of the jurisdiction
OGDEN which they had handed over to Congress, and from that
time forward the commerce clause has been steadily
widened by the inclusion of one thing after another.1 In a hundred and
sixty years it has moved all the way from pack-horse to airplane and
from post-rider to radio.
Words are the mind's ambassadors. When used in a constitution they
have dynamic properties. Their shadings keep step with social and
AN EXAMPLE economic changes; they expand to cover the necessities of
OF VERBAL each new age; they signify one thing in this generation and
ELASTICITY. another in the next. Commerce in 1787 was a matter of
stagecoach and sailing ship. But when railroads and steamships came,
they were held to be instrumentalities of commerce. Then the telegraph
arrived and was put into the same category. The telephone followed it
there. So did the broadcasting stations, in due course. Meanwhile, the
courts were busy deciding that express companies,, Pullman car com-
panies, electric trolleys, auto stages, airplanes, pipe lines, and a dozen
other carriers of trade and intercourse belonged within the same clastic
designation. Constitutional terminology is not made of vanadium steel:
it has the resiliency of a toy balloon.
THE COMMERCE POWER IN GENERAL
What is "commerce" today? No one can define it precisely; and, in
any event, a definition of today would be out of date even a few years
EXACT hence. But in a general way commerce includes all forms
DEFINITION of transportation on land, by water, or through the air, the
coJ^LRCE movement of persons, merchandise, and messages — in fact,
POWER is economic intercourse of almost every sort. But there arc
IMPOSSIBLE. some specific things which it does not cover. Traffic in bills
of exchange, for example, has been held to be outside the scope of the
term. A baseball team playing games in different states is not engaged in
interstate commerce, but a high-tension power line carrying electric
current across a state boundary comes under the commerce power of
1 In Gibbons v. Ogdcn (9 Whcaton i) it was held that Congress had power to maintain
the free flow of foreign and interstate commerce, even within the boundaries of the individual
states themselves
THE GOVERNMENT AND COMMERCE 401
Congress. The line of demarcation is sometimes so tortuous that the
average layman cannot follow it. Several years ago, a federal court held
that a law passed by Congress for the protection of migratory birds was
unconstitutional because bird migrations are not commercial activities.1
But the passing motorist who picks up a hitchhiker and carries him across
the boundary of a state has been held, by judicial ruling, to be a carrier
of interstate commerce. More than three quarters of a century ago the
Supreme Court held that the buying and selling of fire insurance policies
was not interstate commerce, but quite recently it reversed itself on this
point.2
For a long time it was the judgment of the Supreme Court that the
power of the national government to regulate interstate commerce gave
it no authority over manufacturing, mining, oil production,
and other business which was considered wholly within the ^"^wtEN
bounds of a single state. Even as late as 1895 the Court held COMMERCE
AND
categorically that manufacturing is not commerce but is
O / & INDUSTRY.
"antecedent to commerce." 3 And in the Schechter Case
(1935) it .still held to this general ruling.4 But, in more recent years, a
change of judicial attitude on this matter has developed; and, in various
decisions since 1937, the Supreme Court has held that the commerce
clause may be used by Congress to regulate industries within a single
state when such industries are, from the nature of their business, closely
interwoven with other industries which operate in interstate commerce.
The National Labor Relations Act, for example, has extended its
provisions to workers in such industries and has been upheld in doing so,
The rigidity with which Congress was debarred for over a century from
regulating purely local business is being broken down.5
Commerce is commerce, no matter how it is carried on. The method of
transportation is immaterial. Nor is it necessary that the carrying be for
profit. The presence or absence of buying or selling, profit THE FAR.
or loss, payment or gift, does not affect the fundamental FLUNG
principle. The radio broadcaster, though he may never op'riiif*1*8
move from one spot, is engaged in interstate commerce. COMMERCE
What he usually sends through the air is a medley of adver- POWER-
1 U. S. v Shauvcr, 214 Fed. 154 In 1916, however, the United States and Canada entered
into a treaty providing for specified closed seasons and other forms of protection with respect to
certain species of wild birds in their annual migrations, and in 1918 Congress enacted the
Migratory Bird Treaty Act (39 Stat. i 702) to implement the provisions ol this treaty. The
Supreme Court held this act of Congress to be constitutional as a necessary and proper means
of giving effect to a treaty which was within the authority of the United States to conclude.
Missouri v Holland, 252 U. S. 416 (1920).
1 Paul v. Virginia, 8 Wallace 168 (1868), and U. S. v. South-Eastern Underwriters Associa-
tion, 322 U. S. 533 (1944).
« E. C. Knight Co. v. U. S., 156 U. S. I (1895). 4 See p. 445. 6 Sec p. 450.
402 THE GOVERNMENT OF THE UNITED STATES
tising and entertainment. The law calls it commerce. But the mere fact
that you use the mails from one state to another in the course of a business
transaction does not necessarily involve you in interstate commerce —
for example, if you are a lawyer and give your client in another state
legal advice by mail, charging a fee for it.
Another question arises. At what point does commerce become inter-
state? Commerce which begins and ends within the bounds of a single
state is prima facie outside the category of interstate com-
MERGE G°M" nierce; but, if at any point between its start and its desti-
BEGOMES nation, the traffic passes outside the state boundary, no
INTER- matter for how short a distance, the whole transaction goes
under federal jurisdiction. Goods shipped from Boston to
New York are under federal regulation all the way from one place to the
other, not merely while crossing the intervening states. But goods shipped
from Los Angeles to San Francisco, a longer distance, are ordinarily
under state regulation. Interstate commerce begins when the person or
shipment with an interstate destination goes aboard the carrier. How-
ever, in an interesting case a generation ago, it was held that taxicabs
owned and operated by a railroad company in carrying passengers to its
terminal were not engaged in interstate commerce — in other words,
that passengers began their interstate trips when they actually boarded
the train, and not when they taxied to the station.1
Therefore, the only way to keep goods from coming under the juris-
diction of Congress is to keep them at home, in the state where they are
produced. Under present-day conditions of industry such a recourse is
virtually impossible. Of late, the courts have shown full awareness of the
complexity of commerce and the inextricable mingling of its various
parts. Every large concern ships goods by express, freight train, motor
truck, or airplane into other states. It brings raw material by the same
channels. The level of wages and the schedule of work hours in one state
are bound to affect commerce between it and other states. Electric power
that is produced within one state is used locally to manufacture goods
which are sold in other states. As a practical matter, it is extremely
difficult, if not impossible, to make a clean-cut, open-and-shut differ-
entiation between interstate and intrastate commerce, or even between
commerce and industry. The courts are now recognizing that fact. The
result is a gradual extension of federal jurisdiction over both commerce
and industry of all kinds. Incidentally, it may be mentioned that a
consignment of merchandise which has been shipped in interstate com-
1 Pennsylvania R.R. Go. v. Knight, 192 U. S. 21 (1904).
THE GOVERNMENT AND COMMERCE 403
merce remains subject to federal jurisdiction until it is sold in the original
package or until this original package is broken.1
Is the power of Congress over foreign and interstate commerce
unlimited? By no means. As already stated, when Congress undertakes
to regulate commerce, it must do so uniformly. It cannot
.. . . ^ . r r . f . ^ . LIMITATIONS
discriminate in favor of one section of the country, or in ON THE
favor of one part of the population, as against any other. POWER OF
If it imposes duties upon imports coming into the United T(>NRECH>
States from foreign lands, those duties must be levied at the LATE FOR-
samc rate at all ports to which the goods may come. So long EIGN GOM"
as it observes the rule of uniformity, however, Congress may
determine the conditions under which its commerce power is exercised.
It may regulate to the extent of placing an embargo on all foreign trade
and may regulate commerce between the states to the extent of actually
prohibiting certain forms of it.
THE TARIFF
The power to regulate commerce with foreign nations has been
exercised, in the main, by the enactment of tariff laws. Strictly speaking,
a tariff/or revenue is an exercise of the taxing power, while a 7HE TARIFF
tariff for protection falls within the scope of the commerce AS AN
power. The distinction is of no legal importance, however,
for virtually every American tariff during the past century CIAL REGU-
has been both fiscal and protective.2 Usually the element LATION-
of protection has predominated, and that is why the customs tariff is
included in a chapter on the regulation of commerce rather than under
the heading of national taxation.
In the days when the Constitution was being framed the prevailing
public sentiment leaned towards free trade. But Alexander Hamilton
persuaded the first Congress to establish a tariff of duties on imports.
1 The original package doctrine was formulated by Chief Justice Marshall in 1827 (Brown
r. Maryland, 12 Wheaton 419) It has been restated and made more precise in various later
decisions, such as Leisy v. Hardin (135 U S 100, 1890) and Austin v. Tennessee (179 U. S.
343, 1900). A state may tax goods while they remain in the original package, provided that
the tax is not special or discriminatory. But, when the goods have been imported from a
foreign country, the consent of Congress is necessary under Article I, Section 10, of the Con-
stitution.
2 Until 1928 the Supreme Court was not called upon to determine the constitutionality of a
protective, as against a revenue, tariff. Yet the issue had been debated in Congress and else-
where for a hundred and forty years; and Democratic platforms, in 1892 and 1912, had
denounced protection as beyond the constitutional power of Congress to establish. The deci-
sion of the Court in Hampton v. United States (276 U. S. 394) made no reference to the com-
merce power It rested on two points: (i) actual practice from the time of Hamilton, and
(2) the sufficiency of an alleged motive to raise revenue, no matter what other motives may
have been influential.
404 THE GOVERNMENT OF THE UNITED STATES
This action was taken primarily to furnish the new government with
revenue, but Hamilton believed in a customs tariff for other reasons as
well. He argued that protection would build up the home market and
weld the nation together; likewise, that it would cause the occupations
of the people to become diversified by stimulating a variety of manu-
factures. In addition, it would foster shipbuilding and other activities,
which in time of emergency could be utilized for the national defense.
During the nineteenth century the tariff alternated up and down, but
its general course inclined upward, especially after the Civil War. In the
NINETEENTH- campaign of 1884 it became a leading issue between the
CENTURY major parties and remained one for forty years. The Re-
TARIFFS. publicans ranged themselves definitely on the side of protec-
tion. The Democrats denounced it as fraud and robbery, and in 1892
even went so far as to deny the constitutional power of Congress to enact
it. As soon as they won control over Congress, they proceeded, although
cautiously, to reduce the customs rates. Not until the campaign of 1928
did they abandon their demand for a "revenue" tariff. So both parties
have now become frankly protectionist, and consequently the tariff has
ceased (for the moment at least) to be a major party issue. Its schedules
arc nowadays evolved from a series of struggles in Congress among differ-
ent sections of the country and among different business interests. Lobby-
ists crowd into the capitol by the hundreds whenever a new tariff is in the
making — every one of them seeking some concessions to the special
interest or locality that he represents. Every sort of business (agriculture
included) clamors for "protection"; but what most of them really want
is a rate of customs duty that will give them a substantial advantage over
any foreign producer of the same products, or even of products which
might compete with their own. And usually they get at least a part of
what they are after. The result has been a higher scale of prices in the
United States than in other countries, higher wages in the protected
industries, and higher profits in them also. By most Americans the
protective tariff has been given a share of the credit for the relatively
high standard of living in the United States.
After the World War of 1914-1918 the situation of the United States
with reference to foreign commerce and competition underwent a
THE "FLEX- change. Foreign currencies, in terms of the American dollar,
IBLE depreciated considerably. This meant that goods could be
CLAUSE. sent to tjie unjteci States, and, even after payment of the
regular customs duty, could be sold cheaply for American dollars,
because these dollars would bring a high price in the currency of the
exporting country. To meet this situation, Congress inserted in the tariff
THE GOVERNMENT AND COMMERCE 405
acts of 1922 and 1930 a "flexible clause" which permits the regular rate
of import duty on any commodity to be raised or lowered within certain
limits by presidential proclamation whenever it is decided that such
adjustment is essential to fulfill the purposes of the tariff.
On the urgent recommendation of the Secretary of State, Cordell Hull,
Congress inaugurated in 1 934 the policy of permitting reciprocal trade
agreements between the United States and other countries. RECIPROCAL
The advocates of this policy hoped to secure mutual benefits TRADE
through the removal of obstructions to foreign trade. PROVKIONS-
Without the advice and consent of the Senate, the President was em-
powered to make such agreements with other countries, but with the
provision that no rate of duty should be lowered more than 50 per cent;
that no article should be shifted from the dutiable to the free list; tha* the
reduced rates should apply to all countries not discriminating against
American goods; and that, at the end of three years, the agreements
might be terminated upon six months' notice. By successive reenactments
of this measure, Congress has extended the life of this policy and it still
continues to be in force. The department of state, which negotiates the
reciprocal agreements, is now concerned with the postwar application of
this arrangement, which, being flexible, could be adjusted to changes in
the value of currencies or to new conditions of trade. By some statesmen
the reciprocal trade agreement is regarded as an agency of international
peace. At any rate, the United States has entered into reciprocal trade
agreements with more than twenty-five countries.
The outbreak of another great European war in 1939 relegated the
tariff to a very subordinate place in public discussion. For some years
before this date various European countries had been THE
placing their foreign trade on a "quota" basis. In other "QUOTA"
words, they no longer allowed imports with only their SYSTEM-
tariffs as a barrier. Instead they permitted, from any country, only such
imports as could be balanced by a quota of exports to the same country.
Meanwhile some localized wars had begun — Italy against Ethiopia,
Japan against China. The conflagration threatened to become general
and possibly involve the United States. Supported by popu-
lar sentiment, Congress therefore passed, during the years
1935-1939, four so-called Neutrality Acts which provided TRADE WITH
that whenever Congress or the President formally recog-
nized the existence of any war, all trade between the United
States and the warring countries should go upon a "cash-and-carry
basis." In other words, the United States would furnish neither ships nor
credit. In addition, these acts made stringent rules relating to the sale of
406 THE GOVERNMENT OF THE UNITED STATES
munitions to belligerents, the floating of loans by them in the United
States, and the traveling of American citizens on ships owned by them.
But the startling success of German arms during 1940 and the appar-
ently desperate situation of Great Britain dictated a departure from this
policy. Congress, in March, 1941, enacted a Lend-Lease Act which
provided for the giving of assistance in the way of munitions, supplies,
ships, and money to those countries which were resisting the aggression
of the Axis powers. This, of course, soon resulted in an enormous flow of
commerce, mainly in one direction. By such action the United States
began to throw its weight against the Axis and, within a year, was whole-
heartedly in the war.
IMMIGRATION
The control of immigration is another important phase of the com-
merce power.1 By virtue of its authority to regulate foreign commerce,
Congress has passed numerous laws relating to the incom-
THE CONTROL . ° x ° .
OF CONGRESS mg of aliens. Ihese laws prescribe the conditions under
OVER IMMI- which immigrants may enter the United States and exclude
some classes of aliens altogether. For example, the federal
laws exclude all persons, except those engaged in the various professions,
who come to the United States to perform labor under contracts made
before their arrival. They also prohibit, with some exceptions, the entry
of certain Orientals. A literacy test has been provided since 1917 for all
otherwise eligible immigrants. It requires ability to read
EXCLUDED some language, not necessarily English. Among those ex-
cluded under all circumstances arc insane persons, and
persons likely to become public burdens, or those afflicted with serious
physical or mental ailments, as well as polygamists, anarchists, and
persons who have been convicted of serious crimes. All aliens who are
admitted must pay a head tax.
After the close of the First World War, it seemed certain that an
avalanche of immigration would descend upon America. From almost
THE ACT everywhere, throughout Continental Europe, the stream
OF 1924 started to flow across the Atlantic.2 So Congress busied
NATIONAL^ itself with the preparation of measures which were expected
ORIGINS to stem the tide. After an unsatisfactory experiment with
BASIS. stopgap arrangements it authorized, in 1924, a "national-
1 Strictly speaking, this control (which is exclusive) is a necessary consequence of the power
of the national government to conduct foreign relations and to regulate commerce. Passenger
Cases, 7 Howard 783 (1848).
2 By fiscal years the immigration was 430,000 in 1920; 805,000 in 1921; 310,000 in 1922;
523,000 in 1923; and 707,000 in 1924.
THE GOVERNMENT AND COMMERCE 407
origins" system of quotas, which was put into operation five years later.
Under the terms of this law the total number of immigrants admitted
into the United States (except residents of the Western Hemisphere, to
whom the restriction does not apply) is limited to 154,000 per annum.
Within this limit quotas are assigned to the various countries in pro-
portion to the number of persons of such origin who were already in the
United States at the time of the census of igso.1 On this basis, Great
Britain and Northern Ireland received a quota of about 66,000; Ger-
many, about 26,000; and Italy, about 6,000. For a time, there was
strong pressure on the quotas in some European countries; but, with the
growth of the economic depression in this country and the outbreak of
war in Europe, the flow of immigration declined sharply.2 A minimum
quota of 100 has been assigned to virtually every nationality; but those
Asiatics and Pacific Islanders who are still debarred from naturalization
may not come into the country under such a quota.
Congress may regulate not only the admission but the deportation or
expulsion of aliens. Accordingly, it has authorized the commissioner of
immigration to deport, even after lawful admission, any
alien who tries to foment revolution, or to spread subversive
political doctrines, or who is convicted of certain crimes.
And, of course, anyone whose entry into the United States is shown to
have been unlawful can also be deported. Such deportees are sent back
to their own countries. Deportation orders are issued by the executive
authorities, not by the courts; but from such orders there is a right of
appeal to the courts. Ordinarily, however, the courts will not interfere
unless the facts alleged as the basis of a deportation order are unsup-
ported by any substantial evidence.3 The burden of proof rests on those
who resist deportation, not on those who order it.
1 According to the act of 1924: "Such determination shall not be made by tracing the
ancestors or descendants oi particular individuals, but shall be based upon statistics of immigra-
tion and emigration, together with rates of increase of population shown by successive de-
cennial United States censuses, and such other data as may be found to be reliable." As to the
methods that were employed, see Charles P. Howland, Survey of American Foreign Relation*
(1929), pp. 46°~475-
2 The figures are:
1933 23,068 1938 67,895
1934 29,470 1939 82,998
1935 34>956 '940 7°i75C
1936 3^,329 J94i 5T>776
1937 5°»244 '942 28,981
3 In June, 1 945, for example, the Supreme Court nullified an order for the deportation
of Harry Budges, West Coast laboi leader, who is a native ot Australia. In a 5-3 decision
the court declared that the deportation warrant was based on a misconstruction of the law
and an "unfair hearing on the question of his [Bridges'] membership in the Communist
party."
408 THE GOVERNMENT OF THE UNITED STATES
REGULATION OF TRANSPORTATION
It is chiefly by means of the tariff and the immigration laws that Con-
gress has exercised its power to regulate commerce with foreign nations.
But Congress also regulates commerce among the states,
METHODS OF ,.,.,- T o i i i L •
REGULATING and its work in this latter held has been even more im-
INIERSIATE portant. Its regulatory power has been extended to ships
COMMERCE. • i i -1 i i - -i i i i
on inland waters, railroads, electric railways, bus and truck
lines, airplanes, oil-carrying pipe lines, transmission lines for electric
light and power, whenever any of the foregoing operate in more than one
state, as well as to communication by telegraph, telephone, and the
radio.
For a long time after the federal government began its operations,
Congress hardly used its power to regulate interstate commerce. In
general, all such commerce went unregulated. During the middle decades
of the nineteenth century, the railroads came and gradually spread
themselves all over the country. The states, having chartered the rail-
road companies, were supposed to regulate them; but this arrangement
proved ineffective, especially as regards through traffic. Many abuses
developed in the way of discriminations in favor of certain cities as
against others, or in favor of large shippers as against smaller ones.
Sometimes these favored shippers were given rebates from the rates fixed
in the published schedules.
Such abuses became so common and so flagrant that Congress decided
to put an end to them. In 1887 the Interstate Commerce Act laid down
THE INTER- a sei*ies of regulations which prohibited discrimination in
STATE COM- rates or service. They also forbade rebating and the practice
orTss^AND of "pooling" business, to which the railroads had frequently
SUBSEQUENT resorted. This, and subsequent statutes, established the
ACTS* principle that railway rates must be reasonable and must
be publicly announced, after which they must not be raised without the
approval of the interstate commerce commission, a body which was
established in 1887 to enforce the various regulations.
The functions of the interstate commerce commission have gradually
been widened to include the carrying out of the federal laws relating to
steamship and railroad companies, express and sleeping-
WORK OF 1 HE r 11
INTERSTATE car compares, motor bus and motor truck concerns, power
COMMERCE transmissior lines, and oil pipe-line companies, when en-
OOMMISSION. . . - . . .
gaged in ntc state commerce. Its jurisdiction also extends
to terminal facilities when used in connection with foreign or interstate
trade. The commission may investigate, either upon complaint made to
THE GOVERNMENT AND COMMERCE 409
it or on its own initiative, any allegations of overcharge, or faulty service,
or discrimination in rates made by all such companies. It is authorized,
after proper hearings, to fix the maximum rates or fares, and also to
make reasonable rules as to the character of the service. It has various
other responsibilities with respect to the issue of securities by carrier
corporations engaged in interstate commerce.
Meanwhile, it should again be pointed out, even at the risk of undue
repetition, that the interstate commerce commission has no general
authority over carriers which keep strictly within the bounds
r • i ^ * A r .-u j i THE DIVISION
or a single state. As far as they are concerned, each state OF AUTHOR-
provides its own regulations and its own regulating body, ITY OVER
commonly known as a railroad commission or public BETWEEN^
service board. But nearly all railroads now operate in more FEDERAL AND
than a single state (or are parts of a railway system which STATE GOV~
b V l 7 7 ERNMENTS.
docs); and the interstate commerce commission has some
jurisdiction over even their local rates insofar as these affect the general
rate structure. The state commissions still have a good deal to do with
such matters as the hearing of complaints, train schedules, local facilities,
safety requirements, the abolition of grade crossings, etc.
During the First World War the President of the United States, by
virtue of war powers conferred upon him by Congress, took over the
operation of the important railroads, placing them under a
director general named by himself. Congress subsequently OPERATION
provided that the owners of the railroads should be com- OF THE
pensated during the period of federal operation by a RAILROADS
1 01 r / IN WARTIME.
guarantee of a net income equal to the average net earnings
of the three preceding years. For more than a year after the end of
hostilities, the national government continued to operate the railroads
under this arrangement; but, in 1920, Congress passed the Transporta-
tion Act under the provisions of which the railroads were restored to
private operation.
This act embodied some novel features. For one thing, it sought to
provide the railroads in each region of the country (taken as a whole)
with a reasonable minimum of net earnings. Excess earn- THE TRANS.
ings by any one road were made subject to "recapture," PORTATION
that is, they were to go into a fund for the benefit of the less ^20° rrs
profitable roads. Much was expected of this recapture CHIEF
provision; but it proved unworkable and was repealed. A PROVISIONS-
second provision authorized the interstate commerce commission to fix
minimum as well as maximum rates to prevent unprofitable competition,
while a third set up a plan for the adjustment of railroad labor disputes.
410 THE GOVERNMENT OF THE UNITED STATES
Finally, the act provided arrangements for the consolidation of all the
railroads into a limited number of great systems; but virtually nothing
came of this plan.
With the onset of the economic depression in 1 930 the traffic on the
railroads underwent a rapid and severe decline. Earnings fell off
correspondingly.1 In no region of the country were they
ROADS IN sufficient to produce the fair return on valuations which
THE DE- tjie act of 1920 contemplated. A general increase in rates, it
was felt, would only result in a further decrease of business
and not solve the problem. To make matters worse, many railroads
found that they could not meet maturing obligations and, in some
cases, they defaulted the interest on their bonds.
To ameliorate this situation, two steps were taken. The reconstruction
finance corporation made large loans of government money to the most
THE FEDERAL neecty railroads, taking such security for these loans as it
COORDI- was able to obtain. Likewise, Congress made provision
NATOR. (during the years 1933-1936) for a federal coordinator of
transportation, appointed by the President, with the duty of promoting
or requiring economies, eliminating wasteful duplication of services and
facilities, securing financial reorganizations, and recommending other
measures for improving the stability of the railroads. A significant limita-
tion, however, was the requirement that economies in railroad operation
must not be effected by reducing the number of employees.
Federal supervision of the railroads then developed some new features.
It began to display a more active concern for the interests of the or-
POLICIES ganized employees, as in the matter of wage adjustments;
OF THE it became more favorable to shippers, especially to the ship-
NEW DEAL. perg Qf £arm proc[ucts; it showed less sympathy toward
investors in railroad securities; and it frowned upon the practice, long-
established but costly, of putting insolvent railroads under judge-
appointed receivers. Yet in 1938 over thirty per cent of all American
railroad mileage was in the hands of receivers. The Transportation Act
of 1940 was designed to relieve this situation. Among other things it
removed certain restrictions from the lending powers of the reconstruc-
tion finance corporation; gave the interstate commerce commission
authority to regulate the services and rates of water carriers in domestic
commerce; permitted railroads to consolidate, apart from any official
1 Within two years the total operating revenues declined by 50 per cent; the number of
employees by almost 40 per cent. In the face of chronic deficits the credit of the railroads
virtually disappeared. For the calendar year 1932 the railway brotherhoods accepted a
10 per cent cut in wages.
THE GOVERNMENT AND COMMERCE 411
plan, with the consent of the commission; and created a three-man
board to investigate the relative efficiency of rail, water, and motor
transportation, with a view to discouraging wasteful competition.
From no regulation at all sixty years ago, we have now developed
plenty of railroad regulation by the interstate commerce commission,
by forty-eight state boards, and a board for the District of
Columbia. While the railroads of the United States are
ostensibly managed by their private owners, that is, by
officials and directors chosen by the stockholders of the railroads, nearly
all important questions of railroad policy and management are now
settled by the public authorities. Those who own the railroads, and those
who manage them for the owners, do not decide what rates shall be
charged, what wages paid, what trains run, how many hours a trainman
shall work, what his pension rights shall be, or how the railroad's
accounts shall be kept. All such matters are covered by laws or regula-
tions.
The initial reason for this policy lay in the fact that railroads are public
utilities, "clothed with a public interest" as the courts have sometimes
said, yet often enjoying a monopoly. As regards their local COMPETITION
traffic, most of the railroads encountered no competition at BY MOTOR
all for a long time. But during the twenty-odd years which CARRIERS-
intervened between the two World Wars, this situation underwent a
great change. Motor trucks began to cut into the freight business of the
railroads, while motor busses went out to capture a share of their
passenger traffic. Both of them gradually extended their operations
over longer distances and proved themselves successful competitors,
because they enjoyed some marked advantages over the railroads,
Motor vehicles have no expensive rights of way to maintain, require no
costly terminals, freight yards, or passenger stations. They can pick up
their loads at any point and deliver them to the consignee's door. At the
outset, they were under virtually no official regulation as to quality or
regularity of service, rates or fares, hours of labor, or minimum wages.
The states required them to be licensed and to observe a few safety rules,
but that was all.
The railroad managements complained loudly that this competition
was unfair and uneconomic, but not until 1935 was Congress ready to
provide for nation-wide regulation of the new carrier CONGRESS
service. By a statute which was passed in that year, the INTERVENES,
interstate commerce commission received regulatory power I935'
over all motor carriers engaged in interstate commerce. This power
includes the regulation of rates and service. Naturally the act of 1935
412 THE GOVERNMENT OF THE UNITED STATES
greatly increased the work of the interstate commerce commission, for
the number of companies engaged in transportation by motor cars and
trucks across state lines is very large — running into the tens of thou-
sands. To handle the additional work, a bureau of motor carriers was
established within the interstate commerce commission and the country
has been divided into sixteen districts with a representative of this bureau
stationed in each.
Meanwhile, in the years which followed the close of the First World
War, a new agency of transportation developed rapidly. Commercial
aviation, with the carrying of mail, passengers, and goods
AERONAUTICS over long distances grew to such importance that, in 1926,
ADMINIS- Congress undertook to provide for the regulation of inter-
IRATION. state ajrpiane traffic. Later changes in the laws, together
with various administrative reorganizations, have resulted in the present
regulatory authorities — a civil aeronautics administrator and civil
aeronautics board of five members, all of whom are appointed by the
President. Both are in the department of commerce, but the board is
given certain powers which are exercised independently.
The administrator of civil aeronautics has general supervision over
traffic moving in air commerce, the enforcement of safety regulations
made by the civil aeronautics board, the training of civilian
ITS pilots, the construction and improvement of government
ACTIVITIES. r ' • i i • •
airports, and the promotion of experimental work in air-
craft design. The civil aeronautics board grants (and revokes) permits
for aircraft operation, determines the routes, licenses planes and pilots,
regulates the rates charged by commercial aviation companies for the
carrying of persons and property, prescribes the rates of compensation
for carrying mail, makes the safety regulations, investigates aircraft
accidents, and performs various other functions. In addition, the civil
aeronautics authorities allocate the funds which are provided by Con-
gress for subsidizing commercial air lines as well as for creating emer-
gency landing fields, lighting and marking airways, and furnishing a
radio directional service.
Prior to 1934 the regulation of interstate telephone and telegraph and
of transoceanic cable companies was entrusted to the interstate com-
™»/*r»t,*A» merce commission. But radio broadcasting was under the
ELECTRICJAL. t >
TRANSMIS- supervision of another agency, the federal radio commission.
SIGN.. This division of control over interstate communication
facilities seemed inadvisable, so it has now been ended. Unified responsi-
bility for regulating all of them has been vested in a new agency — the
federal communications commission, a board of seven members ap-
THE GOVERNMENT AND COMMERCE 413
pointed by the President with the consent of the Senate. This body
regulates the rates and conditions of service in the case of interstate
telegraph and telephone messages, grants permits for the operation of
radio broadcasting stations, assigns the wave lengths to be used, and is
responsible for insuring that the stations are "operated in the public
interest."
Since permits or licenses arc granted for relatively short terms and
have to be renewed, the commission is able to enforce its requirement
that stations be operated in the public interest. For example,
it has laid down the rule that every station must devote a
certain minimum percentage of its broadcasting time to
"sustaining" or educational programs, not of a commercial character.
In general, the federal communications commission has no power of
censorship over individual programs, except that its rules prohibit the
broadcasting of programs which fall below reasonable standards of
decency. This limitation on the scope of governmental control has been
considered advisable in order that the radio may not be forced into a
position of subservience to any political party or cause. Retention of its
independence as an agency of public education is obviously desirable.
On the other hand, the commission has been concerned to prevent the
monopolizing of radio facilities by too small a number of nation-wide
broadcasting chains. Likewise, it has been averse to the ownership of
radio stations by newspapers, and in a number of cases it has compelled
a separation of the two.
The radio, as everyone knows, has become a powerful agency for
political, educational, and commercial propaganda. As a means of
informing (or misinforming) the public it shares a place ITINVOIVES
with the newspapers and probably exceeds the latter in its DIFFICULT
range. As a result of various improvements made just be- PROB1LMS-
fore and during the war, moreover, it is likely that television will become
increasingly common and radio will consequently acquire even greater
significance as a moldcr of opinion. Clearly it is desirable that this great
instrument of indoctrination should not be subjected to complete control
by any one governmental authority, lest it be utilized to serve the interests
of the party in power. To that end, the programs should be free from
anything that approaches official censorship. On the other hand, there
are few who will deny that these programs, taking them as a whole, do
not represent a very high standard of quality or good taste. The desira-
bility of such regulation as will conduce to their improvement is fairly
apparent. The problem is to find a middle course between censorship
and no regulation at all.
414 THE GOVERNMENT OF THE UNITED STATES
THE CONTROL OF LIGHT, POWER, AND WATER COMPANIES
During the past fifty years there has been a great development in the
field of public utilities. Gas, electric lighting, and power companies have
been organized to provide services for even the smallest
COMPANIES* communities. In the earlier stages of this development a
AND HOLD- great many small concerns were organized, each supplying
ING COM- tjie neecjs of its own neighborhood. But it was soon found
PANIES. °
that light and power could be produced more cheaply on
a large scale, so the process of consolidating the little companies into big
ones by purchasing them outright began. This consolidation, however,
was unpopular with the public because it seemed to result in the creating
of large monopolistic corporations; and it was frowned upon by state
legislatures as well as by regulating commissions in the states. Accord-
ingly, a new device known as the holding company developed. Under
this arrangement a new corporation was organized with the sole purpose
of buying and holding stock in the smaller companies. The latter con-
tinued to operate their local plants, but were supervised and controlled
by the holding company which owned the stock.
This system had some economic advantages. It permitted local man-
agement of public utility plants to continue while providing centralized
™T7 oD™,Tt7K, financial backing and technical assistance. It stimulated
1 lit- rKUBiLl^iVl ^
WHICH small plants to improve their efficiency and, hence, their
RESULTED. earnings. On the other hand, the holding company plan led
to serious abuses. Such companies have no physical assets as a rule, but
merely own the stock of smaller operating concerns. They sell to the
public shares of their own stock based upon this ownership of other
stock. In this process an unwarranted overissue of stock frequently
resulted. Having control of the operating companies, moreover, the
holding company could force the former into improvident actions for its
own benefit, thus milking the smaller concerns in order to pay higher
dividends upon the stock of the holding concern. Holding companies
chartered in one state, again, have frequently acquired the stock of
operating companies in other states, thus rendering state control of the
whole financial structure virtually impossible.
During the era of speculation, 1922-1929, an enormous amount of
holding company stock was marketed to the investing public at high
prices on the basis of fictitious earnings; then, when the business recession
came, the values which were thought to be represented by these invest-
ments dwindled in many cases to a small fraction. Thereupon a wave of
resentment against the holding company system swept over the country
with loud demands for a congressional investigation.
THE GOVERNMENT AND COMMERCE 415
Out of the investigation, which disclosed a series of grave abuses, came
the Public Utility Holding Company Act of 1935. After defining such a
company as one "which directly or indirectly owns, controls, THE PUBLIG
or holds, with power to vote, ten per cent or more of the UTILITY
outstanding voting securities of a public utility company," COMPANY
this law requires that all holding companies shall be regis- ACT OF
tered with the federal securities and exchange commission.1 !935-
If they fail to do so, they are forbidden to sell their securities in interstate
commerce or make use of the mails in connection with their business. In
order to be registered with the commission, each holding company must
file elaborate information covering all matters relating to its organization
and activities; it must also conform to various requirements set forth in
the law and must continue such conformance under penalty of having its
registration revoked. Strict rules relating to the issue of holding company
securities are provided, and it is the commission's function to see that
these are enforced. Likewise, it is the duty of the commission to examine
the structure and activities of every registered holding company in order
to determine whether these can be simplified. The commission has the
power to require such simplification, even to the extent of virtually
eliminating those holding companies which seem to be unnecessary to
the operations of an integrated public utility system. This last-named
provision has become popularly known as the "death sentence" power
of the commission. Since 1935 it has been applied to many holding
companies. They have been required to "unscramble their holdings,"
as the saying goes.
Various powers relating to companies which do an interstate business
but are not "holding companies" have also been given to the securities
and exchange commission. For example, the commission is empowered
to compel a full and fair disclosure of all the material facts relating to
securities which are publicly offered and sold in interstate commerce or
through the use of the mails. Before such securities can be offered for sale,
they must be registered with the commission and approved by it. Such
approval docs not imply, of course, that the commission necessarily
regards the securities as sound investments. Those who buy approved
securities do so at their own risk. They are merely assured that full
information concerning what they are purchasing has been given to
them.2
The foregoing paragraphs refer to the financial affairs of public
utility companies which do business in more than one state. As respects
1 See pp. 238-239
* For details concerning other functions of the S E C see the latest issue of the U. S.
Government Manual.
^16 THE GOVERNMENT OF THE UNITED STATES
the control of rates, services, and corporate practices, the Federal
Power Act of 1935 extended the functions of the federal power com-
CONTROI OF mission, which had been established fifteen years previously.
WATER This body now consists of a chairman, vice-chairman, and
POWER. three commissioners appointed by the President. It has
general supervision over power developments on navigable streams, or
upon public lands, or which affect the interests of either foreign or inter-
state commerce. This includes the interstate transmission of gas and elec-
tricity. More recently the commission has been given authority to under-
take a large power-development program in the interest of national
defense. It has become the federal government's chief agent in the ex-
panding national control over the power resources of the United States.
PROMOTIONAL ACTIVITIES
What has been said in the foregoing pages relates chiefly to the
regulatory work of the national government in the domain of foreign
™™ T,™ and interstate commerce. But not all the work of the federal
1 rlti JrlvU"
MOTION OF authorities in this field is of a regulatory character. Much
COMMERCE. Q£ jt jg promotional and constructive. It aims to develop and
expand the commerce of the United States both at home and abroad.
It is concerned, for example, with the development of the American
merchant marine and the provision of adequate aids to navigation; the
exploitation of foreign markets; the compilation of trade statistics for the
information of importers and exporters; the encouragement of air trans-
portation; and the establishment of landing fields.
The Constitution of the United States not only grants Congress power
to regulate foreign and interstate commerce, but it likewise declares that
the judicial power of the national government shall extend
CONTROL OF *° "a^ cases of admiralty and maritime jurisdiction."1
\LL NAVI- Because of this latter provision the Supreme Court has held
t^iat ^ Paramount authority of the federal government
does not depend upon the question of whether a vessel is
engaged in foreign or interstate commerce, but extends to all voyages
which are maritime in character and on navigable waters, even if
made wholly within a single state — for example, a voyage between
Rochester and Buffalo or between Cleveland and Toledo.2 All navi-
gable waters within the United States are under federal control and
Congress has given much attention to the improvement of rivers, lakes,
and harbors, in order that commerce may be facilitated. On many
1 Article III, Section 2. 2 The Lottawanna, 21 Wallace 558 (1874).
THE GOVERNMENT AND COMMERCE 417
occasions, a "rivers and harbors bill," carrying large appropriations for
this purpose, has been passed; but, unfortunately, much of the money
has been frittered away on minor projects which have only a very slight
relation to the upbuilding of trade.
In order that a country may build up a profitable trade, both with
foreign lands and between different parts of its own territory, it needs
vessels of its own. Consequently, it has been the policy of THE
the United States to encourage the upbuilding of an Amer- MERCHANT
ican merchant marine. Ever since the Revolution there has MARINE-
been such a fleet, but from time to time it has varied greatly in size.
Different methods of encouragement have been used. One of them is the
restriction of all trade between American ports to vessels of American
registry. No foreign vessel is permitted to carry passengers or freight
directly from one American port to another. Sometimes actual subsidies
are also given to American companies engaged in foreign trade, usually
under color of lucrative payments for the carrying of mail. During the
First World War, moreover, a large number of vessels were constructed
by the government as a public enterprise; and, for a time after the war,
these ships were operated by the United States shipping board; but
ultimately most of them were sold to private companies. Again, following
the outbreak of the second war the building of merchant vessels was
pushed ahead on an even larger scale. This work was the responsibility
of the United States maritime commission.
The federal laws contain many provisions relating to the management
of American merchant vessels, particularly in the interest of safety and for
the protection of seamen. These rules are enforced by the
bureau of marine inspection and navigation in the depart- SUPERVISION
ment of commerce. Aids to navigation are also maintained
by the federal government, including lighthouses, buoys, landmarks,
lifcsaving stations, radio-beam stations, and coast patrols. The national
government likewise makes surveys of the coasts and provides chart?
for the use of navigators. Mention should also be made of the greatest
enterprise ever undertaken by any country for the promotion of its own
maritime commerce: namely, the building and maintenance of the
Panama Canal.
The national government, during the past twenty years, has also been
spending large sums of money, in cooperation with the states, for the
building of motor highways. This has resulted in the con- HIGHWAYS
struction of a national highway system over which a large AND OTHER
part of the inland commerce in passengers and freight is PQ
now being carried by motor vehicles. But the progress of TRADE.
418 THE GOVERNMENT OF THE UNITED STATES
commerce depends not only on ships and railroads, motor trucks and
airplanes, but upon the possession of accurate knowledge concerning
markets, prices, and business opportunities. To provide these data, the
federal government maintains office (under the supervision of the de-
partment of commerce) in all the pAincipal cities of the United States.
Their function is to cooperate with local business organizations, such as
chambers of commerce and boards of trade, in the development of home
markets for American products.
During a war of world-wide dimensions the flow of international trade
declines to a mere trickle. In the past it has always revived with the
return of peace. But the extent of its revival in our own
THE generation is something which cannot be accurately fore-
WAR: THE cast. During the decade before the outbreak of the Second
PESSIMISTIC World War, disquieting tendencies had revealed themselves.
A prolonged economic depression led many countries to
impose foreign-trade controls. The main object, no doubt, was to protect
their domestic markets against falling prices. But, when trade began to
recover, the restrictions were maintained. In fact, governments showed
more and more concern over the balance of trade, striving to limit im-
ports and expand exports. With ultimate war in prospect, they turned to
a policy of mercantilism rather than laissez-faire, and of economic
isolation rather than free exchange. Some of them seemed to be aiming
at an economic self-sufficiency which, in extreme cases, impelled them to
squeeze gasoline out of shale rock and make shirts out of skimmed milk
rather than import oil or cotton from outside their own borders. Where
their own products could not be readily sold abroad, they sometimes
gave export subsidies; or they organized "cartels" by which their pro-
ducers continued to control markets and divide the trade equitably
among themselves, thus eliminating competition. Finally, they resorted
frequently to the "quota" system. Under this arrangement one country
would not buy goods from another unless the latter agreed to purchase
an equal amount of something else in return.
Will this economic nationalism, or desire to become free from depend-
ence upon other countries, prove to be only a temporary international
aberration or will it be something to be reckoned with
ITS BASIS. &
permanently? Over a long period this neo-mercantilism has
been growing more obtrusive. It may be connected in some measure
with the renaissance of paternalism, or the inclination of governments to
regulate the economic life of their peoples. When a government begins
to regulate prices, wages, working conditions, profits, etc., it places itself
at a disadvantage in foreign competition with countries which leave such
THE GOVERNMENT AND COMMERCE 419
matters more or less free of regulation. Then, to protect itself, it sets up
tariff barriers and, if these do not suffice, the next resort is to export
subsidies, cartels, quotas, etc.1 Are we going to find that regimentation of
economic activities inside any country inevitably leads to the exercise of
control over that country's imports and exports? And if the practice
becomes general, what will be the effect on the free flow of international
commerce?
There is room, however, for a more optimistic view. Countless millions
of people have had opportunity to learn that a closed economy of quotas
and subsidies makes for national impoverishment. Will not
the futility of such sacrifices become apparent when, after MKTIG^IEW
the years of warfare, normal conditions are again possible?
Then free international exchange of products may be regarded as L
way of escape from low standards of living. The means are at hand:
production geared high to meet the wastage of war, markets crying out
for collaboration, and a mercantile marine of colossal size that will bid
for cargoes all over the seven seas. What will be the result? An eclipse
of economic nationalism or a recrudescence of it?
REFERENCES
GENERAL. F. N. Judson, The Law of Interstate Commerce and Its Federal Regulation
(3rd edition, Chicago, 1916), Felix Frankfurter, The Commerce Clause under
Marshall, Taney and Waite (Chapel Hill, N. C , 1937), B. C. Gavit, The Commerce
Clause of the United States Constitution (Bloomington, Ind , 1932), W. W. Wil-
loughby, Constitutional Law of the United States (2nd edition, 3 vols., New York,
1929), Vol. II, Chaps xliii-lx, S. P. Orth and R. E. Cushman, American National
Government (New York, 1931), pp. 594~£>52, I. L Sharfman, The Interstate Com-
merce Commission (4 pts., New York, 1931-1937), J E Kallenbach, Federal Co-
operation with the States under the Commerce Clause (Ann Arbor, 1942), Merle Fainsod
and L. Gordon, Government and the American Economy (New York, 1941), Edward
S. Corwin, The Commerce Power versus States' Rights (Princeton, 1937), F. D. G.
Ribble, State and National Power over Commerce (New York, 1937), C. C. Rohlfing
and others, Business and Government (4th edition, Chicago, 1941), John J. Trenam,
"Commerce Power since the Schechter Case," Georgetown Law Journal, XXXI,
pp. 201-209 (January, 1943), and Arthur A. Ballantinc, "The Federal Power
over Interstate Commerce Today," American Bar Association Journal, XXV,
pp. 252-255 (March, 1939).
TARIFF AND TRADE POLICY. F. W. Taussig, Tariff History of the United States
(8th edition, New York, 1931), T. W. Page, Making the Tariff in the United States
(New York, 1924), Edward Stanwood, American Tariff Controversies in the Nine-
teenth Century (2 vols., Boston, 1903), Percy A. Bidwell, The Tariff Policy of the
United States: A Study of Recent Experience (New York, 1934), and the same
1 For a general discussion see Margaret 6. Gordon, Barriers to World Trade (New York,
1941), p. 483
420 THE GOVERNMENT OF THE UNITED STATES
author's The Invisible Tariff (New York, 1939), H. J. Tasca, Reciprocal Trade
Policy of the United Stales (Philadelphia, 1937), J. D. Larkin, The Presidents
Control of the Tariff (New York, 1939), and the same author's Trade Agreements; a
Study in Democratic Methods (New York, 1940), W. S. Culbertson, Reciprocity;
a National Policy for Foreign Trade (New York, 1937), G. Beckett, The Reciprocal
Trade Agreements Program (New York, 1941), F. B. Sayre, The Protection of American
Export Trade (Chicago, 1940), and the same author's The Way Forward: The
American Trade Agreements Program (New York, 1939). In 1934 the United States
Tariff Commission published The Tariff: A Bibliography which contains a full
list of earlier material on tariff matters.
IMMIGRATION. H. P. Fairchild, Immigration (revised edition, New York, 1925),
G. M. Stephenson, A History of American Immigration, 1820-1924. (New York, 1926),
E. M. Phelps, Selected Articles on Immigration (New York, 1921), with a valuable
bibliography, Maurice R. Davie, World Immigration, with Special Reference to th"
United States (New York, 1936), I. A. Hourwich, Immigration and Labor (2nd
edition, I^ew York, 1922), W. C. Van Vleck, The Administrative Control of Aliens
(New York, 1932), L G. Brown, Immigration (New York, 1933), J P. Clark,
The Deportation of Aliens (New York, 1931), Sidney Kansas, U. S. Immigration,
Exclusion and Deportation, and Citizenship (Albany, 1940), and the report of the
President's Research Committee on Recent Social Trends in the United States
(2 vols , New York, 1933), Vol. I, Chaps, i, xi.
RAILROAD REGUI \TION L. H. Haney, A Congressional History of Railways to
1850, 1850-1887 (2 vols, Madison, Wis , 1908-1910), Eliot Jones, Prim \p\e\ of
Railway Transportation (New York, 1924), W. J Cunningham, American Railroads'
Government Control and Reconstruction Policies (Chicago, 1922), D. P Locklin,
Railroad Regulation since 1920 (New York, 1928), and Supplement (New York, 1931),
W. M. W. Splawn, The Consolidation of Railroads (New Yoik, 1925), G. G. Reyn-
olds, The Distribution of Power to Regulate Interstate Carriers between the Nation and
the States (New York, 1928), F. H. Dixon, Railroads and Government (New York,
1922), Calvin Crumbaker, Transportation and Politics (Eugene, Ore , 1940),
A. R. Ellingwood and W. Coombs, The Government and Railroad Transportation
(Boston, 1930), and E. R. Johnson, Government Regulation of Transportation (New
York, 1938).
PUBLIC UTIIITY HOLDING COMPANIES AND THEIR SUPERVISION. J. C. Bonbright
and Gardiner Means, The Holding Company Its Public Significance and Its Regula-
tion (New York, 1932), with an extensive bibliography, J. C. Bonbright, Public
Utilities and the National Power Policies (New York, 1940), H. S. Raushenbush and
H W. Laidler, Power Control (New York, 1928), H. R. Seager and C A Gulick,
Trust and Corporation Problems (New York, 1929), C. W. Gerstenberg, Financial
Organization and Management of Business (revised edition, New York, 1932),
especially Chap, xxxi, and G. L. Wilson and others, Public Utility Industries
(New York, 1936).
COMMUNICATIONS AND MISCELLANEOUS. H. L. Elsbrcc, Interstate Transmission of
Electricity (Cambridge, Mass., 1931), C. C. Rohlfing, National Regulation of
Aeronautics (Philadelphia, 1931), Stuart Daggett, Principles of Inland Transporta-
tion (New York, 1928), W. H. Wagner, A Legislative History of the Motor Carrier
Act of 1935 (Washington, 1935), William Beard, The Regulation of Pipe Lines as
Common Carriers (New York, 1941), C K. Puffer, An Transportation (Philadelphia,
THE GOVERNMENT AND COMMERCE 421
1941), Kenneth Colegrove, International Control of Aviation (Boston, 1930), and
L. F. Schmeckebier, "The Federal Radio Commission," in Service Monograph
No. 65 (Washington, 1932). Some of the more recent federal policies toward
radio broadcasting are discussed in a special issue of the Annals of the American
Academy of Political and Social Science ', CCXIII (January, 1941).
CHAPTER XXVI
MONEY, BANKING, AND CREDIT
If this country, with its population, its resources, and its chances, is not made pros-
perous by the intelligence, industry and thrift of its people, does any sane man suppose
that politicians have devices at their control for making it so? — William Graham Sumner.
Money is the great lubricant of commercial transactions. It facilitates
the exchange of goods and services. Likewise, it provides a measure of
value and a medium for savings. It performs these functions
Do^™°NEY to the best advantage when its value is kept stabilized;
and this cannot be done without some centralized control
over the coining or issuing of money. Coinage, therefore, became a
governmental function many centuries ago. Kings and other rulers took
charge of it — and often made it a source of profit to themselves.
The American colonies had no uniform coinage, although English
currency was supposed to provide the standard of value. Accounts were
reckoned in pounds, shillings, and pence. But Spanish,
EARLY Portuguese, and French coins circulated freely in all the
EXPERIENCE settlements, particularly in the southern ones. This was a
handicap to the normal operations of trade because the
foreign currencies fluctuated in value. And the situation became much
more serious during the Revolution when both the states and the Con-
tinental Congress began issuing great quantities of paper money with no
gold or silver behind it. Inflation resulted on a large scale.
One of the primary needs of the postwar period was to establish a
sound monetary system. Consequently, the Constitution gave Congress
the exclusive power to coin money, thus centralizing the
RENCY control. Nothing was said about the right of Congress to
POWER OF issue paper notes, although the Constitution expressly with-
CONCIRESS. i i i i - i r i . -T-I
held that right from the states.1 These arrangements were
the direct outcome of the monetary chaos which the country had endured
during the years preceding 1787, The framers of the Constitution
1 The states, nevertheless, may charter banks and may give these banks the right to issue
paper notes; but, since 1863, all such notes have been subject to a federal tax of ten per cent
per annum and, henre, none of them is in circulation.
422
MONEY, BANKING, AND CREDIT 423
realized, from this experience, that, so long as each state retained the
power to coin money and to issue paper notes, the country could never
hope to maintain a uniform standard of values or a stabilized medium of
exchange. Without this, there could not be a system of free trade among
the states.
The new federal government lost no time in using its power "to coin
money and regulate the value thereof." On the recommendation of
Alexander Hamilton, the first secretary of the treasury,
Congress authorized the establishment of a mint for the
coining of silver and gold at a ratio of fifteen to one. It THE NINE-
provided for all such coinage upon a decimal system, with ™ENTH
eagles, dollars, dimes, and cents. Gold and silver coins
continued to be minted on this basis until 1873, when the laws were
revised and the coining of silver dollars was suspended. This action
aroused much opposition; and, during the next quarter of a century,
the free-coinage-of-silver issue became prominent in national politics.
There was a widespread conviction that the free coinage of silver would
stimulate prosperity in the mining and agricultural regions.
The national election of 1896 was fought on this issue, with William
J. Bryan, the Democratic candidate for the presidency, championing
the cause of bimetallism. But the Republicans, having been THE CON_
victorious, settled the matter a few years later by the "Gold FLICT OVER
Standard" Act of 1900, which required the treasury to keep BIMETALUSM-
all forms of currency on a parity with gold — the value of gold being
set at $16.00 per ounce. In other words, the treasury was bound to
redeem any other kind of money, including paper money, by giving
25.8 grains of gold, nine-tenths fine, for each dollar of it. It is not neces-
sary to delve into the economic merits of the controversy over free silver;
but the question bulked large in political discussion during the outgoing
years of the nineteenth century.1
From 1900 to 1933 the United States remained firmly on the gold
standard. Silver was coined and circulated, but it did not serve as a
standard of value. The United States remained on a gold
basis throughout the First World War, when several other
countries had to abandon it. In the spring of 1933, however, THE GOLD
the crisis in American banking became so acute that all
holders of gold coin, gold bullion, and gold certificates
1 For detailed accounts sec Davis R. Dcwcy, Financial History of the United States (revised
edition, New York, 1934),.!. L. Laughlin, History of Bimetallism in the United States (4th edition,
New York 1900), and A. B. Hepburn, A Histoiy of Currency in the United States (revised edition,
New York, 1924).
424 THE GOVERNMENT OF THE UNITED STATES
were ordered to deliver the same to the government in exchange for
paper currency.
Having secured control of all the gold coin, gold bullion, and gold
certificates, the government announced the abandonment of the gold
THE DEVAL- standard. Paper money could no longer be converted into
UATION OF gold. Debtors were relieved of their traditional obligation
THE DOLLAR. ^Q ^a^ «jn gO\^ co'm of standard weight and fineness." l
Then, Congress having authorized the President to reduce the gold con-
tent of the dollar, the President devalued the dollar in 1934 by about
41 per cent.2 This action increased the value of gold in terms of paper
money and gave the government a large "profit" on the transaction. Part
of the gain accruing to the treasury from the devaluation was set aside
as a stabilization fund to steady the dollar on its new basis and to support
the national credit.
Meanwhile, provision was made that the national government would
buy gold from both inside and outside the country, paying for it at the
new and higher price, which was above the world market. All in all, the
accumulation finally amounted to nearly twenty-five billion dollars'
worth of this metal, which is more than half the world's entire stock of
monetary gold. What has been done with it? A large part of it is stored
away and heavily guarded in vaults at Fort Knox, Kentucky, and else-
where.
But this was not all. In the spring of 1934 Congress passed a Silver
Purchase Act which authorized the secretary of the treasury to purchase
COINAGE OF silver until the metallic reserve should be composed of gold
SILVER and silver in the proportion of three to one. Against this
RESUMED. purchased silver the treasury was authorized to issue silver
certificates to full value. This has resulted in a large and steady accumu-
lation of silver bullion, because the price paid for it has been above the
normal market level. The government's stock of monetary silver is now
valued at over two billion dollars; much of it is similarly stored in
guarded depositaries.
The federal government, as has been said, was given from the outset
the exclusive right "to coin money," but the Constitution does not
THE LEGAL expressly give it authority to issue paper money, nor does it
TENDER forbid such action. Not until the Civil War did Congress try
ISSUE' to avail itself of the privilege thus accorded by the silence
of the Constitution, although on two occasions it chartered banks with
1 This action was upheld as constitutional by the Supreme Court in The Gold Clause
Cases, 294 U. S. 240 (1935) and 294 U. S. 330 (1935).
2 To he exact, the devaluation brought the dollar to 59.06 per cent of its former figure.
MONEY, BANKING, AND CREDIT 425
the right to issue paper notes. But in the stress of the great civil conflict,
the national government authorized its first direct issue of paper currency
known as "greenbacks." These were inconvertible notes, that is, they
were not redeemable in either gold or silver. In order to ensure them a
ready circulation, however, they were declared legal tender for all pay-
ments except customs duties and interest on government bonds. For a
time, it was a much-debated question whether Congress, in the absence
of express constitutional authority, had a right to issue such paper money,
but the Supreme Court finally decided, in 1871, that the action came
within the implied powers of the national government as a method of
borrowing money.1 It is now well established, therefore, that Congress
can authorize the issue of paper money to any extent that it pleases and
under such conditions as it may see fit.
Only three kinds of paper money are now widely used in the United
States. The first, and most common, are federal reserve notes. These are
issued by the federal reserve banks in denominations of
85.00 and upwards. Second are the silver certificates, chiefly TYPES OF
in one dollar bills. If you look at the paper money in your PAPER
pocketbook, you will find that it probably belongs to one or
the other of these two classes. But there is a chance that this will not be
the case because there is a third type of paper currency in circulation:
namely, United States notes issued by the national treasury. This is a
greater variety of paper money than can be found in most other coun-
tries; but the diversity is not objectionable so long as the different kinds
of currency are maintained at a parity with one another. Nobody looks
to see whether the bills that he receives at the bank cashier's window are
silver certificates, federal reserve notes, or United States notes. It is
enough that in making purchases or paying debts one kind of paper
currency serves just as well as the others.
Metal coins, including silver dollars, fractional currency (half dollars,
quarters, dimes, nickels, and pennies), are turned out at government
mints. There are three of these mints, located at Denver,
Philadelphia, and San Francisco. Silver dollars are not so CURRENG^
greatly in demand as they used to be, but the need for other
silver coins has grown with the nation's business. Since the advent of
retail sales taxes the circulation of nickels and pennies has considerably
increased. The growth of cash-and-carry trade at retail stores has also
stimulated the demand for fractional currency. Paper money is manu-
factured by the bureau of engraving and printing in Washington. This
great establishment likewise prints the vast supply of postage stamps
1 Knox v. Lee, za Wallace 457 (1871). See also Juilliard v. Greenman, 1 10 U. S. 431 (1884)
416 THE GOVERNMENT OF THE UNITED STATES
which are needed each year together with savings bonds, war savings
stamps, etc. Postage stamps can be used only once; but paper currency,
when it gets badly soiled from use, is sent back to the bureau, where it is
laundered and again put into circulation. Ultimately, however, the
paper gets worn to a point where the bills are returned to the bureau and
destroyed.
EARLY NATIONAL BANKS AND BANKING
During the first quarter of the nineteenth century, the Supreme Court
was also called upon to settle the question whether Congress could
establish a national bank, for the Constitution contains no
CRESS mention of banks or banking. A proposal to give the national
CHARTER government such power was rejected by the constitutional
convention. Accordingly, the right to charter and regulate
banks might be looked upon as falling within the residual powers of the
states. But Alexander Hamilton, as secretary of the treasury, did not so
understand it. On the contrary, he proceeded to work out
E a P^an ^or ^c establishment of a great financial institution
UNITED somewhat after the model of the Bank of England; and, in
STATES^ ^ 1 791 , Congress chartered the first Bank of the United States,
a semipublic institution with 20 per cent of its stock owned
by the government. The ostensible purpose in establishing this bank was
to assist the national government in the exercise of its borrowing power,
the collection of its revenues, and the custody of its funds.
The first Bank of the United States continued in existence until 181 1
when its twenty-year charter expired. It established eight branches in
different parts of the country, served as a depositary for
AND"END Y public funds, and loaned the government considerable sums
of money. The bank was well managed and proved profit-
able, but its charter was not renewed in 181 1 because it had in various
ways aroused public opposition.1 A few years later, however, the financial
embarrassments caused by the War of 1812-1815 induced
BANK OF THE Congress to establish a second Bank of the United States, its
UNITED charter being issued in 1816. This bank was empowered to
STATES. . , . *
issue paper money, served as a depositary for public funds,
assisted the treasury department in the collection of the public revenues,
and at times made temporary loans to the national government. Like the
first bank it was a semipublic institution and its charter was fixed to
run for twenty years.
1 For the history of this bank see J. T. Holdsworth, The First Bank of the United States (Phila-
delphia, 1910).
MONEY, BANKING, AND CREDIT 427
Thus far the authority of Congress to charter a bank had aroused
controversy among politicians and pamphleteers, but the question had
never come squarely before the Supreme Court. Soon after
the second Bank of the United States had begun its opera- THE
.... TION OF ITS
tions, however, the question of constitutionality was GONSTITU-
brought forward in a way which enabled the point to be TI°NAL
, , , r • i STATUS.
settled definitely.
What happened was this: in 1818 the legislature of THE DECI-
Maryland imposed a stamp tax on all paper money issued SION IN
by banks within that state, and the cashier of the federal y MARYLAND.
bank's Baltimore branch, McCulloch, refused to pay this
tax. He was convicted by the Maryland courts and appealed to the
Supreme Court of the United States, which proceeded to set a constitu-
tional landmark by its decision in the case of McCulloch v. Maryland.1
While the immediate issue was whether the state of Maryland had
the right to tax the circulation of a bank which had been chartered
by Congress, this controversy raised the constitutional question whether
Congress had the right to charter a bank at all.
The decision in the case, written by Chief Justice Marshall, has become
one of the classics of American jurisprudence. It is the longest and most
masterful of all Marshall's decisions. With clearness and
CHIEF
force the Chief Justice pointed out that the Constitution had JUSTICE
expressly given the national erovernment power "to lay and MARSHALL °N
,, i << i i i. r i THE IMPLIED
collect taxes and to borrow money on the credit of the POWER TO
United States." It had also expressly Granted to Congress CHARTER
BANKS
the right "to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers." Putting these
provisions together, Marshall declared that the Constitution intended
Congress to have all reasonable discretion in choosing the means best
suited for making its powers effective. Here is the way he phrased it:
Throughout this vast Republic, from the St. Croix to the Gulf of Mexico, from
the Atlantic to the Pacific, revenue is to be collected and exoended, armies are
to be marched and supported. The exigencies of the nation may require that
the treasure raised in the north should be transported to the south, that raised
in the east conveyed to the west, or that this order should be reversed. Is that
construction of the Constitution to be preferred which would render these opera-
tions difficult, hazardous, and expensive? Can we adopt that construction (un-
less the words imperiously require it) which would impute to the framers of that
instrument, when granting these powers for the public good, the intention of
impeding their exercise by withholding a choice of means?
14 Wheaton 316 (1819).
428 THE GOVERNMENT OF THE UNITED STATES
Congress having been thus authorized to provide its own financial
agencies, it follows that any institution created in this way must not be
subjected to the danger of destruction by the states. "If,"
A COROLLARY , , . _ _ ,, .
FROM THE declared the Court, the states can tax one instrument,
GENERAL employed by the [national] government in the execution
of its powers, they can tax any and every other instrument.
They may tax the mail; they may tax the mint; they may tax patent
rights; they may tax the customhouse; they may tax judicial process;
they may tax all the means employed by the government to an excess
which would defeat all the ends of government." And since "the power to
tax involves the power to destroy," Marshall argued that this power of
the states, if permitted, would make possible the destruction of the
national government. Accordingly, the law of Maryland which taxed
the circulation of the United States Bank was declared unconstitutional.
The decision in this case attracted nation-wide attention and was of
the highest importance, for it set the powers of the federal government
T.,™^.*^ upon a firm and sure foundation. Marshall's brilliant
IMr (JK. 1 ANdh/ *
OF THE biographer declares that it "rewrote the fundamental law
DECISION. Q£ ^e nation,3' which is an overstatement; but the decision
is nevertheless an outstanding example of Marshall's judiciaj statesman-
ship and his mastery of the English tongue.1 If his fame as a jurist rested
on this decision alone, it would still be secure, for the decision in
McCulloch v. Maryland made the powers of Congress dynamic and,
hence, able to keep pace with the progress of the nation.
The second United States Bank came to an end in 1836, but not be-
cause of any doubts as to its constitutional status. Becoming enmeshed in
TACKSON'S politics, it incurred the wrath of Andrew Jackson and his
WAR ON THE friends. President Jackson vetoed a bill passed by Congress
BANK for renewing the bank's charter and withdrew all govern-
ment deposits from it. Forced to the wall, the institution was converted
into a state bank; but, in this form, it did not prove a success and finally
went out of existence, thus leaving state banks a clear field throughout
the country.2
Although projects for the establishment of another central bank with a
federal charter were set afoot from time to time during the next quarter
of a century, none of them materialized. The banking operations of the
country from 1836 to 1863 were carried on by state banks, chartered
in the several states under a variety of banking laws, good, bad, and
1 Albert J. Beveridge, Life of John Marshall (4 vols., Boston, 1916-1919), Vol IV, p 308.
2 The full history of its vicissitudes may be found in R. C. H. Catterall's Second Bank of the
United States (Chicago, 1903).
MONEY, BANKING, AND CREDIT 429
indifferent. These banks supplied the country with paper money, but
very few of them kept an adequate reserve of silver or gold to redeem
their notes if the occasion should arise. So, when the Civil BANKS AND
War broke out and there was a run on the banks, they were BANKING
unable to provide redemption. Even worse, they could not fA^J^IAN
give the national government any appreciable help in floating ERA ro THE
its war loans. So Congress, in 1863, decided to adopt a plan C1VIL W^R>
whereby these state banks might become national banks by purchasing
designated amounts of government bonds and pledging these bonds as
security for the redemption of their paper notes. The origin of the Amer-
ican national banking system is to be found, therefore, in the financial
exigencies of the federal government during the darkest days of the Civil
War. It represented, at the outset, an ingenious scheme for marketing
government bonds.
The plan proved successful beyond expectation and the national banks
continue to the present day. There are now more than five thousand of
them scattered throughout the country and they vary in NATIONAL
size from the Chase National Bank of New York,1 with BANKS,
deposits of over four billion dollars, to little institutions in 1™3~1913-
rural towns, which have only a few hundred thousand. All of them are
private institutions, with capital subscribed by stockholders; but they
are chartered by the federal government (not by the states) and they
carry on their operations under federal supervision. This work of super-
vision is entrusted to the comptroller of the currency. Their original power
to issue paper money (national bank notes) has now been withdrawn.
Although this system of decentralized national banks rendered good
service during decades following the Civil War, it had various short-
comings which bankers and business men recognized. For
one thing, the requirements relating to bank reserves were
so inflexible that they became embarrassing to the banks
in times of commercial depression. Another defect arose from rigid
limitations on the issue of paper notes. Each national bank could issue
paper money, but only up to the amount of the government bonds owned
by it and placed on deposit in Washington as security for the notes. Thus,
national bank notes were tied to government bonds and bore no relation
to the volume of business done in the country. Some arrangement was
needed, therefore, whereby bank notes and bank credit could be auto-
matically increased in times of business expansion and reduced when the
volume of business transactions decreased.
1 It is named for Salmon P. Chase, who, as secretary of the treasui y, planned the national
banking system of 1863.
430 THE GOVERNMENT OF THE UNITED STATES
THE FEDERAL RESERVE SYSTEM
To provide this elasticity was the purpose of the Federal Reserve
Bank Act which Congress passed in 1913. By the provisions of this statute
(considerably amended in later years) the United States is
divided into twelve federal reserve districts, with a federal
'
BANK SYSTEM reserve bank in each. The capital stock of each federal
ESTABLISHED reserve bank is owned in varying amounts by the member
banks within its district. These member banks include not
only all the national banks but many state banks as well. Each reserve
bank is controlled by a board of nine directors, three of whom are named
by the board of governors of the federal reserve system in Washington,
while the other six are chosen by the member banks. One of the three
government-named directors is designated as chairman; but the president
of the bank, who is its chief executive officer, need not be appointed from
this limited category. He is chosen by the nine directors with the approval
of the board of governors in Washington.
This board of governors of the federal reserve system has general
supervision over the twelve federal reserve banks.1 It is composed of
seven members appointed by the President of the United
States with the advice and consent of the Senate for
fourteen-year terms. Not more than one member may be
appointed from any federal reserve district. One member of the board is
designated by the President as chairman and another as vice-chairman,
each for a four- year term.
The federal reserve system was intended to serve as a stabilizing
influence upon the entire credit system of the nation. To strengthen it in
THE "OPEN- ^at direction, Congress in 1935 authorized the establish-
MARKET ment of an "open-market committee" consisting of the
COMMITTEE. members of the board of governors and five representatives
of the various federal reserve banks. This committee controls the actions
of the twelve federal reserve banks in buying and selling, at home and
abroad, bonds and other obligations of the United States, as well as bills
of exchange and certain other securities. Such open-market operations
are intended to serve as a balance wheel on the supply of bank credit
available for business operations. They also help to stabilize the value of
government bonds. When the reserve banks, for example, buy in the
open market a billion dollars worth of government obligations, this
strengthens the market for government bonds, thus keeping up the price
1They are located in New York, Boston, Philadelphia, Cleveland, Chicago, St. Louis,
Richmond, Atlanta, Dallas, Minneapolis, Kansas City, and San Francisco.
MONEY, BANKING, AND CREDIT 431
of the latter. No federal reserve bank may engage or decline to engage
in open-market operations, except in accordance with the directions of
the open-market committee.
The twelve federal reserve banks are "bankers' banks"; they do not
carry on a general banking business with individuals and corporations.
They have three chief functions: (i) to serve as depositaries
for surplus government funds and for the excess reserves of
member banks; (2) to act as fiscal agents of the national
government in the collection of its revenues, the transfer of public funds,
the payment of government checks, and the sale of government bonds;
and (3) to provide rediscounting facilities for the use of all the member
banks. This term " rediscounting" should have a word of explanation
because it involves the issue of federal reserve notes, the largest class of
paper money now in circulation.
Rediscounting, of course, is preceded by discounting. When a national
bank or state bank lends money and takes a man's note, with or without
collateral security, it is said to "discount" the note. It gives THE PROCESS
the borrower the face value of his note less the interest OF DIS-
calculated at the current rate. Thus, if the rate is five per COUNTING-
cent and the person gives his note for one thousand dollars payable in
six months, the bank would hand him $975 in money. Merchants, for
example, borrow money in this way to buy goods and then pay off their
notes when the goods are sold. Such notes are called "commercial paper."
Now, suppose a local bank has loaned all the money it can spare. When
it receives applications from its customers for more loans, what does it do?
It takes a bundle of business men's notes, or other eligible
collateral, from its vaults and sends them to the nearest COUNTING
federal reserve bank. The latter does just what the local
bank did in the first instance; it deducts the discount and gives the bal-
ance to the member bank in money. The member banks are enabled in
this way to loan a great deal more money than would otherwise be the
case. It is a revolving process. Each loan that a bank makes on eligible
paper is a basis for acquiring money with which to make more loans.1
But how do the federal reserve banks obtain the money to do this?
They are allowed to issue federal reserve notes on the security of redis-
counted commercial paper and certain other collateral, provided they
1 The terms ''discounting" and "rediscounting" should not be too strictly construed.
Sometimes the bank gives the borrower the full amount of his note and collects the interest
when the note matures Such notes are similarly eligible for rediscounting. The rules as to
tligibihty have been extended to include not only commercial paper but notes secured by
mortgages. Wide latitude with respect to the rules has also been vested by the Banking Act of
1 935 in the board of governors of the federal reserve system.
432 THE GOVERNMENT OF THE UNITED STATES
keep a reserve in gold certificates (i.e., certificates backed by the federal
government's stock of gold) amounting to at least 40 per cent of the
total notes issued by them. They arc also required to keep
NOTE ISSUING . . i r i •
BY FEDERAL a reserve in gold certificates or lawlul money amounting to
RESERVE not less than 35 per cent of their deposits. The governors
of the federal reserve board in Washington may permit a
change in the foregoing percentages, and would do so if the need for more
commercial credit demanded it. In any event, this credit, and the paper
money available to provide it, are now closely synchronized with the
expansion or contraction of business.
During the twenty years which followed their establishment in 1913,
the work of the federal reserve banks proved to be of great value. Banking
MERITS AND operations were enabled to expand during the years of the
SHORTGOM- First Woild War and to contract when the war was over.
FEDERAL*™ ^ut' in t*ie great business upsurge which took place during
RESERVE the years 1925-1929, the system did not provide an ade-
SYSTEM. quate brake on the over-expansion of credit, much of which
was used for speculation. Then, in the autumn of 1929 when the specu-
lative boom began to flatten, many depositors became alarmed and
began to withdraw their deposits for hoarding in safe-deposit^ boxes. To
forestall a general collapse, the states resorted to the device of proclaim-
ing bank holidays. By March 4, 1933, all the states had closed their banks
by such proclamations. This was the day on which President Franklin
Roosevelt took his first inauguration oath. On the following day, he
transformed these state holidays, by proclamation, into a national bank
holiday which was to continue until further notice. Every banking insti-
tution in the United States was closed. The American banking system
had collapsed.
At once, a special session of Congress was called and enacted the
Emergency Banking Act of March 9, 1933. Among other things, this act
THE EMER- liberalized the provisions relating to the issue of federal
GENCY BANK- reserve bank notes by permitting the reserve banks to make
ING ACT. advances not only on commercial paper and government
bonds but on any acceptable assets of a member bank, including mort-
gages. Within a short time the national bank holiday was concluded and
the reopening of the banks began. To provide more capital for those
banks which needed it, an arrangement was made whereby the govern-
ment, through its reconstruction finance corporation, advanced the
funds and took preferred stock in return.
The crisis of 1933 shocked the confidence of the public in the banking
system of the country. It was feared that many people would be reluctant
MONEY, BANKING, AND CREDIT 433
to deposit their savings in any bank unless the federal government
would guarantee to get them their money back when they wanted it.
Consequently, the federal deposit insurance corporation 1IIEINSUR.
was created by Congress to provide such guarantee. When ANCE OF
banks take this insurance (and nearly all of them have done DEPOSITS-
so) it protects each depositor in full up to a maximum of $5,000. The plan
is financed by levying an annual assessment on all banks which partici-
pate in it. The amount of this assessment is one twelfth of one per cent on
the insured deposits of each bank.
From what has been said in the foregoing paragraphs, one should not
carry away the idea that the control of banking and credit in the United
States is exclusively a function of the national government. STATE
There are still about twice as many state banks as there are BANKING
national banks; but, unless a state bank is a member of the INSTITUTIONS-
federal reserve system or of the federal deposit insurance corporation, it
is not subject to any national regulations at all. It remains responsible to
the state banking authorities and to state laws, which display all degrees
of strictness and laxity. This lack of fully centralized control is unfortu-
nate, for credit is a service which recognizes no geographical or political
boundaries. But it would not be easy to change this situation because
the states arc jealous of their prerogatives and would be averse to giving
up whatever banking powers they still retain.
FARM CREDIT AND OTHER BANKING AGENCIES
The national banking system and the federal reserve banks were
developed, in the main, to meet the requirements of industry and
commerce. They did not cater to the special needs of agri-
culture and stock-raising. Yet these needs increased during LAND BANKS
the opening decades of the twentieth century; for, as agri-
culture becomes more specialized, its operations require more capital.
The grain farmer of the West, the cotton planter, the rancher, the fruit
grower, the dairy farmer — all require credit facilities beyond those
which were needed by the diversified farming system of earlier days.
They need money to purchase equipment, pay wages, and carry them
through from one crop sale to another. Diversified farming brings in
cash returns every little while; but specialized agriculture sometimes
does not bring in more than one or two cash payments per annum —
when the wheat or cotton crop is sold, or the cattle marketed, or the fruit
sent to the canneries.
To furnish these farmers and ranchers with banking facilities as good as
these which had been provided for the merchant and manufacturer,
434 THE GOVERNMENT OF THE UNITED STATES
Congress in 1916 passed the Farm Loan Act establishing a system of
federal land banks. The entire country was divided into twelve districts,
u^ ^o in each of which a federal land bank was established, with
HOW OR*
GANIZEDAND various officers and directors who are now appointed by
CONTROLLED. the farm crecjjt administration at Washington. This farm
credit administration supervises the whole agricultural credit system,
which includes not only the federal land banks and joint-stock land banks
but the intermediate credit banks, the production-credit associations,
the banks for cooperatives, the federal farm mortgage corporation, the
federal credit unions, and the production credit corporations.
This is hardly the place to explain in detail the organization and
functions of these various farm credit agencies. It is enough to say that,
taken together, they provide the agriculturist with credit facilities which
are, if anything, better than those at the disposal of the merchant, manu-
facturer, or shipper. They make it possible for the farmer to obtain, at
reasonable rates of interest and on lenient terms of repayment, long-
term loans on his land, short-term loans on his crops or stock, in fact loans
for all types of farm and ranch operations. In addition, the national
government has provided a system of crop insurance and an organization
for the marketing of surplus farm commodities, as will be explained in a
later chapter.
A word should also be said concerning the home owners5 loan cor-
poration established during the economic depression of the thirties to
assist the owners of heavily mortgaged homes, particularly
HOME . i - - •_ • • 111
OWNERS' in towns and cities, by giving government-guaranteed bonds
LOAN COR- to the mortgage holders in exchange for these mortgages and
then dealing leniently with the debtors. The corporation
eventually ceased its active lending operations and, as part of another
federal agency, is now engaged in administering the mortgage obligations
which it acquired but which are not yet paid off.1
RECONSTRUCTION FINANCING
The economic depression which began in 1 930 brought large numbers
of business corporations to the verge of bankruptcy. Many of them,
although possessing substantial assets, were unable to borrow money
with which to carry on their operations. The same was true of cities and
other municipal corporations in some instances. Under normal condi-
tions the regular commercial banks could have given the necessary
1 In 1939, H O L C was consolidated with other bodies to form the federal loan agency and
later, in 1942, transferred to the national housing agency. By December, 1942, almost half
of the three and a half billion dollars loaned by H O L C had been repaid.
MONEY, BANKING, AND CREDIT 435
financial relief, but these banks were already glutted with "frozen loans,"
that is, loans which were good enough but could not be quickly collected.
As early as 1 932, therefore, a reconstruction finance corporation (R F C)
was created for the purpose of lending funds to railroads, industrial
concerns, banks, and even municipalities, to save them from financial
collapse. In due course, the lending operations of the RFC were
widened to include various forms of small private business as well as
agriculture and stock-raising in cases where ordinary bank credit was
not available.
The management of the reconstruction finance corporation is vested
in a board of five directors appointed by the President with senatorial
confirmation.1 It functions through a central office in
Washington, but has loan agencies in some thirty cities OF^HE^F c
all over the country. The funds used by the corporation
have been supplied in part by the federal government directly, but in
larger part by the sale of the corporation's own obligations, which carry
the government's guarantee. Many billions of dollars have been raised
and loaned in this way. During the war emergency, moreover, the RFC
was utilized as an agency for organizing and financing various sub-
sidiaries vital to the national defense. These included corporations for
the purchase and holding of rubber and metals, the expansion of muni-
tion plants, the building of homes for defense workers, etc. In addition,
it has provided funds for the Export-Import Bank of Washington, which
was established to facilitate trade with foreign countries, and it has also
supplied capital to numerous federal loan and savings associations
throughout the country. In all cases, the reconstruction finance cor-
poration is supposed to make the loans on "full and adequate security";
and, although this provision has been interpreted somewhat leniently,
many of the earlier loans have been repaid in full.
A concluding word should also be said with reference to credit facilities
provided through the regular banks by the federal housing administra-
tion. The latter docs not lend money, but partially insures THF SYSTEM
lending institutions against losses which they may incur OF HOUSING
by making approved loans for the modernizing, repairing, GREDIT-
or equipping of buildings. The insurance in such cases runs up to a
designated per cent of the aggregate amount of such loans made by any
lending institution. Long-term mortgage loans may be insured up to a
large fraction of the appraised value of improved housing property.2
1 With the liquidation of the federal loan agency, of which the RFC was a part, the
latter became an independent unit. It is scheduled for liquidation in 1 954.
2 The federal housing administration was established in 1934. At that time the construction
of homes had all but ceased because of the depression. The new agency, through its program
436 THE GOVERNMENT OF THE UNITED STATES
In any discussion of banks and savings institutions some mention
should be made of the postal savings system. Under authority of Congress
THE POSTAL ^e Postniaster general is allowed to designate post offices
SAVINGS as savings depositaries. Such offices may receive deposits
SYSTEM. Up to $2,500 from any individual and pay interest thereon.
The deposits are invested in government bonds. Proposals have been put
forward to authorize the loaning of postal savings to private borrowers,
but Congress has not favored this line of activity.
From all this, it will be observed that the banking and credit system of
the United States is exceedingly complicated. It is more complex than
that of any other country. Very few students of American
COMPLEX government try to understand it because they assume that
SYSTEM OF banking and credit are matters of economics, not of political
CREDIT AND science. In a sense that is true, but the control of currency,
BANKING.
banking, and credit (and through them the control of prices)
is one of the most important functions that any government is called
upon to perform. In the United States it has become primarily a function
of the federal authorities, although the states still retain the right to
charter and supervise state banks, trust companies, savings banks,
cooperative banks, and similar agencies of credit. Other qountries have
only one, or, at most, two or three types of banking and credit institu-
tions; in the United States there are at least a dozen varieties of them,
with functions and limitations which defy concise description. One of the
country's urgent needs would seem to be a simplified and integrated
system of business credit.
REFERENCES
COINAGE AND CURRENCY. A. B. Hepburn, A History of Currency in the United
States (revised edition, New York, 1924), D. H. Watson, History of American Coin-
age (New York, 1899), Davis R Dewey, Financial History of the United States
(i2th edition, New York, 1934), Horace White, Money and Banking (new edition,
Boston, 1935), J. I. Bogen and others, Money and Banking (New York, 1940),
G. L. McKay, Early American Currency (New York, 1944), T. E. Gregory, The
Gold Standard and Its Future (3rd edition, New York, 1935), Leo Pasvolsky,
Current Monetary Issues (Washington, 1934), A. W. Crawford, Monetary Manage-
ment under the New Deal (Washington, 1940), Ray B. Westerfield, Our Silver
Debacle (New York, 1936), and J. P. Dawson, "The Gold Clause Decision,"
Michigan Law Review, XXXIII, pp. 647-684 (March, 1935).
of insurance, brought the purchase of homes within the reach of families in the low-income
groups Within a period of ten years almost $4,500,000,000 was made available for housing,
and at least one tenth of the whole American population now lives in houses built, purchased,
or improved through the activities of the F H A.
MONEY, BANKING, AND CREDIT 437
NATIONAL BANKING SYSTEM. G. F. Dunbar and H. P. Willis, The Theory and
History of Banking (5th edition, New* York, 1929), PI. P. Willis, The Theory and
Practice of Central Banking (New York, 1936), G. A. Conant, A History of Modern
Banks of Issue (6th edition, N(*w York, 1927), C. A. Phillips, Bank Credit (New
York, 1920), L. G. Hclderman, National and State Banks (Boston, 1931), O. M. W.
Sprague, History of 'the National-Bank Currency (Washington, 1910), J. S. Lawrence,
Banking Concentration in the United States (New York, 1930), and T. J. Anderson,
Jr., Federal and State Control of Banking (New York, 1934).
FEDERAL RESERVE BANKS. J. L. Laughlin, The Federal Reserve Act: Its Origin and
Problems (New York, 1933), Paul M. Warburg, The Federal Reserve System (2 vols.,
New York, 1930), H. P. Willis, The Federal Reserve System (New York, 1923),
E. W. Kcmmerer, The ABC of the Federal Reserve System (i ith edition, Princeton,
1938), W. P. G. Harding, The Formative Period of the Fedeial Reserve System
(Boston, 1925), W. R. Burgess, The Reserve Banks and the Money Market (revised
edition, New York, 1936), W. O. Wcyforth, The Federal Reserve Board (Baltimore,
1 933)5 B. H. Bcckhart, 77?£ Discount Policy of the Federal Reserve System (New
York, 1924), J. M. Chapman, Fiscal Functions of the Federal Reserve Banks (New
York, 1923), G. W. Dowrie, American Monetary and Banking Policies (New York,
1930), G. S. Tippetts, State Banks and the Federal Reserve System (New York, 1929),
R. L. Weissman, The New Federal Reserve System (New York, 1936), and Seymour
E. Harris, Twenty Years of Federal Reserve Policy (2 vols., Cambridge, Mass ,
I933)-
AGRICULTURAL CREDIT INSTITUTIONS L. F. Schmeckebier, New Federal Organi-
zations (New York, 1934), A G. Wiprud, The Federal Farm Loan System in Opera-
tion (New York, 1921), Ivan Wright, Bank Credit and Agriculture (New York, 1922),
A. I. Qureshi, Agricultural Credit (New York, 1936), W. S. Holt, The Federal Farm
Loan Bureau (Baltimore, 1924), E. R. A. Scligman, The Economics of Farm Relief
(New York, 1929), F. Baird and G. L. Benner, Ten Tears of Federal Intermediate
Credits (Washington, 1933), E S. Sparks, History and Theory of Agricultural Credit
in the United States (New York, 1932), Schuyler G. Wallace, The New Deal in
Action (New York, 1934), and D. G. Blaisdell, Government and Agriculture (New
York, 1940).
FOREIGN BANKING SYSTEMS. H. P. Willis and B. H. Beckhart, Foreign Banking
Systems (New York, 1929).
NEW FEDERAL CREDIT INSTITUTIONS. John McDiarmid, Government Corporations
and Federal Funds (Chicago, 1938), H. Spero, Reconstruction Finance Corporation's
Loans to Railroads, 1932-1937 (Cambridge, Mass , 1939), and R. A. Hust,
"Federal Deposit Insurance and Some of Its Constitutional Aspects," George
Washington Law Review, VII, pp. 595-630 (March, 1939).
CHAPTER XXV 11
INDUSTRY, LABOR, AND SOCIAL SECURITY
All that makes existence valuable to anyone depends on the enforcement of restraints
upon the actions of other people. — John Stuart Mill.
It is difficult to draw a sharp dividing line between commerce and
industry. Generally speaking, industry produces manufactured goods
and services, while commerce distributes them. One is an
AND^N*^ instrumentality of production, the other, a part of the
DUSTRY mechanism of exchange. The two are nevertheless inter-
DISTTN-
dependent, for industry on a large scale cannot exist without
commerce to market its products, while commerce without
industry would be even worse off. In the United States handicraft
industries have expanded into huge manufacturing ^plants where
assembly-line and other mass-production techniques have gained wide-
spread adoption. The products of these enterprises not only enter
domestic commerce but they percolate into commerce on an inter-
national scale. Hand in hand with mass production has come the rise of
great industrial corporations, each owned by thousands of stockholders
but necessarily managed by small groups, whose responsibility to these
stockholders is neither direct nor definite.
During the nineteenth century it was generally assumed that competi-
tion among producers would serve as an automatic safeguard against
monopoly and would protect the public against artificially
OF TRUSTS high prices. This assumption proved to be generally sound
AND COM- as iong as productive enterprise was dispersed into many
BINATIONS. n-1 • i i • i
small units and managerial authority was not concentrated
in a few hands. But when large-scale enterprise came upon the scene, the
protection afforded the consumer began to diminish, because competition
itself began to disappear. Often the large industrial corporations, instead
of engaging in vigorous competition, formed combinations among them-
selves, thereby enabling them to monopolize the market and conse-
quently to increase their own profits, to the detriment of their customers.
These combinations were commonly called trusts, because one of the
INDUSTRY, LABOR, AND SOCIAL SECURITY 439
earlier ways of creating them was by vesting the stock of several com-
panies in the hands of a few trustees. The trustees, in possession of the
stock, had power to elect the directors of the several companies and to
dictate a common policy for all of them. Other types of combinations,
sometimes indiscriminately called trusts, came into being later. These
include the holding company, an example of which wras given on a
previous page, the private industrial or trade agreement sometimes called
the cartel, and certain trade or industrial associations.
THE CONTROL OF INDUSTRIAL CORPORATIONS
Although the evils resulting from these combinations were widely
recognized, the task of regulating them was originally left to the states.
In somewhat desultory fashion the state authorities tried INEFFECTIVE-
to apply the old principle of the common law under which NESS OF
all combinations unreasonably restraining trade were deemed
to be illegal. But this fitful work of the states became COMBINA-
steadily less satisfactory as industries broadened their scope. TIONS-
Spreading over several states they were able to escape effective regulation
by any of them. In due course, therefore, some large industrial com-
binations were able to crush out their weaker competitors, raise prices,
and establish a virtual monopoly in their own lines of business.
This situation impelled Congress (acting under what was then
regarded as a somewhat new interpretation of its constitutional power
to regulate interstate and foreign commerce) to pass the THE SHERMAN
Sherman Anti-Trust Act of 1890. The first provision of this ANTI-TRUST
statute was as follows: ACT'
Every contract, or combination in the form of trust or otherwise, or conspiracy
in restraint of trade or commerce among the several states or with foreign
nations, is hereby declared to be illegal.
This paragraph, it will be noted, made no distinction between combina-
tions which were unreasonable and those which were not. Going further
than the common law, it prohibited all combinations in restraint of
trade, whatever their nature or merits. Not only that, but it provided
for the criminal prosecution of any one violating the act, and even for
the confiscation of such property as was concerned in the unlawful
conspiracy. The Sherman law had plenty of teeth in it.
But no law, however drastic its provisions, is worth much unless
machinery is established for enforcing it. And none was provided in this
case. Congress merely assumed that the attorney general
and the department of justice would attend to the enforce-
*• *•*
rnent of this law along* with other federal laws. But the
440 THE GOVERNMENT OF THE UNITED STATES
attorney general and his department had other things to do. It is true
that, in 1895, one significant attempt to enforce the Sherman law was
made in the case of certain sugar refineries in Pennsylvania which had
entered into a combination. But when this prosecution reached the
Supreme Court, that tribunal held that the formal combination had
taken place within the state of Pennsylvania, that the combined refineries
were engaged in manufacturing within a state, and hence that the
Sherman Act could not be applied to them.1 Following this ineffectual
attempt at enforcement, the law was virtually permitted to sleep on the
statute book.
But it was promptly aroused from its slumbers when Theodore Roose-
velt succeeded to the presidency in 1901. Having stirred the country
with his slogan of "busting the trusts," this energetic chief
REVIVAL OF . & • , 01 A r n •
ANTi-TRusr magistrate set out to give the Sherman Act full vigor. As a
PROSEGU- first step, he persuaded Congress to create a bureau of
TIONS. . • i i r p • • • i • r
corporations with the lunction ol investigating violations ot
the law. Armed with facts which this new bureau provided, he thereupon
instructed the attorney general to begin prosecutions of some of the
more notorious combinations and these cases were carried to a successful
conclusion. In 1904, for example, the Supreme Court rendered a notable
decision on the Northern Securities Company, which had gained control
of the Great Northern and the Northern Pacific Railroad Companies.2
This was followed a few years later by similar rulings in the Standard
Oil Company's case and the American Tobacco Company's case.3
All these decisions held that the concerns in question were combinations
in restraint of trade and ordered their dissolution.
In rendering its decision in one of the later cases, however, the
Supreme Court explained that the mere existence of an industrial
combination did not render it illegal, but that every such
OF REASON " combination should be judged in accordance with its real
purpose. So, while the Court held these particular com-
binations to be illegal, it served notice that in the future no trust would
be ordered to dissolve for the mere reason that it happened to restrain
trade, but only when it appeared to have for its purpose an unreasonable
restraint of trade. In other words, the Supreme Court read into the
opening provision of the Sherman law something which Congress had
left out, and its dictum passed into popular discussion as the "rule of
reason."
1 United States v. E. C Knight Co., 156 U. S. i (1895).
2 Northern Securities Co. v. United States, 193 U. S, 197,
•221 U. S. i (1911) and 221 U. S. 106 (1911),
INDUSTRY, LABOR, AND SOCIAL SECURITY 441
As a matter of fact, not every combination of industries is harmfuL
There are "good trusts and bad trusts" as Theodore Roosevelt himself
once said. Beyond a certain point industrial competition
•ill- o • •• i • MERITS AND
is not an unmixed blessing. Sometimes it involves the cutting DEFECTS OF
of prices below the profit point and entails a reduction in THE ANTI~
-^ 1-1 - - i r i TRUST LAW.
wages, rrce and unrestrained competition has otten turned
out to be a form of economic wastefulness from which the public gains
nothing in the end. Moreover, it has been proved in some instances that a
combination among industries enables them to avoid duplication of
effort, save administrative expense, and thus reduce prices to the con-
sumer. When the national government in 1917 took over the operation
of the railroads, for example, it at once proceeded to do on a huge scale
what it had always prevented the railroads themselves from doing. It
put everything under central control, eliminated duplication in service,
abolished competition in rates, and operated every mile of trackage as
part of one giant transportation monopoly. Great savings in the operation
of railroads were made in this way, thus demonstrating that there are
times when more can be accomplished by the elimination of competition
than by the compulsory fomenting of it.1 Administrative supervision
such as is exercised today by the interstate commerce commission and
the federal communications commission has a flexibility which makes it
more advantageous to the public than the sweeping provisions of an
anti-trust law can ever hope to be.
The more discriminating attitude towards combinations expressed in
the "rule of reason" led logically to the demand that the antitrust
legislation be clarified. Congress responded to this demand
in 1914 by enacting the Clayton Act and the Federal Trade
FEDERT
Commission Act which, although they did not repeal the TRADE COM-
Sherman law, placed the whole matter of industrial regula- MISSION
tion on a simpler and saner basis. This legislation recog-
nized that there were many business abuses, other than those resulting
from formal combination or monopoly, which ought to be eradicated;
and it specifically outlined various forms of unethical and unfair activity
which are too often prevalent in certain quarters of the business world.
Subsequent legislation, notably the Robinson-Patman Act of 1936^
which aimed to prevent unfair price discriminations, the Wheeler-Lea
Act of 1938, which prohibited deceptive advertising, and the Wool
1 These economies were offset, however, by an expansion in the number of employees as
well as by the increased wa^es and othct special expenditures required by wartime emergency
Hence the government's opciation of the railroads resulted in a heavy deficit.
2 Wright Patman, The Rohmton-Patman Act (New York, 1938), and Benjamin Werne (editor)
Business and the Robinson- Patman Law (New York, 1938).
442 THE GOVERNMENT OF THE UNITED STATES
Products Labeling Act of 1941, has added to this list of prohibited
practices.
Probably the most important single feature of all this legislation was
the establishment of a body known as the federal trade commission.1
This administrative agency, created in 1914, took over the
work formerly done by the bureau of corporations and
MISSION: assumed many new duties as well. The functions of the
ITS FUNG- federal trade commission are twofold, legal and economic.
In the first place, it is charged with the duty of enforcing
the laws against unfair competitive practices on the part of all but a few
types of enterprise (such as railroads and banks) which are otherwise
regulated.2 These practices include agreements or combinations to divert
trade from competitors, or to control prices, or to deny access to raw
materials or to the products of competitors, to maintain boycotts, to grant
special discounts and rebates, to require merchants to buy entirely from
some one dealer (tying contracts), and a host of other practices deemed
to constitute an unfair and unreasonable restraint of trade. The enforce-
ment of the legal prohibition against deceptive advertising also falls
within the jurisdiction of the commission. Such deceptive practices cover
misrepresentation as to the quality or properties of merchandise; they
specifically include false advertising of foods, drugs, and cosmetics, and
the failure of manufacturers of woolen goods to reveal the presence of
inferior or substitute materials in the finished product. Likewise, the
commission is called upon to enforce existing provisions of law prohibiting
interlocking directorates among large corporations or the acquisition of
stock in competing concerns. A law known as the Webb-Pomerenc
Export Trade Act of 1918 exempts concerns which are engaged wholly
in foreign trade from certain of the provisions of the anti-trust laws, and
the federal trade commission is charged with the administration of this
act also. Finally, it may be called upon by the federal courts to provide
the outline of an appropriate decree in anti-trust suits brought by the
department of justice.
Anyone may invoke the aid of the commission by filing with it a protest
stating the facts. Thereupon a preliminary investigation is made. If the
THE COMMIS- commission finds that the protest is justified it cites the
SIGN'S PRO- offending individual or corporation to appear and explain.
CEDURE. Then, if the explanation is not satisfactory, it issues an order
1 For the organization of this body see pp. 236 and 237.
2 Railroads, by the interstate commerce commission; banks, by the comptroller of the
currency and the federal reserve board; radio broadcasting, by the federal commumYations
commission, etc.
INDUSTRY, LABOR, AND SOCIAL SECURITY 443
to "cease and desist,5" in other words, to discontinue the practice which
was the basis of the complaint. Such an order goes into effect within
sixty days unless an appeal to the courts is taken by the parties against
whom it is directed. The courts may annul the order, but if they do not the
commission can require its observance with the alternative of prosecution
by the department of justice. Occasionally, as in cases involving charges
of false advertising, the commission is authorized to seek a writ of in-
junction in a federal district court requiring the concern to "cease and
desist," pending final disposition of its appeal.
The economic powers of the commission include the right to investi-
gate the business methods and practices of industrial and mercantile
concerns engaged in foreign or interstate commerce. To
,., . , , ,. FURTHER AO
this end it has power to require that such concerns submit TIVITIES OF
special or annual reports giving detailed information as to THE COMMIS-
their activities. It can also summon anyone before it and
compel the production of business records. On the basis of its investiga-
tions the commission makes recommendations to Congress from time to
time, and these have sometimes led to the enactment of additional
regulatory laws. Likewise, the federal trade commission has worked out
lists of unethical methods practiced in different forms of business, such
as deceitful imitation of trademarks and labels, or the ambiguous brand-
ing of merchandise, and in many instances has been able to secure the
elimination of these practices through the voluntary cooperation of the
business men concerned. By its active efforts the commission has notably
improved the general standards of American business during the past
thirty years. It should be repeated, however, that the work of this body
relates only to interstate business; it has no jurisdiction over industries
which confine their operations within the boundaries of a single state.
The activities of the federal trade commission are, in a sense, supple-
mentary to the anti-trust activities of the department of justice, which is
still responsible for prosecutions under the Sherman Act and
subsequent anti-trust laws. A special unit of that depart-
ment, known as the anti-trust division, has in recent years OF THE DE-
shown considerable activity in instituting anti-trust suits in PARTMENT OF
the federal courts. During the past half-dozen years, several
hundred such suits have been brought against various oil companies, mo-
tion-picture producers, automobile manufacturers, electrical-appliance
concerns, food processors, etc. Even professional associations in the field
of medicine and of music have felt its hand. A surprising number of
these suits, moreover, have terminated with decrees in favor of the
government.
444 THE GOVERNMENT OF THE UNITED STATES
Although dissolution of business organizations considered monopolistic
is occasionally the object of the anti-trust suits, governmental policy in
the United States is not nowadays directed primarily at bigness per se,
or designed to prevent the concentration of capital, which is apparently
inevitable in any great economic community. Rather, the aim is to use
various instrumentalities, including the federal trade commission and the
anti-trust division of the department of justice, in policing the activities
of business, in restraining it from taking undue advantage of competitors
and the public, and in trying to make sure that vested interests, in their
zeal to protect their own position, do not strangle economic initiative or
prevent improvements in the production and distribution of goods and
services.
DEPRESSION MEASURES AND WARTIME CONTROL
OF BUSINESS
With the beginning of the depression in 1930, American business
experienced a debacle which, for a time, seemed to threaten its very
existence. Production of goods and services dropped off
THE DEPRES- 1 • 1 f 11 • j • 1 i-
SIGN CREATES alarmingly; prices tell in a nose dive; workers were dis-
ANEWREGU- charged right and left; those who remained *at work had
LATORY their wages reduced ; many industrial plants were shut down
PROBLEM.
altogether and others operated on a part-time basis; while
price-cutting competition was virtually forced on nearly every line of
business in an effort to keep going at all. Here was a problem that
seemed to call for governmental intervention from a new angle. Tradi-
tionally, the public authorities had made it their endeavor to promote
industrial competition. For a generation they had been trying to curb
practices in restraint of trade. Now it appeared that competitive rivalry
was being carried too far. Left unchecked, there would be a general
lowering of wages and a reduced standard of living in the country as a
whole.
In an effort to halt the downward march of prices and wages due to
this emergency competition, Congress in 1933 passed the National
Industrial Recovery Act. Its principal aims were to secure
NATIONAL the maintenance of minimum wages, shorten the hours of
INDUSTRIAL weekly work to spread available employment, promote the
ACT AND practice of collective bargaining by workers, eliminate
CODES OF child labor, prevent unfair practices in business, increase
*ke purchasing power of consumers, encourage better
planning in business to prevent over-production, and assure
to producers a fair prire for their goods and services. To achieve these
INDUSTRY, LABOR, AND SOCIAL SECURITY 445
aims, each branch or major segment of the nation's business and industry
was authorized to formulate for itself a "code" incorporating the funda-
mental purposes of the recovery legislation. Thus, the meat packers, the
furniture manufacturers, the garment makers, etc., would each draw up
their own code. Such codes, after approval by the President, were to
have the force of law. When their provisions conflicted with the existing
antitrust laws, the latter were to be virtually suspended; and, for perhaps
the first time in the nation's history, economic enterprises were publicly
encouraged and even directed to work in unison rather than in rivalry.
Provision was made that public hearings, at which all interests might be
represented, should precede the formulation of each code. The whole
procedure was placed under the immediate jurisdiction of a federal
agency called the national recovery administration (N R A).
It soon became apparent, however, that the task of drawing up some
hundreds of codes was a slow and difficult one, and that while the remedy
was being prepared, the patient's condition might grow a THE
good deal worse. Accordingly, it was decided that the "BLANKET
President should call upon all employers to sign a general GODE-
'•'blanket code," which would serve until the special codes had been
drafted and approved. More than two million employers accepted this
blanket code and received a "blue eagle" insignia to display in their
establishments as a symbol of their compliance. For the most part, these
employers tried to live up to the labor standards, price commitments,
and work-spreading features of the blanket code, but there were many
who managed to find ways of evasion.
President Franklin D. Roosevelt described the National Recovery Act
as the "most important and far-reaching ever enacted by the American
Congress." Certainly it was one of the most novel and most
... . r 7 . . , . , . THE FATE
ambitious pieces oi peacetime legislation ever enacted by any Op THE
legislative body, and it provided some lessons in economics RECOVERY
and public administration which will not be quickly for-
gotten. But it soon proved to be an ill-conceived piece of legislation.
No sooner had the blanket code been put into operation than rumblings
of discontent began to be heard on a nation-wide scale. Industry com-
plained that it increased the costs of production, that increased costs
meant higher prices to the consumer which, in turn, meant a falling off
in the demand for goods. This situation merely aggravated the deflation
and aroused public criticism of the N R A from all quarters of the land.
The failure of the whole plan was becoming generally recognized in
1935, when the Supreme Court gave the National Industrial Recovery
Act its coup dc grace by declaring it unconstitutional on two grounds:
446 THE GOVERNMENT OF THE UNITED STATES
first, because its code-making features involved a delegation of legislative
powers to the President, and second, because it attempted to regulate
business within the individual states and, by so doing, went beyond the
commerce-regulating powers of Congress.
As we shall see presently, however, the labor provisions of the National
Industrial Recovery Act were given a new lease of life in the Wagner-
SUBSEQUENT Connery Labor Relations Law passed in 1935.* Congress
LEGISLATIVE also attempted in the same year to embody some of the
oFFTHENCE act's regulatory features in a legislative code for the bi-
RECOVERY luminous coal industry by passing the GufFey Coal Act.
AGT< Although this was invalidated by the Supreme Court,
another measure of similar purport, enacted in 1937, safely passed the
judicial hurdle 2 and remained in operation until 1943, when it expired
because Congress had failed to renew it.
By 1937 the great economic depression had passed through its more
acute phases and a slow recovery had set in. The outbreak of war in
WARTIME Europe and America's subsequent entry into it brought on a
PROBLEMS wave of prosperity which raised industrial employment,
GENCY^O^V- production, and the national income to new high levels.
ERNMENTAL Enthusiasm for the legislative regulation of business and
CONTROLS. industry, which the economic depression had engendered,
waned proportionately. The war, however, created new relations
between government and private enterprise. Industry was suddenly
required to convert its plant and facilities into the production of goods
demanded by a wartime economy. Through various government boards,
nearly all the essential raw materials of industry were rationed or sub-
jected to a system of priorities; prices for both these raw materials and
the finished products were fixed by a new agency known as the office of
price administration (O P A) ; while the distribution of these products
was likewise brought under control, most of them being diverted to the
use of the armed forces. Thus, the federal government became industry's
largest customer and practically guaranteed its market. To stimulate
conversion and insure adequate production, particularly in certain lines
of military necessities, the government itself poured funds into the capital
structures of many enterprises, leased publicly owned equipment, and
even whole plants, to private operators and, through public corporations,
directly operated other plants.
This vast industrial mobilization for war has created many problems
in the shift from war to peace. Reconversion of industry to a civilian
1 See p. 449.
2 Sunshine Anthracite Goal Co. v. Adkins, 310 U. S. 381 (1940).
INDUSTRY, LABOR, AND SOCIAL SECURITY 447
economy has raised not only the problem of disentangling public and
private investment in production machinery but the problem of dis-
posing of the huge surpluses of goods, valued at many THE PROB.
billions, which the government had accumulated. Other LEM OF
problems have concerned the cancellation of contracts for ^Q^AND^HE
supplies and services, which the government had made with FUTURE OF
various enterprises; the order of priority to be observed in ENTERPRISE-
releasing various industries from their commitments to manufacture
war goods; and the relaxation of price and rationing controls. Further
questions have arisen over the future of industries which have been
greatly enlarged to meet a wartime need but for whose goods or services
there is relatively little demand in normal times. It is possible that when
the period of reconversion is over, some relics of the government's war-
time control will remain, and it may be that with the war ended the
problems which industry faces will call for new forms of governmental
intervention. One can hardly expect that the economy of a great nation
which has been mobilized for total war can easily revert to the status
quo as soon as peace comes. On the other hand, it is already apparent
that something approaching the system of free, private enterprise, as it
existed in the United States before the war, is being gradually restored.
THE NATIONAL GOVERNMENT AND LABOR
Legislative regulation of labor by the national government came later
than federal attempts to regulate business. Among the earlier labor
measures passed by Congress in the present century were EARLY
two designed to abolish the employment of children in MEASURES;
mines and factories. The first of these, passed in 1016 UNSUCCESSFUL
. ' r , ATTEMPTS TO
ostensibly under the national commerce power, sought to PROTECT
close the channels of interstate transportation to goods W°M£N AND
i i • i T i 1-111 i • MINORS.
produced in establishments employing such labor, but it
was declared unconstitutional by the Supreme Court.1 A subsequent
statute, enacted in the guise of a revenue measure, attempted to force the
abolition of child labor by levying a prohibitive tax on the products of
mines and factories employing such labor, but this also was held uncon-
stitutional.2 In 1918 Congress enacted a minimum-wage law for women
and minors, applicable only to the District of Columbia; but here again
judicial disapproval interposed,3 It was not until almost twenty years
later that Congress found ways of placing a ban on child labor without
going beyond the scope of its constitutional powers.4
1 Hammer v. Dagenhart, 247 U. S. 251 (1918)
2 Bailey v. Drexel Furniture Co., 259 U. S. 20 (1922).
* Adkina v. Children's Hospital, 261 U. S. 525 (i923)- 4 See p. 450.
448 THE GOVERNMENT OF THE UNITED STATES
Greater success attended early federal attempts to protect the interests
of workers in defined categories of employment. Notable among such
efforts was the legislation of 1908, extending workmen's
EARLIER compensation to interstate railway employees, and the
MEASURES TO Adamson Act of 1916, which granted these same employees
PROTECT tjie eight>hour working day. Equally noteworthy were the
LABOR.
LaFollette Seamen's Act of 1915, which regulated the pay
and working conditions of American merchant seamen, and the Mer-
chant Marine Act of 1920, which granted seamen workmen's compensa-
tion. A section of the Clayton Act (1914) exempted organized labor from
the operations of the Sherman Act and other anti- trust laws, thus, in
effect, repealing a decision of the United States Supreme Court in 1908
in which the anti-trust laws had been held to cover labor organizations.1
The Clayton Act also restricted the issue of injunctions by federal courts
in labor disputes. Then, in 1932, the Norris-LaGuardia Act forbade the
federal courts to issue injunctions against workers engaged in a strike.
Likewise, this act outlawed the "yellow-dog" contracts, that is, contracts
in which workers bind themselves not to join a union, by providing that
such contracts should be unenforceable in federal courts.
Mention should ^llso be made of certain activities of the department of
labor, particularly the collection and publication of labor statistics, the
protection of women and children in industry, and the cii-
LABOR forcement of minimum-wa^e and maximum-hour laws. A
DEPARTMENT . . . . . .
ACTIVITIES. special agency, outside the jurisdiction of the labor depart-
ment, was established in 1926 to mediate labor disputes on
interstate railways. Known as the national mediation
IN RAIL AND board, its functions now embrace disputes in air transport
PORTATION as we^- *n gencral> the principal duty of this board is to
mediate differences between the railroads and the air lines
on the one hand and their employees on the other, growing out of their
attempts to make and maintain agreements establishing the rates of pay,
rules, and working conditions, as directed by the Railway Labor Act.
Likewise, the board is charged with the function of determining what
organization is the duly designated and authorized representative of the
THE DEPRES- employees for collective bargaining.
SION AND All this earlier legislation was of a piecemeal nature, but
o^GTHEN7a ^ paved the way and prepared the public mind for the
RECOVERY large-scale federal intervention which began with the in-
ACT* auguration of President Franklin D. Roosevelt in 1933.
The vicissitudes of the industrial workers during the depression and
1 Locwe v. Lawlor (Danbury Hatters' case), 208 U. S. 274.
INDUSTRY, LABOR, AND SOCIAL SECURITY 449
the desire of the labor unions to protect their members against mass
unemploymenc led to a demand for legislation establishing the right
of collective bargaining in all industries doing an interstate business.
The initial result was the insertion of a provision in the National In-
dustrial Recovery Act of 1933, which read as follows:
Every code of fair competition . . . shall contain the following conditions,
(i) that employees shall have the right to organize and bargain collectively
through representatives of their own choosing, and shall be free from the inter-
ference, restraint or coercion of employers of labor, or their agents, in the
designation of such representatives or in self-organization or in other connected
activities for the purpose of collective bargaining or other mutual aid or protec-
tion: (2) that no employee and no one seeking employment shall be required as a
condition of employment to join any company union or to refrain from joining,
organizing or assisting a labor organization of his own choosing: and (3) that
employers shall comply with the maximum hours of labor, minimum rates of
pay, and other conditions of employment, approved or prescribed by the
President.1
While the intent of this provision seemed clear, doubt arose as to how
employees should select "representatives of their own choosing." In
most industries allegiance was divided, some employees bc-
, i ,, i cc /, . THE DFBATE
longing to a regular union, others to a company union, OVER THE
and still others to no union at all.2 Was the majority to rule MEANING OF
. . ^ . r n . . . . SECTION 7A.
m selecting representatives lor collective bargaining or was
each group to do its own choosing? This question was gradually being
ironed out when the Supreme Court held the National Industrial Recov-
ery Act unconstitutional on other grounds.
Congress thereupon sought to continue these labor provisions for col-
lective bargaining and non-interference with employee representation
through a new law. This was the so-called Wagner Act
/ \T^ • • 4.-*J*-i*'1--* THL WAGNFR
(1935). Its provisions were restricted to industries in inter- ACT AND THF
state and foreign commerce in order to overcome potential NATIONAL
constitutional objections. Under the favorable terms of this LABOR RELA~
J t f TIONS BOARD
law, enforced by a national labor relations board of three
members, the unionization of labor on a national scale proceeded apace
and collective bargaining became an accepted feature of labor-manage-
ment relations.
But abuses attributed to the growing power of unions and frequent
criticism that enforcement of the Wagner Act was biased in favor
1 National Industrial Recovery Act of 1933, section ja See also W H Spencer, Collective
Bargaining under Section *?a of the National Intlnstiial Recovery Act (Chicago, 1935)
2 On the general question, see J E Johnscn, compiler, Collective Bargaining (New York,
'935)-
450 THE GOVERNMENT OP THE UNITED STATES
of the unions led Congress, in 1947, to enact the comprehensive Taft-
Hartley Labor-Management Relations Act. The primary purpose of this
THE TAFT- legislation is the establishment of a better " balance' ' between
HARTLEY organized labor and management in the field of industrial
LABOR-MAN- ° 111
AGEMENT RE- relations, lo this end, the closed-shop agreement is abol-
LATIONS ACT. ished, secondary boycotts and jurisdictional strikes are
effectively outlawed, the right to strike is circumscribed in certain in-
stances, and unions are prohibited from engaging in a considerable
number of "unfair labor practices." At the same time, the definition of
some of the "unfair labor practices" for which employers had been
penalized under the Wagner Act has been narrowed. The new law
continues the national labor relations board but its membership is
increased from three to five. Moreover, the board's general counsel
is now appointed by the President and the Senate, and not by the
board, and he is virtually autonomous in instituting prosecutions under
the new law.
Another somewhat revolutionary national labor law was the Fair
Labor Standards Act, enacted in 1938. By means of this law Con-
gress sought once again to inaugurate various" indus-
LABOR trial reforms, such as the abolition of child labor and
STANDARDS the establishment of a minimum wage, which twenty years
earlier had been declared unconstitutional by the courts.
Under the terms of this measure, industries are denied the right to ship
goods in interstate commerce if minors under certain ages are employed.
Enterprises engaged in interstate commerce, or whose goods enter in-
terstate commerce, are required to pay employees a minimum hourly
wage. The law also virtually fixes the maximum legal working week in
such industries at forty hours and requires that extra compensation be
paid for time worked in addition to this maximum. Certain classes of
employees are excluded, however, from the provisions of the law. These
include agricultural workers, employees in certain public-utility enter-
prises and the fishing industry, and certain persons in the higher-salary
brackets. Administration of the law vests chiefly in the labor department's
wage and hour and public contracts divisions. The Fair Labor Standards
Act applies not only to industries actually engaged in interstate commerce
but to those that are producing goods which, sooner or later, are des-
tined to be used in interstate commerce. This gives it a greatly widened
scope and breaks down, as far as labor is concerned, the old distinction
between manufacturing and commerce, which for many years marked
the boundary line between state and federal jurisdiction. Nevertheless,
the Supreme Court has upheld the act as a constitutional exercise of
INDUSTRY, LABOR, AND SOCIAL SECURITY 451
the power of Congress "to regulate commerce . . . among the several
states." l
Another area of federal activity which expanded greatly during the
later years of the economic depression was that of job-finding and job
placement. As early as 1918, a federal employment service TOB.PRO.
had been set up within the department of labor and, after a MOTION
somewhat precarious existence, this service was given rank AGTIVITIES-
as a bureau and placed on more permanent foundations by congressional
legislation in I933-2 Under the provisions of this act the states were
encouraged by generous federal grants-in-aid to set up job services and
local employment offices, and to collaborate with the federal employment
service. Virtually all the states took advantage of this plan with the result
that a nation-wide job-finding service was established. During the Sec-
ond World War the United States employment service became wholly
nationalized. The states lost control of the local employment offices
which became agencies of the national administration; and general direc-
tion of the service was assumed by the war manpower commission, a
temporary wartime agency. In 1948, however, the local offices were
turned back to the control of the respective states. Supervisory federal
power was temporarily lodged in the department of labor but this respon-
sibility was subsequently turned over to the federal security agency where
it had been placed in 1939. Federal grants for maintaining the local
offices are administered by this agency's bureau of employment security.
Preparations for national defense and America's entry into the
Second World War brought some new labor problems in connection
with the support of the armed forces. An imperative need
for uninterrupted national production resulted in the setting THE NA"
r - i i r i • • i 11 ... TIONAL
up of a national defense mediation board whose activities DEFENSE
were intended to supplement those of the labor department's MEDIATION
conciliation service in settling industrial disputes. Some
months after the nation entered the war, this body was THE
replaced by a national war labor board of twelve principal NATIONAL
members and twenty-four alternates, so distributed as to BOARD
provide an equal representation of labor, management, and
the public. Created by executive order, this war labor board was given
the responsibility of settling industrial disputes throughout almost the
whole of the national economy. To this end it was empowered to use its
good offices toward voluntary arbitration of disputes; but, if this failed,
the board was given authority to appoint arbitrators whose decision
1 United States v. Darby Lumber Co., 312 U. S. 100 (1941).
2 Public Act 30 (June 6, 1933).
452 THE GOVERNMENT OF THE UNITED STATES
would be binding on the disputants. Later, the board was given powers
of great importance in the matter of approving or disapproving changes
in wage rates, this being part of the nation-wide endeavor to "hold the
line" against inflation.1
At the President's request, shortly after America entered the war,
the great national labor organizations voluntarily renounced the right
i A«™ mQ to strike — this pledge to remain effective for the duration.
L.AJDUK. uio~ * ^
PUTES IN On the whole, the organizations lived up to their promises.
WARTIME. Here and there, however, local strikes took place (some-
times in defiance of orders issued by union leaders) and the war labor
board was virtually defied. In some instances, the board certified to the
President its inability to end the strike, whereupon the establishments
involved in the dispute were taken over and temporarily operated by the
government. In nearly all such cases, the strike was terminated and work
resumed pending further negotiations. Meanwhile, Congress proceeded
to act. Over the protest of organized labor and by overriding the veto
™,, O.^^TT of the President, it enacted the Smith-Connally Labor
Irlb bMllrl- •* J
CONNALLY Disputes Act of 1943. This act provided the war labor
AGT* board with a statutory basis (it had previously rested on
executive order). Likewise, it provided full authority for the seizure of
plants wherever the war effort was being impeded by strikes, such plants
to be temporarily operated by the government. Furthermore, the act
prohibited strikes in government-operated plants and provided penalties
for any violation of this ban. Then, going somewhat off its main track,
the statute forbade labor unions to make contributions to political cam-
paign funds. There were two flaws in this last interdiction, however,
in that (according to a ruling from the attorney general's office) the act
did not prevent the making of union contributions in support of candi-
dates at primary elections, nor did it forbid voluntary contributions by
individual members to political campaigns, even though these contribu-
tions are made en masse at the behest of union leaders.2
Following the Japanese surrender in August, 1945, the war labor
board was abolished, most of the wartime machinery for handling labor
disputes was abandoned, and "free" collective bargaining
was ^introduced. The period of wartime regulation has
not been detrimental to labor's cause. On the contrary,
throughout the war years and for about a decade preceding America's
involvement in the war, public policy has been highly favorable to labor.
1 See aJso p. 496
2 For example, contributions made through the Political Action Committee of the CIO
in the campaign of 1944.
INDUSTRY, LABOR, AND SOCIAL SECURITY 153
Federal laws have helped organized labor to strengthen its hold over
industrial workers; they have made collective bargaining an almost
universal requirement; provided tribunals for airing and adjusting labor
disputes; and set national minimum standards for wages as well as a
maximum work week. These gains have not been seriously lessened by
war and postwar conditions although the demand has risen that labor
organizations assume a degree of responsibility in keeping with their
privileges, maintain free elections in their own ranks, avoid jurisdic-
tional conflicts and secondary boycotts, make their finances public, and
be more scrupulous in observing agreements with employers. As we
have seen, this demand for greater responsibility on the part of labor
culminated in the passage of the Taft-Hartley Act in 1947. Labor's con-
tinued hostility to this act may well lead to its modification, particularly
since its outright repeal was advocated by President Truman in his suc-
cessful campaign for reelection in 1948. Even so, it is unlikely that any
new legislation will restore conditions precisely as they existed before 1 947.
INDUSTRIAL AND SOCIAL SECURITY
The acute distress occasioned by mass unemployment during the
years 1930—1935 and the huge emergency outlays, amounting to billions
of dollars, which the national treasury was called upon to
make in order to provide direct relief and various kinds of FRQ^THH.
public work, offered persuasive arguments for the program DEPRESSION
of industrial and social security which Congress approved OF
in the summer of 1934. Experience seemed to indicate that
economic activity was cyclical and that periods of prosperity were fol-
lowed by economic recessions in which production fell off and wide-
spread unemployment ensued. That being the case, it appeared desirable
to make such provision as would prevent the unemployed from becom-
ing, in periods of depression, an emergency burden on the public
treasury. Likewise, it was recognized that great numbers of industrial
workers, when they reached an advanced age, could no longer be gain-
fully employed, even in times of economic prosperity. As many of these
had made no adequate financial provision for this contingency they
found themselves without means of livelihood and had to be assisted by
private or public agencies. The same condition of social dependence
existed in the case of widows with young children. Even before the
close of the nineteenth century, some European countries began experi-
menting with schemes of social insurance and, in 1912, an unemploy-
ment insurance plan was inaugurated in Great Britain. In America,
moreover, several of the individual states made a beginning along the
454 THE GOVERNMENT OF THE UNITED STATES
same lines during the first quarter of the twentieth century, limited for
the most part to mothers5 pensions and assistance to the blind or to per-
sons otherwise handicapped.
As a first step in framing a national program of social security, the
President appointed a special committee which in due course submitted
an elaborate report with some definite recommendations.
THE SOCIAL 11.1.1 i . i ^>,
SECURITY Ihese were embodied in the measure which Congress
ACT OF enacted as the Social Security Act of 1935. Administrative
IJ^5* supervision over the somewhat complicated plans for social
security provided in this act was first entrusted to a social security board
of three members appointed by the President for a term of six years.
In 1946 this board was abolished. Responsibility for administering al!
forms of insurance and benefits provided under the Social Security Act,
in so far as they involve the federal government, was transferred to the
newly created social security administration. This unit, headed by a
commissioner, is part of the federal security agency.
Two classes of persons are involved in the old-age pension problem.
The first are those aged persons who have already reached a time in life
when they are no longer able to support themselves. The
THE VARIOUS j i • i j f j • i • r 1 1
TYPES OF second class includes the young and active, those gainfully
SECURITY. employed, for whom ultimate provision can be made
i. OLD-AGE through contributions from themselves and from their
PENSIONS. , • i r A i r *
employers over a period of years. As respects the first class,
the act of 1935 encourages the establishment of noncontributory old-age
pension systems by the states, administered by the state authorities. A
portion of the cost is borne by each individual state; but the national
government matches all payments made by the states to needy persons,
sixty-five years of age or over, up to a certain maximum per person per
month, provided the state's old-age pension system conforms to certain
federal requirements. In addition, the national government adds five
per cent to its total grants as its contribution towards the administrative
expenses of these pension systems. It should be noted, therefore, that this
section of the social security act is based upon the expectation that each
state will set up its own scheme of old-age pensions, paying to each quali-
fied person whatever allowance it sees fit. The national government
merely contributes half the cost of such payments up to a designated
maximum, which is now twenty dollars monthly per person. There is no
basis, therefore, for the common impression that there is any fixed maxi-
mum on the monthly sums which any state may pay. Let it be repeated,
however, that the national government's contribution hinges upon the
fulfillment by the state of certain nationally stipulated minimum admin-
INDUSTRY, LABOR, AND SOCIAL SECURITY 455
istrative standards. For example, before any state can obtain the federal
contribution, it must not only adopt a satisfactory old-age pension plan
but must establish a state agency to administer it and work out a method
of administrative procedure which meets the approval of the federal
authorities. All the states have now met these requirements and are
entitled to receive the federal government's contribution.
For those gainfully employed who can still look forward to years of
economic usefulness, the old-age pension plan is an entirely different one.
In the first place, the national government assumes com-
i -i •!• f 11-1- J 1 • • • -2. THE OLD-
plete responsibility lor establishing and administering it. AGE
In the second place, it is placed on a contributory basis, ANGE
^YTTFUf
the beneficiaries being required to help support it. To this
end employers are required to deduct a stipulated percentage from the
wages or salaries of their employees every month and send it to the federal
government. The employer is further required to match this with an
equal amount, which he sends to Washington where it also is credited to
the employee. At present, the amount thus jointly paid into the federal
old-age annuity fund is 2 per cent, or i per cent by the employee and
i per cent by his employer. The expectation is that these amounts will
be increased until they jointly equal 4 per cent of the wages which the
employee earns. These contributions are paid into a trust fund admin-
istered by a special federal board and the proceeds are invested in bonds
issued by or guaranteed by the United States government. On reaching
the age of sixty-five, each person for whom contributions have been paid
over a term of at least five years will receive monthly benefits based upon
his average monthly wage, or roughly according to contributions which
have been made in his behalf.
Following amendments to the social security act in 1939, this old-age
annuity system was broadened to include dependents and survivors of
original beneficiaries; hence, the plan may be now more
appropriately known as an old-age and survivors' insurance
system. Additional benefits, equal to one half the amounts AND SURVI-
paid the insured worker, may be paid to his wife if she is VORS' INSUR~
r ) 7 r ANCE SYSTEM
beyond the age of sixty-five and to each dependent minor
child ; and lump-sum or monthly benefits may be paid to the members of
the family of an insured worker who dies either before or after reaching
pensionable age. But an important thing to remember about the entire
contributory system is that many categories of workers are specifically
excluded from its operation and are therefore not covered by its bene-
fits. Among others, these include all domestic servants and agricul-
tural workers, together with the employees of religious, philanthropic,
456 THE GOVERNMENT OF THE UNITED STATES
and educational institutions. It is probable, however, that these will soon
be included. Political considerations were largely responsible for leaving
them out of the original plan.
The Social Security Act also provides for a system of unemployment
compensation. This again is state-administered, with the national
UNEM- government providing part of the cost and a certain amount
PLOYMENF of administrative supervision. The national government
INSURANCE. assumes the obligation to pay to any state which adopts an
approved unemployment compensation law "such amounts as the social
security administration determines to be necessary for the proper admin-
istration of such law," provided the total amount of such grants-in-aid
does not exceed a designated sum appropriated for this purpose by Con
gress But the arrangements for financing unemployment compensation
arc somewhat novel and provide an illustration of the growing complex-
ity of federal-state relations. The Social Security Act levies a special fed-
eral pay roll tax upon every employer who has at least eight employees in
his service and is not specifically exempted by law. The exemptions are
substantially the same as those just mentioned in connection with con-
tributory payments for old-age pensions. This tax is now 3 per cent of
the annual wage or salary paid to each employee. But against this federal
tax the employer may credit up to 90 per cent of the amount of any con-
tributions which he may have paid into an approved state unemployment
compensation fund. The purpose of this rather complicated arrangement
is to encourage each state to set up an unemployment insurance scheme
which meets with federal approval.
To obtain this approval, various conditions are laid down in the law.
One is a provision that all moneys received by the state unemployment
compensation fund shall be immediately paid over to the federal treasury.
Thus, the entire proceeds from the levy upon pay rolls eventually go into
a national unemployment trust fund, which is invested by the secretary
of the treasury in obligations of the federal government. Payments for
unemployment compensation are made out of this fund subject to the
provisions of the federal laws and under administrative regulations
which have been set up by the particular state involved. Each state and
territory of the United States has now met the federal requirements and,
in accordance therewith, has established an unemployment insurance
system, with a total of more than forty million workers included.
In addition to these various provisions for old-age pensions, old-age
4 MISCEL- anc^ survivors' annuities, and unemployment compensation,
LANEOUS the Social Security Act makes arrangements for federal
PROVISIONS. grants-in-aid to the states for the support of dependent
INDUSTRY, LABOR, AND SOCIAL SECURITY 457
or homeless and neglected children, particularly in predominantly rural
areas. Grants are made to the state public welfare agencies to supple-
ment local funds expended for these purposes. Federal aid is also extended
to the states in connection with maternal and child-health services,
the care of crippled children, child welfare in general, and vocational
rehabilitation. These arrangements, however, are merely a continuation
or elaboration of the aid which the national government had been giving
for a number of years before the enactment of the Social Security Act.
But grants-in-aid are also being given under the terms of this law to
strengthen the public health work of the various states and to help them
in assisting the needy blind.
The Social Security Act of 1935 is one of the most significant statutes
ever enacted by Congress. It is based upon the idea that the support of
aged workers, as well as the maintenance of the unemployed
11 , • i i 111 , THE SOCIAL
and the otherwise needy 01 destitute, should not be a matter SECURITY
of charity or dole-granting, but something to which both SYSTEM
employers and employees should contribute. The burden
thus placed on them is merely added to the cost of production and is
thus ultimately borne by the consumer. The act of 1935 aims to place
social insurance on what can ultimately be made a self-sustaining basis by
increasing the joint contributions. Meanwhile, the Supreme Court has
upheld in a series of decisions the constitutionality of this legislation.1
Although few people nowadays would disagree with the general
philosophy on which social insurance is based, there are some things
which can fairly be said in criticism of the plan which
Congress has provided for the workers of the United States.
For one thing, there are too many exemptions. Farmers,
household servants, workers in small industrial plants, and l ' THE EX"
' ^ ' EMPTIONS.
employees of charitable institutions — they grow old, or
become unemployed, just as industrial workers do.2 Why, then, should
they be denied the right to qualify for old-age pensions and unemploy-
ment compensation? The answer is that they ought not to be, and that
these exemptions will doubtless be eliminated very soon.
Another major criticism, coming mainly from federal administrators
of the Social Security Act, is directed at the mixed federal-state character
of the social security services. It is argued that the system Q THE
is needlessly complicated by the multiplicity of national MIXED
and state agencies involved and that the ultimate centraliza- GHARACTER-
1 Carmichael v. Southern Coal and Coke Co , 301 U. S. 495; Steward Machine Co. v»
Davis, 301 U. S. 548; Helvenng v. Davis, 301 U. S. 619.
a It was recently estimated (1944) that twenty million wage earners are excluded from the
benefits of the Social Security Act. Twelve million of these are farm laborers.
458 THE GOVERNMENT OF THE UNITED STATES
tion of the entire machinery in federal hands would be advantageous. It
is probably true, of course, that some gains in administrative efficiency,
as well as some economies in the cost of administration, would be
secured in this way; on the other hand, there are those who strongly
object to the concentration of so vast a social enterprise in the hands of a
single authority. They argue that, because of the great differences among
the states, there should be a reasonable amount of flexibility in adminis-
tration, which can only be obtained by allowing each state to decide for
itself how far it will go above the minimum standards set by the federal
authorities. There is no good reason, they say, why Massachusetts and
Mississippi should be compelled to pay old-age pensions in exactly the
same amount, inasmuch as the cost of living differs considerably in these
two commonwealths. There is also the more general objection that the
steady piling up of nation-wide functions at Washington may result in
badly overloading this center of gravity. It might "induce apoplexy at
the nation's capital and paralysis at the extremities, that is, at the state
capitals," is the way someone has expressed it. Finally, the system is
being badly undernourished by the present rate of contributions from
employers and employees. It is a "contributory" system to only a
small degree. Although the original intention was to raise the rate, year
by year, until joint contributions totaled 6 per cent of wages, the com-
bined rate still stood at 2 per cent in 1949. Under more recent legisla-
tion, however, it is expected to reach 4 per cent in 1952.
But, despite its various shortcomings, the existing system of social
insurance represents a long step forward in the effort to solve a great and
difficult problem. Social security aims at the abolition of
CONCLUSION. \_ . . J
poverty. Ihe principal causes of poverty are old age, un-
employment, accidents, and ill-health. These afflictions cannot be
eliminated, of course, for old age will come inexorably; business will have
its ups and downs, with consequent instability and unemployment;
workers will get injured and will fall sick — no matter what we do.
But society can at least see to it that the brunt of these afflictions shall
not fall wholly on the worker and his family. The way to do this is by
providing him with insurance in the way of an old-age pension, unem-
ployment compensation, and industrial accident compensation — all of
which he now has — together with health insurance, which will doubt-
less be our next step. Even with all this, there will still be some poverty
in the land; but, in the long run, most of it will be gone. At any rate, that
is the objective which systems of social security have in view.
INDUSTRY, LABOR, AND SOCIAL SECURITY 459
REFERENCES
THE CONTROL OF INDUSTRIAL CORPORATIONS. Eliot Jones, The Trust Problem
in the United States (New York, 1921), L. H. Haney, Business Organization and
Combination (3rd edition, New York, 1934), J. W. Jenks and W. E. Clark, The
Trust Problem (5th edition, New York, 1929), National Industrial Conference
Board, Mergers and the Law (New York, 1929), and Public Regulation of Competitive
Practices (New York, 1929), W. S. Holt, The Federal Trade Commission (New
York, 1922), G. C. Henderson, The Federal Trade Commission (New Haven, 1924),
T. C. Blaisdell, Jr., The Federal Trade Commission (New York, 1932), Donald R.
Richberg, Government and Business Tomorrow; a Public Relations Program (New
York, 1943), H. D. Koontz, Government Control of Business (Boston, 1941), L. S.
Lyon and others, Government and Economic Life (2 vols., Washington, 1939-1940),
F. P. Hall, The Concept of a Business Affected with a Public Interest (Bloomington,
Ind., 1941), Thurman W. Arnold, The Folklore of Capitalism (New York, 1937),
and the same author's The Bottlenecks of Business (New York, 1940), Myron W.
Watkins and others, Public Regulation of Competitive Practices in Business Enterprises
(revised edition, New York, 1940), John P. Miller, Unfair Competition (Cam-
bridge, Mass., 1941), and P. E. Hadlick, Criminal Prosecutions under the Sherman
Anti-Trust Act (Washington, 1939).
For recent federal policies toward business, including legislation of the New
Deal and the wartime emergency, some of the following titles may be consulted*
L. S. Lyon, The National Recovery Administration: An Analysis and Appraisal (Wash-
ington, 1935), E. Greenwood, Some Facts about Government in Business (New York,
1933), W. M. Persons, Government Experimentation in Business (New York, 1934),
William MacDonald, The Menace of Recovery (New York, 1934), H. C. Wallace,
Neiv Frontiers (New York, 1934), A. A. Berle, Jr., and G C. Means, The Modern
Corporation and Private Property (New York, 1933), Emanuel Stein and others,
Our War Economy (New York, 1943), Louis M. Hacker, The Triumph of American
Capitalism (New York, 1940), A. M. Schlesinger, The New Deal in Action, 1933-
J939 (New York, 1940), Edgar M. Queeny, The Spirit of Enterprise (New York,
1943), Leo Chernc, The Rest of Tour Life (New York, 1944), Eric Johnston,
America Unlimited (New York, 1944), D. C. Blaisdell, Economic Power and Political
Pressures, Monograph No. 26 of the Temporary National Economic Committee
(Washington, 1941), and the Final Report and Recommendations of the Temporary
National Economic Committee, issued as Senate Document 35, Seventy-
seventh Congress, ist Session (Washington, 1941). Mention should also be made
of the report of the National Resources Planning Board entitled National Re-
sources Development Report for 1943, Part 7, Postwar Plan and Program (Washington,
1943)-
LABOR RELATIONS. John R. Commons and John B. Andrews, Principles of
Labor Legislation (4th edition, New York, 1936), Alfred L. Bernheim and others,
Labor and Government (New York, 1935), J. B. Andrews, Administrative Labor
Legislation (New York, 1936), and the same author's Labor Laws in Action (New
York, 1938), H. L. Childs, Labor and Capital in National Politics (Columbus, Ohio,
1930), Matthew Woll, Labor ^ Industry and Government (New York, 1935), E. E.
Witte, The Government in Labor Disputes (New York, 1932), Felix Frankfurter and
Nathan Greene, The Labor Injunction (New York, 1930), A. R. Ellingwood and
460 THE GOVERNMENT OF THE UNITED STATES
W. Coombs, The Government and Labor (Chicago, 1926), Ordway Tead and H. C.
Metcalf, Labor Relations under the Recovery Act (New York, 1933), E. Stein and
others, Labor and the New Deal (New York, 1934), with a 7935 Supplement, Paul H.
Douglas, The Coming of a New Party (New York, 1932), Charles Aiken, National
Labor Relations Board Cases (New York, 1939), Dean O. Bowman, Public Control
of Labor Relations (New York, 1942), C. M. Bufford, The Wagner Act (New York,
1941), H. O. Eby, Tfie Labor Relations Act in the Courts (New York, 1943), T. R.
Fisher, Industrial Disputes and Federal Legislation (New York, 1941), William Green,
Labor and Democracy (Princeton, 1939), Z. C. Dickinson, Labor Policy and the
National Defense (Ann Arbor, 1941), and J. Rosenfarb, The National Labor Policy
and How It Works (New York, 1940).
INDUSTRIAL AND SOCIAL SECURITY. I. M. Rubinow, The Quest for Security (New
York, 1934), A. Epstein, Insecurity: A Challenge to America (revised edition, New
York, 1938), Eveline M Burns, Toward Social Security (New York, 1936), Paul
H. Douglas, Social Security in the United States (2nd edition, New York, 1939), and
Maxwell S. Stewart, Social Security (revised edition, New York, 1939), deal fully
with this topic. Financial aspects of the subject are discussed in J. E. Hughes,
The Federal Social Security Tax (Chicago, 1941). On the special subject of old-age
pensions reference may be made to A. Epstein, Old-Age Security (New York,
1930), J. E. Johnsen, Old- Age Pensions (New York, 1935), Josephine Brown,
Public Relief (New York, 1940), Edith Abbott, Public Assistance (Chicago, 1940),
and Robert T. Lansdale and others, The Administration of Old-Age Assistance
(New York, 1939). An interesting plan for economic security in Great Britain
is set forth in Sir William Beveridge's Social Insurance and Allied Services (New
York, 1942). Attention should also be called to the report of the National Re-
sources Planning Board entitled Security, Work, and Relief Policies (Washington.
1942).
CHAPTER XXVIII
AGRICULTURE AND CONSERVATION
It will not be doubted that with reference either to individual or national welfare
agriculture is of primary importance. In proportion as nations advance in population
and other circumstances of maturity this truth becomes more apparent, and renders the
cultivation of the soil more and more an object of public patronage. — George Washington.
The Constitution of the United States makes no mention of agriculture,
although this was the principal vocation of the people in 1787. Conse-
quently, it might be argued that the only formal authority
, , i r , i / , • , THE FEDERAL
possessed by the federal government in relation to the GOVERNMENT
farmer is incidental to its taxing power and its power to AND 1HE
regulate commerce. But it should not be assumed that,
because of this, American agriculture has been the Cinderella of federal
policy. On the contrary, the agricultural interest has strongly influenced
national policy from the very beginning and has on many occasions been
the beneficiary of special legislation enacted in its behalf. Agriculture,
indeed, has been more often than any other interest the favored ward of
the national government. And it is easy to understand why this should be
the case, for during a large portion of the nation's history Congress was
numerically dominated by representatives of the agricultural areas. Even
today a majority in the Senate is controlled by states in which agriculture
is the chief vocation of the people. With the rapid industrialization of
various states during the past decade, however, the political strength of
the farmer has been declining and, today, the industrial worker is re-
placing him as the object of the federal government's special solicitude.
There is a second reason why the agricultural interest, for a long time,
exerted such a strong influence upon the course of national politics. It is
to be found in the ability of the farmers to organize for their own pro-
tection. Not into regular labor unions did they combine, it is true, but
into a regular political party, like the Populists of sixty years ago, or
into the national organization known as the Grange or the Patrons of
Husbandry. More recently, the farm bureau federation has been a
power in Washington and there are few students of American history
461
462 THE GOVERNMENT OF THE UNITED STATES
who have not heard of the "farm bloc" in Congress. Disregarding party
lines, this phalanx of senators from the agricultural areas can be lined up
for the farmers' special interest at all times.
To give even a general sketch of the federal government's activities
in the field of agriculture since the first meeting of Congress in 1 789
would take a whole volume. But some of the landmarks can
NATIONAL be indicated here without going too far afield. One of them
LEGISLA- was the Homestead Act of 1862 — perhaps the most
nON* important statute in this field ever passed by Congress,
i. THE if one considers its far-reaching effects upon the settlement
HOMESTEAD Q£ tke \yest gy faG terms of this act, anyone could acquire
one hundred and sixty acres of land from the public domain
by paying a nominal registration fee and becoming a bona fide settler on
this land for a period of at least five years. Although various evils de-
veloped under the homestead system, it set the pattern of land ownership
in much of the West — the farm of moderate size cultivated by its owner.
2 THE Congress also enacted, in the same year, a statute known
MORRILL as the Morrill Act, which gave to each state, roughly in
ACT' proportion to its representation in Congress, a sizable block
of public land with a stipulation that the proceeds of its snle be used to
support colleges of agriculture and mechanical arts. Many institutions of
this type, sometimes known as "land grant" colleges, owe their origin to
this statute.
The Morrill Act marked the beginning of a long series of federal enact-
ments by which grants-in-aid to the states for the benefit of agriculture
have been made during the past eighty years. In due course
MENT AND (by the Hatch Act of 1887) such grants were made to estab-
EXTENSION iish agricultural experiment stations operated by the states
through their land-grant colleges. Further support to these
colleges was later added in the form of annual appropriations; and, by
the Smith-Lever Act of 1914, federal aid was provided for an agricultural
extension service, operating chiefly out of the agricultural colleges and
designed to provide the farmer with the assistance of agricultural
specialists. This service has become personified in the local extension
agent, or "county agent," as he is usually called. As an adviser to the
farmer on agricultural problems of every kind and as a leader in rural
betterment, the county agent has become an important constructive
factor in the life of the farmer communities.
For about a quarter of a century after the Civil War, the national
government's activities in relation to agriculture were conducted through
bureaus in the department of the interior, chiefly the bureau of animal
AGRICULTURE AND CONSERVATION 463
industry. But in 1889 the department of agriculture was established
to take them over, and this department has steadily grown 4. THE DE-
to a position of prime importance in the federal adminis- PAR™ENT
r-j-, | • * i i • i • • . • * • . . | OF AGRICUL-
tration. 1 oday, it includes within its jurisdiction a wide TURK ES-
variety of services, all of which are related to agriculture TABLBHED.
in one way or another. Some of these have been already described.1
AGRICULTURAL MARKETING AND
PRODUCTION CONTROLS
The primary aim of federal agricultural policy during the latter part
of the nineteenth century was to improve the techniques of agricultural
production, so that more could be produced from a given NEW AGRI_
amount of land and labor. This policy yielded high divi- CULTURAL
dends. The scientific work of the public authorities, the PROBLEMS:
improvements in machinery, and the betterment of methods have com-
bined to increase agricultural production in America to a point where,
in normal years, it now exceeds the demand. Beginning with the First
World War, however, federal assistance to agriculture underwent both
an expansion and a change in direction. This was largely the result of
two new problems for which the farmers were demanding solution at the
hands of the federal government. One of these was the problem of
agricultural credit; the other was the problem of agricultural prices.
Down to this time the farmer, cattle raiser, fruit grower and dairyman
had obtained financial credit, when they needed it, from the regular
banks. Large numbers of them borrowed money at one
season, when the crops were being sown, for example, and
paid it back (with interest) at another season, when the
products were marketed. They dealt chiefly with small country banks
where interest rates were higher than in the large cities and where the
credit facilities were limited. What the agriculturist wanted was a
system of farm loan and agricultural credit banks, under the auspices of
the national government, which would cater to his special needs. All
this, and more, was provided for him by congressional action in ways
which were explained in a previous chapter.2
The other problem, that of ensuring fair prices to the farmer for his
products, was not so easy to solve. The primary cause of the trouble was
the fact that agriculture had so steadily improved its
methods that there was now a surplus in some lines.
A
This could not be marketed except at prices which were
below the fair-profit level.
1 See p. 225. 2 See pp. 433-434-
464 THE GOVERNMENT OF THE UNITED STATES
Even during the years of prosperity which followed the First World
War, the price level of some agricultural staples underwent a decline
due to slackening of exports to European countries. On the
DECLINE . . , , r ,11 11 • i'ii
OF FARM other hand, the farmer s labor costs and the prices which he
PRICES had to pay for industrial products did not fall corrcspond-
WORLD ingty- In some cases they went up. This situation led to a
WAR i. demand that the government should support farm prices
artificially by means of subsidies, direct or indirect. Back in
CULTURAL J929> Congress had passed an Agricultural Marketing Act
MARKETING which aimed to promote and finance cooperative marketing
ACT OF 1929. r L °
as well as to stabilize agricultural prices. But this measure
did not prove adequate because, with the onset of the world depression
in 1930, all agricultural prices declined badly, thus aggravating the
already precarious condition of the farmer and bringing farm income
down to its lowest point in many years.
Accordingly, in 1933, Congress enacted a more ambitious measure
known as the Agricultural Adjustment Act. Its primary aim was to raise
the prices which the farmer could obtain for his products,
^lus Providing him with an income level which bore a
TURAL AD- reasonable relation to that enjoyed by other producers. To
JUSTMENT ^jg encj tjie secretary of agriculture was empowered to
secure a reduction in the amount of agricultural products
raised each year, so that the surpluses, which had operated to hold
prices down, might be eliminated. This reduction was to be arranged, in
the main, by making voluntary agreements with farmers, plantation
owners, and raisers of livestock, whereby they would curtail production
in return for cash payments from the national treasury. The money for
these payments was to be obtained from processing taxes,1 which, as
explained earlier, were to be levied upon millers, textile manufacturers,
meat packers, and others, who "processed" or made "finished goods"
out of the products of the farm. As far as raising the prices of agricultural
products is concerned, the measure seemed to be serving its purpose, in
part at least, but in January, 1936, it was declared uncon-
DECLARED stitutional by the Supreme Court. The court refused to
UNCONSTI- regard processing taxes as "taxes" in the proper sense,
TUTIONAL. . . . i . , . , ,
insisting that they were levies placed upon one class of
citizens for the special benefit of another class, and declaring also that the
Agricultural Adjustment Act was unconstitutional for the additional
reason that it undertook to regulate a matter, namely, agricultural
production, which fell within the reserved powers of the states.2
1 See p. 246. 2 United States v. Butler, 297 U. S. i.
AGRICULTURE AND CONSERVATION 465
Undaunted by the fate which had overtaken this measure, Congress
quickly passed the Soil Conservation and Domestic Allotment Act (1936)
which, under the guise of a soil-conservation policy, at-
i • i- 11 1-1 NEW LEGIS-
tempted to secure, by indirect methods, a decrease in the LATION:
production of certain staples. Three years later (10^8), l- SOIL CON-
ir i_- • _i- r i i SERVATION
partly because this indirect system of production control AND DOMES-
was not wholly satisfactory and partly because the Supreme TIG ALLOT-
Court was now expected to be more favorable, Congress
passed a new Agricultural Adjustment Act which was quite 2. THE
as far-reaching as the original act of that name but with- ^£!£L.
out the processing taxes. Moreover, administration of the TURAL AD-
new act, which was later entrusted to the production and JUSTMENT
marketing administration, required a greater degree of par-
ticipation by state and local officials and by farmers than had the older
act. Thus it avoided the shoals of unconstitutionality. These two basic
measures, along with supplementary statutes and executive orders, estab-
lished a comprehensive and intricate system of governmental regulation
for agriculture and set up for this sector of the economy a degree of
public direction unique in American history.
The purpose of the new legislation was still that of ensuring farmers a
fair level of prices by controlling output. This was to be accomplished,
and has been accomplished, as follows: through the device
r r i • r f • i i AIMS OF THE
of a referendum, committees of farmers, operating under the NEW FARM
supervision of state and local officials, establish local pro- LEGISLA-
duction goals for certain agricultural staples in accordance
with overall production requirements of the production and market-
ing administration l of the department of agriculture. Participating
farmers arc then assigned specific acreage quotas, based on average past
production, or marketing quotas for these staples. Cash l CROP_
payments may be made by the government to compensate CONTROL
for reduction in the farmer's income traceable to his 1>AYMENrs-
cooperation with its program. In addition, payments may be made to
farmers for adopting soil-conservation policies recommended by the
government. These conservation payments may be offered
to compensate him for reduction of output when the farmer CONSERVA-
allows fields, formerly tilled, to lie fallow or diverts acreage, TION PAY"
formerly devoted to soil-exhausting crops, to the production
of leguminous or soil-enriching crops.
Still another feature of the 1938 legislation is the so-called "ever
1 Predecessor of this agency was the agricultural adjustment administration. During World
War II this was placed under the war food administration.
466 THE GOVERNMENT OF THE UNITED STATES
normal granary," which is simply the storage of surplus commodities
under government auspices. These are then held to meet
3. THE EVER °
NORMAL normal demand in years of abnormally low production or
GRANARY to mcet unusual demands, as in time of war. The storage,
AND GOV- , . _ , .11.
ERNMENT under government auspices, is for the most part in public
LOANS ON warehouses and elevators. On agricultural commodities
thus taken over for storage, the government advances the
producer a loan, which in certain instances is fixed as high as 90 per cent
of "parity" — which is a figure supposedly based on a fair relation
between the agricultural price level and the price levels in other fields of
production. For the most part, it has been higher than the current market
price of the surplus commodities. The expectation is that in times of
scarcity these government-stored surpluses will be sold on behalf of the
owner-farmer, thereby discharging his loan.
A tentative start has also been made in crop insurance. Beginning in
1939, cotton and wheat farmers were invited to take out policies with the
federal government insuring them against the unavoidable
INSURANCE hazards of production — the premiums for this insurance
being paid chiefly in previous surpluses of the commodity
insured. Indemnities, reckoned on the loss to production as gauged by
previous crop yields, are also paid in the form of insured products, which
are drawn from the surplus pools maintained by the government.
The Second World War and the consequently augmented demand for
farm products caused much of this farm program to be suspended.
In many instances, instead of curtailing production, the
WARTIME r i i • • • 11-1- .
SUSPENSION war food administration and subsidiary agencies promoted
OF THIS its expansion. General wartime rationing of foods and fibres,
special government purchasing of farm products for war-
time needs, and universal price controls — all this made much of the
special farm program unnecessary. Much of it remained unnecessary in
the postwar years because of continued high demand although, nominally,
the program was restored to full operation. For better or for worse, the
production and distribution of farm staples appear to have become
more or less regimented features of the American economy.
From time to time in recent years, moreover, various ways of expand-
ing agricultural markets, and thus helping the farmer, have been tried.
Prior to the outbreak of the war, for example, the govern-
ment undertook to "dump" on the world market certain of
SUPPORT its stored surpluses and to provide export subsidies for other
MARKETS agricultural commodities. The outbreak of hostilities ended
this, temporarily at least. Efforts have also been made to
AGRICULTURE AND CONSERVATION 467
dispose of the surplus commodities by channeling them through relief
agencies, by distributing them in aid of free school-lunch programs, and
by a so-called food stamp plan. Under the latter plan, low-income or
relief families were, for a time, permitted to obtain without cost certain
foodstuffs which were declared to be surplus products. The lend-lease
arrangements with Various friendly countries during the war also drew
upon the government's stock of surplus foodstuffs in certain lines and
continued to do so, even after actual hostilities in Europe ceased. From
what has been said in the foregoing pages, it is reasonably evident that
the federal government has made a sincere and aggressive effort to get
the American farmer out of his difficulties.
OTHER AIDS TO THE FARMING COMMUNITY
A difficult agricultural problem to which the federal government has
recently turned its attention is that of farm tenancy. One may be sur-
prised to learn that in a country where farm ownership is BANKHEAD.
taken as a matter of course, more than half of those who JONES FARM
till the soil do not own it. To ameliorate the condition of TENANT ACT-
these tenant farmers, Congress in 1937 passed the Bankhead-Jones Act.
This act makes it possible for tenant farmers and sharecroppers to secure
low-interest, long-term government loans wherewith to purchase family-
type farmsteads, farm animals, and agricultural equipment as well. Many
thousands of applicants have received such loans. More ambitious
programs of a related nature were inaugurated at one time OTHER FARM
or another during the later years of the depression in the SECURITY
thirties. These included federal loans and grants for the MEASURES-
rehabilitation of farm families who had become victims of drought or
depression; the construction of model agricultural communities; the
buying up of exhausted or submarginal lands and the resettlement of the
former proprietors; and even the federal subsidization of medical care
ror farm families in certain communities.
Steps were likewise taken in 1 936 to encourage the farm use of electric
power by the enactment of the Rural Electrification Act. Relatively
long-term loans at low rates of interest are extended to
municipalities, cooperative associations, corporations, or
individuals, for the construction of generators or electric
transmission lines for rural areas not otherwise served ; and further loans
are made to these borrowers to finance the purchase of electric appliances.
Loans may also be obtained by firms or individuals who are engaged in
the business of supplying electrical equipment for rural use. It should be
468 THE GOVERNMENT OF THE UNITED STATES
mentioned, however, that the act does not provide loans to the actual
consumer of the electrical energy, the farmer himself.
From all this, it would seem that, far from being the individualist
par excellence that he is often assumed to be, the American farmer is
PRESENT becoming one of the most highly regimented producers in
STATUS OF the entire national economy. His production is planned, the
THE FARMER. prjces of ^^ staple commodities are controlled, his surplus
products are taken off his hands by the government, his markets
are protected, and a system of agricultural credit has been set up
for his special benefit. This regulatory legislation is defended on the
ground that agriculture is still the principal basis of the country's eco-
nomic life and that the farmer's well-being is intimately related to the
welfare of the nation as a whole. To maintain agricultural prosperity, it
is essential that a reasonable equilibrium between the demand for farm
products and the supply of such products shall be maintained; and this,
it is argued, can only be done through government supervision. Those
who are familiar with the Washington merry-go-round will add, how-
ever, that the political influence of farm organizations has been quite as
potent as the foregoing arguments in getting the farmer what he wants.
CONSERVATION OF NATURAL RESOURCES
Some of the measures which are designated as "agricultural" carry a
suggestion of purposes beyond the promotion of the farmer's immediate
welfare. This is particularly true of laws designed to preserve
soil fertility and to apply land to the uses for which it is best
adapted. Such aims are part of a program to conserve natural wealth
generally; in other words, one which seeks to ensure a planned and
efficient use of natural resources, the discouragement of wasteful exploita-
tion, and the restoration of such resources where they have been dis-
sipated, as, for example, by soil erosion.
Until less than fifty years ago, very little attention was given to this
matter of conservation. Vast forest acreages, huge deposits of coal,
EARLY IN- abundant petroleum resources, mineral wealth of all sorts,
DIFFERENCE and vast tracts of virgin land were still inviting exploitation
TO NEED FOR , u , . , , , , . r^, .
CONSERVING throughout the nineteenth century. I his gave rise to a
NATURAL popular impression that the natural wealth of the United
WEALTH. States was virtually inexhaustible. A moment's reflection
would have shown the groundlessness of this optimism, but unhappily
there were few who stopped to reflect. The men and women who
achieved the economic conquest of a half continent during this great
century were individualists of an exceedingly rugged type, the pioduct
AGRICULTURE AND CONSERVATION 469
Df the ever-advancing frontier. The frontier spirit did not lend itself to
social or economic planning. In the new communities, every family was
supposed to do its own planning, to look out for itself — and the devil
take the hindmost. Under such conditions no great solicitude was mani-
fested for the interests of posterity. The temper of the nineteenth century
in this matter was sometimes embodied in the cynical query, "What has
posterity ever done for us?"
Not until the first decade of the twentieth century were the first
official steps taken to remind the public that our resources, however vast,
were not inexhaustible and that the consequences of un-
, . , , , FIRST STEPS
planned and unrestricted exploitation would some day TOWARD A
be serious. The men responsible for this reminder were a GONSERVA-
small group of administrators aiound President Theodore
Roosevelt. Under his enthusiastic leadership, this group made more
effective certain rudimentary conservation measures which were already
on the statute book and also intitiated several new ones. The latter
related chiefly to the reclamation of arid lands, the transfer of national
forest reserves to the trained personnel in the department of agriculture,
as well as the reservation of mineral and other rights in public lands then
open to private "entry" and ownership.1 The policies thus begun have
been continued and intermittently expanded until, today, the United
States may be said to have something approaching a comprehensive
national conservation program.
In a sense, the national conservation movement may be said to have
been first inspired by the concern felt over the fate of our forests; and
jt is in the preservation and restoration of forest lands that
FORESTS.
perhaps the greatest progress has been made. The forestry
service of the department of agriculture now controls and administers
one hundred sixty national forest preserves, covering an area appreciably
greater than the present territorial extent of the thirteen original states.
In this area its responsibilities include protection against fire and arboreal
diseases, the regulation of grazing rights, and the supervision of the
production and withdrawal of timber. The service also plays a vital part
in reducing floods, preventing soil erosion, and protecting water sup-
plies — all through its scientific management of watersheds. State and
local forestry supervisors and private owners of forests and woodlands
benefit from the work of the various experiment stations maintained by
the forestry service, as well as from the aid extended them in applying
the principles of forest management, in fighting insect pests and disease,
and in carrying out reforestation and afforestation programs.
1 See Theodore Roosevelt, An Autobiography (New York, 1 926), pp. 393-422.
470 THE GOVERNMENT OF THE UNITED STATES
Closely identified with forest conservation have been the various
policies pursued in relation to the land itself. The federal public lands,
referred to earlier in this chapter, which once embraced
an imPerial domain, have been gradually transferred to the
states, to railroad interests, to homesteaders either by sale
or "free entry," and to other private owners. In that way the federal
government, first and last, disposed of more than a billion acres. But,
as the supply of "free land" diminished, various restrictions were placed
upon free entry, while large reservations were set aside for permanent
public ownership. Finally, in 1935, all private acquisition of such lands
came to an end and the federal government announced that what re-
mained of the original public domain would be held in perpetuity as a
public reserve. The area which is thus set aside, consisting chiefly of
national forests, national parks, grazing districts, and Indian reserva-
tions, now totals about four hundred million acres.
It was on its public lands that the federal government took its initial
steps to protect water power and mineral resources. This it did by
WATER licensing the use of hydroelectric power sites and by reserv-
POVVERAND ing, or strictly regulating, the withdrawal of mineral
NATURAL GAS. Deposits — a form of conservation which has been greatly
expanded. The federal power commission, as indicated earlier, now fixes
interstate rates on electric power generally, controls the export of power,
and leases hydroelectric power sites on federally-owned areas to private
companies — normally with a proviso that the lease shall run for a
definite period and that the government may then recapture all improve-
ments by paying a fair price. The Natural Gas Act of 1938 has also given
the commission regulatory authority over the transportation and sale of
natural gas.
As regards the oil reserves of the country, over which growing concern
is felt as a result of the enormous drain occasioned by the war effort,
effective protection has come only recently. The national
recovery legislation of 1933 authorized the President to
prohibit the transportation of oil in interstate or foreign
commerce in excess of production or marketing quotas, fixed by oil-
producing states; but this arrangement was held unconstitutional by the
Supreme Court as being a delegation of legislative power to the executive
branch of the government.1 Thereupon Congress itself passed an act
which carried into effect substantially the same policy which it had
previously directed the President to pursue. The unprecedented wartime
demand for petroleum products naturally suspended most of the limi-
1 Panama Refining Co. v. Ryan, 293 U. S. 388 (1935).
AGRICULTURE AND CONSERVATION 471
tations on output; but the use of oil products was strictly regulated
during the war period by a petroleum administration headed by the sec-
retary of the interior. Now that peace has returned, however, it is antici-
pated that the federal oil legislation which is already on the statute book,
strengthened by appropriate cooperation from the oil-producing states,
will go far to supply a needed check on the wasteful exploitation of this
underground wealth. In 1933, the federal authorities also interested
themselves in a general program of coal conservation, particularly with
respect to bituminous, or soft, coal. As mentioned elsewhere, the Guffey
Coal Act of 1 935 provided a code of fair practices for the soft-coal in-
dustry, somewhat like that projected for all business under the National
Industrial Recovery Act of 1933. Following the Guffey Act's invalida-
tion by the courts, a new act of somewhat similar purport was passed in
1937, and this remained in effect until it lapsed in 1943.
Meanwhile, conservation on its broadest scale has become identified
with federal development programs such as the one carried out in the
basin of the Tennessee River under the auspices of the
Tennessee Valley Authority. Although the chief products of
this agency are hydroelectric power and fertilizers, the DEVELOP-
indirect results of its activity have been a large number of MENT:
THE X V A.
flood-control works, reforestation, and the prevention of
soil erosion. Consequently, the supporters of the T V A claim that its
work has raised the whole level of agriculture in this region and bene-
fited all classes of the population. They draw an analogy between this
federal project and the internal improvement program (including the
construction of canals, roads, and bridges) which the national govern-
ment promoted during the earlier years of the nation's history. On the
other hand, the Tennessee Valley and similar large hydroelectric enter-
prises, built and operated by the federal government, have been made
the target of much criticism. It is asserted that the way in which their
accounts are kept enable them to show more profit than they really make,
that (through tax exemptions) they unfairly compete with private util-
ities, and that their managements are influenced by political considera-
tions.
The Tennessee Valley project and the somewhat similar one at Bonne-
ville in the Columbia River basin may be regarded as large-scale
expansions of the activities which the reclamation service in
r . ACTIVITIES
the department of the interior has been carrying on for Op THE
forty years or more. Originally, its efforts were limited to RECLAMATION
the western states, where it constructed dams and canals
(financed from the sale of public lands) merely to provide water for
472 THE GOVERNMENT OF THE UNITED STATES
irrigating arid and semiarid farm lands. In more recent years, however,
its construction work, such as the Hoover and Grand Coulee dams, has
been designed not simply (or perhaps even mainly) to provide water for
irrigation, but to supplement the water-supply requirements of adjacent
cities and towns, to utilize latent hydroelectric power, to improve navi-
gation, and even to conserve wild life. In cooperation with the depart-
ment of agriculture and other federal agencies, the reclamation service
has also carried out water-conservation projects to rehabilitate farmers
and communities in the "dust-bowl" area of the Great Plains following
the devastating droughts of the thirties.
The land, the natural wealth locked within or found upon its surface,
and the promise of wealth which can be realized from the land, are
man's greatest material heritage. To conserve and protect
CONSERVA"
TIONACOOP- this heritage, to use it in harmony with Nature and her
ERATIVE laws, constitute a responsibility which each generation owes
EFFORT
to itself and to those who come after. But this responsibility
cannot be left entirely to the individual, for much of what is sought by
conservation cannot be readily translated into terms of individual
advantage — or, at any rate, cannot be translated into direct material
profit. In the case of forest restoration, for example, it takes many years
for the results to be realized and the profits to become available. Hence
conservation, if it is to be effective, must be to some extent a govern-
mental responsibility; and the national government has used its powers
over interstate commerce, over navigable waters, and over the publicly
owned domain, as well as its system of grants-in-aid to the states, in order
to carry out this responsibility.
All this is not to deny that cooperation from private owners should be
enlisted, and indeed such cooperation is essential to the success of any
conservation program. Federal conservation practices were originally
limited, for the most part, to the lands which the government owned;
today, the active help of farmers and other landowners, and of state and
local governments, is being vigorously sought; and, in this broadened
scope of federal activity, one finds the best hope that the natural resources
of the United States will be conserved for future generations.
REFERENCES
AGRICULTURE. One of the best recent surveys of the relation of government
and agriculture is Donald G. Blaisdell, Government and Agriculture; the Growth of
Federal Farm Aid (New York, 1940). Attention is also called to G. F. Warren and
F. A. Pearson, The Agricultural Situation (New York, 1924), J. E. Boyle, Farm
Relief (New York, 1928), J. D. Black, Agricultural Reform in the United States (New
AGRICULTURE AND CONSERVATION 473
York, 1929), E. R. A. Seligman, The Economics of Farm Relief (New York, 1929),
H. G. Wallace, America Must Choose (New York, 1934), and the same author's
New Frontiers (New York, 1934), E. G. Nourse, J. S. Davis, and J. D. Black,
Three Tears of the Agricultural Adjustment Administration (Washington, 1937),
W. Gee, The Social Economics of Agriculture (New York, 1932), and G. R. Ball,
Federal, State, and Local Administrative Relationships in Agriculture (2 vols., Berkeley,
1 938) . The important extension activities of the department of agriculture are
explained in C. B. Smith and M. C. Wilson, The Agricultural Extension System of
the United States (New York, 1930), and Gladys Baker, The County Agent (Chicago,
1939)-
More recent phases of agricultural policy, including the impact of war and
postwar policies are discussed in J. S. Davis, On Agricultural Policy (New York,
1939), H. R. Tolley, The Farmer Citizen at War (New York, 1943), Carey Me Wil-
liams, /// Fares the Land (Boston, 1942), as well as the same author's Factories in
the Fields (Boston, 1939), and in the chapter by J. D. Black on "Agricultural
Problems" in S. E. Harris, Postwar Economic Problems (New York, 1943), pp.
291-304. References to books on agricultural credit will be found at the end of
Chapter XXVI.
The organization and administrative work of the federal department of
agriculture are exhaustively covered in J M. Gaus and L. D. Wolcott, Public
Administration and the United States Department of Agriculture (Chicago, 1940).
CONSERVATION. Of considerable importance among the materials on this
subject is the National Resources Planning Board's National Resources Develop-
ment Report for 1943^ Part /, Postwar Plan and Program (Washington, 1943). And
from the numerous titles on the general subject, as well as on specific aspects of
conservation the following may be listed as useful to the student: J. E. Flynn
and F. E. Perkins, Conservation of the Nation's Resources (New York, 1941), C. R.
Van Hise and L. Havemeyer, Conservation of Natural Resources (New York, 1930),
E. G. Cheyney and T. Schantz-Hansen, This Is Our Land; the Story of Conservation
in the United States (St. Paul, 1940), O. E. Perkins and J. R. Whitaker, Our
National Resources and Their Conservation (New York, 1936), J. Cameron, The
Development of Governmental Forest Control in the United States (Baltimore, 1936),
J. Ise, United States Forest Policy (New Haven, 1920), and the same author's
United States Oil Policy (New Haven, 1928), Stuart Chase, Rich Land, Poor Land
(New York, 1936), D. Lampen, Economic and Social Aspects of Federal Reclamation
(Baltimore, 1930), A. D. Frank, The Development of the Federal Program of Flood
Control on the Mississippi River (New York, 1930), C. Herman Pritchett, The
Tennessee Valley Authority; a Study in Public Administration (Chapel Hill, N. C.,
1943), P. L. Kleinsorge, The Boulder Canyon Project; History and Economic Aspects
(Palo Alto, 1941), and M. A. Rolfe, Our National Parks (Chicago, 1937).
THE POSTAL AND MISCELLANEOUS
NATIONAL POWERS
Neither rain, nor snow, nor heat, nor gloom of night can stay these couriers from the
swift completion of their appointed rounds. — Herodotus.
Of the great powers exercised by Congress, the most important have
been discussed in the preceding chapters. But there are various other
functions which belong to the federal government, sec-
SECONDARY ondary functions they may be termed, although some of
FEDERAL them have grown to be of considerable significance.
FUNCTIONS. A , , • ± n LAL
Among these secondary powers given to Congress by the
THE POSTAL Constitution is the right "to establish post offices and post
SERVICE
roads." "No other constitutional grant," as^one writer has
remarked, "is clothed in words which so poorly express its object or so
feebly indicate the particular measures which may be adopted to carry
out its design." l The reason, no doubt, is that the framers of the Con-
stitution merely sought to perpetuate in central hands a power which
was already there and which, in its actual workings, was well understood
by everybody. For the postal system of the country is older than the
federal government itself. Its origins date back into colonial times.
During the Revolution the service continued to function; and, after
peace had been arranged, it was somewhat improved by the congress of
the confederation.2 This early service, however, was costly, inefficient,
and slow. In 1 776 it took twelve days and cost forty cents to send a letter
from Philadelphia to Boston by mail coach. In 1946 it costs only eight
cents and takes a few hours by airplane.
The right to continue the existing post offices and to establish new ones
was therefore given to the federal government as a matter of course. In
addition, Congress was authorized to build and maintain
Post roads so that the carrying of the mails might be facili-
tated. The new government took over a relatively small
1 J. N. Pomeroy, An Introduction to the Constitutional Law of the United States (loth edition,
Boston, 1888), Section 411.
2 Benjamin Franklin served for a time as postmaster general and did much to better the
service.
474
POSTAL AND MISCELLANEOUS POWERS 475
enterprise which has now become the largest single business in the world,
with an annual turnover exceeding a billion dollars. For the United
States postal service does not confine itself to the handling of mail, al-
though that continues to be its principal function. It also conducts a
parcel-post system, provides a money order service, and operates a savings
bank.
Apart from all this, the post office department exercises a considerable
degree of control over certain lines of business by virtue of its power to
refuse the use of the mails to any concern which has been
found to use the service fraudulently. Many years ago the
Supreme Court sustained the right of postal authorities to
exclude from the mails any matter that they deem objectionable —
the sending of lottery tickets, for example. Congress has delegated to the
postmaster general the power to determine what matter shall be so ex-
cluded, and the exercise of this delegated authority is not subject to
review by the courts save in certain instances. The denial of the right
to use the mails is not a deprivation of property, for no one can acquire a
right in postal facilities that would be paramount to the proper manage-
ment of the service.1
Through the exercise of its postal authority, moreover, the federal
government is able to facilitate the enforcement of the national laws.
For example, these laws provide that no newspaper or ANAGENCY
magazine shall be allowed the privilege of second-class OF REGULA-
mailing matter if it contains any paid political advertising TION>
which is not plainly marked as such. Congress could not require news-
papers of local circulation to refrain from publishing unlabeled political
advertising, but it can make such newspapers pay higher rates for the use
of the mails. Likewise, there is a requirement that newspapers and maga-
zines shall publish twice a year the names of their editors and owners.
Nothing happens to a newspaper which refuses or neglects to publish this
information, except that it loses the right to be "entered as second-class
matter." Newspapers and magazines of general circulation cannot
afford to lose this privilege.
This power to deny second-class mailing privileges, upon which
magazines and newspapers of regional or national circulation depend,
can also be used to exercise an indirect censorship of the
™ , • i i , -1- MIGHT REGU-
press. The power has, in fact, been invoked to deny mailing LATiON LEAD
privileges to certain magazines of national circulation on the T0 GENSOR-
ground that they carried immoral or obscene matter. Al-
1 For a survey of the postal authority in its legal phases, see Lindsay Rogers, The Postal
Power of Congress (Baltimore, 1916), especially Chap. vii.
476 THE GOVERNMENT OF THE UNITED STATES
though such action may be justified as a means of safeguarding public
morals, there is always a danger that the ban might be extended to deny
the mailing privilege, ostensibly for the protection of public morals, when
the real reason is a desire to throttle a publication which is too critical
of the governmental authorities. Any reader of various well-known
American magazines will agree that they occasionally overstep what
prudish folk regard as the limits of decency. On the other hand, it was
hardly the intent of Congress to invest the post office department with the
functions of a watch-and-ward organization.
Much controversy preceded the establishment of the parcel-post
system in 191 2. On the one hand, the national flow of trade was hampered
by the relatively high rates charged by express companies
on small shipments; hence, there developed a widespread
popular movement for a system whereby packages of moderate size
could be shipped by mail. On the other hand, there was vi, *ous opposi-
tion on the part of country storekeepers who feared that the mail-order
houses in the large cities would profit most from a parcel-post system.
In the end, Congress decided to authorize extension of the postal service
into this field and thereby give a greater stimulus to interstate retail trade.
About the same time (1910) the postal savings system was also estab-
lished. By this arrangement every important post office became a savings
bank. Deposits by any one individual up to a certain total
SAVINGS are Permitted and these draw interest at a designated rate.
The United States guarantees such deposits in full. Since its
establishment the system has grown year by year and it had a particularly
rapid growth during the months which preceded the banking collapse
of February, 1933. When people became nervous about the banks, they
transferred their savings to the post offices.
The beginnings of the American air-mail service go back only to 1918,
when a route between Washington and New York was established. In the
THE AIR- course of the next dozen years, however, nearly all the larger
MAIL cities were given the new facilities. At the outset the govern-
SERVICE. ment owned and operated this service directly, but with its
rapid expansion the policy of awarding contracts for carrying the mails
was adopted. Various companies were awarded these mail-carrying
contracts in the hope that commercial aviation would thereby be en-
couraged. In 1933, on the allegation that some of the payments were
exorbitant and had been obtained by reprehensible methods, all air-
mail contracts were suddenly canceled. For a short time the air-mail was
flown by army planes, but this proved unsatisfactory and new contracts
with companies, at lower rates, were subsequently arranged.
POSTAL AND MISCELLANEOUS POWERS 477
The power to establish and maintain "post roads" is an authority
which has thus far been drawn upon to only a small extent, yet it might
well be utilized to amplify considerably the functions of the
r i i . r™ • • i • ^ i HOW FAR
federal government. Ihe original intention was merely DOJsS 1HE
to vest in Congress the right to build and maintain road- POSTAL
ways if that should be necessary to expedite the carrying POWER p
of mail from one town to another. But mails are not now,
for the most part, carried by wagon or even by motor DOES rHE
trucks; they are handled by the railways and, to a growing «POSr
extent, by airplanes. To interpret the term "post roads" ROADS" IN-
as including railways and landing fields does not involve RAILROADS?
a greater stretching of a constitutional phrase than the
Supreme Court permitted when it included telegrams and telephone
messages within the word "commerce."
In his message vetoing the Cumberland Road Bill in 1822, President
Monroe asserted that Congress had no power under the Constitution to
embark upon the policy of highway construction by virtue
of its postal authority, but that the postal service must use SUPREME
the existing roads provided by the states. That doctrine, COURT'S
however, has long since been repudiated. The power of
Congress to construct roads within the limits of the states has been held
by the Supreme Court to be implied not only in the "post roads" clause
of the Constitution but also in the authority to regulate commerce.1
Congress, if it does not choose to build the roads as a national enterprise,
may grant subsidies to the states for roadbuilding and this it has done in
recent years. By the Federal Highway Act of 1916 and later enactments
it has agreed to join the states in building certain main highways on a
fifty-fifty basis.2
OTHER POWERS AND FUNCTIONS
The framers of the Constitution realized that to facilitate the develop-
ment of industry and trade throughout the various states it would be
necessary to have not only a uniform currency but a uni-
form system of weights and measures. The power to fix the RATION REGU"
standards for such a system was therefore given to Congress. OF WEIGHTS
Contrary to a popular impression, however, the federal
government does not concern itself with the enforcement of
its own standards or with the inspection of weights and measures through-
1 California v. Central Pacific R.R. Co., 127 U. S. i (1888).
2 For a discussion of this system of federal grants-in-aid towards roadbuilding see Austin
F. Macdonald, Federal Aid (New York, 1928).
478 THE GOVERNMENT OF THE UNITED STATES
out the country. Congress, by law, has established certain standards of
length, mass, and capacity, but it has left to the states the entire responsi-
bility for seeing that these standards are accurately and honestly used.
The national bureau of standards in Washington is the custodian of the
primary national standards, but it supplies the various states with
replicas of mathematical exactness. These standards relate not merely
to pounds, inches, gallons, and the other measures of ordinary business,
but to all sorts of technical units as well.1
The inspection of weights and measures, on a basis of their conformity
to these standards, is chiefly in the hands of the municipal authorities,
WHAT THE kut their work is usually performed under the supervision of
INSPECTION state officials. This work of inspection, moreover, is by no
COVERS. means confined to the weighing apparatus which reposes on
the counters of retail stores — as the average citizen seems to imagine.
It extends over a wide range, including milk jars, gasoline pumps, taxi-
cab meters, electric, gas, and water meters, jars and containers of a
hundred varieties, as well as every kind of weighing device from railroad
scales to the delicate balances which are used in the prescription depart-
ments of drug stores. The old English standards (pound, bushel, yard,
gallon, and their derivatives), somewhat modified, arc in general use
throughout the country, as everyone knows; but it is not so generally
known that the metric system was also legalized by Congress more than
fifty years ago and may be used by those who prefer to do so. Thus far,
however, its use has been confined to laboratories and other technical
establishments.
Congress is also given power to "promote the progress of science and
the useful arts, by securing for limited times to authors and inventors the
2 POWER exclusive right to their respective writings and discoveries,"
TO GRANT in other words, to grant patents and copyrights. A patent is
PATENTS. a certificate given to an inventor, securing for him during
a designated term of years the exclusive right to make such profits as
there may be in his invention of "any new and useful art, machine,
manufacture, or composition of matter, or any new and useful improve-
ment thereof." The issue of patents is in the jurisdiction of the patent
office, a bureau in the department of commerce. The rules relating to
them are elaborate and complicated.2 A patent is valid for seventeen
1 An interesting popular description ol what the national bureau of standards is doing may
be found in Frederic J. Haskin, The American Government Today (New York, 1935), pp. 164-174.
2 Here are a few general provisions: The applicant for a patent must make a sworn state-
ment that he believes himself to be the original inventor of the article or process which he
seeks to patent; he must submit descriptions and drawings, also a model if required; and must
pay a fee. Not everything new can be patented; it must be both "new and useful." It must be
POSTAL AND MISCELLANEOUS POWERS 479
years, during which time the holder can invoke action by the courts
against infringement. But the issue of a patent does not protect the owner
against suits on the ground that his patent infringes some earlier one.
Neither does the government assume any obligation to protect the
patents which it grants. The holder of a patent must do his own defend-
ing in the courts if he encounters an infringement. This sometimes leads
to an unequal contest between the inventor and some large corporation
which seeks to obtain, without paying for it, the article or process which
has been patented.
Trade-marks have no necessary relation to inventions or discoveries
and do not come within the power to issue patents or copyrights. But
trade-marks used in interstate commerce may be registered
at the patent office. When intended for use in trade within
a single state they can be protected only by state registra-
tion.1 It should be mentioned, moreover, that the granting of a patent or
trade-mark does not give anyone the right to manufacture or to sell his
wares except under such conditions as the laws of the state may impose.
Even patented articles, if dangerous to the safety, health, or morals of
the community, may be excluded by the laws of any state. The imposition
by the states of a license fee for the sale of any article, moreover, applies
as well to patented merchandise as to any other. The right to manu-
facture or sell is not derived from the granting of a patent or trade-mark
and is neither increased nor diminished thereby. Similarly, the fact that
an article is patented does not give anyone the right to market it under
conditions which unreasonably restrain trade and, hence, are in violation
of the anti-trust laws.
A copyright secures exclusive rights to publish and sell any book,
magazine, newspaper article, manuscript, musical composition, drawing,
map, cartoon, photograph, or similar matter having in- POWER
herent value. The present term of a copyright is twenty- TO ISSUE
eight years with the opportunity for a further renewal GOPYRIGHTS-
during a similar term. To obtain a copyright in the United States, a book
must be actually typeset in this country; but this does not apply to books
in languages other than English.2 Copyright includes all rights of trans-
lation, public performance, or dramatization, hence it carries the motion-
something "not patented or described in any printed publication in this or any foreign country
prior to the invention and not in public use or on sale in the United States for more than two
years prior to the application." When applications come in, they are referred to examiners
in the patent office, and if a patent is issued, another fee is exacted.
1 W. D. Shoemaker, Trade-Marks (2 vols., Washington, 1931) is the standard treatise on this
subject.
2 Application for copyright is made to the librarian of Congress The fee is only one dollar,
but two copies of the copyrighted publication must be given to the library.
480 THE GOVERNMENT OF THE UNITED STATES
picture rights to a book of fiction or other publication. Likewise it pro-
tects against the broadcasting of copyrighted music. Those whose copy-
rights are infringed have a recourse to the federal courts for an injunction
or for damages. Many attempts have been made to secure some form of
international copyright so that an author may have protection in all
countries, and considerable progress in this direction has been made by
means of treaties.
Congress has power to establish uniform rules upon two other subjects,
naturalization and bankruptcy. The procedure in naturalization has
5. POWERS been already explained.1 As regards bankruptcy, in other
IN GONNEC- words the making of provision for the distribution of a
NATURALIZA- debtor's assets among his creditors after he becomes in-
TION AND solvent, Congress has not assumed jurisdiction to the exclu-
BANKRUPTCY. gjon Qf ^ states. but where any state law conflicts with a
provision of the National Bankruptcy Act of 1898 as subsequently
amended, such state law becomes invalid. The present national law is so
elaborate, however, that little room is left for state legislation on this
subject. It provides for both voluntary and involuntary petitions in
bankruptcy. In the former case, the insolvent himself files a petition in a
federal district court and officials are appointed by the court (sometimes
on the recommendation of his creditors) to take over his assets; in the
case of involuntary bankruptcy the petition is filed by one or more of the
insolvent's creditors. After the assets have been liquidated, the insolvent
may, under certain conditions, obtain from the court a discharge from
bankruptcy, which relieves him of further legal liability with respect to
ordinary debts unpaid at the time of filing the petition. For the security
of credit it is obviously desirable that the rules relating to bankruptcy
should be uniform throughout the country.
An economic depression always increases the number of bankruptcies.
Business men, farmers, corporations, and even municipalities, find
themselves unable to meet their obligations on time and
LIBERALIZA- . .
TION OF THE have to seek some arrangement with their creditors. Failing
BANKRUPTCY this, they are forced into bankruptcy. Corporations, in such
RULES. „ . . . . . . , ,
cases, are usually placed in receivership, that is, they are
operated by a person or persons appointed by the court for that purpose.
In the endeavor to mitigate the financial hardships due to this situation,
Congress amended and extended the National Bankruptcy Act by a
series of measures between 1933 and 1940. This supplementary legislation
provided special relief for heavily indebted agriculturists and also to
railroads as a means of keeping them out of the hands of receivers.
1 See p. 84.
POSTAL AND MISCELLANEOUS POWERS 481
Similar relief was provided for municipalities and other local govern-
ment areas, including taxing districts. These concessions enable them
to readjust their outstanding obligations, with the approval of the court,
providing a certain proportion of the bondholders or other creditors
agree to the readjustment.
Likewise, the Frazier-Lemke Bankruptcy Amendment, passed by
Congress in 1934, provided that any farmer who petitioned to be
adjudged bankrupt might retain his property, even though
he could not satisfy the claims of his creditors against it.
Instead, he would be allowed by the court to pay, during a
period of six years, a reasonable rental based upon the appraised value
of the property, this rental to go to his creditors after payment of taxes.
The Supreme Court in 1935 declared this arrangement to be unconsti-
tutional as a deprivation of property without due process of law, where-
upon Congress in the same year passed a farm moratorium law designed
to meet these judicial objections, and the new law was subsequently
upheld by the courts.1
"To define and punish piracies and felonies committed on the high
seas, and offenses against the law of nations" is another power granted to
Congress. The hi^h seas are the waters outside the three- -
. °. . , , it,- 6 POWERS IN
mile limit, or, to speak more accurately, beyond the distance REI ATION TO
of one marine league from shore. International law recog- THE HIGH
nizes that the territorial jurisdiction of any country extends
to this distance from its shores, but beyond the three-mile limit, the salt
waters of the earth are the "high seas," in which all nations have equal
rights and over which all are free to travel in time of peace without
restriction. By treaty, however, nations may agree on a widening of the
three-mile limit for certain purposes, for example, in the case of vessels
suspected of smuggling or rum-running. The United States, during the
prohibition era, made a treaty with Great Britain, by the terms of which
British vessels could be halted and searched if within one hour's steaming
distance of the American coast. Over American vessels on the high seas
the federal government has sole jurisdiction.
Piracy is now, for the most part, a thing of the past. It was the offense
of committing forcible depredations on the high seas without color of
authority derived from any government — the equivalent PIRACY AND
of brigandage on land. Regarded as the common enemy of UNNEUTRAL
all mankind, a pirate could lawfully be captured by anyone ACrs>
on the high seas and punished in any country. That is still the rule of
international law, although pirates no longer show their grim visages
1 Wright v. Vinton Branch Mountain Trust Bank, 300 U. S. 440 (1937).
482 THE GOVERNMENT OF THE UNITED STATES
except in melodrama. Offenses against the "law of nations5' or against
the rules of international law are nowadays, for the most part, breaches
of neutrality. Congress has defined the duties of American citizens when
other countries are at war and forbids the commission of unneutral acts
on American territory, as, for example, organizing armed expeditions or
fitting out armed vessels in aid of a belligerent power. Such "offenses
against the law of nations" are punished by the federal courts. The rules
of international law are not always exact and definite, although most of
them are sufficiently so to permit their being properly applied. But inter-
national law, unlike the law of a single country, has no single tribunal
with authority to enforce it.1 The federal courts of the United States
apply the rules of international law only where the controversy comes
within American jurisdiction.
The question of a national capital gave the makers of the Constitution
some trouble. The prize was coveted by various cities, both North and
South, and the members of the constitutional convention
RiRKDicTTOiT °^ n°t dare make a decision. To avoid an embarrassing
OVER THE difficulty, therefore, the whole matter of selecting a capital
CAPITAL L was left for Congress to decide after the Constitution should
go into operation. It was felt that an entirely i\ew city should
be founded to serve as the seat of national government, and with that
idea in mind provision was made for creating a small district completely
under national control. Congress, in establishing the District of Co-
lumbia, availed itself of this power "to exercise exclusive legislation in
all cases whatsoever, over such district (not exceeding ten miles square)
as may, by cession of particular states and the acceptance of Congress,
become the seat of government of the United States." The jurisdiction
of Congress over this area is complete.2 The District of Columbia has no
system of local self-government, and Washington is the only large mu-
nicipality in the country of which that can be said.
EXPANDING FEDERAL AUTHORITY
Reviewing the various constitutional powers of Congress which have
been outlined in the foregoing chapters of this book, one may ask the
question: are these powers adequate for what the country
ARE THE ^ , r i i i -* T •
POWERS OF expects the federal government to do? In a strict sense they
CONGRESS are not kut as a matter of governmental actuality they are
ADEQUATE? . „ . . _ . °~ r ' '
rapidly becoming sufficient. Step by step, one after another,
1 There is a World Court, or Court of International Justice, established under the auspices
of the United Nations, but it has jurisdiction over only such international controversies as are
submitted to it.
2 For a description of the government of the national capital, see Chapter XXXIII.
POSTAL AND MISCELLANEOUS POWERS 483
new powers have been assumed by the federal authorities and their action
has usually (although not always) been upheld by the courts. As a result
of this expansion the people of the United States have been brought far
more intimately into contact with the federal government than the
framers of the Constitution could ever have imagined. This is particularly
true of economic activities. The small endowment of economic authority
which the statesmen of 1787 gave to Congress has enabled it, with th^
lapse of time, to exercise a vast amount of control over the interests 01
agriculture, trade, communication, banking, credit, and business organi-
zation throughout the length and breadth of the land.
In early days the work of the national government was chiefly centered
in Washington. Apart from postmasters and collectors of customs there
were very few federal officers and employees located any- THE ARMY
where else. Even in peace time one now finds them in large OF NATIONAL
battalions all over the country. There are forest rangers, OFFICERS-
agricultural agents, bank examiners, railway mail clerks, immigration
inspectors, collectors of internal revenue, income tax examiners, ap-
praisers, public works engineers, and officials of endless other varieties,
whose total number runs into the hundreds of thousands. They are the
incarnation of a government whose functions are growing like dandelions
in springtime. Nor is there any likelihood that this expansive process
is nearing its end. On the contrary, the national government has dis-
covered, and is now utilizing, a new channel for widening the scope of
its activities.
This is the system of federal grants-in-aid to the states. It is not really
a new device, because Congress has used it in sporadic instances for
nearly a hundred years. But since the turn of the twentieth
century the practice of making grants-in-aid has been con- AID: A NEW
siderably extended. In brief, it is a scheme by which the DEVIGE FOR
/ rr 11 i 11 PROMOTING
national government oners to match the states, dollar for CONGRES-
dollar, or on some such basis, in promoting enterprises SIGNAL
which are properly within state jurisdiction but need to be
speeded up. Thus the Weeks Act of 191 1 undertook to expedite the work
of forest-fire prevention by this method of federal subsidizing. Three
years later the Smith-Lever Act made a fifty-fifty provision for instruc-
tion and demonstrations in agriculture and home economics. The
Federal Highway Act of 1916 extended the plan to rural roadbuilding,
and a year later the Smith-Hughes Act appropriated federal funds for
the promotion of vocational education on the same terms. Other meas-
ures of similar type have followed in rapid succession, especially during
the years of economic emergency. Finally, the whole scheme of unem-
4S4 THE GOVERNMENT OF THE UNITED STATES
ployment insurance and old-age annuities, which was established by
Congress in 1 935, rests on the principle of giving federal aid to the states
for social welfare purposes.
The argument for federal grants-in-aid is that the nation should be
regarded as a unit, not merely as a group of states. There is a national
MERITS OF interest in some matters which are legally within state
THIS jurisdiction — such as roads, education, public health, the
PRACTICE. relief of distress, unemployment insurance, and old-age
pensions. The federal government should, therefore, assume a construc-
tive leadership in such matters and induce all the states to do their full
duty. And this, of course, can best be accomplished by giving them
financial assistance. Likewise, it is recognized that there are various
things which the states must be persuaded to do in unison if they are to
be done at all. If only a few states established compulsory unemployment
insurance, for example, they would be penalizing themselves through a
higher cost of producing goods in competition with the remaining states.
Where Congress, therefore, does not have the power to compel united
action on the part of the states, it is attempting to persuade them by
means of federal subsidies.
But there are some dangers in this policy. Federal subsidies, in the long
run, must assuredly involve some degree of federal supervision and con-
trol, for the authorities who contribute the money are in
duty bound to see that it is properly spent. The continued
extension of the grant-in-aid policy is bound, therefore, to
whittle away some of the independence of action which the states have
hitherto enjoyed within their own constitutional sphere of activity.
While a considerable expansion of federal aid has doubtless been justified
by the necessity of dealing with great and difficult problems on a national
scale, no American citizen should blink the fact that this enlarged par-
ticipation by the federal authorities in the work of the states is insidiously
reducing the latter to a secondary place in the frame of government.
This may or may not be desirable — but we should at least know what
we are doing while we are doing it. The division of the country into
forty-eight states is not a mere geographical accident. It is not the product
of some chance historical happenings. On the contrary, it is the exempli
fication of a sound political theory: namely, that in a country so vast and
varied as the United States, there must be a balanced distribution of
governmental functions, otherwise the whole edifice of administration
will eventually be weakened by its sheer top-heaviness and lack of
resiliency. North Dakota and Mississippi, Rhode Island and California
are under the same flag, but does this m^an that they should be forced to
POSTAL AND MISCELLANEOUS POWERS 485
have their widely varying problems handled in precisely the same way?
The theory of federal centralization assumes a uniformity of American
life which does not in fact exist. America's strength as a nation arises
from diversity as well as from unity. E pluribus unum — but we are in
some danger of forgetting the pluribus. Any centralized pressure that tends
to force all the forty-eight commonwealths into a common mould is
bound to impair their virility; and, in the long run, what weakens the
states will weaken the nation.
A final question suggests itself: are there some fields of jurisdiction
which ought to be transferred to the federal government by constitutional
amendment, so that the general welfare will no longer have
to be pursued in roundabout ways, through subsidies and QIJERY^N
otherwise? Doubtless there are. There are many who believe CONGRES-
that Conerress ouerht to have jurisdiction over all commerce, SIONAL
O O J ) POWFRS.
whether within the individual states or among them. The
open-and-shut differentiation between interstate and intrastate commerce
is no longer a practicable one. On the other hand, the transfer to the
federal government of authority over all commerce (including local
industries, shops, and stores) would involve a gigantic centralization of
functions in Washington. Congress, it has also been suggested, should
have the power to make uniform rules concerning the chartering of
business corporations. Unquestionably it should have the right to make
uniform rules as to the granting of divorces in the United States, thus
placing a curb upon what has become, in some states, a social scandal,
it should have power to impose duties on exports. Some educators believe
that Congress should have the right to prescribe a minimum of public
education throughout the United States. Other reformers have proposed
to federalize the care of the public health, the making of labor laws, and
the protection of all national resources. If we were making a general
revision of the federal Constitution today, it is altogether probable that
some of these additional powers would be given to the national govern-
ment.
REFERENCES
THE POSTAL SERVICE. Lindsay Rogers, The Postal Power of Congress (Baltimore
1916), D. G. Roper, The United States Post Office (New York, 1917), Clyde
Kelly, United States Postal Policy (New York, 1931), P. T. David, The Economics
of Air Mail Transportation (Washington, 1934), and E. W. Kemmerer, Postal
Savings (new edition, Princeton, 1926).
WEIGHTS AND MEASURES. Ralph W. Smith, Weights and Measures Administra-
tion (Washington, 1927), and American Institute of Weights and Measures,
Our American System of Weights and Measures (New York, 1925),
486 THE GOVERNMENT OF THE UNITED STATES
PATENTS AND COPYRIGHTS. G. A. Weber, "The Patent Office," Service Mono-
graph No. 31 (Baltimore, 1924), John A. Dienner, The United States Patent System
(Cleveland, 1940), J. N. Claybrook, Patents (Charlottesville, Va., 1927), F. L.
Vaughan, Economics of Our Patent System (New York, 1925), Milton Wright,
Inventions and Patents (New York, 1927), E. L. Graham and F. W. Harris, Patents.
Tiade-Marks and Copyrights (New York, 1921), W. B. Bennett, The American
Patent System (Baton Rouge, 1943), and Richard Spencer, The United States
Patent Law System (Chicago, 1931). A textbook compilation of the patent
decisions of the United States Supreme Court may be found in Beirne Sted-
man, Patents (Charlottesville, Va., 1939).
BANKRUPTCY. F. R. Noel, A History of the Bankruptcy Clause in the Constitution
of the United States (Gettysburg, Pa., 1918), Charles Warren, Bankruptcy in the
United States (Cambridge, Mass., 1935), and W. M. Collier, Collier on Bank-
ruptcy (edited by F. B. Gilbert, I4th edition, 2 vols., Albany, 1927).
THE EXPANSION OF FEDERAL POWERS. Austin F. MacDonald, Federal Aid
(New York, 1928), Walter Thompson, Federal Centralization (New York, 1923),
H. L. West, Federal Power, Its Growth and Necessity (New York, 1918), C. H.
Wooddy, Growth of the Federal Government, 1915-1932 (New York, 1933), Charles
Warren, Congress as Santa Claus (Charlottesville, Va., 1932), C. W. Pierson,
Our Changing Constitution (New York, 1922), Lindsay Rogers, Crisis Government
(New York, 1934), Herbert C. Hoover, The Challenge to Liberty (New York, 1934),
W. B. Munro, The Makers oj the Unwritten Constitution (New York, 1930), G. S. C.
Benson, The New Centralization; a Study of Intergovernmental Relationships in the
United States (New York, 1941), W. Y. Elliott, The Need for Constitutional Reform
(New York, 1935), V. O. Key, Jr., The Administration of Federal Grants to the
States (Chicago, 1937), and J. P. Clark, The Rise of a New Federalism (New York,
1938).
References on the government of the District of Columbia may be found at
the close of Chapter XXXIII.
CHAPTER XXX
THE NATIONAL DEFENSE
Security against foreign danger is one of the primitive objects of civil society. It is an
avowed and essential object of the American Union. The power requisite for attaining it
must be effectually confided to the federal councils. — James Madison.
Anyone who glances through the records of the convention which
framed the federal Constitution will be amazed at the amount of dis-
cussion that was devoted there to the subject of war,
i ,. , i . r . . r , A LIVE SUB-
mcluding declarations of war, appropriations for the army JECT AT THE
and navy, the control of the state militia, and the machinery GREAT GON-
for bringing wars to a close. In the end, no fewer than nine
specific grants of war power were given to Congress: namely, the power
to declare war, to grant letters of marque and reprisal, to raise and sup-
port armies, to make rules concerning captures on land and water, to
provide and maintain a navy, to make rules for the government of the
land and naval forces, to provide for calling forth the militia to execute
the laws of the nation, to provide for organizing, arming, and disciplining
the militia, and to exercise exclusive legislation over places acquired for
forts, magazines, arsenals, dockyards, and other needful buildings.
Among the eighteen clauses of the Constitution which enumerate the
powers of Congress, therefore, a very substantial proportion deal with
the various branches of military and naval authority. This indicates, as
James Madison declared, that security against foreign danger was re-
garded in 1787 as an uavowed and essential object" of the Union. And
well it might be, for the experience of the states during the Revolutionary
War had shown the dangers which resulted from the inability of the
states to mobilize their full military strength. On more than one occasion
the cause of independence seemed likely to be lost through the lack of a
strong central authority. The makers of the Constitution were deter-
mined that, whatever else might happen, the new national government
would find itself plentifully endowed with power to defend the country
against outside foes and to suppress disorder within. So they gave Con-
gress a number of far-reaching war powers.
487
488 THE GOVERNMENT OF THE UNITED STATES
POWERS RELATING TO THE CONDUCT OF WAR
According to the Constitution, Congress alone can declare war. But a
formal declaration is not essential to the outbreak of hostilities. Such
declarations are customary, but no rule of international
POWER TO law requires them. Declarations of war are not issued for the
DECLARE benefit of the adversary but for the information of neutrals,
WAR
so that they may observe the rules of neutrality and keep
out of the way. Not infrequently a declaration of war is issued after the
hostilities have actually begun, as, for example, after the attack on Pearl
Harbor in 1941. When Congress does act, however, a declaration of war
is usually embodied in a joint resolution which is then passed in both
Houses and signed by the President. This resolution recites the reasons
for the resort to arms and ends by declaring that a state of war exists.
Congress has never yet declared war except on the recommendation
of the President, but it undoubtedly has power to take such action on
its own initiative and even to pass a declaration of war
THE PRESI~
DENT'S RELA- over the President's veto. On the other hand, while a formal
TIONTOSUCH declaration of war requires action by Congress, the Prcsi-
AGTION. . . . . r . . . . .r r
dent does not need to wait for such a declaration it a foreign
power declares war upon the United States or commits an act of aggres-
sion. As commander in chief of the army and navy, moreover, he could
deploy the armed forces of the United States in such a way as to make
war inevitable. He could order the navy to seize the ships of another
country or to bombard its ports. He could send an army across an inter-
national boundary without any specific authority from Congress, as
President Wilson did in the case of Mexico. Prior to America's formal
entry into the Second World War, the President ordered the navy to
escort convoys of merchant ships to the British Isles and to protect such
convoys against hostile acts by the Axis powers. In executing these orders,
actual engagements were fought between American destroyers and
German submarines. Thus, while the power to declare war is vested in
Congress, the power to commit acts of war without a formal declaration
rests in certain cases with the President.
Letters of marque and reprisal are now things of the past. A century
ago it was the custom of governments to grant such letters to private
2. THE ships, authorizing them to prey upon enemy commerce.
POWER TO Such vessels were known as privateers and they played a
LETTERS OF lively part in the Civil War. This was especially true of
MARQUE AND various Southern privateers which wrought havoc upon
REPRISAL. Northern shipping. By the Declaration of Paris (1856) the
THE NATIONAL DEIENSE 489
various European countries agreed to abolish privateering, and, although
the United States government has never formally adhered to this decla-
ration, it has now accepted it in practice. No letters of marque were
granted during the Spanish-American War or the two World Wars.
During a war the merchant ships of an enemy country are subject to
capture. Such vessels are then brought into one of the captor's ports and
a "prize court" determines what shall be done with them.
iv T i 11-1-1 i - 3 PRIZES
Neutral vessels which assist the enemy by carrying contra- AND CAP.
band of war, such as arms or munitions, are also liable to TURES IN
capture. The United States has traditionally urged "the
freedom of the seas," that is, the right of neutral ships to trade with
belligerents without risk of capture and condemnation, but this right is
not yet recognized by international law. During the thirties, Congress
passed legislation which, among other things, provided that the belliger-
ents in any war must pay cash for munitions purchased in this country
and arrange for their transportation to the theatre of war in other than
American vessels.
This legislation constituted a tacit surrender of the traditional Amer-
ican position on the "freedom of the seas" for neutrals in wartime and
was enacted to ensure that the United States would be
. .... . . NEUTRAIITY
able to maintain neutrality in the event of a war abroad. LEGISLATION
But the neutrality statute proved unpopular when war AND LEND-
broke out in Europe since it prevented the giving of aid to
those nations which were fighting the Axis coalition; and even before
the United States entered the war in 1941, the Neutrality Act was cir-
cumvented by the adoption of a "Icnd-lease" arrangement under which
the United States provided ships, munitions, and supplies on credit to
Great Britain, Russia, and other Axis opponents, even supplying convoy
protection for the transportation of these munitions and supplies to the
war theatres. Then, when America formally entered the war, the pro-
visions of the Neutrality Act no longer applied.
THE ARMED FORCES
Even prior to the outbreak of the Second World War there had been a
movement to introduce greater unity into the administration of the
nation's armed forces. This movement bore fruit in 1947 THE
when Congress passed the National Security Act. Under its NATIONAL
, . r 1-11 SECURITY
terms, a separate national air force, to rank with the army (ARMED
and navy, is brought into being and all three services, to be FORCES UNIFI-
designated henceforth as part of the national military estab- CATION' ACT-
lishment of the United States, are brought under the general direction of
490 THE GOVERNMENT OF THE UNITED STATES
a single department of defense. In addition, several new agencies, in-
cluding a national security council and a war council, have been set up
to aid in formulating the nation's security policy. The unification thus
achieved is chiefly administrative in nature and is intended to bring
about greater co-ordination in planning the nation's defense, to prevent
overlapping and duplication in the procurement of supplies and in other
"housekeeping" activities of the armed forces, and to establish a single
defense budget. The army, navy, and newly established air force are not
"merged"; they continue as separate services. For administrative pur-
poses, moreover, each of them has its own executive department within
the larger department of defense; and the heads of these three depart-
ments exercise such supervisory powers as the new legislation has not
specifically confided to their common superior, the secretary of defense.
In legislating for the army, the oldest of the three services, Congress
is limited by the constitutional provision that no appropriation shall be
made for a longer term than two years. In all other respects,
ARMY whether as to the size of the army, the method of recruiting
it, or the measures to sustain it, Congress has full power.
Before 1940, the nation's principal military force was the "regular
army" of about 150,000 men. This could be augmented in time of emer-
gency or war by the somewhat larger national guard or organized
militia of the states. In addition there were the officers' reserve corps,
the organized reserves, and the enlisted reserve corps. All these various
units were recruited by voluntary enlistment.
In 1940, following the outbreak of the Second World War, Congress,
for the second time in the present century, passed a Selective Service
WARTIME anc* Training Act to conscript male citizens for the armed
SELECTIVE forces. The act of 1 940, as amended after America's entry into
SERVICE. tjie war^ Operateci much as had the earlier act of 1917. A
general registration of all males between the ages of eighteen and sixty-
five was ordered. In the roster thus compiled, those between eighteen
and forty-five were subsequently declared eligible for military duty and
were classified into various categories. Those of the first class (i A), em-
bracing all physically qualified males without dependents and not en-
gaged in essential industry, were made liable to immediate induction,
while the other classes were granted deferments. As the war progressed,
most physically fit males between the ages of eighteen and thirty-eight,
including many with dependents, were either called into service or en-
listed before being called. Assigned at first exclusively to the army or
its air forces, the inducted men were also (after December, 1942) turned
over to the navy, the marine corps, and the coast guard.
THE NATIONAL DEFENSE 491
Administration of the selective service system was entrusted to a
director at Washington, assisted by a state director at each state capital.
In every community were located one or more local boards How IT WAS
made up of three persons appointed by the President on the ADMINIS-
recommendation of the governors in the states. These local TERED-
boards determined, in the first instance, whether a registrant should be
made available for immediate induction or placed in one of the deferred
categories. Registrants were given a right to appeal from these local
boards to district boards and, in certain instances, to a national board
in Washington.
As a result of the selective service system, the strength of the public
forces was stepped up, month after month, until more than eleven
million men had been placed in the various services, of THE ARMY
whom more than eight million were in the army. A special IN WARTIME
army corps of women, popularly known as the WAG, with AND AFTER-
an authorized strength of 150,000, was recruited by voluntary enlistment
to perform various clerical and other auxiliary duties. Thus was evolved
by far the largest army which the United States has ever raised and
equipped. With the end of hostilities wartime selective service expired
and the number of men in the armed forces soon fell below a million.
For a brief period reliance was again placed upon voluntary enlistment
to fill the ranks of the army and other services. But the inadequacy of
this policy in maintaining military strength at a level deemed necessary
in a world where international tension continued to mount soon became
apparent. Hence during the summer of 1948 Congress was prevailed
upon to re-establish a temporary peacetime draft for young men in the
age bracket 19 through 25 to supplement voluntary enlistments.
The principal army officer within the department of the army is the
chief of staff. He advises the secretary of the army and, through him,
the secretary of defense on all technical matters. Through THF ARMY>S
the chief of staff, moreover, the President, as commander PROFESSIONAL
in chief, exercises supervisory powers in so far as they may LEADERSHIP-
relate to the operations of the army as a fighting machine. The chief of
staff also heads the army department's general staff which is composed
of a variable number of leading army officers representing all branches
of the service. The general staff has five divisions, namely, personnel,
military intelligence, organization and training, supply, and operations.
Finally the chief of staff of the army, together with comparable officers
of the other two armed forces, that is, the chief of staff of the air
force and the chief of naval operations, make up what is known as
the joint chiefs of staff within the national military establishment.
492 THE GOVERNMENT OF THE UNITED STATES
This group constitutes the principal professional body charged with
planning the nation's overall defense strategy and the co-ordination of
the activities of the three services in time of war.
Whatever the size and character of the future peacetime army, the
state militia or national guard will undoubtedly find a place in it.
When the Constitution was adopted it was assumed that
2. THE MILI- . * 111111
TIA OR NA- a militia rather than a standing army would be the back-
TIONAL bone of national defense. The state militia was accordingly
GUARD. , i i r i i
kept in existence and the ledcral government given power
to use it in an emergency. The Constitution provides, however, that the
militia or national guard can be called into the federal service for three
purposes only — to execute federal laws, suppress insurrection or repel
invasion. These purposes do not include use of the militia on foreign
soil. But Congress has found a way of circumventing this limitation, and
of making the militia available for foreign service by the simple device of
"federalizing" it when need arises. This was done by the Army Organiza-
tion Act of June 4, 1920, in which Congress empowered the President to
draft into the military service of the United States any or all members
of the national guard whenever the use of the armed forces in excess of
the regular army is authorized. Such action does not pierely call the
national guard units into the service of the United States, but transforms
the individual members of the state militia into federal troops who can
be sent anywhere. Such federal ization of the national guard took place
on the approach of the Second World War.
During periods when the state militia is not in the service of the United
States, there is a division of control. Congress has power to regulate the
STATE AND "organizing, arming, and disciplining" of the militia; but
FEDERAL "the appointment of officers and the authority of training
TH^MiLinA t'lc militia according to the discipline prescribed by Con-
IN PEACE- gress" are matters which the Constitution expressly reserves
TIME' to the states. The reason for this divided control, which does
not make for efficiency, is to be found in the public sentiment of the
country when the Constitution was framed. The states were then very
jealous of their military privileges and would not have tolerated the
complete supremacy of the new national government over all the armed
forces of the country. On the other hand, it was obvious that, if each
state was left entirely to itself in the matter of organizing, arming, and
drilling its militia, the country would never be able, in time of emergency,
to call forth a homogeneous army. Accordingly, the national govern-
ment was given authority to secure essential uniformity in the militia
systems, while the states themselves were allowed to keep the reins
THE NATIONAL DEFENSE 493
of direct control, including the appointment of all militia officers.
The nucleus of the newly established United States air force is the
army air forces which enjoyed so phenomenal a growth and played such
an important offensive role during the Second World War.
As early as 1 942 the army air forces had been given a semi-
autonomous status within the army proper with their own
commanding general. Hence the air arm's new status as a separate
national defense service, equal in rank with the army and navy, is a
logical development of the position it acquired during the war and a
merited recognition of its wartime performance. Under the terms of the
National Security Act the powers of the former commanding general
of the army air forces and of the heads of certain other army air force
units are transferred to the chief of staff of the air force who will exer-
cise his authority under the direction of the secretary of the department
of the air force. Some time may elapse before air force personnel and
activities are completely removed from army control. Moreover it is
possible that the air force will continue to rely upon the army for cer-
tain miscellaneous services. But the principal steps in separating army
and air force and in setting up the latter as an independent unit have
already been taken. Hence, in the future, association of the air arm with
the army or with the navy in strategic or tactical operations and in
other matters will not result from any organic connection with these
services but will depend upon the supervisory authority of the secretary
of defense and of other co-ordinating agencies within the national military
establishment. It should be noted that the new air force does not include
naval aviation which continues under the navy department.
The two-year limit on appropriations for the army does not apply to
Congress' power to maintain a navy. This public force consists of battle-
ships, cruisers, destroyers, airplane carriers and aircraft,
submarines, escort vessels, torpedo boats and landing craft,
together with auxiliary vessels, such as transports, supply
and repair ships, navy yards, hospitals, naval bases, airports, and the
entire personnel connected with all of these. The naval authority of
Congress includes the right to make rules for the general administration
of the navy in all its branches, whether afloat or ashore. The President
enjoys the same titular status as commander in chief of the navy as he
does in the case of the other public forces.
The marine corps has always been within the general jurisdiction of
the navy department but enjoys a special status with its own com-
mandant, who is charged with responsibility for the procurement, train-
ing, discipline, and distribution of the officers and enlisted personnel of
494 THE GOVERNMENT OF THE UNITED STATES
the corps. It is, as everyone knows, an amphibious force, established by
act of Congress in 1 798, which has since written many a glorious page
in American history. In time of war. moreover, the United
THE MARINE _, / „ . . . . .. . f .
CORPS AND States coast guard, normally under the jurisdiction oi the
THE COAST treasury department, becomes an integral part of the naval
establishment, its personnel and equipment being used in
naval operations. Like the army and the navy, both the marine corps
and the coast guard enrolled large contingents of women who per-
formed during the war various clerical and other duties, thus relieving
enlisted men for combat service.1
By the Washington Naval Limitation Agreement of 1921-1922, the
United States secured naval parity with Great Britain, which until that
time had ranked as the world's leading maritime power.
NAVAL The agreement also limited Japan, France, and Italy to a
DEVELOP- fixed percentage of the strength of the American or British
MENT. . ^ . r . . , . r^. .
navy in certain types oi capital ships. Ihis agreement
expired in 1936 by reason of Japan's unwillingness to continue it, and
unrestricted naval construction again became the rule. American naval
expansion was not greatly accelerated, however, until the outbreak of
the European war in 1939. Then the nation, confronted with the possi-
bility of a simultaneous struggle on two oceans, began the upbuilding
of what has turned out to be the most powerful naval force in history.
Today the United States has gained an acknowledged primacy both in
naval tonnage and in fire power. The nation now possesses a navy of such
proportions that it includes not one but several fleets. Expansion has
taken place in all types of craft, from the battleship down to the lowly,
but highly important, landing ship. The most significant growth,
however, has been in the number of airplane carriers and in the great
flocks of naval aircraft which they shelter. When Japan surrendered the
United States navy was said to have had more than fourteen thousand
vessels of all kinds, with a gross tonnage of almost five million and more
than twenty thousand planes to protect this giant flotilla. Postwar plans,
already in effect, call for the retention of a sizable percentage of this
total tonnage.
During the war with the Axis powers, moreover, the United States
obtained possession of numerous new bases which can be used by naval
NEW NAVAL vessels and aircraft. Best known among these acquisitions
BASES. are the bases located in Newfoundland, Bermuda, and the
1 In the navy they were popularly known as the WAVES (Women Accepted for Volunteer
Emergency Service) and in the coast guard as S P A R S (from the coast guard motto "Semper
Faratus" — Always Ready). The Marine Corps Women's Reserve did not get a nickname.
THE NATIONAL DEFENSE 495
Caribbean, which were acquired under a long lease from Great Britain
in 1940 as a trade for fifty over-age American destroyers. Naval in-
stallations have also been developed in the far Pacific — on the insular
territories of the United States or in areas conquered, or reconquered,
from Japan. Bases of great strength have been constructed at Guam,
Saipan, and at other spots thousands of miles from America's west
coast. The westward outpost of American naval power, which before
the war was at Pearl Harbor, is likely to be located in future years much
nearer the Orient.
To supply facilities for the armed forces, the national government
has acquired land within the United States on which to locate its navy
yards, forts, arsenals, landing fields, training centers,
hospitals, and other necessary installations. Over such CONTROL
property the Constitution provides that Congress may OVKR
"exercise exclusive legislation"; in other words, Congress AND NAVAL
alone has power to make laws relating to such areas. The INSTALLA-
establishments of the armed forces of the United States are
not subject to taxation by the states in which they happen to be located,
nor may the states apply to them any restrictions inconsistent with a
proper fulfillment of the purposes for which they are constructed. To all
intents they are federal territory within the state boundaries. On the
other hand, the Constitution stipulates that no property may be acquired
by the national government in any state for military or naval purposes
without the consent of the state legislature. This consent, however, the
states have usually been willing to give.
The makers of the Constitution could not have anticipated in 1 787
what is nowadays designated as "total war"; but they were foresighted
enough to endow the national government with ample SCOPE OF THE
authority to wage any kind of warfare. The power to "raise POWER TO
and support armies" and "to provide and maintain a navy" MAINTAIN N°
gives to Congress an almost unlimited authority over every- ARMED
thing that is needed to effect a total mobilization of the FORCES-
nation's strength in wartime. When the armed forces are being trained
for combat or are engaged in operations against a foreign enemy, every
branch of agriculture, industry, or commerce, even the home life and
habits of the people, may be regulated and placed under any necessary
restraint in order to facilitate the "support" of such forces. It was by
virtue of the authority to raise and support armies that Congress, in
1917, empowered the President to establish food and fuel administrations
for the control of those essential commodities. The taking-over of the
railroads, the telegraph and the telephone lines during the First World
496 THE GOVERNMENT OF THE UNITED STATES
War likewise came within the scope of these war powers. During the
Second World War this same authority became the basis of the wartime
legislation under which the President, by executive order, set up various
administrative agencies to fix prices, establish military priorities on much
of the nation's production, ration civilian goods and services, "freeze"
workers in their jobs, and do whatever else was needed to supply the
armed forces with the sinews of war.
When war comes, it overshadows all else. So long as the nation is at
war, there appears to be very little, if anything, in the way of construc-
VAST SCOPE tion, conservation, or regulation, that Congress cannot
OF THE WAR control. The last ounce of national energy may be needed to
POWER. support the armed forces; if so, Congress may call for it.
Business may be regulated, taxes multiplied, wealth may be conscripted
as well as men, and freedom of speech restrained. This is as it should be.
Modern wars are not fought by armies but by nations. People ought to
understand that such wars are bound to entail extreme civilian hardships
and sacrifices. One need only look at the fate of Poland and Greece
during the years 1939-1945, for example, to see what vae victis means.
THE TREATMENT OF THE VETERAN
War always creates an artificial prosperity because of the demand
which it makes for all kinds of goods and services, particularly those
directly related to the actual conduct of the war. This, in
turn, stimulates employment to a high level. During the
First World War some of the profits made by various forms
of industry were so excessive, despite the imposition of an excess profits
tax, as to occasion considerable criticism. Wages likewise rose to high
levels during the years 1917-1919. Heeding the lesson of those years, the
national government, during the Second World War, attempted to hold
business profits to a reasonable rate, not only by levying a stiff excess
profits tax but by limiting war contractors to a fixed and reasonable
return above the cost of goods or services supplied. Attempts were also
made to fix wage levels and to permit increases only when it was statis-
tically demonstrated that there had been a rise in the cost of living.
Nevertheless, despite these controls, many classes of the civilian popula-
tion experienced an unwonted prosperity, the enjoyment of which wa?
not seriously dimmed by the widespread rationing of commodities, by
increased taxes on personal incomes, or by the government's endeavor to
drain off surplus cash by the high-pressure selling of war stamps and war
bonds.
THE NATIONAL DEFENSE 497
In this surge of civilian prosperity the men who were called into the
armed services had no share. Their pay did not rise with the cost of living.
During the First World War the initial pay of a drafted THE ATTI_
man was thirty dollars a month together with subsistence. TUDE OF THE
During the Second World War it was fifty dollars per SERVICEMAN.
month, with subsistence and with stated monthly allowances for de-
pendents. At these rates the disparity between the earnings of drafted
men and deferred civilian workers was very great. The returned soldier
in 1919-1920 found that, while he was serving in France for thirty
dollars a month, most of his friends had been getting thirty dollars a week.
Resenting this disparity, the veterans of World War I secured the en-
actment of a law for ''adjusted compensation." This stipulated that all
ex-servicemen (irrespective of disability) should receive non-interest-
bearing certificates entitling them, or their heirs, to cash payments in
1945, the amount in each case depending upon length of service. In
1931, Congress made a further concession by providing that holders of
these certificates might borrow up to half their face value. This, however,
did not satisfy the veterans' organizations which presently returned
with a demand that the certificates be redeemed at once and in full.
Their pressure at Washington achieved its objective and, in 1936,
Congress gave way by providing that the adjusted compensation certif-
icates might be at once converted into government bonds which in turn
could readily be sold for cash.
There can be little doubt that claims for adjusted compensation will
similarly be made during the years which follow the close of the Second
World War. Congress, however, has already made certain
provisions which are intended to satisfy some of the veterans'
legitimate claims. Most noteworthy among these are the VETERANS OF
arrangements set up in the Servicemen's Readjustment Act WORLD
of 1944, popularly known as the "G I bill of rights." Besides
increasing hospitalization and other facilities for the care of THE G i
BILL OF
RIGHTS.
PROVISION
FOR
veterans, this act makes provision for finding them jobs, and BILL OF
if suitable jobs arc not found it grants them unemployment
compensation at a weekly rate for as long as a year. Likewise, it offers a
government guarantee, to any bank loan, up to a stipulated amount,
which any honorably discharged serviceman may secure for the building
of a home or the purchase of a business. Finally, it provides arrangements
whereby ex-servicemen may go to school or college at government ex-
pense for a designated term. Generous provisions have also been made
by Congress for the care of disabled veterans, as well as for pensions for
498 THE GOVERNMENT OF THE UNITED STATES
veterans' survivors.1 Taken together, these measures represent a degree of
consideration for the welfare of servicemen not manifested after any pre-
vious conflict in which the United States has been engaged. Whether
they will greatly mitigate the pressure for large cash payments in the way
of a bonus is at least doubtful. The cost of a war continues even after the
last man who fought in it has had "taps" sounded over his grave. For the
young widow of an £ged veteran asks for, and usually gets, a prolonga-
tion of the nation's generosity. It is only a few years since Uncle Sam paid
the last pension arising out of the War of 1812. Today, eighty years after
Lee's surrender, the government is still paying pensions, thousands of
them, chargeable to the Civil War. One may safely predict, therefore,
that no one now living will ever see the cost of the Second World War
finally liquidated.
TYPES OF MILITARY JURISDICTION
Along with its numerous other powers over the public forces of the
nation, Congress has been vested with authority to make rules for their
government. Rules governing the land forces are contained
m the Articles of War which, for the time being at least,
will probably continue to apply to air force personnel. The
navy is governed by a general code of regulations. These* codes of rules
make up a branch of jurisprudence commonly known as military law.
Its enforcement is confided to courts-martial.
Military law applies only to persons who are in the armed services
and should be clearly distinguished from martial law, which is a term
used to designate the government of any region or dis-
tr*ct *n which the ordinary civil administration is super-
seded temporarily by the military authorities. When martial
law is proclaimed, the ordinary laws and courts are no longer paramount;
the military authorities prescribe the rules and administer them for the
time being. Martial law applies to the civilian inhabitants of the area in
which it is proclaimed. It may, but does not necessarily, include within
its scope the members of the armed forces.
Martial law may be proclaimed at any time by Congress, or by
the President, if such action is urgently required before Congress itself
WHAT MAR- can authorize it. But martial law is never put into force
TIAL LAW except in case of invasion, grave internal disorder, civil or
MEANS. foreign war, and then only in districts where the ordinary
1 In both World Wars provision was made for a plan of war risk insurance by which all
servicemen might acquire a policy of life insurance, not exceeding $10,000, at very low rates.
In both wars, moreover, arrangements were made for the vocational training of partially
disabled veterans as well as for monthly allowances to the totally disabled.
THE NATIONAL DEFENSE 499
law is unable to secure the public safety. There are no prescribed rules
of martial law. The orders of the officer commanding the military forces,
when duly promulgated, are to be obeyed and their violations may be
summarily punished by the military authorities. In other words, martial
law is not a statutory code but is made up of the day-to-day regulations
which are rendered necessary by the exigencies of military control.
Special military tribunals, which should be distinguished from courts-
martial, are established to administer martial law if necessary; but oc-
casionally the existing courts are retained. Martial law was administered
on an extensive scale over large sections of territory during the Civil War.
While the establishment of martial law in any area deprives the
inhabitants of their ordinary civil law and civil courts, it does not of
itself withdraw from them the constitutional rights of TT1LfTTATTrkXIC
*-' JL1M1 1 A 1 lUINa
citizens.1 Military, as well as civil, officials are bound by ON MARTIAL
the Constitution, and the substitution of martial law for LAW'
ordinary law does not change the relation between the individual and
his government so far as his constitutional guarantees are concerned.
The privilege of the writ of habeas corpus is not suspended by the mere
proclamation of martial law. As indicated in a subsequent chapter,2 the
privilege of the writ enables anyone held in custody to obtain a speedy
hearing before a regular court; its suspension means that a prisoner may
be held indefinitely without a hearing. The Constitution declares that
the privilege of the writ may not be suspended except when, in case of
rebellion or invasion, the public safety demands it; and although it is not
clear whether the President or Congress may suspend it, there is no doubt
that it cannot be suspended unless one or the other of these authorities
issues a proclamation or other process specifically authorizing such
action. The suspension does not occur as an incident of the proclamation
of martial law. During the Civil War, when the privilege of the writ
was suspended in certain localities by President Lincoln, the President's
action was subsequently validated by an act of Congress.
When territory is conquered and held by an invading force, it is
usually given, for the time being, a military government. This, again,
should be distinguished from the administration of martial
law, for while the establishment of military government GOTORNMENT
involves the superseding of the old sovereignty, it does not
usually abrogate the existing legal system. The President, as commander
in chief, has full power to set up this form of government in occupied
territory. A military government, for example, was established by the
1 On this general subject see Charles Fairman, The Law of Martial Rule (and edition,
Chicago, 1943). * Chapter XXXIV.
500 THE GOVERNMENT OF THE UNITED STATES
United States in Puerto Rico after its conquest from Spain in 1898, and
remained in charge of the island until 1 900, when Congress made pro-
vision for a civil administration. Meanwhile, martial law was not pro-
claimed, nor was the old Spanish jurisprudence at once abrogated.
A military government was also set up by the United States in the zone
occupied by the American troops on the Rhine during the year following
the armistice of 1918. Here also the local authorities were left in charge of
routine civil functions, subject to supervision by the American military
command. An even more extensive experience with this form of govern-
ment was acquired during the Second World War in enemy territory
conquered and occupied by troops of the United Nations. The United
States trained a special body of cc civilian affairs officers" of the army who,
in conjunction with similar officers from the British and other armies of
the United Nations, set up what was known as the Allied Military Gov-
ernment in Italy and Germany. Civil affairs officers were also trained by
the navy for the military government of conquered Japanese territory in
the Pacific.
Military law, martial law, and military government, accordingly,
are three quite different things, although they are often confused. The
first, which is effective during peace as well as during war, includes within
its jurisdiction only members of the land, naval, and air forces. The sec-
ond replaces the ordinary civil law, either in peace or war, whenever the
regular administration proves inadequate to maintain the public safety.
It applies to all the inhabitants of the area in which it is proclaimed. The
third, military government, is a form of rule temporarily set up in con-
quered or occupied territory.
CIVIL LIBERTIES IN WARTIME
Inter arma silent leges. It is an ancient maxim that under stress of armed
conflict the laws and the rights of the citizens give way. In the United
WAR AND THE States this maxim does not apply; the constitutional rights
BILL OF of the citizen remain intact and the ordinary laws of the
RIGHTS. land continue to operate in wartime. Nevertheless it is true
that a state of war requires unusual vigilance on the part of the govern-
ment and this may lead it to lay various restrictions upon individual
freedom which would not be imposed in time of peace. During the First
World War, for example, Congress passed the Espionage
AGE AND ( i 9 i ?) and the Sedition (1918) Acts, which provided
SEDITION penalties for making or circulating false statements with
intent to injure the United States, or for using "disloyal,
profane, scurrilous or abusive language" about the form of government,
THE NATIONAL DEFENSE 501
the Constitution, the flag, or the armed forces. Although this legislation
was regarded as an unwarranted interference with freedom of speech in
some quarters,1 it was subsequently upheld by the courts.2
Just prior to America's involvement in the Second World War, this
earlier legislation was supplemented by other acts to provide for the
more effective security of the United States. These included
. . r . . • t i SECURITY
an act requiring foreign agents to register with the state MEASURES
department, an act for registering aliens, and the Voorhis IN WORLD
Act to control subversive organizations. But probably the
most far-reaching and, in a constitutional sense, the most debatable of
all security measures ever taken by the government of the United States
occurred in the months immediately following the attack on Pearl
Harbor when all Japanese aliens and American citizens of Japanese
ancestry were removed from many west coast areas to camps and settle-
ments which the government had provided further inland. The move,
ordered by the President and carried out by the army, was defended as a
protective measure necessary to the security of the United States in the
war which it was waging with Japan.
Everybody agrees that people ought to have reasonable liberty to
express their own thoughts in their own way and to be protected in their
elementary liberties even in wartime. On the other hand, DIFFICULTY
it is just as fully agreed that the government has a duty to OF RLCON-
protect itself, and that such duty becomes particularly
CURITY
urgent in wartime. At such a time it is necessary for the LIBERTY IN
public authorities to be particularly vigilant in combating WARTIME-
treason and other activities which arc deliberately calculated to impede
the military effort or otherwise aid the enemy. In fulfilling this duty, even
a democratic government, which is accountable to the people and the
law, and which is presumed to be especially considerate of civil liberties,
may be guilty of an excess of zeal and take protective measures not clearly
required for the public safety. Moreover, war inflames popular passions
and may impel a government, most of all a popular government, to do
unwise things. An excited nation, like an excited man, is entitled to some
allowance for the stress of circumstances. We ought not to judge the
liberties of the citizens by what happens during a war.
REFERENCES
THE ARMY. Major-Gcncral Emory Upton, The Military Policy of the United
States (Washington, 1917) is the best known general account of army develop-
ment down to the outbreak of .the First World War. On later developments
1 Zechariah Chafcc, Jr., Freedom of Speech (New York, 1920).
2Schencki'. United States, 249 U.S. 47 (191 9) and Debs v. United States, 2490.8.211 (1919).
502 THE GOVERNMENT OF THE UNITED STATES
there are several useful books, including W. A. Ganoe, History of the United States
Army (New York, 1924), W. G. H. Carter, The American Army (Indianapolis,
1915), John Dickinson, The Building of an Army (New York, 1922), Shipley
Thomas, History of the A. E. F. (New York, 1920), Marshall Andrews, Our New
Army (Boston, 1942), O. L. Spaulding, The United States Army in War and Peace
(New York, 1937), and Harvey S. Ford, 77?^ American Army (London, 1942).
THE NAVY. E. S. Maclay, History of the United States Navy from 7775 to 1902
(3 vols., New York, 1901-1902) is a standard treatise. Naval history since 1902
is outlined in G. R. Clark and others, A Short History of the United States Navy
(revised edition, New York, 1927), D. W. Knox, A History of the United States
Navy (New York, 1936), Charles A. Beard, The Navy: Defense or Portent? (New
York, 1932), George Young, The Freedom of the Seas (London, 1928), Frank Knox,
The United States Navy in National Defense (Washington, 1941), Bernard Brodie,
Sea Power in the Machine Age (Princeton, 1941), Fletcher Pratt, Sea Power and
Today's War (New York, 1939), and the same author's Short History of the Army
and Navy (Washington, 1944), Harold and Margaret Sprout, The Rise of American
Naval Power, Ijj6-icji8 (Princeton, 1939), and the same authors' Toward a New
Order of Sea Power (Princeton, 1940), and G. T. Davis, A Navy Second to None
(New York, 1940) On naval strategy every student should have at least a pass-
ing acquaintance with the classic studies of Rear-Admiral A. T. Mahan, U.S N.,
especially his Influence of Sea Power upon History, 1660—1783 (i7th edition, Boston,
1890). Bernard Brodie, A Layman's Guide to Naval Strategy (Princeton 1942) is a
useful textbook.
MILITARY POLICIES OF THE UNITED STATES AND THEIR IMPI ICATIONS. James T.
Shotwell, War as an Instrument of National Policy (New York, 1929), G. F. Eliot,
The Ramparts We Watch (New Yoik, 1938), Hanson W. Baldwin, United We Stand;
Defense of the Western Hemisphere (New York, 1941), N. J. Spykman, America's
Strategy in World Politics (New York, 1942), S. B. McKinley, Democracy and
Military Power (revised edition, New York, 1941), E. M. Earle and others,
The Makers of Modern Strategy (Princeton, 1943), W. D Puleston, Armed Forces
in the Pacific (New Haven, 1941), and O. G. Villard, Our Military Chaos (New
York, 1939)
The impact of war upon industry and the national economy is treated in
E Pendleton Herring, The Impact of War (New York, 1941), W. D Boutwell
and others, America Prepares for Tomorrow (New York, 1941), Seymour Harris,
Economics of American Defense (New York, 1941), Bernard M. Baruch, American
Industry at War (New Y6rk, 1941), II. W. Spiegel, The Economics of Total War
(New York, 1942), and E. Stein and others, Our War Economy (New York, 1943).
MISCELLANEOUS. G. Glenn, The Army and the Law (New York, 1918), A. A.
Schiller, Military Law and Defense Legislation (St. Paul, 1942), William Whiting,
War Powers under the Constitution of the United States (Boston, 1871), Howard White,
Executive Influence in Determining Military Policy in the United States (Urbana, 1925),
Charles Fairman, The Law of Martial Rule (2nd edition, Chicago, 1943), Na-
tional Industrial Conference Board, The World War Veterans and the National
Treasury (New York, 1933), E. C. Buehler, Compulsory Military Service (New York,
1941), Carl B. Swisher, "Civil Liberties in Wartime," Political Science Quarterly,
LV, pp. 321-347 (September, 1940), and Zechariah Chafee, Jr., Free Speech
in the United States (Cambridge, Mass., 1941).
CHAPTER XXXI
AMERICAN FOREIGN RELATIONS
This mighty and free Republic should ever deal with all other States, great or small,
on a basis of high honor, respecting their rights as jealously as it safeguards its own.
— Theodore Roosevelt.
The great, and potentially greater, importance of America's foreign
relations was well understood by those who established the Union. One
of the first acts of the Continental Congress, following the THp ATTJ_
adoption of the Declaration of Independence, was to enter TUDE OF THE
into an alliance with France for mutual assistance, the only FOUNDERS-
full-fledged formal alliance which the United States has ever concluded
with a foreign power. The naval and other assistance, given by France
under the terms of this alliance, contributed materially to the success of
the Revolutionary cause. Those who drafted the Constitution, moreover,
were mindful of the fact that the very act of setting up a "more perfect
union" would enhance American diplomatic prestige and gain for the
newly united nation a greater respect among the chancellories of the
world; and the provisions which they placed in this document for the
effective conduct of foreign relations occasioned no serious disagreement
among the deleg£ites to the great convention. Nor is it without sig-
nificance in this connection that the very first administrative department
to be created by Congress, after the inauguration of the new government,
was that of foreign affairs (later changed to the department of state),
followed almost immediately by the creation of the department of war.
THE CONDUCT OF FOREIGN RELATIONS
Experience in dealing with foreign powers during the Revolutionary
War and in the years immediately following it convinced the makers of
the Constitution that America should be able to speak to
foreign nations with a single voice. Hence they gave that
responsibility to the federal government and made certain OVER
that no individual state of the Union would be able to exert
}nv sort of veto on the foreign policy of the nation or render
503
504 THE GOVERNMENT OF THE UNITED STATES
the conduct of foreign relations unduly difficult. To this end they ex-
pressly forbade a state without congressional consent to enter into any
treaty or alliance, to impose duties, to "keep troops or ships of war in
time of peace," or to engage in war except when actually invaded or
seriously threatened with invasion. They stipulated, moreover, that the
subject matter of such treaties as the United States might make with
foreign states should not be limited by the reserved powers of the states.
This they did by expressly providing that "all treaties made, or which
shall be made, under the authority of the United States" should rank
with the Constitution itself as the supreme law of the land, with primacy
over "anything in the constitution or laws of any state." L
* But the treaty-making power thus given to the national government
is, of course, not vested in any one branch of it. The President has the
sole initiative in this field. No treaty starts on its way without
POSITION his approval of it. The Senate takes the next step. Its
OF THE influence over treaty-making, because of the constitutional
PRESIDENT. . i i i • i . r
requirement that every treaty be submitted to it ior con-
currence by a two-thirds majority, has already been commented upon.2
Congress as a whole, moreover, because of its power to legislate upon the
international aspects of commerce and other subjects, and especially
because of its control of the purse strings, exerts a powerful check upon
the commitments which the government may make to other nations. In
general, nevertheless, those who speak for the United States in its rela-
tions with other countries and who guide its foreign policies are the
President and his advisers, most important among the latter being the
secretary of state.
Anyone who studies the history of American foreign relations during
the past hundred and fifty years will be convinced that the chief executive
has been able to put the stamp of his leadership on the great majority of
the nation's actions in this field. It is true, of course, that on some notable
occasions the Senate has rebuffed this leadership, and has rejected a
treaty submitted to it by the President — an outstanding example being
its refusal to ratify the covenant of the League of Nations after the
First World War.3 But these occasional setbacks should not be permitted
to obscure the fact that the conduct of foreign relations has been, as it
was intended to be, a presidential and not a congressional function.
The principal reason for this primacy of the President in foreign affairs
1 Art. VI, Section 2.
* See pp. 290-293.
1 Earlier examples were the Senate's refusal to follow President Pierce's leadership in his
desire to acquire Cuba, or Grant's in the attempt to annex Santo Domingo, or Cleveland 4
in the case of Hawaii.
AMERICAN FOREIGN RELATIONS 505
is his control over the channels of diplomacy. The Constitution provides
that he shall appoint ambassadors and other members of
., r . i i i i 11 • i _i- i • REASONS FOR
the foreign service and that he shall receive the diplomatic PRESIDENTIAL
representatives of foreign nations. As Alexander Hamilton SUPREMACY
pointed out long ago, this inevitably makes the President ^^QN
the official spokesman for the United States in all diplo- FIELD:
matic matters. Communications with foreign powers must
. * I. CONTROL
go through him or through channels which he controls; OF THE
and only through these same channels can foreign nations CHANNELS OF
^ - 11 • • i i XT • i o TT , DIPLOMACY.
officially communicate with the united States. Hence, the
President can, and often has, used this control over the channels of
diplomatic intercourse to deny recognition to a foreign government. All
that is necessary in such cases is a refusal to receive its diplomatic repre-
sentative and at the same time refrain from sending an American diplo-
matic representative to its capital.
Someone may raise the point that the President's control over the
channels of international intercourse is limited by the fact that when he
appoints ambeissadors or other diplomatic officials, such N0 REAL
appointments must be approved by a majority vote of the LIMITATIONS
Senate before they become effective. But there are two ON IT*
reasons why this senatorial limitation does not, in actuality, amount to
very much. In the first place, the Senate very rarely, almost never in
fact, refuses to confirm anyone nominated by the President for a diplo-
matic post. In the second place, the President, in carrying on diplomatic
negotiations, is not limited to the regular officials who have been ap-
proved by the Senate. He can send as his representatives to foreign
governments any number of personal emissaries or agents who have no
official diplomatic status at all and, hence, do not need senatorial con-
firmation. But, being the President's personal representatives bearing
credentials from him, they are informally received by the foreign govern-
ments to which they are sent, and often carry on negotiations of high
importance. During recent years an increasing use has been made of these
personal emissaries because of a feeling that they can accomplish more,
in some cases, by informal contact than would be possible through the
rather highly formalized procedure of the regular diplomatic channels.
Another source of the President's great and growing influence in the
foreign affairs of the nation can be found in his authority to negotiate
executive agreements. Although a regular treaty always
r , ., .,. i • -11 i • i -ii2- POWER TO
laces the possibility that it will be rejected or mutilated NEGOTIATE
by the Senate, there is no such danger in the case of what is EXECUTIVE
. ,, . ,, TATI • i i-rr AGREEMENTS.
known as an executive agreement. What is the difference
506 THE GOVERNMENT OF THE UNITED STATES
between the two? No hard and fast line of demarcation can be drawn.'
But, in general (although not always), an executive agreement deals
with matters which are not regarded as of sufficient importance to war-
rant their incorporation in a formal treaty — for example, the settlement
of monetary damages claimed by American citizens from foreign
governments. Nevertheless, these agreements do sometimes deal with
matters of prime importance and occasionally have been used to circum-
vent the necessity of obtaining the Senate's approval. In 1905, as an
illustration, President Theodore Roosevelt submitted to the Senate a
treaty with Santo Domingo which guaranteed the territorial integrity
of that Caribbean republic and provided for the approximate equivalent
of an American protectorate. The Senate refused its assent, whereupon
the President managed to gain his ends, for a time at least, through an
executive agreement.
The power to make executive agreements may arise out of some specific
constitutional prerogative of the President, such as his command of the
armed forces; or it may result from some general authority conferred by
Congress, as in the case of the reciprocal trade agreements. In cither
case, an executive agreement between the United States and another
country requires for its validity no approval at the hands of either the
Senate or the House. Its content is at the discretion of the President,
provided, of course, that the agreement contains nothing contrary to
the Constitution or laws of the United States. When a treaty and a federal
law conflict, the one which is later in point of time prevails, for both are
on the same level. Does an executive agreement have the same status?
There seems to be some reason for believing that it does, although the
Supreme Court has not yet declared itself definitely on this point.2
The increasing frequency with which executive agreements are being
used in place of treaties is significant. It indicates the steadily growing
intimacy of contact between the United States and other countries. This
international intercourse has become so continuous, and covers so many
matters, that the slow and cumbrous procedure involved in the ratifica-
tion of formal treaties is regarded in many quarters as a hindrance to the
efficient conduct of foreign relations. Other countries have a simpler and
more expeditious procedure. But the increasing use of executive agree-
1 Wallace M. McClurc, International Executive Agreements: Democratic Procedure under the
Constitution of the United States (New York, 1941)
2 The issue is rather too complicated for discussion here. Those who desire to explore it may
be referred to E. S. Corwm, The Constitution and World Organization (Princeton, 1944), pp. 42^.
and his discussion of the Supreme Court's decision in United States v. Belmont, 301 U. S.
324 (1937). The decision in this case held that an executive agreement, properly made, took
primacy over a conflicting state law, but the Court was not called upon to pass on the question
whether an executive agreement, like a treaty, is on a parity with a federal law.
AMERICAN FOREIGN RELATIONS 507
merits is also, no doubt, an indication of the impatience with which the
administrative authorities look upon the Senate's part in treaty making.
It is part of the desire for greater freedom from legislative restraint
which the executive branch of the government has been apparently
displaying in recent year's.
A third reason for the President's influence in the field of international
relations may be found in his direct control of the military, naval, and
air forces. As commander in chief of these forces, he can,
r j- r u • u 3 HIS CON-
even in time of peace, dispose ol them in such a way as to IROL OF THE
give maximum support to policies which he favors. He may
even order these forces to invade foreign territory, as Presi-
dent Wilson did in Mexico (1913), as a means of protecting American
public or private rights. It is quite conceivable that he might go so far
in this way as to make war with a foreign state virtually inevitable. The
only checks on his discretion are public opinion and such isolated legal
obstacles as Congress may impose.
Does the American scheme of government, with its separation of
powers, place the United States at a great disadvantage in dealing with
such countries as Great Britain and Russia, which allow A DIPL0.
their chief executives a much freer hand in making inter- MATIG
national commitments? There can be no doubt that, in some HANDICAP-
contingencies, the American handicap is considerable. There arc diplo-
matic situations which will not wait for their solution until the Senate
car debate and vote upon it. Yet, under the present constitutional ar-
rangements, there is 110 way in which Senate action can be avoided if the
solution involves a treaty. On the other hand, it has been demonstrated
on more than one occasion that if the President keeps in close touch with
the leaders of the Senate during the diplomatic negotiations and gains
their tacit approval step by step, he can be reasonably certain that when
his treaty is concluded it will not be nullified by the Senate's refusal to go
along with him.1
AMERICAN FOREIGN POLICY — THE EARLIEST PHASE
The United States, like other members of the family of nations, is
subject to the rules of international law. The term "international law'5 is
somewhat misleading because it is not law in the usual
sense, that is, it does not have a definite source or a definite
sanction. It is merely a body of rules and practices which BOUND BY
nations are accustomed to follow in their dealings with one 1NTERNA~
& TIONAL LAW.
another. For the most part, it is made up of usages and
1 A striking illustration was afforded in the case of the United Nations charter during 1945
508 THE GOVERNMENT OF THE UNITED STATES
precedents, some of them very old. Since there is no supernational
authority to enforce international law, its observance depends upon the
willingness of states to be bound by it. Some of its rules, however, are
enforced (when the occasion arises) by the regular courts of individual
countries, and in the Constitution of the United States the federal courts
are given power to deal with "offenses against the law of nations."
But the rules of international law are applicable to only a small part
of what is included within the totality of international intercourse. The
errcater part is not a matter of law but of policy. Every
THE DEFER- ° . i- T i
MINANTS OF country is assumed to have a foreign policy. In the case ot
IOREIGN the United States, foreign policies may be implicit in
»»OI TQY
various actions taken by the government towards other
nations or they may be formally expressed in the President's messages
to Congress, or in his public addresses, or in congressional resolutions,
treaties, or even in informal communications to other governments. In
general, American foreign policies, like those of all sovereign states, have
been determined by the facts of geography, by considerations of national
interest, and to a considerable extent by certain deep-rooted ideals and
traditions.
Isolated by geographical location and relatively self-sufficient, the
American people have shown, on the whole, less interest in foreign
policy and in the conduct of foreign relations than have the
STAGESRI°US people of European nations. Nevertheless, such matters
have been of major concern to almost every presidential
administration since Washington's day and have exerted a pro-
found influence upon the nation's growth. This was particularly true
of the three decades after the adoption of the Constitution, when no
administration dared, for long, to give less concern to foreign than to
domestic affairs. The dominant policy of that period was one of neutrality
and noninvolvement in European affairs. This policy, however, did not
altogether succeed in isolating America from the military struggles of the
great European powers. In i 798, the United States became embroiled in
an undeclared naval war with France. IP 1812, after fruitless efforts to
keep out of the Napoleonic wars by means of embargoes and non-
intercourse acts, the nation was drawn into a war with Great Britain. On
the other hand, it was by taking advantage of Europe's vicissitudes that
the United States secured the imperial domains of Louisiana from
France in 1803 an<^ acquired Florida from Spain in 1819.
AMERICAN FOREIGN RELATIONS 509
HEMISPHERIC SECURITY THE MONROE DOCTRINE
After the formative years of the republic, interest in foreign affairs,
though by no means negligible, declined considerably. For nearly three
quarters of a century after 1825 public interest was cen- ORIGIN OF
tered mostly upon internal politics and economic develop- THE MONROE
ment. Throughout this period, however, there was one DOGTRINE-
principle of foreign policy to which the United States adhered consist-
ently. This was the principle of hemispheric security incorporated in the
Monroe Doctrine. Largely the work of John Quincy Adams, this doctrine
was enunciated by President James Monroe in a message to Congress
(1823) at a time when it appeared that the so-termed Holy Alliance,
made up of certain European monarchies, might intervene to force the
newly independent republics of Latin America back under the suzerainty
of Spain. The gist of the doctrine was that while the United States
intended to respect existing possessions of European powers in the Western
Hemisphere, any attempt on their part to extend their political systems
in the New World would be considered dangerous to the peace and safety
of the United States and a "manifestation of an unfriendly disposition"
towards this country.
Had it not been for the sympathetic support of Great Britain, the
United States might not have been successful in compelling observance
of this doctrine when it was first announced. But having ITS APPLI_
once enunciated it, the government of the United States CATION DUR-
has never hesitated to apply the doctrine on its own re- ^IN/FFENTH
sponsibility and has been uniformly successful in securing CENTURY
the compliance of non-American powers with its main AND LATER-
provisions. In 1867, for example, the doctrine was invoked to back up a
demand that the French troops who were supporting the imperial regime
of Maximilian in Mexico be withdrawn. In 1895, President Cleveland
made it the basis of n demand that Great Britain arbitrate with Vene-
zuela a question which had arisen concerning the boundary between that
country and British Guiana. It was during this controversy that Richard
Olney, secretary of state in President Cleveland's cabinet, made the
frank avowal that the United States had become "practically sovereign"
in the Western Hemisphere. Still another manifestation of what the Mon-
roe Doctrine implies occurred in 1913 when a resolution adopted by the
United States Senate warned Japan not to carry out a rumored scheme to
colonize a strip of Mexican territory around Magdalena Bay in Lower
California. Noteworthy is the fact that in 1919, at the insistence of the
510 THE GOVERNMENT OF THE UNITED STATES
United States, the doctrine was given recognition as a "regional under-
standing" in the covenant of the League of Nations.
The self-imposed responsibilities of the United States under the
Monroe Doctrine underwent some enlargement in the early years of the
twentieth century, because it became obvious that European
VELT COROL- countries could not logically be denied the right to intervene
LARY" OF on behalf of their own nationals in certain Caribbean areas,
unless some assurance could be given that the United States
would attempt to see justice done without such European
intervention. It was argued, and with some force, that the Monroe
Doctrine was not designed to let Latin-American states repudiate their
debts or wrongfully confiscate foreign property at will. A case in point
arose during 1 904 when certain European countries, whose citizens had
loaned money to Santo Domingo, threatened to seize its seaports and
assume control over Dominican customs as a means of obtaining the
interest which had been promised by Santo Domingo on these loans.
President Theodore Roosevelt took measures to forestall such seizure
by dispatching naval forces to the island republic and making an ex-
ecutive agreement with the Dominican authorities, which provided for
American supervision of the local customs and the allocation of part of
the proceeds to the European creditors. This pattern, established as a
Roosevelt corollary to the Monroe Doctrine, was later extended in the
Caribbean area. During the next quarter of a century, United States
marines were placed on temporary duty in Haiti and Nicaragua, and
for a time it seemed as though the United States was gradually assuming
the joint role of an international policeman and bailiff in these southern
areas.
"Needless to say, this self-imposed role was not highly popular in the
republics of Latin America, which were inclined to regard it as a step
towards making the United States "practically sovereign,"
in fact as wel1 as in theory* throughout the Western World, j
TIONS TO Nor, on the other hand, was tHe practice of sending armed
forces into Latin-American countries popular with the
people of the United States. There was a fear that such
action might lead to permanent intervention.
Oh both sides of the Rio Grande, therefore, there was some feeling of
relief when President F. D. Roosevelt announced, during his first ad-
ministration, a definite change of policy. American marines
ADVENT OF . . ° r 7
THE "GOOD stationed in certain Caribbean outposts were withdrawn
NEIGHBOR" and assurance given that the United States would hereafter
POLICY. r • r i • ... - • A
retrain trom armed intervention in time of peace. As an
AMERICAN FOREIGN RELATIONS 511
earnest of the changed orientation, the Platt amendment, which had been
added to the Cuban constitution of 1901 at American insistence, was
repealed. This amendment gave the United States a right to intervene
in the internal affairs of Cuba whenever the Washington authorities
deemed such intervention necessary for the maintenance of " independ-
ence, order and republican government," as well as to see that Cuba
discharged her obligations to other nations. In keeping with this new
spirit, an announcement was made that hereafter the United States
would consult with other American republics in determining what steps
might be taken jointly to maintain order in any of them. This "good
neighbor" policy has been implemented by various Pan- American
conferences during the past dozen years, the latest being held at Mexico
City in 1945. Among other agreements made at this conference, which
was attended by representatives of the United States and all the Latin-
American countries except Argentina,1 it was agreed that the territorial
integrity of all the southern republics should be jointly guaranteed for the
duration of the war, with the hope that a similar and permanent guaran-
tee might be established thereafter.
AMERICA AS A WORLD POWER
Most Americans, during the nineteenth century, did not realize how
inexorably their country was rising to the rank of a great world power.
But, as this century drew to its close, this realization began
i j A • r • v j REBIRTH OF
to spread; and American foreign policy commenced to INTEREST
move beyond the confines of hemispheric insularity. In this IN WORLD
i i r T- • • i« ^u ^ AFFAIRS.
heyday of European imperialism, the great powers across
the Atlantic were carving colonial dominions out of Africa and delineat-
ing spheres of influence in Asia. Leaders of American opinion were not
uninfluenced by this scramble for raw materials and markets, which
was inspired by a belief that "trade follows the flag." They pointed out
that the old American frontier had vanished and that the nation had now
become a producer of agricultural products and manufactured goods
beyond the needs of its own people. Hence, there was a growing need for
outlets for export. America, they argued, had come of age and should
take her place among the world powers.
\ So things began to move in that direction. As early as 1889, the United
States, in somewhat casual fashion, assumed its first extra-hemispheric
1 Argentina subsequently accepted the agreement, commonly known as the Act of Chapul-
tepcc, and was invited to the United Nations Conference on International Organization at
San Francisco.
512 THE GOVERNMENT OF THE UNITED STATES
territorial responsibility by agreeing to share with Germany and Great
Britain in a tri-power protectorate over the Samoan archipelago in the
Pacific. A few years later this ripened into the extension of
o^E^TRA-8 American sovereignty over a part of these islands. In 1894,
HEMISPHERIC the leaders of a revolutionary government in Hawaii asked
TERRITORIAL £Qr annexation of these islands to the United States. Although
INTERESTS. °
this request was at first declined, it received favorable con-
sideration by Congress four years later, and Hawaii became a part of the
United States.
' But the event which marked America's definite entry into the arena of
world politics was the Spanish- American War. By the treaty which closed
this short conflict, the United States was left in possession
BECOMES A °f Puerto Rico, Guam, and the Philippines. The decision
WORLD to hold the Philippines as an insular possession carried the
responsibilities of the United States all the way across the
Pacific. A few years later, President Theodore Roosevelt demonstrated
his country's new interest in trans-Pacific affairs by becoming instru-
mental in bringing about the Peace of Portsmouth which closed the
war between Japan and Russia in 1905. Even more significant was his
sending of an American representative to a conference at Algeciras,
which was called in 1906 to settle a serious dispute among the great
powers of Europe concerning their rival interests in Morocco.
Meanwhile, American policy towards the ciffairs of the Orient was
given clarification and a definite goal, when the principle of the "open
door" in China was announced in 1899. The open door
DOOR AND implied equality of access to Chinese markets for the na-
RELATIONS tionals of all countries, including the United States, and the
WITH JAPAN. . r ^i • • i • T i • i i
preservation oi Chinese territorial integrity. Looking back-
ward, one can now see that insistence on this policy wa^ bound to clash
with the plans of Japanese expansionists. It did, indeed, result in the
enunciation of the so-called "Stimson doctrine" which, in 1931, stipu-
lated that the United States would not recognize the legality of conquests
made by Japan in Manchuria and elsewhere on the Chinese mainland.
Resentment against this principle, which was rightly and rigidly upheld
by the United States in negotiations with Japan during the autumn of
WILSON'S I94I5 led to the open breach between the two countries.
PROPOSALS When the United States entered the First World War
FOR COLLEC-
TIVE SECU- there was some fear that a resurgence of American impe-
RITY rialism would be one of the consequences. But the nation's
THROUGH . i i T^ • i TAT-I r i i i- i
A LEAGUE war aims, as stated by President Wilson, frankly repudiated
OF NATIONS. all desire for territorial acquisitions. As a means of prevent-
AMERICAN FOREIGN RELATIONS 513
ing future wars, it was proposed that there should be a world union of
states, large and small, mutually pledged to defend each other's terri-
torial integrity, to settle disputes by pacific means, and to take common
action, in the form of economic and even military sanctions, against
aggressors. Included in this general plan of collective security was the
idea of creating trusteeships, or mandates, which the great powers would
hold in relation to those territories which had been wrested from the
defeated countries — this in lieu of a division of these areas as spoils of
war among the victors.
The general features of this plan were embodied as a Covenant of the
League of Nations which became, in 1919, an integral part of the Treaty
of Versailles. The refusal of the United States to ratify this
treaty in its existing form ended hopes of American partici- AMERICAN
pation in the League. This action, moreover, became the REACTION TO
initial step in a virtual retreat from the position of active THE LEAGUE
. . . . COVENANT.
influence in world politics which the United States had
held during and immediately after the First World War. The drift in
this direction was somewhat accelerated by American resentment over
the inability or disinclination of European countries to repay the loans
which the United States had extended to them during the war. Among
considerable sections of the American people a feeling existed that the
entry of the United States into the war had been induced by foreign
propaganda, plus the machinations of international bankers and the
makers of munitions, rather than by any real danger to the national
security. In such an atmosphere the idea of national isola-
tion became popular. Congress was urged to " insulate55 the
nation against any future European conflict, and, in
response to these urgings, enacted the Johnson Act which prohibited
loans to any government that was in arrears with respect to the payment
of its indebtedness to the United States. Later, as the Second World
War loomed on the European horizon, Congress went further by adopt-
ing legislation which forbade American citizens to travel in war zones,
required belligerent countries to pay "cash on the barrelhead55 for
munitions purchased in the United States, and stipulated that they must
arrange for the transportation of these goods in non- American vessels.
Meanwhile, this isolationist spirit reflected itself in relations with the
Philippines. Responding to the urgings of political leaders there, Con-
gress in 1934 passed the so-termed Philippine Independence THE REAC.
Act which gave the islands a large degree of autonomy and TION AGAINST
promised full independence in 1946. Coupled with this was
the assurance that the United States would endeavor to
514 THE GOVERNMENT OF THE UNITED STATES
negotiate an international agreement guaranteeing the territorial integ-
rity and neutralization of the new Philippine Commonwealth. A further
evidence of American disinclination to become burdened with global
responsibilities was indicated when Congress declined to provide funds
requested by the naval authorities for fortifying the island of Guam —
this in the face of clear indications that Japan was strongly fortifying
her mandated islands in the same region.
This general isolationist spirit continued not only during the early
months of the European war in 1939, but even as late as the autumn of
1940, after Germany had overwhelmed France, Norway,
HOPE^p11^ Denmark, Holland, and Belgium. Nevertheless, the govern-
NEUTRAL- ment of the United States was openly giving aid to Great
ITY IN Britain and to the other countries which were opposing the
German- Italian Axis, and it was clearly apparent (or ought
to have been) that this action could only end in full participation by the
United States in World War II. This belligerent status was then sud-
denly forced upon the United States by the Japanese surprise attack at
Pearl Harbor on December 7, 1941. A declaration of war on Japan
followed immediately and, within a few days, Germany joined Japan,
her ally, in the war against America. In this new situation the isolationist
spirit in the United States, at any rate what was left of it, quickly dis-
appeared and the nation became solidly unified, both in temper and
action, for the prosecution of a two-ocean war.
' POSTWAR POLICY
Even before hostilities had ended in the defeat of the Axis powers,
America and her allies had planned a new world organization to be
known as the United Nations. At a conference at San Francisco in 1945
a charter for this proposed organization was agreed upon by some fifty
states whose governments subsequently ratified it. By 1949, eight addi-
tional states had become members and the organization had been per-
manently located in New York. Like the earlier League of Nations, the
United Nations' primary aims are to prevent aggression and foster
world peace through collective action. It seeks to accomplish these aims
through a variety of agencies of which the principal ones are a security
council, a general assembly, an economic and social council, and an
international court. Initial responsibility for maintaining peace rests
with the security council. In this body the five great powers, the
United States, the United Kingdom, Soviet Russia, France, and
China have permanent representation and their concurrence is neces-
sary to any non-procedural decision. Representatives of six other states
AMERICAN FOREIGN RELATIONS 515
are elected to the security council for two-year terms by the general
assembly.
Tlie United States loyally supported this new instrument of collective
security and high hopes were held for its success. It soon became appar-
ent, however, that these hopes were not destined to be fulfilled, at least
for the time being. Inability of the victors in World War II to agree
upon territorial and other issues, combined with Soviet Russia's intran-
sigence both within and outside the United Nations' council chambers
and that country's insistence upon a policy of territorial and ideological
aggression destroyed such unity as had existed when the war ended and
inevitably drove the powers into opposing camps.
As tension mounted, America's policy was modified. Although she did
not abandon efforts to work through the United Nations, she supple-
mented these efforts by a direct policy of countering Russian dynamism
and assisting in world recovery. The first major step in this direction
came in March, 1947, with the announcement of the so-called "Truman
Doctrine." Under its terms the United States promised moral and
material assistance to any free nation menaced by totalitarian aggres-
sion. Congress subsequently voted credits to Greece and Turkey for this
purpose. Other steps of like purport followed. By far the most impor-
tant was the European recovery plan initiated by Secretary of State
Marshall in June, 1947. This provided for direct American economic
assistance in the form of loans and gifts to those European countries that
agreed to make a concerted effort towards their mutual recovery. Six-
teen western European nations and Western Germany eventually be-
came beneficiaries of this promised aid for which Congress in 1 948 made
an initial appropriation of more than five billion dollars and morally
obligated itself for many additional billions in the subsequent three-year
period. Thus since the end of World War II the United States has
clearly assumed the responsibilities of a leading world power; but
whether these responsibilities are to be discharged through a world
organization like the United Nations remains to be determined.
REFERENCES
CONDUCT OF FOREIGN RELATIONS. A standard work on the subject is John M.
Mathews, American Foreign Relations; Conduct and Policies (revised edition, New
York, 1 938) . Equally valuable is Quincy Wright, The Control of American Foreign
Relations (New York, 1922). Several volumes by Edward S. Corwin should also
be mentioned, namely, The President's Control of Foreign Relations (Princeton,
I9I7)» National Supremacy (New York, 1913), and The Constitution and World
Organization (Princeton, 1944). Other works dealing with more specialized
phases of this general topic include Charles H. Butler, The Treaty-Making Power
516 THE GOVERNMENT OF THE UNITED STATES
of the United States (2 vols., New York, 1902), Kenneth Colegrove, The American
Senate and World Peace (New York, 1944), Denna F. Fleming, The Treaty Veto of
the American Senate (New York, 1930), S. B. Crandall, Treaties, Their Making and
Enforcement (2nd edition, Washington, 1916), H. M. Wriston, Executive Agents in
American Foreign Relations (Baltimore, 1929), B. H. Williams, American Diplomacy
(New York, 1936), W. McClure, International Executive Agreements (New York,
1941), and T. Lay, The Foreign Service of the United States (New York, 1925).
FOREIGN POLICY. General histories of American foreign policy are numerous.
Among them reference may be made to the following: S F. Bemis, A Diplomatic
History of the United States (New York, 1936), T. A. Bailey, A Diplomatic History of
the American People (new edition, New York, 1940), L. M. Sears, History of Ameri-
can Foreign Relations (3rd edition, New York, 1938), J. H. Latane and D. W.
Wainhouse, A History of American Foreign Policy (revised edition, New York, 1940),
and James W. Garner, American Foreign Policies (New York, 1928).
Books relating specifically to Latin America and the Monroe Doctrine include
the following titles* S. F. Bemis, The Latin American Policy of the United States
(New York, 1943), D Y. Thomas, One Hundred Tears of the Monroe Doctrine,
1823-1923 (New York, 1923), Dexter Perkins, Hands Off; a History of the Monroe
Doctrine (Boston, 1941), D. H. Popper, iMin American Policy of the Roosevelt Ad-
ministration (New York, 1934), J. F. Rippy, Latin America in World Politico (New
York, 1928), C. L.Jones, The Caribbean since 1900 (New York, 1936), and W. S.
Robertson, Hispanic- American Relations with the United States (New York, 1923).
For discussions of various aspects of foreign policy prior to World War II
the following titles are recommended' G. A. Beard, The Idea of National Interest
and the Open Door at Home (New York, 1934), B. H. Williams, The Economic Foreign
Policy of the United States (New York, 1929), J. T. Shotwell, On the Rim of
the Abyss (New York, 1936), E. M Borchard and P Lage, Neutrality for the
United States (New Haven, 1937), A. W. Griswold, The Far Eastern Polity of
the United States (New York, 1938), Theodore Roosevelt, Jr , Colonial Policies
of the United States (New York, 1937), F. R. Dulles, America in the Pacific; a Century
of Expansion (2nd edition, Boston, 1938), and Denna F Fleming, The United
States and the League of Nations, 191 8- 1920 (New York, 1932).
Among the many significant volumes treating of postwar issues and policies
the following may be mentioned: Wendell Willkie, One World (New York, 1943),
N. J Spykman, America's Strategy in World Politics (New York, 1942), Forrest
Davis, The Atlantic System (New York, 1941), Walter Lippmann, United States
Foreign Policy: Shield of the Republic (Boston, 1943), F. R. Scott, 77?* United States
and the British Commonwealth (New York, 1943), James P. Warburg, Foreign Policy
Begins at Home (New York, 1944), F R. Dulles, The Road to Teheran (Princeton,
1 943)5 J- T. Shotwell, The Great Decision (New York, 1943), Sumner Welles,
The Time for Decision (New York, 1944), R. M. Mclver, Towards an Abiding
Peace (New York, 1943), Herbert Feis, The Sinews of Peace (New York, 1944),
J. C. Grew, Report from Tokyo (New York, 1942), W. A. Shepardson, The Interests
of the United States as a World Power (Claremont, Calif., 1942), Joseph H. Ball,
Collective Security (Boston, 1943), Joseph H. Jones, A Modern Foreign Policy for the
United States (New York, 1944), H. C. Hoover and Hugh Gibson, Problems of a
Lasting Peace (New York, 1942), and J. B, Condliffe, Agenda for a Postwar World
(New York, 1942).
CHAPTER XX XI I
CONSTITUTIONAL LIMITATIONS
The idea that man has rights behind and beyond the written laws is peculiar to us.
The doctrine that there are certain cardinal, or natural rights of man which no govern-
ment ought to, and ours cannot, take away is peculiar to us of the United States. —
fhomas M. Cooley
In the foregoing chapters the various powers and functions of Congress
have been outlined. But the Constitution does more than grant powers.
It imposes limitations. It sets limits upon the exercise of CONSTITU-
legislative authority. The makers of this Constitution did not TIONAL
believe in placing unlimited power anywhere; they were
afraid of absolute power, no matter wheresoever lodged. TURE AND
Accordingly, they encircled Congress with a considerable SCOPE-
number of limitations and prohibitions. Some of these relate to the way
in which a power may be exercised, as, for example, the provision that
all federal taxes shall be uniform throughout the United States. Others
are in the nature of general prohibitions; that is, they forbid the exercise
of certain powers under any circumstances. Thus, no export duties may
be levied by Congress, no matter what the occasion or need may be. In
some cases a power is prohibited to the states but permitted to Congress
--- the right to coin money is an illustration. In other instances, it is
forbidden to both. Examples may be found in the provisions which place
a ban on bills of attainder and forbid the creation of a nobility. Some
of these limitations are scattered through the original Constitution while
others have been inserted in the amendments, particularly in the first
ten amendments.
Let us look, first of all, at the specific restrictions which are placed
by the Constitution upon the national government. Congress is forbid-
den to pass any bill of attainder. A bill of attainder is a
legislative measure which inflicts a penalty without a LIMITATIONS-
judicial trial. Legislation of this sort was frequent during
the Tudor and Stuart periods of English history. By bills of
attainder men in high office were ''attainted59 of treason
and sent to the scaffold without even the forms of judicial process, their
517
518 THE GOVERNMENT OF THE UNITED STATES
descendants being deprived of civil rights. Students of English history
will recall the case of Thomas Wentworth, Earl of Strafford, who was
beheaded during the reign of Charles I by order of parliament under a
bill of attainder. By less drastic measures known as "bills of penalties,"
other Englishmen were fined, thrown into prison, or had their property
confiscated. The enactment of attainders in any form (including bills of
penalties) is prohibited by the American Constitution because its makers
believed that the courts, not the legislature, ought to have the function
of determining guilt or innocence.
The Constitution also forbids the passing of ex post facto laws. This
prohibition has been somewhat misunderstood, for it does not apply to
all laws which are retroactive in effect. The limitation ap-
FAero^Aws plies to criminal laws only, and even here it does not affect
laws which operate to the advantage of an accused person.
In discussing this matter, one can tread upon firm ground, for the
Supreme Court has given a full and exact definition of ex post facto laws.
Such laws, in the words of the court, include:
Every law that makes an action done before the passing of the law, and which
was innocent when done, criminal and punishes such action, every law that
aggravates a crime, or makes it greater than it was when committed; every law
that changes the punishment and inflicts a greater punishment than the law
annexed to a crime when committed; and every law that alters the legal rules of
evidence and requires less, or different testimony, than the law required at the
time of the commission of the offence, in order to convict the offender.1
In a word, the term includes only retroactive criminal laws which take
away from an accused person some right which he possessed at the time
named in the accusation. Laws which decrease the penalty or modify
judicial procedure to the advantage of the accused are not forbidden,
even though they be retroactive in effect. Thus, it is allowable to abolish
the death penalty and give the benefit of this abolition to persons al-
ready convicted of capital crimes.
Taking a lesson from English political history, the makers of the
Constitution also limited the power of Congress with respect to the def-
inition and the punishment of treason. Treason is the old-
o TREASON
est of crimes. In England it goes back to the time of the
Saxon kings. Originally, it was the offense of killing the monarch, but
in due course various other offenses were included, such as levying war
EARLY against the king. During several centuries the category of
HISTORY OF treasonable offenses steadily widened, all manner of "new-
THIS GRIME. fangled and artificial treasons" being added to the list from
1 Caldcr v Bull, 3 Dallas 386 (1798).
CONSTITUTIONAL LIMITATIONS 519
reign to reign, until the unrestricted power to make and alter the law of
treason became a weapon of abuse and oppression.
To make sure that there should be no such extension in the United
States, the Constitution restricts the crime of treason to a certain definite
offense: namely, that of levying war against the United
0 11 - - • ... . . , TREASON
btates, adhering to its enemies, or giving its enemies aid AGAINST THE
and comfort. There must be open activity, not mere intent, UNITED
for the Constitution further provides that uno person shall
be convicted of treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open court." Aaron Burr was ac-
quitted of treason in 1807 because he had committed no overt act,
although it was proved that he had been engaged in a treasonable con-
spiracy. The penalty for treason, moreover, must in no case extend
beyond the life of the person convicted. Punishment cannot be imposed
upon the descendants of a traitor; or, as the words of the Constitution
quaintly express it, the penalties shall not "work corruption of blood or
forfeiture, except during the life of the person attainted."
The foregoing applies only to the crime of "treason against the United
States." But treason may also be committed against one of the states, and
each state has the right to make its own definition of it. TREASON
John Brown was executed in 1860 for treason against the AGAINST A
State of Virginia. Each state may also make its own rules of STATE-
evidence in treason cases and may prescribe such penalties as it sees fit.
But, in such matters, it must keep within the other provisions of the
federal Constitution, which require that all accused persons shall be
given due process of law and the equal protection of the laws.
Treason should be distinguished from sedition. The latter is whatever
the laws define it to be, for the Constitution incorporates no definition.
Hence, Congress has been able to penalize as sedition
rr i • i 111 r i i TREASON AND
various onenses which would be treason save lor the absence SEDITION
of overt acts. Thus the Sedition Act of 1918 provided severe DKTIN-
penalties for anyone who used any words intended to bring
the military or naval forces of the United States into disrepute. This
statute in effect created a number of " new-fangled and artificial treasons"
under a different name. In other words, the constitutional provisions
limiting the crime of treason do not prevent Congress from defining
other offenses as sedition and prescribing penalties just as heavy as those
imposed for treason. DUE
Then there is the constitutional requirement as to due PROCESS OF
process of law. In the Great Charter, which the barons of LAW>
England wrung from King John in 1215, there was a stipulation, set
520 THE GOVERNMENT OF THE UNITED STATES
forth in resounding Latin, that no free man should be in any manner
penalized save by "the lawful judgment of his peers or by the law of
the land."
Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut autlagetur,
aut exultur, aut aliquo modo dcstruatur, ncc super cum ibimus, nee super eum
mittemus, nisi per legale judicium parium suorum, vel per legem terrae.1
This fundamental right of freemen was repeatedly emphasized in the
landmarks of English civil liberty, such as the Petition of Right (1628),
and in this evolution the phrase per legem terrae, or law of the land, came
to be used interchangeably with the expression "due process of law." 2
In this form it passed into the Constitution of the United States as a part
of the fifth amendment (1791) which provides that "no person shall be
deprived of life, liberty or property without due process of law." The
words "life, liberty or property," of course, hark back to colonial days
and to the Declaration of Independence with its assertion of the citizen's
right of life, liberty, and the pursuit of happiness.
The meaning and scope of these four words "due process of law,"
however, have given the courts and the commentators a great deal of
THE MEANING trouble, and even today their exact application is not abso-
OF "DUE lutely clear. Few legal phrases in the whole history of juris-
PROCESS. prudence have proved so elusive. Due process has become a
sort of palladium covering all manner of individual rights. The highest
American tribunal has refrained from committing itself to any hard and
fast definition of the term, preferring rather that "its full meaning should
be gradually ascertained by the process of inclusion and exclusion in the
course of decisions in cases as they arise." 3
But all students of American government know in a general way what
the phrase means. It means that there must be, in all actions to deprive
DANIEL a man °f his life* liberty, or property, an observance of
WEBSTER'S those judicial forms and usages which, by general consent,
DEFINITION. have become associated with fair dealing. Daniel Webster,
in a famous argument before the Supreme Court, gave a definition of due
process which will probably serve the layman as well as any other.
It is the process of law, he asserted, "which hears before it condemns,
1 No free man shall be arrested, or imprisoned, or evicted from his land, or outlawed, or
exiled, or in any other way endamaged, nor will we impose upon him, or send him our com-
mands, save by the lawful judgment of his peers or by the law of the land. Magna Carta,
Article 39.
2 The phrase "due process of law" first appeared in a statute passed by parliament in the
fourteenth century (28 Edw. Ill, 3). We have the word of the great English jurist, Sir Edward
Coke, in his Institutes, that it was there used as the equivalent of the older phrase "law of the
land."
3 Twining v. New Jersey, 211 U. S. 78 (1908).
CONSTITUTIONAL LIMITATIONS 521
which proceeds upon enquiry, and renders judgment only after trial. Its
meaning is that every citizen shall hold his life, liberty, property and im-
munities under the protection of the general rules .vhich govern society."1
Thus, the requirement of due process clearly renders invalid such
things as acts of confiscation without judicial trial; laws which arbitrarily
take property from one individual or group and give it to
another; laws which retroactively reverse judgments of the
regular courts; and, in fact, all arbitrary exertions of power PROCESS TO
in the form of legislative enactments or executive decrees. JUDIGIAL
PROCEDURE.
The courts have held that due process of law requires a
hearing of the issue before it is decided; but this does not necessitate that
the hearing shall be by a jury or even by a judge. What constitutes a fair
hearing must be determined by the circumstances. Questions involving
a deprivation of property are sometimes determined by administrative
officers, as, for example, in the sale of lands for nonpayment of taxes.
The right of an ali^n immigrant to enter the United States is determined
by the immigration authorities, not by a judge and jury. The right of a
newspaper to be given the second-class mailing privilege is decided by the
postal authorities, not by the courts. In other words, the adjudication of
such questions by an administrative board, or even by a single admin-
istrative officer, is not deemed to be a denial of due process as long as the
proceed'ngs are characterized by the essentials of fair play to those whose
liberties or property are concerned.2 This, to be sure, is not a very satis-
factory explanation to anyone who desires to know exactly what due
process of law means, but it is about as good as can be given under the
circ amstances.
It will be noted that the due process requirement appears twice in the
Constitution, once as a limitation upon Congress (fifth amendment) and
once as a limitation upon the states (fourteenth amend- DUE
ment). The Supreme Court has applied it with an equal PROCESS IN
hand to both. But the states have been the chief offenders in THE STATES-
their attempt to circumvent the due process limitation. More especially
has this been the case with numerous laws which state legislatures have
enacted for the ostensible purpose of promoting the public safety or
public health, but which, in reality, have been designed to deprive
individuals or corporations of their property in an arbitrary way. For
within the term "property" is included not merely what already belongs
lThc Dartmouth College Case, 4 Wheaton 518 (1819).
2 Those who wish to pursue this subject further may be referred to Rodney L. Mott, Due
Process of Law (Indianapolis, 1926), John M Mathews, The American Constitutional System
(new edition, New York, 1940), and L. P. McGehec, Due Process of Law under the Federal Consti-
*ution (Northport, N. Y., 1906).
522 THE GOVERNMENT OF THE UNITED STATES
to its owners but the right to acquire further belongings in any lawful
manner, in other words, the right to freedom of contract.
In this connection a word should be added with respect to what is
known as the "police power" of the nation and the states. It is one of the
most important and comprehensive among governmental
powers. Speaking broadly, it may be defined as the right of a
TO THE government to regulate the conduct of its people in the
POLICE interest of the public safety, health, morals, and con-
POWER. . .
venience. Under this all-embracing authority a government
may make regulations concerning the safety of buildings, the abatement
of nuisances, the regulation of traffic, the reporting of communicable
diseases, the inspection of markets, the sanitation of factories, the hours of
work for women and children, the sale of intoxicants, and countless other
matters. Such regulations inevitably involve a deprivation of someone's
liberty or property; but this does not render the regulations unconsti-
tional provided they represent a reasonable exercise of the police power
and are designed to accomplish a legitimate public purpose.1
There is a twilight zone, however, in which the scope of the police
power is not yet clear. May the laws deprive a citizen of his property in
order to promote the aesthetic welfare of the community —
DOES THE f°r example> by providing that no one may build a house on
POLICE his own land until the type of architecture has been ap-
POWER
proved by a municipal art commission or some other body?
Such a condition may be imposed by subdividers or sellers
of land, at the time of sale, but not by the public authorities. Is it allow-
able to provide by law that residential property in designated sections
of a city shall not be sold or rented to colored people? Can such a measure
be justified as a reasonable regulation in the interest of the public safety,
health, morals, or convenience? The Supreme Court has held that it
cannot.2 May the government forbid an owner to take more than a
specified amount of oil or water out of his own wells? The court has held
that it can.3 In brief, each issue must stand on its own feet. In times of
war or other emergency a regulation may be reasonable when, under
normal conditions, it would constitute an arbitrary deprivation.
Due process of law is not a stereotyped thing. A true philosophy of
DUE PROCESS liberty must permit adaptation to new circumstances. It
is NOT follows, therefore, that any legal proceeding which is in
STATIONARY, furtherance of the public good, and which preserves the
1 C. B. & Q. R.R. v. Illinois, aoo U. S. 561 (1906).
2 Buchanan v. Warley, 245 U. S. 60 (1917).
3 Ohio Oil Co v. Indiana, 177 U. S. 190 (1900).
CONSTITUTIONAL LIMITATIONS 523
principles of liberty and justice, must be held to be due process of law.
To declare, once and for all, that certain rigid rules must in every case be
observed would be to mummify all legal progress. The requirement as to
due process was framed to afford protection against gross legislative
unfairness; it was not intended to become a barrier to the reasonable
regulation of individual liberty or of private property in the interests of
social and industrial justice.
Another constitutional restriction provides that "private property
shall not be taken for public use without just compensation." To under-
stand the nature of this limitation, one must know some- „ „,„„ «^TT^
S.I HE RICiHT
thing about the right of eminent domain. This right of a OF EMINENT
government to take private property for public use arises DOMAIN-
from the necessity of acquiring land for forts, navy yards, post offices,
customhouses, national parks, prisons, lighthouses, highways, etc. Hence
the domain, or "property- taking right," of the nation and the state is emi-
nent or paramount; in other words, it is superior to the property-holding
right of any individual.
But the Constitution imposes a threefold limitation upon the right of
eminent domain. First, the taking of private property must be for a
public purpose. Property cannot be taken by the government
from its private owners and then turned over for a nonpublic
use by some other private individual or corporation. Second, RIGHT OF
EMINENT
''just compensation" must be paid to the owner. Third, the
1 r r ' DOMAIN:
owner of property must be given due notice before his
property is taken away from him.
All private property, of whatever sort, including not only land and
buildings, but right of ways, ships, supplies, eveti electric current and
contracts for delivery of goods, is subject to the right of / \ AS TQ
eminent domain provided it is exercised for a public PUBLIC
purpose. The courts have been liberal in their interpretation PURPOSE-
of this term. They have upheld the taking of land not only for post office^
and other buildings but for all purposes related to the functions of govern-
ment. Moreover, the government may delegate its right of eminent
domain to counties, cities, school districts, or even to railroads or other
corporations engaged in public or quasi-public enterprises. The right
may be delegated to a company which is mainly operated for private
gain, provided it is engaged in a business which is "affected with a public
interest." Hence, the right to take private property, or* payment of just
compensation, has been frequently given by state legislatures to light and
oower companies, irrigation districts, and, in some instances, to endowed
colleges. But it cannot be delegated to strictly private concerns where no
524 THE GOVERNMENT OF THE UNITED STATES
color of public necessity appears. The line, of course, is difficult to draw
because all forms of private business are affected with a public interest in
some degree.
When private property is taken for a public or a semipublic purpose,
the constitutional requirement is that "just compensation" must be paid
(b) AS TO to t*ie owner. But how is this compensation determined?
JUST COM- As a matter of practice, the officers of the government first
PENSATION. make their own valuation and offer the owner what they
deem to be just. The owner, in most cases, rejects this offer and asks for
more. Then, by the usual process of bargaining, an agreement on some
compromise figure may be reached. But, if the owner cannot get what he
believes to be fair compensation in this way, he has an appeal to the
courts. Nevertheless, it is allowable to have the decision made by an
administrative tribunal, with no appeal to the regular courts on questions
of fact, provided a fair administrative procedure is followed.
Many limitations with respect to methods of judicial procedure arc
incorporated in the national Constitution, especially in the first ten
6 JUDICIAL amendments. These limitations relate to jury trial, the rules
FORMS AND of evidence, the nature of punishments, and to the placing
PROCEDURE. Qf any0ne jn double jeopardy for the same offense. But such
restrictions can be more appropriately explained in a later chapter
dealing with the judicial power of the United States.1 Let it be made plain
at this point, however, that the limitations of the national Constitution
in this respect apply to the procedure of the federal courts only; they do
not govern the procedure of the state courts. The latter are governed, as
to ordinary judicial procedure, by the terms of their own state constitu-
tions, provided, of course, that they do not run counter to the limitations
imposed upon them by the fourteenth amendment. The privilege of trial
by jury in a particular case in a state court, for example, cannot be
claimed unless the state constitution and state laws have provided for it.
As there are implied powers in the Constitution of the United States,
so there are implied limitations, that is, limitations which do not appear
in express terms but follow from the general nature, form,
LIMITATION^D and PurP°ses of the federal government. The Constitution,
for example, does not expressly forbid Congress to delegate
any of its lawmaking powers to the President, or to the heads of depart-
ments, or to the various administrative boards, or even to the people.
Yet it is "one of the settled maxims in constitutional law,3' according
to one of America's foremost authorities on this subject,
1 See Chapter XXXIV.
CONSTITUTIONAL LIMITATIONS 525
tfiat the power conferred upon Congress to make laws cannot be delegated by
that department to any other body or officer. Where the sovereign power of the
state has located that authority, there it must remain, and by that constitutional
agency alone the laws must be made until the constitution itself is changed.
The power to whose judgment, wisdom and patriotism this high prerogative
[of lawmaking] has been intrusted cannot relieve itself of the responsibility by
choosing other agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body for those to
which alone the people have seen fit to confide this sovereign trust.1
Because of this well-recognized limitation, a nation-wide referendum
as a means of accepting or rejecting a law would not be constitutional.
Congress might, if it so chose, submit a question to the
i r • i - r l_v ANATION-
pcople as a means ol securing an advisory test ol public WIDE REFER-
sentiment; and the Democratic national platform of 1924 ENDUM
. . , • r 11 • IT r IMPOSSIBLE.
proposed that the question ol adhering to the League of
Nations should be submitted in this way; but the formal enactment of all
federal statutes, as well as the conduct of foreign policy and the undivided
responsibility therefor, must remain exactly where the Constitution
placed it. Congress cannot delegate its legislative power and responsi-
bility even to the whole people. To establish the principle of direct legis-
lation by the people, as far as national lawmaking is concerned, would
require an amendment to the Constitution.
But while Congress may not delegate its lawmaking power, it may
delegate to some other body (or to some official) the function of determin-
ing when and how the provisions of the law are to be carried
r™ -i .1111 • • • i i - i - ADMINISTRA-
out. I his latter is held to be a ministerial, not a legislative, TIVE DISCRK-
function. It is permissible for Congress to provide, for TION MAY BE
11 i i 11 rr i i T-» DLLEGATFD.
example, that a law shall go into cnect whenever the Presi-
dent shall adjudge certain conditions to exist and shall so announce by
proclamation.2 It may make an appropriation for the relief of unemploy-
ment and leave to the President the discretion to determine how the
money shall be spent. But it must retain the ultimate lawmaking power
in its hands. That is one of the reasons why the National Industrial
Recovery Act was held unconstitutional by the Supreme Court in the
Schechter case.3 This statute had delegated to the President full power to
accept or reject codes of fair competition submitted to him by persons
engaged in particular industries, and when accepted by the chief execu-
tive, such codes were to have the force of law. The court held this pro-
cedure to involve a surrender by Congress of its lawmaking authority.
1 T. M Cooley, Treatise on Constitutional Limitations (7th edition, Boston, 1903), p 163.
2 Field v. Clark, 143 U. S. 649 (1892).
8 Schechter v. United States, 295 U. S. 495 (1935).
526 THE GOVERNMENT OF THE UNITED STATES
Despite the judicial insistence upon this traditional principle of non-
delegation, however, the growing complexity of conditions with which
IMPORTANCE modern legislation must cope requires that Congress allow
OF THIS a considerable degree of administrative discretion in inter-
PRINCIPLE. preting and enforcing that legislation. Laws are not by
nature resilient or flexible. Their general provisions, when unmodified by
the exercise of official discretion, are almost sure to work injustice. The
best system of regulation is one which can be varied in strictness as the
occasion demands. Such a system obviously requires that room for the
exercise of judgment, in the administration of the laws, shall be vested
in some executive officer or board. Congress, therefore, has had no escape
from the necessity of giving large discretionary powers to the President,
as well as to various federal boards, such as the interstate commerce com-
mission, the board of governors of the federal reserve system, the federal
trade commission, the national labor relations board, the securities and
exchange commission, and even to such administrative officials as the
postmaster general or the commissioner of immigration and naturaliza-
tion. Thus the rule on this broad question of nondelegation may be
briefly stated by saying that while the substance of legislative power may
not be delegated, it is allowable to give the executive branch of the gov-
ernment a large amount of leeway in determining the detailed procedure
by which the laws shall be put in operation.
One result of this policy has been to take the country a long way from
its old legal traditions. During the past quarter of a century, there has
IT HAS been a steady growth of "administrative law" — a term
INTRODUCED which on its very face confutes the idea that we have a clear
TUR^nm^" separation between legislative and administrative authority.
AMERICAN For it implies that administrators, as well as legislators, arc
GOVERNMENT. making the jaws of fa^ janc[ j^y promulgating, at their own
discretion, orders and regulations which have the force of law. So rapidly
has this system of administrative lawmaking been extended that today a
large part of the federal government's authority is exercised by the issue
of executive orders, administrative decisions, departmental rulings,
and rules proclaimed by all sorts of government boards. We have a
general law relating to the federal income tax, for example, but there
are literally thousands of points which this law does not cover. Each one
of these, when it arises, is covered by a ruling or order issued from the
bureau of internal revenue. These rulings have become so numerous and
so complicated that only an expert can thread his way through them.
Or, take another example — the orders and rulings of the interstate
commerce commission. They have become almost innumerable and
CONSTITUTIONAL LIMITATIONS 527
cover all sorts of matters relating to rates, service, accounting, and finan-
cing in connection with the railroads. Likewise, the Social Security Act
is couched in general terms, with relatively few provisions
covering matters of detailed administration. Hence, during
the past decade, it has been incumbent upon the social
security board and related agencies to develop a vast network of orders
and regulations on all sorts of questions arising out of its efforts to trans-
late the law into an operating security system. All this contributes to the
making of a huge body of "administrative law" which is enforceable by
the courts, although its provisions have not been literally sanctioned by
the regular lawmaking bodies at all. It has been framed and issued under
a general grant of authority made by these lawmaking bodies. Some
conception of the annual volume of such administrative legislation
can be gained by scanning the pages of the Federal Register, the official
compilation of federal administrative orders and regulations, four or five
numbers of which have been issued regularly each week since 1935.
All this does not imply that the development of administrative law in
the United States is something to be deplored. Regulation by admin-
istrative order is usually more equitable and more effective ITS VALUE
than regulation by broad legislative provisions. The latter AND LIMI-
cannot bend without being broken. One should remember TATIONS-
that there is nothing dangerous about a government of men so long as it is
a government of men controlled by law. So long as the administrative author-
ities are required to keep within the boundaries set for them by legislative
enactment, the danger of bureaucratic autocracy is small. But if Congress
is ever permitted to delegate the substance of its lawmaking power, and
give the President or his subordinates a wide-open authority to make
rules with the force of law — if that ever happens, there will be an end
to one of the basic principles on which the American political system has
been built up.
The foregoing are not the only limitations upon the powers of Con-
gress. Some others, more particularly those which relate to the rights
of the citizen, have been discussed in a previous chapter;
others, which concern judicial procedure, will be explained ^ORD* ON
in connection with the work of the federal courts. A com- CONSTITU-
plete list of constitutional limitations in the United States TIONAL
LIMITATIONS.
would probably mount into the hundreds. Congress, as
someone has said, is a leviathan in chains. Perhaps we have limited the
powers of the national legislature to a greater extent than is necessary,
and it is probable that if the people of the United States were reframing
their Constitution tomorrow, some of these limitations would be left
528 THE GOVERNMENT OF THE UNITED STATES
out. They were inserted in an age when legislative tyranny was greatly
dreaded, and today that danger has passed by. The present generation,
heeding European experience, is more afraid of executive tyranny or
dictatorship. There is no likelihood nowadays that Congress would pass
bills of attainder, or take property without compensation, or establish an
American order of nobility — even if the limitations which relate to
these things were stricken from the Constitution altogether. On th^
other hand, the tendency towards aggrandizement on the part of the
executive in all countries is one that students of government should note
and reflect upon. Does it mean that the nineteenth-century habit of
identifying democracy with the supremacy of legislative bodies is to be
discarded and replaced by the concentration of power in a single hand?
REFERENCES
The standard book on the subject with which the foregoing chapter deals is
T. M. Cooley, Treatise on Constitutional Limitations (8th edition, 2 vols., Boston,
1927). Discussions may likewise be found in the various general treatises on
constitutional law which are listed at the close of Chapter IV. Special mention
should also be made of F. J. Stimson, The American Constitution as It Protects
Private Rights (New York, 1923).
On the fourteenth amendment reference may be made to H. R. Flack, The
Adoption of the Fourteenth Amendment (Baltimore, 1908), C. W. Collins, The Four-
teenth Amendment and the States (Boston, 1912), Rodney L. Mott, Due Process oj Law
(Indianapolis, 1926), B. F. Wright, Jr , The Contract Clause of the Constitution
(Cambridge, Mass , 1938), Arnold J. Lien, Privileges and Immunities of Citizens of
the United States (New York, 1913), H. Taylor, Due Process of Law and the Equal
Protection of the Laws (Chicago, 1917), and H. Brannon, The Rights and Privileges
Guaranteed by the Fourteenth Amendment (Cincinnati, 1904).
Other books of value are Philip Nichols, The Law of Eminent Domain (2nd edi-
tion, 2 vols., Albany, 1917), G. T. Stephenson, Race Distinctions in American Law
(New York, 1910), B. F. Moore, The Supreme Court and Unconstitutional Legislation
(New York, 1913), Ernst Freund, The Police Power, Public Policy and Constitutional
Rights (Chicago, 1904), Frank J. Goodnow, Social Reform and the Constitution
(New York, 1911), John Dickinson, Administrative Justice and the Supremacy of Law
in the United States (Cambridge, Mass., 1927), Roscoe Pound, Administrative Law:
Its Growth, Procedure and Significance (2nd edition, Chicago, 1935), Herbert C.
Hoover, The Challenge to Liberty (New York, 1934), Henry Hazlitt, A New Consti-
tution Now (New York, 1942), John M Mathews, The American Constitutional
System (revised edition, New York, 1940), Oliver P. Field, The Effect of an Un-
constitutional Statute (Minneapolis, 1935), and Carl B. Swisher, American Constitu-
tional Development (Boston, 1943).
CHAPTER XXX 111
TERRITORIES, INSULAR POSSESSIONS,
AND SPECIAL AREAS
The reluctant obedience of distant provinces generally costs more than it is worth.
— Lord Mahon.
One docs not usually think of the United States as a colonizing
country, yet the history of the nation is an almost unbroken chronicle
of territorial expansion. The area of the original thirteen THE UNITED
states was less than one tenth of the territory under the STATES AS A
flag of the United States today. No other nation has had GOLONIZER-
such an increase during the past fifteen decades or has filled its new
acquisitions so largely with its own people.
Most Americans do not realize what an imperial area they possess.
Take a map of the United States and superimpose it upon a same scale
map of Europe. San Francisco will fall where Liverpool TOT, „,„„„, A¥
1 A *• 1 Ht. lMPfcK.IAL.
is, while Baltimore drops east of Constantinople. New AREA OF
Orleans keeps company with Palermo, while Minneapolis TODAY-
is up near Moscow. The entire kingdom of Italy, with its more than forty-
two million people is just a little larger than the single state of Colorado.
Put England, France, and Germany together and you have a smaller
combined area than the two states of Texas and California. Indiana is
bigger than Austria, while Belgium would fit comfortably into the niche
that Maryland occupies. In a geographical sense the United States is not
a nation but a league of nations.
The history of American national expansion may be divided into two
periods. First, there is the era extending from the close of the Revolution-
ary War to the year 1867. During this interval the United
States acquired by successive treaties all the land included PERIODS OF
in the Northwest Territory, as it was then called, together EXPANSION:
with the Louisiana Purchase, and Florida. Toward the lm WITHIN
middle of the nineteenth century the nation also secured by THE PRESENT
r , -- ill , . . r .. BOUNDARIES.
conquest from Mexico, and by the admission of territories
which had declared their independence of Mexico, the enormous areas of
529
530 THE GOVERNMENT OF THE UNITED STATES
Texas, the Southwest, and the South Pacific slope. Title to the North
Pacific slope, up to the forty-ninth parallel, had been acquired a few
years earlier by a treaty with Great Britain. All this territory was con-
tiguous and could eventually be parceled into states of the Union. Hence,
the expansions of this period merely represented the rounding out of
national boundaries and presented no problems of an external character.
But the second period, extending from 1867 to the present time, has
involved various territorial acquisitions of a different nature. By the
purchase of Alaska from Russia in 1867, the United States
2. OUTSIDE .,./•» - • i i ^
TERRITORIES acquired its first noncontiguous possession other than a few
AND INSULAR small guano islands. This precedent was not followed, how-
POSSESSIONS. , ru ,. • .. ..1 • -100
ever, by any further ventures into outlying areas until 1 898,
when the Philippines, Puerto Rico, and Guam were acquired; and in the
same year Hawaii was annexed at the request of its own government.
In 1899 an agreement with Great Britain and Germany gave to the
United States certain islands in the Samoan Archipelago, and in 1904
the Panama Canal Zone came under American control as the result of a
treaty made with the new Republic of Panama. Finally, in 1917, the
Danish West Indies were acquired by purchase.
All these acquisitions differed from those of the preceding period in
that they are separated from the main territory of the United States and
are not necessarily assured of admission to statehood at any
future date' Since l898> thereforc> the United States has
TWO FORMS faced the fact that its jurisdiction includes two classes of
territory; one enjoying the full rights and privileges of
statehood, the other made up of outlying possessions, some
of which must continue to be colonies in the usual sense of the word, no
matter by what name they may be officially designated.1 Phrases do not
alter facts. A mother country does not eliminate colonial problems by
resorting to a twist in terminology. Dependent territories, distantly
situated, and largely peopled by an alien race, present much the same
problems to home governments everywhere.
The makers of the Constitution foresaw that the Union would eventu-
ally comprise more than the thirteen original states. They knew, of
course, that a large region of hinterland was already being
THE CONSTI- r
governed by the confederation under the terms of the North-
OF EXPAN-
BASIS OF west Ordinance and that this territory would eventually
EXPANSION. , .. . .. i i -r-r
be carved into states as the ordinance contemplated. Hence,
they made provision that the territory "belonging to the United States"
1 It is hardly conceivable, for example, that the Panama Canal Zone, Samoa, and the
Virgin Islands will ever be admitted as states of the Union.
TERRITORIES AND POSSESSIONS 531
should be governed as Congress might decide and that new states could
be admitted to the Union by Congress at its discretion, subject to certain
prescribed limitations. The Constitution did not, however, in express
terms bestow on Congress the right to acquire new territory; and, in
connection with the Louisiana Purchase of 1803, it was argued in some
quarters that Congress had no such right. The Supreme Court, however,
has settled this question by repeatedly deciding that the United States,
as a nation, has the same right to acquire territory as any other sovereign
nation.1 The power to make treaties implies the power to gain territories
by treaty. The power to declare and wage war implies the right to make
conquests. The power to admit new states implies the right to acquire
areas out of which new states may be created.
But admitting the right of the United States to acquire territory, many
other questions arose to be settled. Is the control of Congress over such
territory complete and unrestricted, or is Congress bound CONSTITU-
there by all the limitations of the national Constitution? TIONALQUES-
Have the inhabitants of territories the same constitutional Tr^t^0,1?™,
WlSdlil.L) WI TH
rights as citizens of the states — for example, the right to OUTLYING
keep and bear arms and the right to trial by jury? Is a POSSESSIONS-
Hawaiian or a Puerto Rican entitled to these rights by the mere fact that
the American flag flics over his islands? And what about the operation of
such laws as Congress may make? Do they extend to these islands as a
matter of course or only when their extension is expressly provided for?
Does a tariff law, for example, apply only to merchandise which comes
into the United States proper, or to goods entering the insular possessions
as well? All these questions have come before the Supreme Court at one
time or another and have been answered by that tribunal, hence the
constitutional status of territories and insular possessions is now fairly
well settled.
Summarizing the main features in this chain of judicial decisions, one
may lay down the following general rules: The power of Congress over
the outlying territories of the United States is practically
complete. The inhabitants of the insular possessions are not
citizens of the United States unless it is so provided by BY THE
treaty or unless Congress extends citizenship to them. The SUPREME
COURT.
provisions of the federal Constitution relating to the rights
of citizens (for example, the right of trial by jury) do not extend to
the inhabitants of all the territories unless and until Congress so pro-
1 "By the law of nations, recognized by all civilized states, dominion over new territory
may be acquired by discovery and occupation, as well as by cession or conquest." Jones v
United States, 137 U. S. 202 (1890).
532 THE GOVERNMENT OF THE UNITED STATES
vides. In the Insular Cases (1900) the Supreme Court set up a distinc-
tion between "incorporated" territory on the one hand (that
RATE^TAND *s> territory which is treated as an integral part of the United
UNINCORPO- States) and "unincorporated" territory which has not been
RATED TERRI- recognized by Conenress. On this basis, Hawaii and
TORIES. & 7 5 ?
Alaska are incorporated territories, while Puerto Rico,
Guam, Samoa, the Canal Zone, and the Virgin Islands constitute an
unincorporated group.
Concerning the incorporated territories (Alaska and Hawaii), all the
applicable limitations of the Constitution are in full force; but elsewhere
Congress is bound only by those "fundamental" provisions
EXTENSION
OF "FUNDA- of the Constitution which automatically extend to all
MENTAL" American soil. The Supreme Court did not explain, how-
IHE UNIN- ever, just what provisions are fundamental but left this to be
CORPORATED determined in particular cases as they might arise. As
TERRITORIES. • rr i i 1111 i
respects tarin laws, it has held that the provision as to
uniformity of taxation is not fundamental and, hence, that Congress may
provide a special rate of duty on goods coming into the unincorporated
territories, such as Puerto Rico and the Virgin Islands, or from them into
the United States. Likewise, it has held that the requirement of a jury
trial is not one of the fundamental provisions which automatically extend
to the unincorporated territories.
PRESENT GOVERNMENT OF TERRITORIES
AND POSSESSIONS
Owing to the diversity in local conditions among the various pos-
sessions of the United States, no attempt has ever been made to establish
a uniform scheme of government for all of them. Each is
O^ALASKA^ somewhat differently organized from the others. Since
1912, Alaska has been a fully organized territory, just as
Arizona and New Mexico used to be before they were admitted as states,
and all laws passed by Congress apply to Alaska as a matter of course.
Its citizens are American citizens. Alaska has a governor appointed by
the President of the United States and a territorial legislature. This
legislature is made up of two chambers, a senate and a house of repre-
sentatives, the members of both being elected by the people. It has the
usual lawmaking powers, but its acts must not be "inconsistent with the
Constitution and the laws of the United States." There is universal
suffrage but with a literacy test. The governor has a veto power similar
to that of the President, and laws passed by the Alaskan legislature may
also be disallowed by Congress. Four federal district courts have been
TERRITORIES AND POSSESSIONS 533
established in the territory along with a system of local territorial courts.
Alaska is represented in Congress by a delegate who may speak there
but has no vote.
Hawaii is the other fully organized territorial possession. Prior to
1893, the Hawaiian Islands had a monarchial form of government with a
native dynasty, but in that year a revolution abolished the
monarchy and set up a provisional government which, in
turn, gave way to a republic. Then, in 1898, the government
of the Hawaiian Republic applied for and obtained annexation to the
United States by joint resolution of Congress.1 Two years later, Congress
passed the organic act on which the present Hawaiian government rests.
The territorial governor of Hawaii (who must be a resident of the
islands) is appointed by the President of the United States with the advice
and consent of the Senate. He is assisted in executive work by various
administrative officials, a secretary, treasurer, attorney general, etc. All
these, except the secretary, are appointed by the territorial governor with
the concurrence of the Hawaiian senate. Subject to the terms of the
organic act, the Hawaiian legislature, consisting of two elective chambers
(a senate and a house of representatives), makes the laws, determines the
taxes, and provides for the annual expenditures. The governor possesses
the usual right of veto, which may be overridden by a two-thirds vote of
both houses.
In the organic act of 1900 there is, however, an important provision
which reads as follows:
In case the legislature foils to pass appropriation bills providing for payment
of the necessary current expenses of carrying on the government and meeting
its obligations as the same are provided for by the then-existing
laws, the governor shall, upon the adjournment of the legislature, THE APPRO~
call it in an extra session for the consideration of appropriation SAFEGUARD
bills and until it shall have acted the treasurer may with the advice
of the governor make such payments, for which purpose the sums appropriated
in the last appropriation bills shall be deemed to have been reappropriated.
In other words, the territorial legislature cannot use its control of ex-
penditures in such a way as to coerce the executive into submission by
stopping the wheels of government. Hawaii also has its own territorial
courts, likewise a federal district court. The voters elect one delegate to
the House of Representatives at Washington, but he has no vote there.
All elections in Hawaii are by universal suffrage, but with one important
1 A treaty providing for the annexation was first negotiated, but the United States Senate
refused to ratify it by the requisite two-thirds vote Then, after some delay, a joint resolution
was passed by a majority vote in both Houses and signed by the President. The annexation
was accomplished by this procedure.
534 THE GOVERNMENT OF THE UNITED STATES
reservation: namely, that voters must be able to "speak, read, and write
the English or the Hawaiian language." This excludes a small number of
the Japanese and Chinese who form a large element in the population of
the islands. Although the voters of the territory have recently expressed
a desire for statehood in a referendum, the problem of extending state-
hood has hitherto been complicated by the fact that the population of
Hawaii contains so heavy a proportion of Japanese (Isei) and of native-
born persons of Japanese ancestry (Nisei). In view of this circumstance,
the nation's most important defense bastion in the Pacific probably will
be kept, for the time being at least, under a greater degree of federal
control than statehood would permit.1
Puerto Rico, though still considered an unincorporated territory,
probably enjoys more political autonomy than Hawaii. During the war
with Spain, this island was occupied by the American army
RICO anc* in the two years following the withdrawal of the Span-
ish forces it continued under military government. People
do not always realize how easy it is for an army to provide all the
administrative machinery necessary for temporarily governing a con-
quered territory. The commander with his staff transform themselves
into a governor and council; the engineer corps provides a department
of public works; the paymaster's department takes charge of the finances;
the medical and sanitary corps become a department of public health;
the judge advocate sets up a judicial system; and the military police
take over the work of patrolling the streets. To say that Puerto Rico
was for two years under military rule does not mean, therefore, that Us
affairs were handled crudely or arbitrarily. Military rule did not quickly
give way to an organized civil government because it was inefficient,
but because of the general aversion of the American people to con-
tinued military government in any portion of their territory.
The present government of Puerto Rico had its origin in the Foraker
Act of 1900. It was considerably modified by the organic act of 1917
PRESENT anc* modified again when Congress amended the organic
GOVERNMENT act in 1947. Puerto Ricans are American citizens and en-
OF THE jQy substantially all the constitutional rights of citizens in
ISLAND \
the United States. At the head of the island administration
'• THE is a governor elected for a four-year term by the island's
EXECUTIVE. *AT- i i r i • i i
voters. With the consent of the insular senate, the governor
appoints the heads of six of the seven executive departments who serve
1 Immediately after the attack on Pearl Harbor, martial law was declared in Hawaii and a
military governor took control The privilege of the writ of habeas corpus was temporarily
suspended, and military courts (provost courts) went into operation. Later, when the danger
of invasion diminished, the strictness of military control was considerably relaxed.
TERRITORIES AND POSSESSIONS 535
at the governor's pleasure. These are the heads of the departments of
the interior, justice, agriculture and commerce, health, education, and
labor. The auditor, the seventh department head, is appointed by the
President and the Senate. These officials constitute the governor's execu-
tive council or cabinet. There is also a co-ordinator of federal agencies,
appointed by the President and the Senate, who acts as the local repre-
sentative of the federal secretary of the interior in supervising such
civilian agencies and activities as Washington maintains in the island.
The Puerto Rican legislature consists of two chambers, a senate and a
house of representatives. The senate contains nineteen members, of whom
two are elected from each of seven senatorial districts and
five elected by the voters of the island at large. The house LE^LA-FURE
of representatives is composed of thirty-nine members,
one from each of thirty-five districts and four elected at large. Puerto
Rico has universal suffrage but with a literacy test for voting.
The legislature may levy taxes (except taxes on imports) and may
authorize borrowing on the credit of the island. It also determines the
expenditures, but if the two chambers do not agree on
. . r , r i . i i ° . ITS POWERS.
appropriations for the support of the island government, the
sums voted for the preceding year are deemed to have been reappropri-
ated. The provision relating to the governor's veto power is a peculiar
one. The governor may veto an act of the Puerto Rican legislature; then,
if the legislature reenacts it by a two-thirds vote, the measure goes
to Washington where it is laid before the President. If the President
approves the measure, or does not disapprove it within ninety days, it
becomes effective. But Puerto Rican laws are also subject to disallowance
by Congress, as in the case of the other territories, although, as a matter
of fact, Congress does not often interfere. A resident commissioner from
Puerto Rico, elected by popular vote, has the right to sit in the House of
Representatives at Washington, but has no vote in that body.
Puerto Rico has a judicial system which includes a United States
district court and a series of territorial courts headed by the supreme
court of Puerto Rico. The judges and other officers of the
United States district court are, of course, appointed by COURTS
the President, while those of the territorial courts are
named by the governor of the island and the Puerto Rican senate —
with the exception of the territorial supreme court, in which the five
justices are also appointed by the President.
About forty miles east of Puerto Rico are the Virgin Islands consisting
of St. Croix, St. Thomas, St. John, and several smaller islands which
were purchased from Denmark in 1917. The organic act of 1936 con-
536 THE GOVERNMENT OF THE UNITED STATES
ferred citizenship upon the natives of the islands. It provided for a gov-
ernor appointed by the President and the Senate for an indefinite term
and for a legislature of a somewhat unusual type. This legis-
lature is composed of two municipal assemblies, sitting jointly .
One of them is elected by the voters of the island of St.
Croix and the other by the voters in the two islands of St. Thomas and
St. John. In this joint assembly, which meets every other year, a two-
thirds vote is necessary to enact any measure. Then it goes to the governor
for his approval. If it is disapproved by him, it is transmitted to the
President of the United States, who has three months in which to approve
or disapprove. This action is not necessarily final because Congress may,
if it chooses, disallow the measure after the President has given his
approval. But the presidential veto could be interposed against such
disallowance, in which case the action of Congress would require a two-
thirds vote to make it effective.
Strategic lessons learned in the war with Japan and air travel have
given America's minor possessions in the Pacific a new significance.
MINOR American Samoa, Guam, Midway, and Wake arc still gov-
PACIFIG erned by naval commanders although in 1947 President
ISLANDS. Truman recommended that Congress provide an organic
act for the government of the first two of these and place them under
civilian control, presumably under the department of the interior. That
department already controls certain other islands, among them Jarvis,
Baker, and Rowland islands as well as Canton and Endcrbury islands
over which America shares sovereignty with Great Britain. In April,
1947, the United Nations transferred the Caroline, Marshall, and Mari-
anas islands, formerly Japanese mandates, to the United States as a
strategic trust territory to be known as the Territory of the Pacific Islands.
The Panama Canal Zone is a strip of territory across the isthmus about
ten miles in width, with the Camil running through the middle. The
United States acquired from the Republic of Panama
CANA^ZONE m * 9°4 "thc PcrPet^al use, occupation, and control" of this
strip. It is administered by a governor appointed by the
President with the Senate's approval. Within the Canal Zone various
courts, including a federal district court, have been established and town
governments organized.
Unlike Great Britain and France, the United States has no protec-
torates, that is, territories which are independent but under American
protection. Nevertheless, by various treaties with certain Caribbean
islands and Central American republics, there has been established from
time to time what virtually amounted to a protectorate. With Cuba, for
TERRITORIES AND POSSESSIONS 537
example, an arrangement existed for many years permitting Ameiican
intervention under certain conditions, and in 1906 such intervention
took place as a means of preserving order.1 The Cuban
administration then remained in the hands of American ^rn^cuBA
officials for more than two years. But in 1 934 this arrange- AND OTHER
CARIRBEAN
ment for intervention was brought to an end. Temporary
& V 7 RLPUBLICS.
agreements have also been made occasionally with Haiti,
Santo Domingo, and Nicaragua, which provided that the United States
might intervene when necessary to secure the adequate protection of
foreign property or the holding of honest elections. These agreements
sometimes led to intervention and this made them unpopular. For the
most part they are now abrogated.
In the government of the United States there is no minister or secretary
for the colonies, as in Great Britain and other European countries. In
1934 a "division of territories and island possessions" was THE AGENCIES
created by executive order within the department of the OF HOME
interior, and this agency now has immediate supervision GOVERNMENT
over the afTairs of Alaska, Hawaii, Puerto Rico, the Virgin Islands, and
certain of the minor Pacific possessions, including Rowland, Baker, and
Jarvis islands. The Panama Canal Zone continues under the supervision
of the army, where it was placed in 1914. American Samoa, Guam,
Midway, and Wake islands, as already indicated, are under the jurisdic-
tion of the navy although when Congress enacts the proposed organic
acts for the first two of these, they too will probably come under the
control of the interior department.
THE REPUBLIC OF THE PHILIPPINES
The Philippine Islands, once a full-fledged possession of the United
States, became a semi-autonomous Commonwealth in 1 935 and achieved
the status of a sovereign state in 1946. How this came about
requires a few paragraphs of explanation. To begin with, AND EARLY
the Philippine Islands were ceded to the United States in GOVERNMENT-
1898 by a treaty with Sp£iin. Military rule, complete or partial, con-
tinued for nearly three years. During this interval, however, a com-
mission was sent to the islands to devise a system of civil government
and also to take over some governmental functions from the military
authorities. All this was done under the President's authority as com-
mander in chief of the army. To remove any possible doubt as to the
legality of this situation, however, Congress gave the President "all the
military, civil, and judicial powers necessary to govern the Philippines . . .
1 H. F. Guggenheim, The United States and Cuba (New York, 1934).
538 THE GOVERNMENT OF THE UNITED STATES
until otherwise provided." Under this authority the President, in 1901,
appointed a civil governor and provided the islands with an appointive
legislative body or commission made up of both Americans and Filipinos.
This temporary civil government functioned for about a year, that is,
until Congress was able to prepare and enact an organic law for the
islands, which it did in 1902. The chief provisions of this
THE LAW OF
2 law were as follows: the executive power was to be vested
in a governor general, appointed by the President with the
consent of the Senate, and in heads of administrative departments,
similarly appointed. These administrative officials, along with four other
appointive members, were to constitute the Philippine commission,
which was to serve as the sole legislative body until conditions should
warrant the election of an assembly; thereafter it was to function as the
upper chamber of the legislature. The conditions were fulfilled, and the
first Philippine assembly met in 1907.
Thus matters continued until 1916, when an organic act (commonly
known as the Jones Act) made three important changes in the govern-
ment of the islands. It gave a larger degree of self-govern-
ACT DIM a* 6° ment> increased the powers of the governor general, and
replaced the Philippine commission by an elective senate.
Under the terms of this act, the chief executive power was exercised by a
governor general, appointed by the President with the concurrence of
the United States Senate. There was also a vice-governor, similarly
appointed, and serving as head of the department of public instruction.
The heads of the other administrative departments (such as justice,
finance, etc.) were appointed by the governor general with the approval
of the Philippine senate. In addition, the governor general prepared the
annual budget and laid it before the Philippine legislature for its ap-
proval; but if the legislature did not make the necessary appropriations,
it was provided that those of the previous year should be deemed to
have been reappropriated. The governor general also had the right to
veto any action of the legislature and if the latter overrode this veto by a
two-thirds vote, the issue was then referred to Washington, where the
President had six months in which to decide it. Congress, moreover, had
a right under the Jones Act to annul any law passed by the Philippine
legislature. This legislature was composed of two chambers, a senate
and an assembly, the membership of both being chiefly elective but with
a few appointive members to represent the non-Christian districts.
The organic act of 1916 asserted the intention of the United States to
recognize the independence of the Philippines "as soon as a stable
government can be established therein." And during the next five years
TERRITORIES AND POSSESSIONS 539
the Washington authorities gave the Philippine legislature an almost
free hand. Governor General Harrison, who served during this period,
reported that the islands were fit for independence. But THE ISSUE OF
President Harding in 1921 and President Coolidge in INDEPEND-
1926 thought it well to have the question looked into by ENCEp
special commissioners. In both cases these commissioners reported that
the islands were not yet prepared for an independent status although
they might ultimately become so, and Congress accepted this view of
the situation.
Nevertheless, the clamor for independence continued and it was
reinforced in the United States by various business interests, which
desired to have tariff dudes placed upon imports (sugar, THE INDE_
coconut oil, etc.) from the Philippines, as well as by PENDENCE
American labor organizations which hoped that the grant- AGTOF !934-
ing of independence would put an end to Filipino immigration. Over
the veto of President Hoover, therefore, Congress passed a measure
(January, 1933) which provided that complete independence would be
granted to the Philippines after a "preparative" period of ten years, with
a stipulation that the islands should be governed during this interval as a
commonwealth under a constitution approved by the President of the
United States and adopted by vote of the Philippine people. The law
of 1933 provided that, in order to become effective, it would have to be
accepted by the Philippine legislature within a year, but this body
refused its approval and sought to obtain better terms. Failing in this,
Congress was persuaded in 1 934 to pass a new independence law (which
differed but little from its predecessor) and this was accepted by the
legislature in Manila.
Under the terms of this Independence Act, the Philippine people at
once elected a convention of delegates which framed a constitution for
the Commonwealth of the Philippine Islands. This, after
having been submitted to the President of the United States PHILIPPINE
and approved by him, was ratified by an overwhelming COMMON-
n i TU_M« • r-ni ^v re WEALTH.
majority ot the Philippine voters. 1 hereupon the omcers
of government under the new constitution were elected and took office in
November, 1935. On their inauguration, the governmental system which
had been maintained in the Philippine Islands by the United States
during the previous twenty years came to an end. A popularly elective
president replaced the governor general of the former regime. The
legislative powers of the Commonwealth were first vested in a single
national assembly of 120 members, but in 1940 the legislature became
bicameral as a result of a constitutional amendment adopted by popular
540 THE GOVERNMENT OF THE UNITED STATES
referendum. The Commonwealth supreme court, consisting of seven
justices, was authorized to declare laws unconstitutional by a two-thirds
vote. Within two years after the inauguration of the Commonwealth,
women were granted the ballot on equal terms with men. The Inde-
pendence Act of 1934 also provided that the President of the United
States should appoint a "high commissioner," but this official was given
no powers of any considerable importance, his chief function being to
keep the government at Washington informed as to developments in the
islands.
Although the Filipinos thus assumed control of their government in
all its branches, legislative, executive, and judicial, their freedom from
SPECIFIC American supervision (according to the terms of the Inde-
RESERVED pendence Act) was not to become complete until after
POWERS. jj^ japse Of a ten-year probationary period, that is, until
July 4, 1946. During that period the United States was to retain certain
supervisory powers. In the first place, all amendments to the Philippine
constitution and all laws relating to various important matters, such as
the currency and emigration, in order to become effective, required the
approval of the President of the United States. Under certain circum-
stances, moreover, the President was also empowered to suspend any law
or executive order of the Philippine government. Second, all foreign
relations of the Commonwealth during the ten-year period were to
remain under the general jurisdiction of the United States. Third, the
United States Supreme Court was to continue hearing appeals from the
highest court of the islands; and fourth, the United States reserved the
right to retain and garrison military and naval posts at its discretion. In
addition to these specific reservations, it was provided that the United
States might intervene at any time during the probationary period to
preserve the government of the Commonwealth, to protect life, liberty,
and property in the islands, or to enforce the fulfillment of the govern-
ment's obligations. The Filipinos were also to continue temporarily in
their allegiance to the United States and to continue their representation,
through the medium of two resident commissioners, at Washington.
Somewhat more than half of the probationary period of the Common-
wealth had been completed when the Japanese invaded and occupied
the islands in 1042. Following the invasion, the Filipino
ESTABLISH- J r ° ' r
MENT OF THE president and certain of his colleagues established a govern-
PHILIPPINE ment-in-exile at Washington and continued a semblance of
REPUBLIC. . «i i A •
constitutional rule until the American reconquest of the
islands in 1945 permitted their restoration. With the return of the gov-
ernment to Manila. Dreoaratiom were made to liquidate American
TERRITORIES AND POSSESSIONS 541
sovereignty and establish an independent Filipino state within the pre-
cise time limit provided in the Independence Act. Hence, on July 4,
1946, the independent Republic of the Philippines was proclaimed at
Manila and the American high commissioner under the Commonwealth
became the first American ambassador. Simultaneously, President Tru-
man issued a proclamation which declared that the United States "with-
draws and surrenders all rights of possession, supervision, jurisdiction,
control, or sovereignty now existing and exercised by the United States
of America in and over the territory and people of the Philippines" and
which formally recognized the Philippine Republic as an independent
and self-governing nation. Somewhat later, the American Senate gave
its consent to the ratification of a treaty between the United States and
the new Republic. This confirmed the withdrawal of American sover-
eignty and the independence of the islands. It also provided that the
new state would assume all existing financial obligations of the Philip-
pine government and its political subdivisions and such obligations as
the United States had assumed towards Spain at the time that country
acknowledged American sovereignty over the islands.
The influence ot history and past associations cannot be extirpated
in a day; thus, though the Philippines now constitute an independent
state, it is likely that, for some time at least, relations with
the former mother country will remain fairly close. This is FILIPINO-
notably true as respects economic matters. A sizable Ameri- AMERICAN
i , i i i • i i r • RELATIONS.
can loan has been granted the islands for reconstruction
purposes and Congress has been generous in appropriating funds to
assist the Filipino people in their effort to recover from the ravages of
the war with Japan. Until 1954, trade between the United States and
the Philippines will be free. Thereafter Philippine imports into the
United States will pay duty beginning at five per cent of the normal
rate, five per cent more being added each year until, at the end of
twenty years, full duties will be imposed. Equally important are plans
for military collaboration. When requested by the Philippine govern-
ment, the United StiUos will assist in training the islands5 military and
naval personnel, maintain and repair Philippine military equipment,
and even transfer arms and ammunition to the islands' government. A
mutually satisfactory disposition has also been made of the question of
American military and naval bases on the islands. With the concurrence
of both the American and Philippine legislatures, a formal agreement
was concluded between the two governments. Under its terms, certain
American installations will be maintained on the islands for the mutual
protection of the United States and the new Republic.
542 THE GOVERNMENT OF THE UNITED STATES
THE DISTRICT OF COLUMBIA
*•
The District of Columbia occupies a unique position in the govern-
mental system of the United States. It is neither a state nor a territory,
but by virtue of its being the national capital has been
EARLY VICIS- , , i i ,->, . • ,. , , , i r
SITUDESOF placed by the Constitution directly under the control of
THE FEDERAL the federal government. From the beginning of the Revolu-
CAPITAL
tionary War to the formation of the Constitution, Phila-
delphia served as the continental headquarters save for short intervals
when the city was occupied by the British (i 777-1 778) and again in 1 783,
when the congress of the confederation was driven from its meeting
place by a band of Revolutionary soldiers clamoring for their pay. This
latter incident carried its lesson to the members of the constitutional
convention in 1787. While they were not ready to designate any city as
the permanent seat of the new federal government, lest by so doing they
might stir up sectional jealousy and perhaps lead to the rejection of the
whole Constitution, they did make provision for the eventual selection
of a capital which could be placed under the control and protection of
the national authorities.1
At Madison's suggestion, accordingly, the Constitution was worded to
provide that Congress should have power uto exercise exclusive legis-
,*,«A^ TO1? lation in all cases whatsoever over such district (not exceed-
WHA 1 1 rlt, N
CONSTITUTION ing ten miles square) as may, by cession of particular states
PROVIDES. ancj t^e acceptance of Congress, become the seat of govern-
ment of the United States." The selection of the exact place was left for
the future, but with the stipulation, as indicated above, that the territory
acquired for the new capital should pass outside the jurisdiction of any
state.
When the first Congress of the United States met in 1 789, after the
adoption of the Constitution, there was a long and bitter struggle on
this question, particularly between representatives of the
CHOICE OF
THE northern and the southern states. Each wanted the capital
POTOMAC located in its own region. In the end it was agreed to accept
LOCATION. , . i T» 1-1 . ,. .
a location on the Potomac, which was in reality a victory
for the South. The selection resulted from a deal between the sectional
leaders and was connected with the proposition to have the new national
government assume the debts which the several states had accumulated
during the struggle for independence. At any rate, the District of
Columbia became federal territory and the seat of government was
moved there in 1800.
1 Article I, Section 8.
TERRITORIES AND POSSESSIONS 543
For a time the District was permitted to have its own system of local
government, with officials elected by the inhabitants, but there was so
much extravagance and inefficiency that Congress ultimately decided to
intervene, which it did with a drastic hand by abolishing local self-gov-
ernment within the District and providing that the area should be
administered by an appointive commission.
The administration of the District of Columbia is vested, therefore,
in a board of three commissioners. Two of them are appointed by the
President, with the consent of the Senate, from among the
residents of the District. They hold office for a three-year **f™«* A
' ' ADMINISTRA"'
term, and one must be chosen from each of the two leading TION: THE
political parties. The third commissioner is detailed by the COMMISSION-
President from the engineer corps of the United States
army. He must be an officer with the rank of captain or higher, but is not
detailed for any definite term. Subordinate officers of the engineer corps
are assigned to assist him.
These three commissioners of the District of Columbia, as a body, have
large powers. They make all municipal appointments, supervise the
local public services such as streets, water supply, police and
fire protection, and have power to make the ordinances or
regulations relating to the protection of life, health, and
property. Each member of the commission takes immediate charge of
certain departments; for example, the engineer member has charge of
streets, water supply, sewerage, parks, and lighting. In a word, they
exercise the functions which in many cities of the United States are given
to the mayor, the heads of municipal departments, and the city council.
The school system, however, is managed by a board of education, the
members of which are appointed by the judges of the supreme court of
the District of Columbia.
The laws applying to the District of Columbia are practically all made
by Congress, although usually on the commission's recommendation.1
So, also, arc the appropriations for carrying on the govern-
ment of the District. The commissioners each year prepare
their estimates of what is required and submit them to a APPROPRIA-
congressional committee. After this committee has con- TIONS>HOW
MADE.
sidered the figures, and changed them as it sees fit, an
appropriation act embodying them is passed by Congress. A share of the
annual cost of governing the District, as thus appropriated, is paid from
the national treasury; the remainder is levied upon the District by
1 Congress devotes the second and fourth Monday of each month, during its session, to
District of Columbia affairs.
544 THE GOVERNMENT OF THE UNiTED STATES
taxation.1 A large amount of property in the District belongs to the
national government and is exempt from taxation. That is why the
national treasury bears part of the cost.
The legal residents of the District of Columbia are entirely disfran-
chised. They have no vote for President, since the District is not entitled
ABSENCE OF *° any presidential electors. They have no senators, no
LOCAL representatives in Congress, no mayor, aldermen, or coun-
AuroNOMY. cilors. The only way in which any inhabitant of the District
of Columbia ever manages to cast a ballot is by being a legal resident of
some other place. That is the way many of them arrange it. When men
are appointed to federal positions which involve their
ANOMALY OF living in Washington, they often retain their legal residences
THE SITUA- jn the states from which they come, and go back to these
states to cast their votes on election day. In some cases they
are permitted to vote by mail. But there are many thousands who are
domiciled in Washington and have no such opportunity. They pay taxes
regularly but they have no representation either in the national govern-
ment or in the management of their own local affairs. The government
of the District of Columbia thus affords a striking illustration of how the
American people manage to maltreat one of their traditional axioms:
namely, that there should be "no taxation without representation."
But, as a practical matter, the people of the District are better off than
they would be if Congress allowed them to elect their local officers and to
pay all their own municipal expenses. Their wishes are
EFFICIENCY , , , , , - ., ,, . . ~ , ..
OF THE DIS- consulted through an advisory council of citizens. Public
TRICT'S GOV- hearings are held on all proposals of any importance.
ERNMENT. ... ,. . .. , . . r . . ,
Washington is a well-governed city, in fact it is probably
the best governed of the world's capitals. Its administration has been
free from serious scandal or corruption for more than sixty years. Local
self-government would increase the municipal tax rate and the people of
the District would probably get less for their money than they do under
the present system.
REFERENCES
GENERAL. The various steps in the expansion of the United States are explained
in all the general surveys of American history such as John S. Bassett, Short
History of the United States (revised edition, New York, 1929), Ralph V. Harlow,
Growth of the United States (revised edition, New York, 1932), Charles A. and
Mary R. Beard, Rise of American Civilization (2 vols., New York, 1927), and P&vid
1 The national government's contribution in recent years has been about twenty per cent
of the total District expenditures.
TERRITORIES AND POSSESSIONS 545
S. Muzzey, The United States of America (2 vols., Boston, 1922—1924). Special
studies worth mention are Edward Bicknell, Territorial Acquisitions of the United
States (3rd edition, Boston, 1904), W. F. Willoughby, Territories and Dependencies
of the United States (New York, 1905), V. J. Samonte, The American System of
Colonial Administration (Iowa City, 1925), W. T. Haas (editor), The American
Empire; a Study of the Outlying Territories of the United States (Chicago, 1940),
Theodore Roosevelt, Colonial Policies of the United States (New York, 1937),
and Foster R. Dulles, America in the Pacific (2nd edition, Boston, 1938).
ALASKA. Henry W. Clark, History of Alaska (New York, 1930), and G. W.
Spicer, The Constitutional Status and Government of Alaska (Baltimore, 1927).
HAWAII. Ralph S. Kuykendall, History of Hawaii (New York, 1926), W. R.
Castle, Jr., Hawaii, Past and Present (2nd edition, New York, 1927), Edmund J.
Carpenter, America in Hawaii (Boston, 1899), F. F. Bunker, Hawaii and the Philip-
pines (Philadelphia, 1928), and Robert M. C. Littler, The Governance of Hawaii
(Stanford University, 1929). Attention should also be called to the pub-
lication which embodies the hearings before a congressional joint committee
entitled Statehood for Hawaii, Seventy- fifth Congress, 2nd session (Washington,
1938).
PUERTO RICO. R. A. Middcldyk, History of Puerto Rico from the Spanish Discovery
to the American Occupation (New York, 1903), L. S. Rowe, The United States and
Porto Rico (New York, 1904), Victor S. Clark and others, Porto Rico and Its Prob-
lems (Washington, 1930), K. Mixer, Porto Rico (New York, 1926), T. White,
Puerto Rico and Its People (New York, 1938), and B. W. and J. W. Diffie, Porto
Rico: A Broken Pledge (New York, 1931).
PHILIPPINE ISLANDS. On Philippine history, government, and problems, there
are numerous books of varying merit. A convenient historical outline is David
P. Barrows, History of the Philippines (revised edition, Yonkers, N. Y., 1924).
G. A. Malcolm and M. M. Kalaw, Philippine Government (revised edition, Boston,
1 QS2)? gives the Filipino point of view on political organization and problems
prior to the Philippine Independence Act. W. C. Forbes, The Philippine Islands
(2 vols., Boston, 1928), is the work of a former governor general. Dean C. Worces-
ter, The Philippines, Past and Present (new edition, New York, 1930), is a useful
volume. Strongly American in its point of view is Nicholas Roosevelt, The
Philippines (4th edition, New York, 1933). Other books relating to the period
prior to the establishment of the Philippine Commonwealth are V. D. Diamonon,
The Development of Self -Government in the Philippine Islands (Iowa City, 1920),
H. H. Miller, Principles of Economics Applied to the Philippines (Boston, 1932), and
G. A. Malcolm, The Constitutional Law of the Philippine Islands (2nd edition,
Rochester, 1926). Volumes dealing with the islands since the establishment of
the commonwealth include J. R. Hayden, The Philippines: A Study in National
Development (New York, 1941), Grayson L. Kirk, Philippine Independence (New
York, 1936), G. A. Malcolm, The Commonwealth of the Philippines (New York,
JQS^), W. H. Anderson, The Philippine Problem (New York, 1939), and Carlos
P. Romulo, / Saw the Fall of the Philippines (New York, 1943). On the subject of
Philippine independence attention may also be called to the hearings on the
Hawes-Cutting Bill (S. 3377) before the Senate Committee on Territories and
Insular Possessions, and the hearings on the same bill (H. R. 7266) before the
House Committee on Insular Affairs, published as Independence for the Philippine
546 THE GOVERNMENT OF THE UNITED STATES
Islands (Washington, 1932). There is also a great deal of material in the Report
of the Joint Preparatory Committee on Philippine Affairs (3 vols., Washington, 1936).
DISTRICT OF COLUMBIA. W. B. Bryan, History of the National Capital (2 vols.,
New York, 1914), W. F. Dodd, The Government of the District of Columbia (Washing-
ton, 1909), J. S. Gallagher, The Government of Washington (New York, 1923),
L. F. Schmeckebier, The District of Columbia: Its Government and Administration
(Baltimore, 1928), and L. F. Schmeckebier and W. F. Willoughby, The Govern-
ment and Administration of the District of Columbia: Suggestions for Change (Wash-
ington, 1929).
SPECIAL AREAS AND OTHER POSSESSIONS. W, D. McCain, The United States and
the Republic of Panama (Durham, N. G., 1937), Hamilton Cochran, These Are the
Virgin Islands (New York, 1937), Norman J. Padelford, The Panama Canal in Peace
and War (New York, 1942), C. C. Tansill, The Purchase of the Danish West Indies
(Baltimore, 1932), R. L. Buell and others, Problems of the New Cuba (New York,
1935), and R. R. Fitzgibbon, Cuba and the United States, 1900-1935 (Menasha,
Wis,, 1935).
CHAPTER XXXIV
THE JUDICIAL SYSTEM OF THE
UNITED STATES
Laws are a dead letter without courts to expound and define their true meaning and
operation. — Alexander Hamilton.
In order to function successfully a federal system of government, such
as exists in the United States, must have a strong judiciary. It must have
courts which are able to command the obedience of both
i i 't-n r i i- i THE NEED
governments and people. ybor federalism, by its very nature, Op A
implies a division of authority between the nation and the STRONG
states, with the certainty that disputes concerning the range
of their respective powers will arise. Only a strong judiciary can settle
such controversies promptly and^3ecisively. Accordingly, Jthe framers of
the Constitution devoted the entire third article of that document to
carefully worded provisions which set up a sphere of jurisdiction for the
federal courts and established a Supreme Court with powers of final
dccisJon. Their wisdom is demonstrated by the way in which this court
of last resort has guided American constitutional progress. The develop-
ment of the United States Supreme Court into a final arbiter of consti-
tutional disputes is one of America's most important contributions to the
science of government.
The frugal use of words and the clarity of diction which distinguishes
the handiwork of those who made the Constitution is nowhere more
evident than in this Article III. Lord Bryce tells of an edu- ,AWA^ WM,
WHA I 1 HK
cated Englishman who heard that the Supreme Court of the CONSTITUTION
United States had authority to override the laws of Congress PROvmES-
and spent two hours reading up and down the Constitution in a hunt for
that particular provision. It is not surprising that his quest proved vain,
for the Constitution has nothing to say on this point. Indeed it has very
little to say about how the federal judiciary should be organized or what
its procedure should be. It provides for a Su^reme^Court^Jbut leaves the
organization of that tribunal entirely to Congress, Likewise, it protects
tKe juclges against improper removal and guarantees that their salaries
547
WHY
543 THE GOVERNMENT OF THE UNITED STATES
shall not be reduced. But it is eloquent in its silences concerning functions
and duties of these judges. This was not because the makers of the Con-
stitution failed to recognize the importance of such matters. They were
well aware of it. But they were of different minds as to whether any
federal courts other than a Supreme Court ought to be established, and
if so, how such courts should be organized. So they wisely contented
themselves by providing that the judicial power of the United States
should be vested in a Supreme Court "and in such inferior courts as the
Congress may from time to time ordain and establish."
Although it is clear, after a century and a half of experience, that the
makers of the Constitution acted with wisdom in making possible the
creation of a separate and independent national judiciary,
FEDERAL ^e (luest^on may well be asked why they were so insistent
COURTS WERE on this point. There were plenty of state courts already in
DEEMED existence and all judicial controversies mierht have been left
NECESSARY. J °
to them. That is what had been done under the confedera-
tion before the Constitution was framed. But that is exactly why they
were so anxious to do something different. The old arrangement had
proved unsatisfactory to every one, and its continuance under the new
government would undoubtedly have proven more so. For disputes
between the states would probably become more frequent
i. TO DE- r . 7 1 .
CIDE CERTAIN m the future and an impartial umpire, standing outside
CONTROVER- them all, would be needed to settle these controversies. Like-
wise, the makers of the Constitution realized that there
would be questions bearing on the relations of the United States with
foreign nations, on matters covered by treaties, for instance, which
could not safely be left to the state courts. To leave them there would
have meant placing the reputation and the peace of the whole Union at
the mercy of thirteen conflicting authorities. Controversies were also
bound to keep arising between citizens of different states, and experience
had disclosed the all too frequent tendency of state courts to favor their
own citizens.
But most important of all, disputes were certain to develop as to the
meaning of various provisions in the new Constitution and also with
T0 respect to the interpretation of laws passed by Congress.
SECURE A By whom should disputes be decided? To leave them to the
UNIFORM various state courts would be to invite chaos. Each might
INFERPRETA- - °
TION OF THE render a different decision, so that the Constitution and
NATIONAL the federal laws would mean one thing here and another
thing there. The makers of the Constitution decided, there-
THE JUDICIAL SYSTEM 549
lore, that there would have to be at least one coordinating tribunal, a
distinctively federal court, supreme, and independent of the states.
If there are such things as political axioms [wrote Alexander Hamilton],
the propriety of the judicial power of a government being coextensive with its
legislative, must rank among the number. The mere necessity of uniformity in
the interpretation of the national laws decides the question . . . Any other plan
would be contrary to reason, to precedent, and to decorum . . . All nations have
found it necessary to establish one court paramount to the rest, possessing a
general superintendence, and authorized to settle and declare in the last resort a
uniform rule of civil justice.
These reasons, however, did not necessitate the creation of a whole
ladder of federal courts. One Supreme Court would have sufficed to
maintain federal supremacy and to ensure the uniform
interpretation of the laws, leaving to the state courts the ^^fLj^°
function of hearing all cases in the first instance. And indeed, SETS OF
as already indicated, the Constitution does not require that COURTS,)
there must be any other federal courts than the Supreme
Court. It leaves that matter to the judgment of Congress. Might it not
have been possible, then, for Congress to have refrained from establish-
ing subordinate federal courts and to have empowered the state courts
to take cognizance of cases falling within the judicial power of the
national government? Some of those who helped frame the
Constitution apparently thought so. Hamilton pointed out ^WLT°NS
that the power "to constitute tribunals inferior to the
Supreme Court" was "intended to enable the national government to
constitute or authorize in each state or district of the United States a
tribunal competent to the determination of matters of national juris-
diction within its limits." l
But Madison thought differently. He believed that unless lower federal
courts were eslablished throughout the Union with a certain amount of
finat^urtsdiction there would be a multiplication of appeals
from verdicts in the state courts. At any rate, Congress
decided that it would be better for the new national govern-
ment to have its own courts from the lowest to the highest, and, on the
whole, this decision has never been regretted since. It was also the safest
course because the Supreme Court subsequently decided that Congress
had no power to confer jurisdiction on any courts not created by itself.2
But with respect to those lower courts which Congress does establish, its
1 The Federalist, No. Si. The word "authorize" is italicized in Hamilton's article.
2 Houston v. Moore, 5 Wheaton i .
550 THE GOVERNMENT OF THE UNITED STATES
powers are extensive. It may give or take away jurisdiction, determine
the number of judges, control the procedure, or even abolish a court
altogether.1
FEDERAL JURISDICTION
Before the structure and powers of the various federal courts are
explained, it rnay be well to notice the division of jurisdiction between
the federal courts, taken as a whole, and the state courts.
THE SPHERE _. r _ . ' . . . . , r
OF THE The federal courts have jurisdiction over certain classes ot
FEDERAL controversies named in the Constitution; the state courts
have jurisdiction over all others. And the cases over which
the federal courts have jurisdiction cannot be more concisely summarized
than by quoting the words of the Constitution itself:
The judicial power of the United States shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority; to all cases affecting am-
bassadors, other public ministers, and consuls; to all cases of admiralty and mari-
time jurisdiction; to controversies to which the United States shall be a party;
to controversies between two or more states; between a state and citizens of
another state; between citizens of different states; between citizens of the same
state claiming lands under grants of different states, and between a state, or the
citizens thereof, and foreign states, citizens, or subjects.2
As a model of concise legal phraseology, this paragraph is probably
unsurpassed in the whole range of constitutional literature. If anyone
has doubts on this score, let him try to recast the paragraph in his own
words. But the very compactness of the wording makes some explanation
necessary in order that the full force and effect of these provisions may be
properly understood.
First is the reference to cases arising under the Constitution and under
the laws or treaties of the United States. What does this mean? It means,
to begin with, that only cases of a justiciable character can
I CASES ""*"" ~ "" — - -~ - _ _ — ~~«. .
ARISING come before the courts. The judiciary cannot decide
UNDER THE executive or legislative questions. For example, the courts
coNSTrru- w^ not Pass uPon ^e question whether a foreign govern-
TION, LAWS, ment is entitled to recognition by the United States, or
AN?A™O whether the United States is at war with another country.
TREATIES. '
These questions are for the executive branch of the govern-
ment to determine. But the provision also means that whenever a con-
"roversy involves the interpretation of a provision in the national
TWhen Congress abolished the federal circuit courts in 1911, the judges were retained as
members of the circuit court of appeals, thus protecting their constitutional tenure.
1 Article III, Section a.
THE JUDICIAL SYSTEM 551
Constitution, or in a federal law, or in a treaty to which the United
States is a party, the issue is one which, subject to the regulations which
Congress prescribes, falls within the jurisdiction of the federal courts.
Anyone who claims a right under the Constitution, laws, or treaties of the
United States may ultimately claim it in an action beginning in those
courts or on appeal from a state court. The situation is well summed up in
this statement of the Supreme Court:
The jurisdiction of the courts of the United States is properly commensurate
with every right and duty created, declared, or necessarily inspired by and under
the Constitution and laws of the United States. [But the right must be a sub-
stantial and not merely an incidental one in order to warrant its assertion in the
federal courts.] It must appear on the record . . . that the suit is one which does
really and substantially involve a dispute or controversy as to a right which
depends on the construction of the Constitution or some law or treaty of the
United States, before jurisdiction can be maintained.
To take some illustrations: if persons or corporations are being prose-
cuted in any state court on grounds which seem to infringe on any sub-
stantial right guaranteed to them by the federal Constitu-
tion (for instance, the right not to be deprived of life,
liberty, or property without due process of law), they may
seek relief by having the case carried to the federal courts. Or if any law
made by Congress is being applied, controversies relating to it may
come to the federal courts. Or, again, if a foreign citizen claims that
rights given to him by treaty are denied by any state of the Union, he
may come to the federal courts for the enforcement of his claim. When-
ever, in fact, one of the parties to a controversy asserts that he has a sub-
stantial right which arises from the national Constitution, laws, or
treaties, this brings the matter within the judicial power of the United
States and potentially within the jurisdiction of the United States
courts.
Again, the judicial power of the national government extends to all
cases affecting foreign diplomats. A diplomatic agent of a foreign state is
by international law immune from prosecution in the courts
of the country to which he is accredited. This provision of FECTINCUAMT
the Constitution merely operates, therefore, to keep the ?*SSADORS,
state courts from a possible infringement of international PUBLIC
law. If an ambassador or other public minister of a foreign MINISTERS,
~ , . ,. , , , AND CONSUL
state commits an offense, his recall may be requested, or he
may even be expelled; but as long as he remains an accredited diplomat,
his freedom from legal process is guaranteed. This rule as to diplomatic
immunity has been recognized from ancient times.
552 THE GOVERNMENT OF THE UNITED STATES
By "admiralty and maritime" jurisdiction is meant authority ovci
cases which relate to American vessels traveling on the high seas or in
the navigable waters of the United States. Such, for exam-
RAI/TYCASES P^c> are controversies regarding freight charges, seamen's
wages, damages due to collisions, and marine insurance. In
time of war it also covers cases relating to prize vessels captured at sea.
Admiralty law is a distinct branch of jurisprudence, differing both in
Substance and in procedure from the common law and equity of the
regular courts. For that reason, and also because foreign commerce was
placed within the regulating power of the national government, it was
deemedjwise to vest admiralty jurisdiction in the federal jcourts. *"" *
/ Likewise, the federal courts have jurisdiction whenever the United
States is one of the parties to a suit, either plaintiff or defendant, or
' whenever the controversy is between two states of the
4. CASES IN 7
WHICH IHE Union, or between "a state and a citizen of another state.''
UNITED The ftrst two clauses of the foreeroin^ sentence are perfectly
STATES OR A , ° ° . ,
STATE OF THE clear and have caused no difficulty, but the third (the one
UNION is A jn quotation marks) is ambiguous. Does it mean that a
PARTY
state of the Union may be sued in the federal courts by a
citizen of some other state? Does it mean, for example, that if you arc a
citizen of New York you can sue the Commonwealth Of Kentucky in
the federal courts?
A dispute on this point arose soon after the Constitution went into
effect, and in a noteworthy decision the Supreme Court ruled that such
THE SUABIL- su*ts ^g^ be maintained.1 The sovereign state of Georgia,,
ITY OF A ^t held, could be sued in the federal courts by a citizen of
STATE. South Carolina. This ruling was a surprise, because it had
been openly asserted, when the Constitution was before the states for
acceptance, that no state would be amenable to the suit of an individual
without its own consent. But the Supreme Court, in making its adjudi-
cation, followed the literal wording of the Constitution, which plainly
allows such a construction.
Georgia thereupon set up a loud wail of protest, and the other states
joined her. They denounced the decision as an impairment of their
sovereignty and an affront to their dignity. Of course, the
THEGEORGIA states j^^ gOOC} grounds for this protest, inasmuch as the
principle that a sovereign state is not liable to be sued with-
out its own consent had been recognized from time immemorial. Black-
stone spoke of it as "a necessary and fundamental principle." So the
states demanded that the Constitution be amended in such way as to
1 Chisholra v. Georgia, 2 Dallas 419 (1793).
THE JUDICIAL SYSTEM 553
make this principle clear, and in 1 798 the eteveiUh amendment set the,
matter right. ~
By the terms of this amendment the federal courts are expressly for-
bidden to take cognizance of any suit brought against a state "by a
citizen of another state, or by citizens or subjects of any TIIF
foreign state." Anyone who desires to sue a state must bring J^EVENTH
his suit in the state's own courts, and these courts will not ^MENDI^-
entertain such suits unless tha^Kave been authorized to do so, in other
words, unless the state legislature has consented. The states do, as a matter
of fact, permit themselves to be sued in their own courts under prescribed
conditions. But a state may be sued in the federal courts only by the
United States, or by a foreign state, or by another state of the Union.
While the doctrine that no state may be sued in the federal courts by
its own citizens, or by citizens of another state, or by foreign citizens is
now well established, the question of whether the officials
of a state are equally immune is by no means so clear. In
general, the Supreme Court has endeavored to determine SUFD IN THE
whether the suit is really against the state through one of its FEDERA^
officers, or whether it is against a state officer as an indi-
vidual. In the former case it will not assume jurisdiction; in the latter it
has maintained its right to entertain suits against those who, "while
claiming to act as officers of the state, violate and invade the personal
and property rights of the plaintiffs under color of authority."
Finally, the jurisdiction of the federal courts extends to controversies
between foreigners and American citizens, and between citizens of
different states. Cases of this sort bring the largest grist to 5 CONTRO-
the federal mills. A corporation or company is presumed, VERSIES BE-
for purposes of jurisdiction, to be a citizen of the state in 7^^°™"
which it was chartered or incorporated, although it may be DIFFERENT
doing the larger part of its business in other states. Thus, a STATES-
company chartered in New Jersey is for judicial purposes deemed to be a
"citizen" of New Jersey. When a corporation brings a suit, or a suit is
brought against a corporation, the chances are, therefore, that the two
suitors will be of diverse citizenship. But diversity of citizenship does not
of itself entail the bringing of a suit in the federal courts, for the national
laws provide that all such cases shall be left to the state courts if no
question of federal right is involved and if the Amount in controversy
does not exceed a certain sum. This action has been necessary to protect
the federal courts from being overwhelmed bv a flood of trivial suits
between litigants of different state citizenship.
When the Constitution provides, therefore, tnat the judicial power of
554 THE GOVERNMENT OF THE UNITED STATES
the United States shall extend to various classes of controversies, it does
not mean that the federal courts must assume exclusive juris-
FEDERAL
,,T«,O™™™*T diction in all such cases. Congress determines how far the
J UKISL/lLj 1 IvJiN *"^
is NOT exclusive jurisdiction shall extend; it may give to the
ALWAYS
federal courts the whole field or only a part of it. > Congress
EXCLUSIVE .
has, of course, given the federal courts exclusive jurisdiction
over all cases of crime against the United States. It has also given the
federal courts exclusive jurisdiction in all suits to which the United States
is a party, all suits between two states, all suits between a state and a
foreign nation, and certain civil suits arising under the national laws.
In all other cases the state courts have been permitted by Congress to
assume concurrent jurisdiction. That is, the plaintiff in a suit has the
option of commencing it in a federal court, or in the courts of his own
state, or in the courts of a state where the defendant resides. This option
is subject, however, to the limitations mentioned toward the end of the
preceding paragraph.
Let no one imagine, then, that the sinuous line which marks off the
jurisdiction of the federal courts is easy to follow. The division of juris-
T^T^TT ™?e diction between the two sets of courts is, in fact, so in-
IJlrr lUULil Ic.0 ' '
ON THE distinct at some points that even good lawyers arc not
SUBJECT. always sure of their ground. As for the ordinary layman, he
is often quite bewildered by the strange things which result from the
divided judicial authority. An employee of a national bank embezzles a
sum of money; he is arrested by a United States marshal, prosecuted by
a federal district attorney, tried in a federal court, sentenced to a term
in a federal penitentiary, and then pardoned by the President of the
United States before his term is out. Directly across the street an em-
ployee of a state bank or trust company embezzles the same amount;
but he is tried in a state court, given a different sentence, sent to a state
prison, and applies to the governor for a pardon. This seems quite
inexplicable to the man in the street, but the simple explanation is that
both the nation and the states have an equal right, through their own
officials, courts, and penal institutions, to administer and enforce their
own laws.
By way of summary, therefore, it may be stated that every proceeding
which appears on the docket of a federal court has been placed there for
one of two reasons. In the first place, it may be there because
SUMMARY.
it raises a "federal question," that is, some issue that involves
the Constitution, laws, or treaties of the United States. If such an issue
is involved, the proceeding may come to the federal courts no matter who
the contending parties may be. But in the second place, a proceeding
THE JUDICIAL SYSTEM 555
may be brought into the federal courts, irrespective of the issue, by
reason of the status of the parties: for example, because it is a suit between
two states, or because the individual suitors are citizens of different states.
Either of these circumstances can bring a matter into the federal courts,
but it must be one of the two. At the same time, it is also well to recall
that the precise extent to which such questions do fall within the juris-
diction of a particular federal court is a matter almost wholly within the
discretion of Congress. It is Congress which determines which of the
issues coming within the judicial power of the United States shall fall
within the jurisdiction of any grade of federal courts; and it is Congress,
furthermore, which determines whether that jurisdiction shall be
original, that is, jurisdiction in the first instance, or appellate, that is,
jurisdiction over questions of law in controversies originally decided by
a lower federal court or by a state court.1
LAW AND EQUITY
So much for the general jurisdiction of the fcd^^lcourts. What
jurisprudence do they administer? They administer both law and equity.
Law, speaking broadly, is made up of two branches, the THE LAW
common law and statutes.2 The development of the AND EQUITY
common law began in mediaeval England when there OF THE
were few written rules. In those early days the royal STATES.
courts decided cases, as far as they could, in accordance THE TWO
with the usages or customs of the people. Gradually, BRANCHES OF
however, the decisions of the courts in such matters grew ^^^
more and more uniform, until this judge-made law or body COMMON
of usages became "common" to the whole realm of England, LAW*
although it had never been enacted as law by any parliament or other
lawmaking body.
But it is not to be assumed that the common law stood unstirred and
changeless on its mediaeval pedestal. Developing in accordance with the
needs of each successive generation, it broadened out from
precedent to precedent, thus adapting itself to the genius ^E^G™*D
of the Anglo-Saxon race. In the course of time, moreover,
this system of common law was reduced to written form by various great
1 Except the original jurisdiction of the United States Supreme Court, which is definitely
fixed by the Constitution.
8 Occasionally they also administer "admiralty law," a code of maritime rules inherited
from England which has been considerably modified by acts of Congress, and they also apply
the rules of international law when the need arises. See Charles Pergler, Judicial Interpretation
of International Law in the United States (New York, 1928).
556 THE GOVERNMENT O* THE UNITED STATES
text writers or commentators, Glanvil, Bracton, Littleton, Coke, and
Blackstone.
Dining the colonial period the common law followed the flag across
the Atlantic. Its principles and procedure were applied by the judges in
ITS TRANS- t*16 American colonies. The Declaration of Rights, adopted
PLANTATION by the First Continental Congress in 1774, spoke of it as a
TO AMERICA, heritage. "The respective colonies," it asserted, "arc en-
titled to the common law of England." When the thirteen colonies
shook off British political control, therefore, they did not root out the
common law. On the contrary, they retained it; and it still persists as the
foundation of the legal system in the natioa and in all the states but one.
Only in Louisiana did the common law fail to secure an initial foothold.
There, through the colonization of the country by the French, the
jurisprudence of France became the basis of the present legal system.
Even in Louisiana, however, trial by jury and other common law insti-
tutions have been superimposed upon the old legal framework and have
greatly modified it.
So, although the common law of England remains the basis of the
American legal system, it has ever kept growing and changing, widening,
ITS DEVEL- anc^ narrowing m the New World as in the Old. This steady
OPMENT transformation of the American legal system has been
THERE. accomplished in part by judicial decisions but in larger
measure by the enactment of statutes which have modified or even
supplanted the rules of common law on many matters. A statute or act
of a legislature may merely rcenact with slight changes what has been
the common law, or it may set some rule of the common law aside.
Where the common law and a statute are inconsistent, the statute
prevails. "Reason is the life of the law," said Coke, and when any rule
of the common law seems unreasonable or out-of-date the legislature
intervenes to supplement, or modify, or supplant it by statutory law.
Statutory law, as distinguished from common law, is law made by
some regular lawmaking body. By far the greater part of statutory law
2 STAT- *s made by Congress, by the state legislatures, and by
UTORY LAW: municipal councils. It includes what are popularly known
WHAT IT is. ag javvs? actSj statutes, and ordinances.1 Most of these enact-
ments deal with matters which the common law does not cover at all —
with things that require legal regulation because of the complexities
of our modern social and economic life. Because of this increasing com-
1 The terms "laws, acts, and statutes" are usually confined to the enactments of Congress
and the state legislatures, while the term "ordinances" is used to designate the enactments of
municipal councils and other subordinate lawmaking bodies. In towns and townships they
are often called "by-laws."
THE JUDICIAL SYSTEM 557
plexity the production of statutory law by Congress, by the forty-eight
state legislatures, and by the thousands of subordinate lawmaking bodies,
has developed to enormous proportions, and it keeps increasing year by
year.
Accordingly, this branch of law now forms by far the larger part of
American jurisprudence as a whole, but its importance is not commen-
surate with its bulk. These thousands of statutes have T^co^^ni31
lib bC«VjJr Jc.
supplemented the common law, filled in the gaps, and AND IM-
altcred it at times; but they have not made it cease to be an PORTANGE-
underlying force in the legal system of the country. No lawyer is a well-
trained lawyer unless he has mastered the principles of the common law.
In the law schools it is common law, for the most part, that teachers
teach and students study. Some states have enacted comprehensive codes
of law (a criminal code, a civil code, a code of procedure, etc.) which
ostensibly supersede the common law, but even in these "code states'5 a
great deal of common law remains operative. For it is the rule in such
states that where the codes fail to cover a matter, the common law
applies, and this leaves a lot of work for the common law to do.
The common law is an old standby; it has done valiant service for
many centuries. But it tends to lag behind the needs of the time. Lawyers
and judges are inclined to look upon legal principles as
r i i i i TATI • • -I SUPERIORITY
nxed and absolute. When new situations arise, they try to Op THE
meet them by merely stretching the old legal formulas. COMMON
This is a slow method of development and the people
become impatient with it. They call on Congress and the legislatures to
hurry the process by passing some new and drastic statute which is
sometimes poorly thought out and hence works badly. Nothing is easier
to make than an unworkable statute, and nothing is harder than to
execute it. The art of government is largely the trick of adapting laws to
the foibles of mankind. Time and circumstance can usually perform that
trick more deftly than the self-confident politicians of a legislature.
"Common law is common sense," runs an old saying. A good deal of our
statutory law is not.
The Constitution speaks of the federal courts as being entitled to
jurisdiction "in law and equity." What is equity? To explain the sub-
stance, procedure, and limitations of equity jurisprudence
would take far more space than can be accorded to that
subject in any general book on American government. The
layman thinks of "equity" as something associated with abstract justice
or the conscience of the court. Many people have an idea that a judge
gets his law out of a book and his equity out of a soft heart. Of course
558 THE GOVERNMENT OF THE UNITED STATES
there is no basis for this idea. Equity comes out of books just as the law
does. It embodies a formal set of rules which must be applied by the
court with an unfaltering hand, even as laws are applied, and with very
little room for the play of a judicial conscience. It is merely a special
branch of the law.
'The origins of equity are interesting. In mediaeval England there
grew up, side by side with the common law, a system of rules admin-
istered by a special royal court, the court of chancery, which
ITS ORIGIN. . . . .,..,,. / .
aimed to give redress to individuals in cases where the
common law afforded such redress inadequately or not at all. Suitors
who felt that they could not get justice in the regular law courts peti-
tioned the king, as the fountainhead of justice, to intervene on their
behalf. Being busy with other things, the king referred these petitions to
his chancellor, who soon built up a court for considering them. This
court of chancery became the "keeper of the king's conscience," and its
intervention at the outset was confined to granting relief from the legal
consequences of accident or mistake. Every such case was
adjudged on its own merits. Gradually, however, definite
principles or rules were evolved to cover all cases of the same
sort. In the course of time these rules were reduced to written form; and
taken together they became known as equity.
Equity came to the American colonies with the common law. It was
retained after the Revolution and has been developed. Today, both law
and equity are usually administered by the same courts.
ITS NATURE. ^ ' '
The differences between the two arc numerous and tech-
nical, but in general equity applies only to certain classes of civil actions
and never to criminal cases; its procedure is simpler; a jury is not
ordinarily used to determine the facts at issue, and its remedies arc more
direct. A suit at law, for example, is a request for an award of damages;
a petition in equity usually asks for a decree or for an injunction, that is,
for an order specifically authorizing or compelling a person to do or not
to do a thing. Over some matters equity has exclusive jurisdiction; over
others its jurisdiction is concurrent with that of the law. Equity is com-
monly used as a means of preventive justice, that is, to secure a stay of
action before an injury is done.
ALJ As already pointed out, the federal courts, within the
BRANCHES fields of jurisdiction allotted to them by Congress, admin-
ister common and statutory law, equity, and admiralty and
ADMINIS~
OF LAW ARE
ADMINIS-
TERED BY maritime law. But to get a clearer idea as to when and how
THE SAME such jurisprudence is applied, it is necessary to consider
COURTS. u • a *u * i • j c i i * j- u- u
briefly the two kinds of legal proceedings which come up
THE JUDICIAL SYSTEM 559
<n the courts. These are: first, criminal proceedings or prosecutions of
individuals or organizations by the government, and, second, civil suits or
actions in which the litigants are private parties, or, sometimes, a govern-
mental unit and a private party.
Although criminal offenses, as defined by the common law, are still
the subject of prosecutions in the states, the Supreme Court long ago
decided that there could be no common-law crimes against
i r i T T i ..,..,?. CRIMES
the federal government. Hence, the criminal jurisdiction AGAINST THE
of federal courts is based exclusively on the federal Con- FEDERAL
s± s J.^x r^ • J r: J u r _i i.^x GOVERNMENT.
stitution and statutes. Crimes denned by lederal statutes are
fairly numerous, and they are becoming more so, because when Congress
enacts a law it may (and frequently does) provide that any violation shall
constitute a criminal offense. Thus crimes against the United States may
result from violations of the laws or regulations relating to interstate
commerce, the use of the mails, the management of national banks, the
drafting of men into the armed forces, etc. Congress also has power to
provide for the punishment of offenses committed on the high seas as well
as in the navigable waters of the United States. In recent years it has
added kidnapping and the theft of certain property to the list of federal
crimes when such activities involve transportation across state bound-
aries.
But the federal courts deal mainly with civil rather than criminal
cases. Some civil controversies arise out of commerce on the high seas or
in the navigable waters of the United States. Here the CIVIL CASES
federal courts apply the rules of admiralty and maritime IN FEDERAL
law, as established by earlier judicial decisions or enacted by GOURTS*
Congress* Most of the civil actions which come up in the federal courts,
however, are those in which federal jurisdiction results from the status
of the parties concerned. Such are those cases in which the United States,
two or more states, or a state and a foreign country or its citizens are
parties to the suit, and especially where the suitors are citizens of different
states of the United States. Controversies of this last-named class, arising
out of the diverse citizenship of the litigants, include almost every con-
ceivable type of legal action. They may be suits in equity in which the
petitioner asks the court to issue an injunction against somebody (who
then becomes known as the respondent), or requests the court to grant
him some other equitable remedy. Or they may be suits at law in which
the plaintiff asks for an award of damages against somebody (who then
becomes known as the defendant). In cases where equitable remedies
are sought, the federal courts have always exercised considerable dis-
cretion in modifying the traditional rules of equity, and in this way have
560 THE GOVERNMENT OF THE UNITED STATES
built up a special body of equity jurisprudence differing in some respects
from that which exists in most of the states. In civil cases requiring the
application of the rules of the common law, the federal courts now apply
the common law or statute law of the state in which the cause of the suit
occurred. -
JUDICIAL PROCEDURE
The Constitution leaves the procedure of federal courts to the dis-
cretion of Congress. This procedure includes the rules of evidence, the
methods of selecting jurors, the taking of appeals, and all
CONTROLS such matters relating to the actual work of trying cases. To
PROCEDURE some extent these rules of procedure are established by the
IN FEDERAL Judiciary Act of 1 780 and by the various amendments to
COURTS. J 7 .
that statute, all of which were revised and codified by a
general law in 1911. At various times in the past, Congress has also
empowered the Supreme Court to make rules of civil procedure for the
lower federal courts; and in 1942 that tribunal set up a permanent
advisory committee of experts to advise it on amendments and additions
to these rules. Since 1940, moreover, the Supreme Court has been
authorized by Congress to prescribe rules of criminal procedure for use
in the federal district courts, and a special advisory committee has like-
wise been set up to assist the court in this task.
The Constitution, however, contains many limitations upon the power
of Congress and the courts to fix rules of procedure, especially in criminal
BUT SUBJECT cases. These limitations, found chiefly in the Bill of Rights
TO VARIOUS (that is, in the first ten amendments), are designed to ensure
LIMITATIONS. fair trjajs ancj to preclude injustice to any of the parties in-
volved in a criminal case. They relate to such matters as grand jury Sear-
ings and indictments, jury trials, promptness and publicity in judicial
proceedings, second jeopardy, sclf-incrimination, the issue of search
warrants, and the nature of punishments. The limitations apply only to
the procedure of the federal courts; they do not govern the procedure of
state tribunals. But this is not a matter of much practical consequence
because each state constitution places similar limitations on the pro-
cedure of its own state courts. In recent years, moreover, the "due
process" and "equal protection" clauses of the fourteenth amendment,
which do apply to the states, have been interpreted by the United
States Supreme Court to require certain procedural safeguards in the
state courts.1
1 For example, in the so-called Scottsboro cases, in which Negroes had been indicted and
convicted in the Alabama courts for a statutory offense, the United States Supreme Court
THE JUDICIAL SYSTEM 561
Among the procedural limitations imposed by the Bill of Rights and
applicable to federal courts, one of the more important is the provision
that no one may be held for any "capital or otherwise
. c • i . • v r NATURE OF
infamous crime unless on a presentment or indictment of a 1HESE LIMI.
grand jury." l A grand jury is a body of citizens, not exceed- TATIONS.
ing twenty-three in number, selected by lot or by some other r THE
established procedure, and sworn to discharge impartially NEED OF
the duty of investigating all alleged offenses which may be GRAND JURY
brought to their attention by the prosecuting officers of the WHAT THE
government. In other words, the grand jury (aided by the GRAND JURY
j. . \ i .IS AND DOES.
district attorney or prosecuting attorney) conducts an in-
vestigation, not a trial. Witnesses are summoned before it and sworn,
but no defense is presented and no counsel for the accused has any
right to appear before a grand jury, although such a privilege may
be allowed. If the grand jury finds that there is a prima facie case
against any person, it returns a "true bill," or indictment, against him
and he is held for trial. If, on the other hand, it finds no reasonable
ground for holding the suspected person for trial, it returns "no bill," and
he is discharged. A grand jury may undertake investigations on its own
initiative, and occasionally it does conduct an inquiry into the actions of
some public officer or the conditions existing in some public institution.
In all criminal cases (except impeachments) and in all civil suits at
common law, where the amount involved is more than twenty dollars,
the national Constitution requires that trials in the federal
courts shall be by jury.2 This jury, in criminal cases, must QUIREMENT
be selected from the state or district in which the crime is OF JURY
alleged to have been committed. If the offense is committed
outside the limits of any state, the trial may be held and the jury selected
wherever Congress shall by law direct. And no question of fact (as dis-
tinguished from a question of law), when tried and determined by a
jury, may be retried in any higher court except by the same method.
No higher court, sitting without a jury, can ordinarily set aside any
upset a conviction on the ground that the lower courts had made inadequate provision for
counsel for the accused and invalidated an indictment because the county in which the indict-
ment had been returned had failed for more than a generation to summon qualified Negroes
for grand jury service. Powell v. Alabama, 287 U. S. 45 (1932), and Norris v. Alabama, 294
U. S. 587 (1935).
1 Amendment VI. An "otherwise infamous crime" has been construed to be one to which a
penalty of imprisonment for more than one year is attached. The Constitution makes an excep-
tion to the requirement of a grand jury indictment in the case of persons serving in the military
and naval forces of the United States. The distinction between presentment and indictment is
no longer of any practical importance.
9 The constitutional right to a jury trial in criminal cases does not extend to certain mis-
demeanors and it may sometimes be waived by the accused in the case of felonies.
562 THE GOVERNMENT OF THE UNITED S7ATES
conclusions of fact reached by a jury in a lower court. But it can send the
case back for a new trial, thus ordering a redetermination of the facts by
a new jury. The Supreme Court of the United States, for example, sits
without a jury. Consequently, it hears arguments on disputed points of
law only; it does not hear witnesses or listen to the arguments of counsel
SCOPE OF concerning the facts of the case. Finally, the term "trial by
THIS RE- jury," as used in the Constitution, means a jury trial in
QUIREMENT. accordance with the rules of the common law. The right of
trial by jury is guaranteed only to the extent that the common law has
traditionally required it. Accordingly, there is no constitutional right to
a jury trial in equity cases, or in cases involving contempt of court, or in
cases where aliens have been ordered to be deported for illegal entry, etc.
It is permissible, however, for Congress to provide for a jury trial in such
cases if it sees fit, and it has provided for jury trials in cases of indirect
contempt growing out of injunctions issued in labor troubles.
A trial jury is a body of twelve qualified persons, selected either by lot
or in accordance with other legally established methods, and sworn to try
WHAT A impartially a particular case, rendering a true verdict
TRIAL JURY thereon in accordance with the evidence. It is usually
is AND DOES, required that persons called for jury service shall be
qualified voters, but there is no necessary connection between the right
to vote and the obligation of jury service. It is merely that the voters'
lists are commonly used in making up the roster of those called upon to
serve. Certain classes are exempt by law from the obligation to serve on
juries; the exemptions usually include physicians, attorneys, public offi-
cials, teachers, and persons in the military and naval service. Persons
summoned to serve at each term of the court are known as veniremen,
and they form a panel from which the twelve jurors arc selected after
due inquiry has been made concerning their impartiality and compe-
tence. The parties to the trial have the right to challenge any member
of the panel for stated cause. The right to challenge peremptorily, that is,
without assigning any cause, is also granted under certain limitations.
The selection of the jury is complete when twelve persons, against whom
no valid challenge has been interposed, are duly sworn and assigned to
places in the jury box.
A trial jury hears such evidence as the presiding judge permits to be
presented. The admissibility of evidence is a matter of law for the judge,
not for the jury, to decide. But the value of the evidence.
^N^I°!!!»V when once admitted, is a matter of fact for the jury to deter-
\jr I nCi jUivY. «/ /
mine. Most suits at law resolve themselves into questions
concerning the relative credibility of evidence submitted by the opposing
THE JUDICIAL SYSTEM 563
sides. When the evidence has been presented and the arguments of
counsel heard, the judge instructs or "charges" the jury on their legal
duties and on points of law; and, in the federal district courts, he may
also give his own opinion as to the weight of the evidence on any matter
in controversy. This last point deserves emphasis because, in many of the
state courts, a judge is not permitted to make any comment on the weight
of the evidence.
Jury verdicts in the federal courts must be unanimous.1 If the jury
fails to reach unanimity after prolonged deliberation in any criminal
case, it reports a disagreement and is discharged. Then the
11 • ? i. - i i r i i THE VERDICT.
case has to be tried all over again, unless the iederal
prosecutor decides that there is no likelihood of a conviction and con-
sequently drops the case. This the prosecution has a right to do with the
approval of the court. A presiding judge may set aside a unanimous
verdict, other than a verdict of acquittal, if he finds that the jury has
disregarded his rulings on points of law, or if he is satisfied that the
verdict is clearly against the weight of the evidence, or if there has been
any serious irregularity in the methods by which the jurors have reached
their verdict. In such cases, the presiding judge cannot himself render a
different verdict, but merely orders a new trial.
Certain other essentials of procedure in the federal courts are pre-
scribed by the Constitution. It is required that trials shall be speedy and
public; that a person charged with crime shall be informed
of the nature of the accusation; that he shall be confronted SECURITIES
with the witnesses against him, and shall have compulsory FOR FAIR
process for obtaining witnesses in his favor; and that no
person in any criminal case shall be compelled to be a witness against
himself. Finally, an accused person is entitled to have the assistance of
counsel in his defense. Excessive bail must not be required, nor cruel
and unusual punishments inflicted. In searching for evidence, no warrant
may be issued, except upon probable cause supported by oath and
definitely describing the place to be searched or the persons to be
arrested.2 All these requirements are imposed by the supreme law of the
land, and Congress has no power to set any of them aside. But they apply
to the administration of justice in the federal courts only and have no
relation to the procedure of the state courts, except insofar as they have
been copied into the state constitutions, or except to the extent that
1 In some state courts a majority suffices to secure a verdict in civil trials. This reduces the
likelihood of an indecisive trial.
2 For a detailed discussion of these various judicial limitations, see John M. Mathews,
The American Constitutional System (and edition, New York, 1940), Chaps, xxiii and xxvii.
564 THE GOVERNMENT OF THE UNITED STATES
infringements may involve a denial of "due process of law" under the
national Constitution.
' The constitutional protection of all accused persons against "second
jeopardy55 requires a word of explanation. "No person/5 the Constitu-
tion provides, shall be subject "for the same offense to be
JEOPARDY twice put in jeopardy of life or limb.'5 l The application
of this rule is that when a person accused of crime has been
tried in a federal court, and a verdict rendered, he cannot be tried again
by any federal court for the same offense unless with his own consent.
If the verdict is one of acquittal, it matters not that new evidence has been
discovered; the first trial is conclusive and the matter cannot be re-
opened. When an accused person is acquitted, moreover, the government
has no right of appeal to any higher court on the ground that the trial
was not fairly conducted. But if an accused person is convicted, an appeal
can usually be taken or an application for a new trial made on his
behalf.
Instances arise occasionally in which the same act may be made the
basis of two distinct accusations and trials, without placing a person twice
in jeopardy, as, for example, the passing of counterfeit
scopiToF money, which is a statutory offense under the laws of the
THE United States and is also a fraud under the laws of a state.
JEOPARDY Selling shares in a fraudulent enterprise is an offense against
the laws of the states, and, if it is done in interstate com-
merce or through the mails, it is also an offense against the laws of the
United States. Sometimes, moreover, a single act may involve two
offenses in the same jurisdiction, as, for example, driving a car at an
excessive speed and driving while intoxicated. In such cases, an acquittal
on one charge is not a bar to trial on the other.
The insertion of these various limitations in the Bill of Rights is an
indication of the jealousy with which Americans, in the closing years of
SIGNIFICANCE t^ie eighteenth century, regarded the fundamental rights of
OF THESE the citizen. They were not satisfied with the national
LIMITATIONS. Constitution until these provisions had been added to it.
They knew from experience in colonial times that legislatures and courts,
as well as kings and governors, could become arbitrary and tyrannical.
They desired to make certain that the citizen should have a square deal
when brought to the bar of justice. Perhaps they went too far. They gave
the offender more constitutional rights and privileges than he gets in any
other country.
, Although not falling within the category of constitutional limitations
1 The archaic expression "life or limb" is now interpreted as "life or liberty."
THE JUDICIAL SYSTEM 565
on the procedure of the courts, mention may also be made here of the
writ of habeas corpus, since its purpose is to give special THE WRIT QF
protection to accused persons. Normally this writ may be HABEAS
issued by any regular court of competent jurisdiction, GORPUS-
federal or state, by virtue of its inherent judicial authority as a common-
law tribunal. A person held in custody or deprived of his liberty by any-
body whatsoever (e.g., a jailer, a ship captain, a bailiff, etc.) may
petition such a court for the writ. When issued, it is directed to the person
or persons who hold the petitioner in custody and, according to its terms,
the prisoner must be forthwith brought before the court and reasons
given for his detention. If these reasons satisfy the court — for example,
if there is prima facie evidence that the prisoner is being legally held and
that the proper steps are being taken to bring him to trial, he may be
returned to custody. If, on the other hand, the reasons for his detention
are deemed unsatisfactory, the court will order the prisoner's release.
Thus, the writ of habeas corpus is the primary procedure by which a
person unjustly deprived of his liberty can promptly regain it, or by
which an accused person can be assured of being brought to trial within a
reasonable time. That is why the writ of habeas corpus has often been
called the cornerstone of Anglo-American liberty. """""
The Constitution provides that the privilege of the writ of habeas
corpus may be suspended in time of public emergency but does not
indicate who may suspend it. During the Civil War, Presi- HOW THE
dent Lincoln suspended it in various parts of the country on PRIVILEGE
his own responsibility; and was widely criticized for doine ^™t^!!IT
1 ' J <~' MAY BE SUS"
so. Subsequently, the Supreme Court held that the President FENDED OR
does not possess this power of suspension unless Congress DENIED-
authorizes him to exercise it.1 The privileges of the writ may be denied
under certain unusual circumstances. During the Second World War,
seven Nazi saboteurs, who landed on American shores from a German
submarine, were denied the privilege of the writ by the Supreme Court
after they had been brought to trial before a military commission. This
denial was apparently based on the idea that they were part of an invad-
ing enemy force, to whom the constitutional guarantees do not apply.
REFERENCES
GENERAL. W. F. Willoughby, Principles of Judicial Administration (Washington,
1929), is a useful book on the general subject indicated by its title and contains
an elaborate bibliography.
1 Exparte Milhgan, 4 Wallace 2 (1866).
566 THE GOVERNMENT OF THE UNITED STATES
FEDERAL JURISDICTION. All the treatises on constitutional law listed at the end
of Chapter IV explain in detail the organization and powers of the federal
courts. Mention should also be made of five special studies, namely, S. E.
Baldwin, The American Judiciary (New York, 1905), C. N. Gallender, American
Courts (New York, 1927), Roscoe Pound, Organization of the Courts (Boston,
1940), R. S. Harris, The Judicial Power of the United States (Baton Rouge, 1940),
and J. N. Glaybrook, Federal Courts (Charlottesville, Va^, 1928). Attention should
likewise be called to the series of articles on "The Administration of Justice"
published in Vol. CLXVII of the Annals of the American Academy of Political and
Social Science (May, 1933).
THE LEGAL SYSTEM. J. C. Carter, Law: Its Origin, Growth and Function (New York,
1907), J. C. Gray, The Nature and Sources of Law (2nd edition, New York, 1921),
O. W. Holmes, The Common Law (Boston, 1881), Sir Frederick Pollock, The Ex-
pansion of the Common Law (London, 1904), Roscoe Pound, The Spirit of the Com-
mon Law (Boston, 1921), G. L. Jones, Statute Law-Making in the United States
(Boston, 1921), Robert Luce, Legislative Principles (Boston, 1922), H. G. Black,
The Construction and Interpretation of Laws (2nd edition, Minneapolis, 1911),
Ernst Freund, Standards of American Legislation (Chicago, 1917), Homer S. Cum-
rnings, Liberty under Law and Administration (New York, 1934), also the same au-
thor and C. McFarland, Federal Justice (New York, 1937), D. W. Brogan,
Politics and Law in the United States (Cambridge, Eng., i94i),W. W. Billson,
Equity and Its Relation to the Common Law (Boston, 1917), and G. T. Bispham,
The Principles of Equity (9th edition, New York, 1915).
FEDERAL COURT PROCEDURE. G. W. Bunn, Jurisdiction and Practice of the Courts
of the United States (3rd edition, St. Paul, 1927), J. G. Rose, Jurisdiction and Pro-
"edure of the Federal Courts (5th edition, Albany, 1938), American Law Institute,
4 Study of the Business of the Federal Courts (Philadelphia, 1934), A. Holtzoff,
New Federal Procedure and the Courts (Chicago, 1940), T. W. Housel and G. O.
Walser, Defending and Prosecuting Federal Criminal Cases (Buffalo, 1938), A. M.
Dobie, Handbook of Federal Jurisdiction and Procedure (St. Paul, 1928), Felix Frank-
furter and Harry Shulman (editors), Cases and Other Authorities on Federal Jurisdic-
tion (2nd revised edition, Chicago, 1937), and T. M. Cooley, Treatise on Constitu-
tional Limitations (8th edition, 2 vols , Boston, 1927).
COURTS AND ADMINISTRATIVE LAW Walter Gelhorn, Administrative Law (Chi-
cago, 1941), John Dickinson, Administrative Justice and the Supremacy of Law in the
United States (Cambridge, Mass., 1927), J. R. Permock, Administration and the
Rule of Law (New York, 1941), Armin Uhler, The Review of Administrative Acts
(Ann Arbor, 1942), and Joseph P. Chamberlain and others, The Judicial Func-
tion in Federal Administrative Agencies (New York, 1942).
MISCELLANEOUS. A. Langeluttig, The Department of Justice of the United Slites
(Baltimore, 1927), A. C. Millspaugh, Crime Control by the National Government
(Washington, 1937), and J. E. Hoover, Persons in Hiding (Boston, 1938).
See also the references at the close of the next chapter.
CHAPTER XXXV
THE SUPREME COURT AND THE OTHER
FEDERAL COURTS
No feature in the government of the United States has awakened so much curiosity
"n the European mind, caused so much discussion, received so much admiration, and
been so frequently misunderstood as the duties assigned to the Supreme Court and the
functions which it discharges as the ark of the constitution. Yet there is really no mystery
about the matter. It is not a novel device. It is not a complicated device. It is the simplest
thing in the world if approached from the right side. — Lord Bryce.
EThe Constitution, as has been said, did not establish federal courts
otner than the Supreme Court, tutjrierely provided that they might be
set up by Congress. And Congress lost no time in taking
- --- -. L / O _ p __ __ o TUJ7 BASIS
advantage of its authority by enacting the Judiciary Act of Op JUDICIAL
ijSg^a statute which, with its numerous amendments, still ORGANIZA-
lorms trie basis of the federal hierarchy of courtsJlt provided
for district courts, circuit courts, and a^Supreme Court. There were
thirteen district courts^at IHe outset; (now there are eighty-four)1 There
were three circuit courts ; (today there are ten circuU courts of Appeals . £
The Supreme Court, as originally set up by Congress, had a chief justice
and five associate justices. The number of associate justices varied during
the next eighty years, but in 1869 it was fixed at eight; and despite the
determined effort made in the proposed court reorganization bill of 1937
to enlarge the number£the Supreme Court still consists of the chief justice^
^
he chief justice of the United States and the associate justices of the
Supreme Court are appointed by the President with the consent of the
jofficefcluring good behavior and ^cannot be THE SUPREME
^
removed excepxby jmpeachment. A member of the supreme COURT: HOW
bench may retire, if he wishes," when he reaches the age of GONSTITUTED-
seventy, or at any time thereafter; and, if he has served for a certain
number of years, he can retire with full salary .NThe court meets in its
1 This does not include four such courts in Alaska, Hawaii, Puerto Rico, and the Canal
Zone.
* From 1891 to 1911 there were both circuit courts and circuit courts of appeals. In the latter
year the circuit courts were abolished.
567
568 THE GOVERNMENT OF THE UNITED STATES
new and statelyjbuilding at Washington and its sessions, which begin on
the first Monday in October, usually terminate in June. It has its own
reporter, marshal, and other officials, determines what members of the
bar may practice before it, and establishes its Qwn_m)e? pf J^cedureT)
£ln the course of each year the Supreme Court of the United States
decides approximately a thousand cases. It meets every weekday_except
HOW ITS Saturday and its sittingsfj which usually begin at noon, are
BUSINESS continued, save for a short recess, until about four-thirty,
is DONE. Six justices constitute a quorum. If the justices divide evenly
on a case, it is customary to order a rehearing. Daily sittings are mainly
devoted to the oral arguments of attorneys, who also file printed briefs
for the justices to study .(Each oral argument is ordinarily limited to one
hour, and interruptions from the bench in the form of questions are not
uncommon. On Saturday of each week the justices confer in their own
private room upon the cases which have been argued. The various points
presented to them in the oral arguments and in the printed briefs are
discussed, and a decision is reached by majority vote. The chief justice
then designates one of his associates to write the court's opinion in full,
although sometimes he assigns the task to himself. When this has been
prepared, there is a further discussion, with such changes* in the wording
as may be decided upon, and the document is then handed down to be
printed as the decision of the court. It is made public at one of the court's
Monday sessions. Any justice who does not agree with the majority of the
court may write a dissenting opinion, or a minority of the justices may
join in submitting a dissenting opinion. If a justice agrees with the de-
cision of the majority, but does not agree with the reasons which they
give for it, he may write a "concurring opinion." These decisions and
opinions are printed in a series of Supreme Court Reports, which fill two
or three volumes each year A
t^ Cases may be brought before the Supreme Court in either of two ways,
HOW CASES by original suit or by <ippeal. The jjriguml jurisdiction of
MAY COME the Supreme Court, that is the authority to hear cases in the
BEFORE IT. grst instancC) is limited by the Constitution to cases involving
io refSiAL ambassadors and other public ministers and cases to which
guir!^* a state is a party .^Even this limited field may be shared by
1 The official reports of the Supreme Court were published each year prior to 1874 under
the name of the official reporter; since that date they have appeared as successive volumes of
United States Reports , the first volume being numbered as volume 91 The names of these court
reporters were as follows: Dallas (1790-1800); Cranch (1801-1815); Wheaton (1816-1827);
Peters (1828-1843), Howard (1843-1860); Black (1861-1862); Wallace (1863-1874). Hence,
the manner of citing Supreme Court decisions as 2 Dall. 191, or 7 Wheat. 64, or 230 U. S. 105,
for example.
THE SUPREME COURT AND OTHER COURTS 569
other tribunals, since Congress has stipulated that only in cases against
ambassadors and other public ministers, and only in cases where, if
a state is one of the parties, the other party is the United States, a
foreign state, or a state of the Union, must action be begun in the nation's
highest tribunal. When cases of this nature come to the Supreme Court,
they are likely to be important, particularly cases between states; but
they arise infrequently and contribute very little business to the tribunal's
docket.
(By far the larger part of the Supreme Court's jurisdiction is^gggllgJtej
in other words, it is made up of cases which have been appealed from the
state courts or from the lower federal courts for the deter-
mination of some legal or constitutional point. Nowadays
the usual procedure in bringing up a case on appeal is by
writ of certiorari. This writ is a formal order by which a superior tribunal
instructs a subordinate court to certify to it the record of any case which
has been decided by the court below. The Supreme Court may issue this
writ at its discretion. It cannot be claimed as a matter of right by the
appellant/>
The popular notion that anyone who is not satisfied with the decision
of the highest tribunal of his own state may carry his case before the
United States Supreme Court is far from being in accord NOT ALL
with the facts. No litigant has a right to appeal from stace to CASES MAY
federal jurisdiction except where the highest state court BEAPPEALED-
(a) has held valid some state law which is alleged to be in violation of the
federal Constitution, or of a law made by Congress, or of a treaty made
by the United States, or (b) has held invalid a federal law or treaty. But
since 1914, the Supreme Court has been given discretionary power to
review the decision of a state court, if it sees fit, even when this decision
has held a state law invalid on a question of federal right. Sometimes it
consents to review such decisions; more often it declines.
Q\t any rate, most controversies which begin in the state courts end
there. If, however, a case has been decided by the highest state court, and
an appeal is permitted^ this appeal goes directly to the Su- AND AppEALS
preme Court of t.he United States. No subordinate federal GO FROM THE
court has any authority to hear and determine an appeal ^TTE^OURT
from the highest court of a state on any matter. A large part TO THE
of the Supreme Court's work has nothing to Jo with the ^OUR-T^OF
state courts. It mainly is concerned with the hearing of THE UNITED
appeals which come up to it from the lower federal courts^ STATES.
. Be it borne in mind, however, that nothing comes before the Supreme
Court except as the result of an actual controversy. The court does not
570 THE GOVERNMENT OF THE UNITED STATES
concern itself with hypothetical questions. It does not prepare "advisory"
opinions for the guidance of public officials, as some of the supreme courts
ONLY AGTUAiT do in the individual state^Jn 1793, President WasKIngton
CONTRO- submitted to tKeTJnTFecl States Supreme Court a series of
twenty-nine questions concerning a proposed treaty, but
ARE the justices respectfully declined to answer. Nor will the
DECIDED. court pass judgment upon political questions. The Con-
stitution, for example, guarantees to every state a "republican form
of government." But whether an existing government can be called
republican in form is a political question, the decision of which rests with
the President and Congress, not with the Supreme Court.
4THE POWER OF JUDICIAL REVIEW/
(As already indicated, the most distinctive attribute of the Supreme
Court is its power of judicial review. This is the power to determine
JUDICIAL whether a law passed by Congress, or any provision in "a
REVIEW; HOW state~cbnstitution, or any law enacted by a state legislature^
EXERCISED. Qr any other public regulation professedly having the force
of law, is in consonance with the Constitution of the United Statc^The
power is incidental to the court's authority to hear and decide such actual
cases as may come before it. In deciding such cases, it determines whether
a particular statute, upon the validity of which the case may turn, is in
conformity with the Constitution. If the court decides that the statute is
not in conformity with the Constitution, it merely refuses to give effect
to the statute in question. This effectively nullifies the statute, because
thereafter neither the Supreme Court nor any inferior court will recog-
nize it as law and enforce if}
^Many people have the idea that no court except the United States
Supreme Court can declare a law of Congress to be unconstitutional.
' This is by no means the case. Any federal court, even a
THE COURTS
WHICH pos- district court, can declare a law unconstitutional and de-
SESS THIS cline to enforce it. But such decisions are not final ; they mav
be appealed to the Supreme Court and reversed there. "The
correct way of stating the matter is to say that only the_Su£^€me Court
hasjinal authority to declare a federal law unconstitutional^ As regards
laws passed by the state legislatures, moreover, the highest tribunal in
each state has a similar final authority to declare that these are not in
conformity (with the state constitution and are for that reason unconsti-
tutional. When such decisions are made, the Supreme Court of the United
States will not interfere with them. When somebody says that a law "has
THE SUPREME COURT AND OTHER COURTS 571
been declared, unconstitutional" he may mean either of two things:
(i) that it has been held contrary to the national Constitution, or (2) that
it has been held contrary to a state constitution. In most cases, as a
matter of fact, he means the latter.
%l*e power of judicial review over an act of Congress was first asserted
by theTSupreme Court in the case of Marbury v. MadisonXAs pointed
outrih a previous chapter,2 there were precedents for such
action in the experience of the states under the confedera- POWEP BE-
tion, but theCfconstitution itself nowhere expressly grants YOND DIS"
<•-""• *~ * - w, - «• -,~~. . «. v»».~.»i»». .*, ,**«,u» PTJTF
^is pow£EL, Whether the court's action was justified in
assuming so great a power has been for many years a much discussed
question^ Whole books have been written about it. It would take an
entire chapter to set forth, even in outline form, the pros and cons of a
question which has now become one of purely academic interest. For
whether a right or a usurpation in its origin,Q;hc judicial supremacy of
the^ Supreme Court over the laws _oL Congress, "as""w3Tlas .over _ the_~coi>
stitutions and laws of the states, insofar as they conflict with the national
ConsTFtution, is now a fact, an indisputable fact-jltjs as clearly estab-
lished as thoughit had been expressly provided Jn thc^priginal document.
Congress, the state legislatures, and the country have accepted it as a
fait accompli for more than one hundred ye#rs.
COnTHe whole^the action^ of the court in thus asserting Jts^ power of
judicial review has proved beneficial in its resultspHad the court assumed
a different attitude, the American constitutional system
would have become a hydra-headed monstrosity of forty- CJSE HAS
eight rival sovereign entities. It could never have gained PROVED
, , ! i • r • i • i • BENEFICIAL.
that strength and regularity ol operation which it possesses
today0n order to enforce a separation of powers between the executive
and legislative arms of the government, and a division of powers between
tKe state and the nation, there must be an arbiter to reconcile conflicts oj
jurisdiction. In order to protect individual liberty, there must be an
artriter between the government and the governed. The words of con-
stitutions and laws are never so clear as to preclude all chance of dispute,
There must be some authority with final power to interpret them. Ac-
cordingly, the powers of the courts, &s Woddrow Wilson once said,
"constitute the ultimate safeguard of individual privilege and of govern-
mental prerogative." 3 The judiciary is the balance wheel of the whole
system,. ^\ ~~^ ~~~~ ~ ~ "
1 i Cranch 137 (1803).
2 See Chapter IV.
8 Constitutional Government in the United States (New York, 1911), p. 142.
572 THE GOVERNMENT OF THE UNITED STATES
• The power now exercised by the Supreme Court of the United States^
moreover, is^ one which has been rarely exercised by the other high
tribunals of the world. Until very recent years no cpurtjn
ALMOST A any other land has openly ventured to nullify laws enacted
UNIQUE ^./^ by the highest legislative authorities. During the past
^ v quarter of a century, however, there have been some such
decisions in a few Latin-American countries and in the British overseas
dominions, such as Australia; but no court in Great Britain itself has ever
declared a national law unconstitutional, nor has it the power to do so.
That being the case, why is it essential or even desirable that the Supreme
Court of the United States should possess this right of judicial review?
The answer is threefold: first, the government of Great Britain is not
based upon the principle of separating legislative and executive power.
The executive in Great Britain is responsible to the legislature, that is,
to the House of Commons. In the event of any difference between the
two, the will of the legislature prevails. Second, there is in Great Britain
no specific enumeration of constitutional privileges which are guaran-
teed to the citizen and with which parliament must not interfere. Hence,
there are no civic rights which the latter cannot impair if it sees fit.
Finally, Great Britain is not a federation of states and % hence there is
no rigid division of powers between states and nation. In a word, the
need for a judicial arbiter is vastly greater in the United States than
in the nation with which comparisons are most commonly mad^Tj The
appeal to analogy in this case has no relevance at all. Incidentally,
it may be mentioned that in Australia, where there is a division of
powers between the federal and state governments (as in the United
States), the supreme court exercises the power to declare federal laws
unconstitutional.
? Finally, while the authority exercised by the Supreme Court of the
United States is not generally exercised in other countries, it seems to fit
the American Jcmperament. For it simply 'means that
THE NA- Americans have adopted the practice of submitting to an
TIONAL impartial tribunal, made up of eminent jurists, all great
PSYCHOLOGY. . r ,..,.. , . , 1-11
questions ot governmental jurisdiction which are liable to
excite the passions of the people^ If the rulings of the Supreme Court are
not always agreeable to the popular sentiments of the day, it is because
neither judicial nor public opinion is infallible. The doctrine set forth
by Jefferson in the Virginia and Kentucky Resolutions that "as in all
other cases of compact among parties having no common judge, each
parly (presumably each state) has an equal right to judge for itself'
would have iitterlv disintegrated the nation. The LSunreme Court when
THE SUPREME COURT AND OTHER COURTS 573
all is said, represents as near an approach to a strictly nonpartisan body
as the makers of any government have been able to devise.
^One reason why the Supreme Court has managed to retain a large
measure of public confidence, despite many unpopular decisions, can be
found in its refusal to decide political questions. .It has ^
•*• THE COURT
always taken the attitude that questions of expediency must AND PUBLIC
be left to the discretion of Congress. For example, it has held CONFIDENCE-
that Congress and the President, not the judiciary, must decide which of
the two rival governments within the same state ought to have recog-
nition.1 In another case, it declined to render an opinion as to the lawful
duration of military occupation in Cuba, holding this to be "the function
of the political branch of the government." ^)
Individual members of the Supreme Court, moreover, have scrupu-
lously avoided political entanglements. The justices, from the moment
they ascend the bench, cease to be Democrats or Republicans and cut
themselves off from all active participation in party politics. Not only
that, but they abstain from any business connection, however remote,
which might tend to impair their impartiality. When a justice is appointed
to the Supreme Court, he even changes his investments (if he has any)
into noncommercial securities so that he may not appear self-interested.
People may question the advisability of allowing any nine men to exercise
the great powers which the Supreme Court now possesses, but there are
few who ever question the integrity of the justices.
Although the preeminence of the Supreme Court in the American
constitutional system has been generally accepted, criticism has fre-
quently arisen over the manner in which it exercises its CRITICISM
authority. A perennial favorite for the shafts of the critics OF THE
has been its so-called "five-to-four decisions," or decisions "pjv^T0.
in which five of the justices hold a law unconstitutional FOUR" DE-
while four dissenters declare it to be valid. In this way, jtjs GISIONS-
argued, a single justice, who holds office for life and is not responsible to
the voters, may set aside the action of Congress and the President, both
of whom are the people's representatives. The court's critics like to harp
upon this alleged "one-man tyranny" as an undemocratic arrangement
which ought to be terminated without delay.
Two things can be said in reply to this contention. In the first place^
very few laws of Congress have been declared unconstitutional by a close
vpte of the justices. There have been only a handful of such
cases in the whole history of the court, and of these even
fewer were of any substantial importance. In the second
1 Luther v. Borden, 7 Howard i (1848). 2Neely v. Hcnkel, 180 U. S. 109 (1901).
574 THE GOVERNMENT OF THE UNITED STATES
place, no statute of Congress .has ever been declared unconstitutional by
tKe action of a single judge. No "one-man decision" has eyer.heen madfi
by the court. To make a majority decision takes one man plus enough
others toTorm a majority. It is true, no doubt, that a five-to-fcur decision
could not be made without the vote of the fifth judge; but neither could
it be made without the votes of the other four. A similar situation exists
in the Senate, where the Vice-President, who is not a member of that
body, may cast the deciding vote; and in the House of Representatives,
where important legislation has been passed by a majority of one, that is,
by the casting vote of the Speaker. Was this also "one-man tyranny"?
Manifestly not, for it takes half of those voting in each house to make the
casting vote a majority.
Nevertheless, the one-man argument seems to carry weight with a
large number of people, and plans for limiting the authority of the court
have been brought forward. It has been suggested that a
two- thirds vote or even a unanimous vote of the justices
.. _ _ v- ».-.»»
QUIREMENTS ought to be made requisite for declaring a national law
OF VOTES IN unconstitutional. But this would hardly accomplish the
THE COURT. ., - ..»— . ; r
end in view. Some one judge would still hold the balance.
One judge would determine from time to time whether the necessary
two thirds, or the necessary unanimity, could be had. Fewer laws would
be declared unconstitutional no doubt; but close decisions (including
one-man decisions) would continue to be given. We require trial juries
to be unanimous in criminal cases, and our experience has shown that
one juryman, by holding out against the other eleven, can keep a de-
fendant from being acquitted or convicted.
^A more serious criticism of the court's power alleges that its decisions
on constitutional questions have often clogged the wheels of progress and
prevented the valid enactment of economic and social
THAT THE reforms. This complaint has been made on many occasions
COURT BARS during the past hundred and fifty years, not merely by
PROGRE carping critics but by the nation's leaders.) presidents
JsffiffQP> J^kjon, and Lincoln, as well _jis_ Fr^JlkliJl
D. RpQsevelt, are among those who publicly condemned c^^ajn^decisions
of the court QjQjthis jjQQi3C£. Yet in looking back over the nation's history,
will anyone assert that we would have been better off if the Supreme
RESULTING Court had never taken the stand which it took in Marbury
PROPOSALS v. Madison, but had surrendered to Congress the unfettered
OR LIMIT18** right to decide the constitutionality of its own laws? Or, on
THE POWER the whole, would we be better off in the future? That is the
OF REVIEW. re2Q question to be considered in connection with proposals
THE SUPREME COURT AND OTHER COURTS 575
to adopt a constitutional amendment taking away the court's power of
judicial review. A less drastic proposal is to amend the Constitution
in such way as to provide that when a measure has been held uncon-
stitutional by the Supreme Court it shall then be resubmitted to Con-
gress and, if sustained by a two-thirds vote, it shall be deemed in full
force and effect, the court's decision notwithstanding) Both the foregoing
proposals, however, have lost much of their strengtn in recent years for
reasons which will be explained in the next few paragraphs.
Crhe most recent and probably the most powerful attack evbr launched
against the Supreme Court because of its alleged conservatism occurred
in 1937 after it had rendered decisions which invalidated
• i 1-1111 i r T^ RECENT RE-
certam laws which had been enacted as part of President VIVAL OF
Roosevelt's "New Deal." In quick succession the court held ATTACKS ON
• THE COURT
unconstitutional the National Industrial Recovery Act, the
first Agricultural Adjustment Act, the Guffey Coal Act, a railroad pen-
sion act, and a state minimum wage law?) These decisions, following
right on each other's heels and dealing with highly controversial issues,
provoked the sharpest kind of public debate. In the endeavor to strike
while the iron was hot, President Roosevelt secured the
, . . s-* r i .11 THE COURT
introduction into Congress of a court reorganization bill. REORGANIZA-
' One section of this measure authorized the President (with TION BILL
the consent of the Senate) to appoint one additional justice l
for every member of the existing Supreme Court who had reached the
age of seventy without retiring, the number thus appointed to be not
more than six. Under this proposal, the total number of justices (assum-
ing that none of the existing justices then over seventy retired immedi-
ately) would have been raised from nine to fifteen. The Constitution, it
should be mentioned, places no limit upon the number of justices. It
gives Congress full power to determine this. Taken at its face value, the
proposal merely aimed to rejuvenate the court by an infusion of new and
younger members. But a large body of opinion, both in Congress and in
the country, pounced upon the suggestion as a deliberate attempt to
pack" the Supreme Court with justices who would reverse the trend of
the court's previous decisions. In the end, Congress rejected the proposal
to enlarge the court in this way.?
'There is, of course, no way of avoiding conflicts of this sort; and one
can be reasonably certain that they will recur .^fet it is significant that
the court has always come through them successfully and
J>*-^ . . r i • NO REAL AL-
contmues to^jact as the great umpire pi constitutional issues TERNATIVE
as well as the protector o? those~rights which are guaranteed T0 JUDICIAL
x— j- »J l _i ^ ' • u ^L i f ±L SUPREMACY.
to individuals and to minorities by the supreme law of the
(C
576 THE GOVERNMENT OF THE UNITED STATES
land} When the sober second thought of the nation has been brought to
feear upon this whole question, it is generally realized that(whatevci
dissatisfaction may arise over the court's exercise of its great power, there
is no workable substitute for it. The only alternative is to give Congress
more power, or complete power, to determine the constitutionality of its
own laws. That, to be sure, would be a practicable step, but it would also
be a step towards the abolition of several features which have marked the
American system of government from the beginning — among them the
separation of powers, the reserved sovereignty of the states, and the
constitutional protection of private rights^
In this connection it is appropriate to point out that the activity of the
Supreme Court in invalidating legislation, especially national legislation,
has been much exaggerated in the public mind. There is a
NUMBER OF . .11
LAWS HELD common impression that the court bowls over an act of
UNGONSTI- Congress every few days. But in the entire history of the
tribunal, covering more than a century and a half, fewer
than a hundred federal laws have been held invalid. It is true that many
of these have been measures of high importance, and the court's decisions
have sometimes affected in a fundamental way the course of political
development. On the other hand, it should not be forgotten that at least
a thousand times as many congressional statutes have encountered no
judicial barrier. So it is quite misleading to use the term "judicial veto"
in the sense that we speak of the executive veto. President Cleveland, for
example, vetoed more actions of Congress in a single term than the
Supreme Court has invalidated in more than a hundred and fifty years.
PERSONNEL AND PHILOSOPHY
The Supreme Court of the United States began its work in 1 79 o with
John Jay as its first chief justice.1 He had with him five associate justices,
more than were really needed to handle the small amount of
H.AJKL.X rlio" '
TORY OF THE business which came before the court. At its first meeting
COURT. no cases appeared; the court appointed a clerk and then
adjourned for lack of anything else to do. During the initial ten years of
its history, the court decided only six cases involving questions of con-
stitutional law; and, when John Marshall became chief
JUSTICES justice in 1801, there were only ten cases awaiting him on
the docket. Thus far the court had not exercised any great
influence on the nation's political development. Its most important
1 The correct title is "Chiet Justice of the United States," not "Chief Justice of the Supreme
Court."
THE SUPREME COURT AND OTHER COURTS 577
decision upon a constitutional question, moreover, had created a storm
of protest and had been set aside by the action of the states in adopting
the eleventh amendment.1 The prestige of the court was relatively small,
and a position upon its bench during these early years was regarded as
less attractive than the post of a governor or senator. Chief Justice Jay,
for example, resigned from the Supreme Court in 1795 to serve as
governor of New York.
During the next few years the position of chief justice was bandied
about somewhat; but in 1801 John Marshall was given the reins and he
held them firmly for more than three decades.2 Born in
Virginia, he saw service as a captain in the Revolutionary |'?™tJATT
* MARSHALL.
army when only twenty-one years of age. While still a
young man he studied law and entered politics, like so many other young
Southerners of his day. Although not one of those who framed the federal
Constitution, Marshall was a member of the Virginia convention which
ratified it in 1 788, and was on intimate terms with some of those who had
a hand in its making. He declined the post of attorney general in Wash-
ington's cabinet, but was elected to Congress and later became secretary
of state under John AdamstMarshall was appointed chief justice in the
outgoing days of this administration, only a few weeks before the in-
auguration of Jefferson.)
/ This great chief justice was a Federalist in the original sense of the
term, a believer in a strong central government, and he lost no oppor-
tunity of making his influence felt in that direction. When
i rr> i r i • i -HIS CONSTI-
he took office, the powers of the national government under TUTIONAL
the Constitution were not sharply defined; scarcely a clause VIEWS AND
of the Constitution had been subjected to judicial inter- INFLUENGE-
pretation. To the work of making it "efficient," however, Marshall and
his associates promptly set their hands. A succession of great decisions
during the next thirty years not only cleared the constitutional horizon,
but enormously strengthened the lawmaking arm of the national govern-
ment and incidentally raised the court to a position of great authority .^
John Marshall was not only a great jurist but a great statesman, and
1 Chisholm v Georgia (1793) Sec pp 552-553.
2 On Jay's resignation John Rutletlge was named chief justice and assumed the office, but
was not confirmed. Then the post was offered to William Gushing, who was already an asso-
ciate justice, but he declined it Oliver Ellsworth was then (1796) appointed and confirmed.
He resigned in 1800 Then came John Marshall (1801—1834) and Roger B Taney (1836-
1864), followed by Salmon P. Chase (1864-1873), Morrison R. Waite (1874-1888), Melville
W. Fuller (1889-1910), Edward D. White (1910-1921), William H. Taft (1921-1930), Charles
Evans Hughes (1930-1941), Hailan F. Stone (1941-1946), and Fred M. Vmson (1946-).
3 For an exhaustive account sec Albert J. Beveridge, Life of John Marshall (4 vols., Boston,
1916-1919).
578 THE GOVERNMENT OF THE UNITED STATES
he had the advantage of a clean slate to write upon. There was as yet
THE MAN no l°n§ train °f decisions to hamper the court's freedom, no
AND HIS doctrine of stare decisis, for there were no decisions to let
WORK- stand. On the other hand, his task was one of great difficulty,
for the period through which he guided the Supreme Court was critical
in many ways. The issues which came up for adjudication were ones
which had created widespread public interest, and the court, on several
occasions, had to take a stand which aroused strong resentment. State
officials everywhere looked with suspicion upon what seemed to be a
steady encroachment upon state powers. During his thirty-four years of
service, Marshall wrote the decisions of the court upon no fewer tl^an
thirty-six questions of constitutional law.jl -
* Under Marshall's leadership the court first undertook to assert its
place as the guardian of the Constitution, with authority to invalidate
any law, whether state or federal, which contravened the
OF provisions of this instrument. The great chief justice also
JUDICIAL enunciated and maintained two outstanding principles
REVIEW
Qf constitutional construction: in the first place, he insisted
LEADERSHIP, that every power claimed by Congress must be articulated
to some provision of the Constitution, the onus of finding
HIS PRIN- • T i r i_ • i
CIPLES OF an express or implied grant of power being imposed upon
CONSTITU- the federal authorities. But, in the second place (and here
sTRucrioNN" *s where he made his great contribution), Marshall held
that any grant of power, when once found, should be
interpreted liberally, giving to Congress all reasonable discretion as to
how the authority should be exercised. J)
tx'No other man," says Lord Bryce, "did half so much either to develop
the Constitution by expounding it, or to secure for the judiciary its
LORD rightful place in the government as the living voice of the
BRYCE'S Constitution.) No one vindicated more strenuously the duty
ESTIMATE. Q£ tjie court to establish the authority of the fundamental
law of the land; no one abstained more scrupulously from trespassing
on the field of executive administration or political controversy. The
admiration and respect which he and his colleagues won for the court
remain its bulwark: the traditions which were formed under him have
continued in general to guide the action and elevate the sentiments of
their successors." 2
1 These include such great landmarks as Marbury v. Madison, McCulloch v. Maryland,
Gibbons v. Ogden, and the Dartmouth College Case. For a brief review of these decisions,
see William B. Munro, The Makers of the Unwritten Constitution (New York, 1930), pp. 53-84.
2 The American Commonwealth, Vol. I, p. 268.
THE SUPREME COURT. AND OTHER COURTS 579
(^Marshall died in 1835 after having firmly laid the foundations of the
Supreme Court's powerp His successor, Roger B. Taney of Maryland,
was a man of different stripe, a disciple of Andrew Jackson, ,
and a stanch exponent of the states' rights doctrine. Under SUCCESSOR:
Taney' s guidance there was a reaction against the centraliz- ROGER B.
r • i r _i i rr^ , TANEY.
ing ot powers in the federal government, laneys most
notable decision was delivered in the Dred Scott Case (1857). In this
instance, the court applied rules of strict construction to the powers of
Congress, even within the territories, by holding that Congress had no
right to prohibit any citizen from owning slaves in such areas. "No word
can be found in the Constitution," said Taney, "which gives Congress a
greater power over slave property, or which entitles property of that
kind to less protection than property of any other description.". In some
of its other decisions during the early years of the Civil War, moreover,
the court seemed to be placing obstacles in the way of a full exercise of
the national government's powers.-
(^Following the Civil War and the disappearance of the older issues of
slavery and states' rights, the court became mainly concerned with the
solution of legal issues arising out of the extraordinary
, . , , , • , , • 1-1 THE COURT
economic and social advances which the nation made in the
AND THE
next six or seven decades.) The successors of Marshall and NEW
—— ORDER
Taney, jurists such as Melville W. Fuller, Edward D. White
and, more recently, William H. Taft and Charles Evans Hughes, pre-
sided over a court which became increasingly concerned with questions
of industry, trade, and social welfare. The great decisions during these
decades have pertained to the regulation of corporate business, with
taxation, labor questions, welfare legislation, and the expansion of
governmental activities into the realm of business. They have been
decisions which, because of their effect upon the pecuniary interests of
various groups in American society, have often engendered public debate
and criticism; and they have required a breadth of knowledge in the
field of the social sciences beyond what is normally acquired in the study
and practice of the law .(Nevertheless, it can fairly be said that, although
the Supreme Court has occasionally taken a legalistic view of great
economic and social issues, it has adapted itself surprisingly well to
rapidly changing conditions) This is not to imply that (as Mr. Dooley
once jocularly remarked) "the Supreme Court keeps its eye on the elec-
tion returns,'5 but simply that its justices have been, almost without
exception, men of sense and discernmen^/
In addition to the chief justices, other jurists of high eminence have
adorned the supreme bench during its life of nearly eight-score years.
580 THE GOVERNMENT OF THE UNITED STATES
Among its earlier associate justices were several of the "Fathers" them-
selves — John Rutledge, James Wilson, Oliver Ellsworth, John Blair,
and William Paterson. They interpreted the work that they themselves
had done. Later, during the first half of the nineteenth
JOSEPH century, Joseph Story served his long term of thirty-four
years (1811-1845). Story is rightly regarded as the classic
expounder of the Constitution, and his elaborate commentaries on it
continue to hold the admiration of legal scholars at the present day.
Next to Marshall, moreover, Story had the largest influence in shaping
that notable series of decisions which put vitality into the strip of parch-
ment on which the nation was founded. Others whose names stand out
conspicuously on the roll of the justices are Salmon P. Chase, Stephen
J. Field, John M. Harlan, Horace Gray, Louis D. Brandcis, Benjamin
N. Cardozo, and Oliver Wendell Holmes — all of them notable per-
sonalities. The last-named justice gained a unique place on the roll of
great American jurists by reason of his skill in writing decisions which the
ordinary layman could read, understand, and enjoy.2 It is a great art to
combine law and logic with good literature.
The work of the Supreme Court is far more difficult, and more exact-
ing, than the average citizen imagines. To him it is merely a matter of
reading the Constitution and telling the people what it
DIFFICULTY °_ , ^ .. . i r i *
OF THE means. But the Constitution is not merely a set of verbal
COURT'S formulas which, once interpreted, bear that meaning for all
time. The meaning of its clauses is not to be understood by
taking the words in one hand and a lexicon in the other. Every provision
in this document must be construed as a dynamic affair, related to the
times and circumstances in which it is applied. As industrial technique
and our ways of life change with each generation, the constitutional pro-
visions must be harmonized with these altered conditions. If the Consti-
tution were a static affair, a series of inflexible provisions set down on
paper, it would have been discarded through sheer necessity some years
ago. But, as Marshall once said, it is a document that has to be freely
adapted "to the various crises in human affairs." 3
CPhis'does not mean, of course, that changes in the interpretation of
constitutional provisions are made lightly, or in obedience to judicial
THE DOC- caprice. When the Supreme Court has once made a ruling
TRINE OF of law, this ruling becomes a precedent and will be generally
stare decisis. adhered to in future cases of the same nature. This is known
1 Commentaries on the Constitution of the United States, in two volumes. There have been many
editions.
2 Alfred Lief (editor), The Dissenting Opinions of Mr. Justice Holmes (New York, 1929).
3 For a further discussion, see H. L. McBain, The Living Constitution (New York, 1327).
THE SUPREME COURT AND OTHER COURTS 581
as the principle of stare decisis — stand by the decision .\The burden of
proof is on those who ask that the rule be changed. And were it not for
this principle, no lawyer could advise anyone with a reasonable assurance
of being right. So the Supreme Court docs not often reverse its stand;
nevertheless, there have been some notable instances of such reversal.
For example, it decided in 1880 that an income tax might be levied by
Congress without apportionment among the states, and fourteen years
later it ruled that such taxes must be apportioned.1 On another occasion,
the court decided that Congress could not constitutionally enact a law
making paper money a legal tender in payment of debts which had been
incurred before the passage of such legislation.2 A year later, with changes
in the personnel of the court, it upset this decision and held that Congress
did have power to pass such legislation.3 More startling still was the
reversal of judicial attitude which came towards the end of the 1930*8
when, owing to a series of resignations and deaths among the justices,
the court found itself with a majority of newly appointed members.
Thereupon it rendered a series of decisions sustaining various acts of
Congress which would hardly have gained the court's approval a few
years earlier. And within very recent years it gave a notable illustration
of its willingness to reverse itself by ruling that the business of insurance
comes within the scope of congressional authority to regulate interstate
commerce, thus setting aside a decision to the contrary which had stood
firmly for seventy-five years.4
But when the court desires to modify a prior decision, there are ways
of doing this other than by a frank reversal. No two cases are exactly
alike when they come up for trial; hence, a later case can be
differentiated from an- earlier one and a different ruling ^f^f^*
t-7 HY 1 rilii LJlr ~
made. Thus the court once held that Congress could impose FERENTIA-
a prohibitive tax on oleomargarine when shipped in inter- TION OF
state commerce; then, some years later, it ruled that a
similar tax could not be imposed by Congress on profits from the products
of child labor shipped from one state to another.5
This right to change its attitude, either openly or by indirection, is one
of the things which enables the Supreme Court to keep the Constitution
endowed with resiliency. In matters strictly affecting rights of life,
liberty, and property, it is obviously essential that the interpretation of
1 See pp. 370-371.
2 Hepburn v Griswold, 8 Wallace 603 '1869).
3Knox v Lee, 12 Wallace 4^7 (1870)
4 See the decision in United States v Southeastern Underwriters' Association, 322 U. S. 533
\ 1944), reversing Paul v Virginia, 8 Wallace 168 (1869)
* The court refused to regard the child labor tax as a bona fide revenue measure.
582 THE GOVERNMENT OF THE UNITED STATES
the law shall not be subject to frequent and capricious changes. Other-
wise all individual rights, contracts, and business relations would be
IN AD VISA- clouded by uncertainty. But where issues of public policy
BILITY OF are concerned, the rigid application of stare decisis would
pRECEmiNTs s*ow down the machinery of social progress. In court de-
TOO cisions, as in all other expressions of human judgment, a
STRICTLY. reverence for the past may be carried too far. It is the
function of the judiciary to facilitate social progress, but in an orderly
way. A court should not reverse its own decisions, therefore, until it is
satisfied that greater justice than injustice will be done by such action.
It has been mentioned that the Supreme Court of the United States,
unlike the supreme courts in some of the states, does not render advisory
judicial opinions. In many ways this self-imposed restriction
VISORY has been unfortunate. It means that, in many cases, the
OPINIONS court sometimes does not render a decision on the consti-
DESIRABLE? • T r i r r i r
tutionality of a law lor a year, or even for several years, after
it has been passed. Then there are omelets to be unscrambled. The Na-
tional Industrial Recovery Act of 1933 was not held unconstitutional
until 1935; meanwhile, millions of employers had changed their methods
in conformance with its provisions.1 It has been suggested that Congress
might provide, by an amendment to the judiciary act, for the rendering
of advisory judicial opinions by the Supreme Court whenever requested
by the President or by resolution of the national legislature. In that way
the unconstitutionally of a proposed measure could be pointed out in
advance, as is done by the highest court in some of the states.2 But it may
well be doubted whether the Supreme Court would hold itself required
to give advisory judicial opinions, even if Congress empowered or even
directed it to do so.
THE LOWER FEDERAL COURTS
' Next, below the Supreme Court, comes the circuit court of appeals.
The territory of the United States is divided into ten circuits, each circuit
THE CIRCUIT containing several adjacent states. There is a circuit court
COURT OF of appeals for each of these ten circuits, such courts having
APPEALS. £rom three to six judges, but two judges are always required
as a quorum for the hearing of cases.3 The circuit court of appeals in each
circuit holds sessions at various cities, hearing appeals from the district
courts as well as from the rulings of administrative bodies, such as the
federal trade commission. These circuit courts of appeals have no original
1 See pp. 444-446. 2 See p. 735.
8 In case of a tie the is*ue may be certified to the Supreme Court for decision or instructions
THE SUPREME COURT AND OTHER COURTS 583
jurisdiction, that is, they hear no cases in the first instance. In many
cases, where no issue relating to the constitutionality of a law is raised, the
circuit court of appeals has final authority. Thus, they serve to stem the
flow of appeals which would otherwise clog the docket of the supreme
tribunal at Washington. But when a circuit court of appeals (in any case
coming before it on appeal from, a lower federal court) declares a state
law unconstitutional, an appeal may be carried to the Supreme Court
of the United States. In other cases, the right of appeal depends upon
the willingness of the Supreme Court to review the issue. This it ordi-
narily does where the case raises significant questions involving the
federal Constitution or laws. '
Then come the federal district courts. The entire territory of con-
tinental United States is divided into eighty-four districts. Each state
constitutes at least one district, while the more populous «.„„,,„«,,,, AT
L A 1 rlJt. r Jc/lJr!yKAl_.
states have two, three, or even eight, within their bound- DISTRICT
aries. In a few cases, a district is made up by taking portions GOURT-
of two or more states. When there is more than one judge in a district,
each holds court simultaneously; they do not sit together. This expedites
the handling of business. Judges can also be shifted temporarily from one
district to another, whenever such action becomes desirable through
pressure of litigation.
• A federal district court holds two or more sessions each year, sometimes
sitting at various places within the district. It is a court of first instance,
and the only federal court in which a jury is used. Most of
i . , ,. , • i - , P i i - ,- • i ITS OFFICERS.
the cases which come directly within the iederal judicial
power are tried in one of these district courts and the great majority of
them end there. Every district court has its United States attorney and
United States marshal, appointed by the President with the concurrence
of the Senate. The function of the district attorney is to act as the repre-
sentative of the nation in prosecutions before the court/, The marshal
executes the court's orders and judgments, attends to the service of its
wiits, and is its general executive officer. Both are under the direction of
xhe federal department of justice. Each district court also has a federal
commissioner who conducts the preliminary hearing in criminal cases
and decides whether an accused shall be held for the grand jury. *
All federal courts discussed up to this point are sometimes called
"constitutional" courts because they are established by Congress under
the judiciary article (Article III) of the Constitution. 'But,
, ,. . , . . , , . , THE SPECIAL
in addition, there are certain special courts which are com- OR "LEGIS-
monly called "legislative" tribunals, because they have LATIVE"
COURTS
been established by Congress under some specific grant of
584 THE GOVERNMENT OF THE UNITED STATES
legislative power conferred in Article II of the Constitution. To these
special courts the constitutional provisions as to the appointment and life
tenure of judges, as well as the guarantee against reduction of their
salaries, do not extend. .
First among these special courts is the court of claims which consists
of a chief justice and four associate justices appointed by the President.
It has been set up because no one possesses the right to sue
tke United States in the regular courts without its consent.
- As it did not seem fair to deny all redress to citizens who
might have just claims against the federal government, this special court
was created to hear and determine the merits of such claims, particularly
those arising out of contracts. In certain cases there is a right of appeal to
the Supreme Court.- When the decision is against the government, an
appropriation for the amount of the award is made by Congress as a
matter of course. It should be understood, however, that the court of
claims does not possess authority to entertain all suits against the United
States. It has jurisdiction only over such classes of claims as Congress has
allotted to it.
-Then there is a customs court (in reality it is a board of appraisers)
which makes rulings on controversies as to valuations and duties arising
OTHER under the tariff. It has nine judges. Its rulings are subject
SPECIAL to review by a court of customs appeal consisting of five
COURTS. judges; and its decisions, in turn, are in certain exceptional
cases subject to review by the Supreme Court. Somewhat strangely, the
court of customs appeal is given the right to hear appeals from decisions
made by the patent office and, consequently, its name was changed in
1929 to the court of customs and patent appeals. There is also a tax court
of the United States with fifteen judges which hears and decides con-
troversies arising out of the internal revenue laws. •
i Courts in the District of Columbia, Hawaii, Alaska, and Puerto Rico
are also special courts. They have been established by Congress through
its constitutional power to provide for the government of the
COURTS national capital and the territories. From these special
territorial courts, appeals are sometimes carried to a circuit
court of appeals or to the Supreme Court. *Under the so-termed Philip-
pine Independence Act of 1934, the United States Supreme Court was
also given the right to hear appeals in certain instances from the courts of
the Philippine Commonwealth.
• Recent years have witnessed the adoption of several noteworthy re-
forms in the internal administration of the federal judicial system. One
of these was the creation in 1922 of an annual judicial conference pre-
THE SUPREME COURT AND OTHER COURTS 585
sided over by the chief justice of the United States and attended by
senior circuit court judges and occasionally by other federal
judges and officials as well. This conference considers all RECENT
IMPROVE."
sorts of matters relating to the work of the federal judiciary, MENTS IN
including suggestions for relieving crowded dockets and THE GOURT
reforming the rules of judicial procedure. It makes recom-
mendations to Congress for such legislation as will carry these i - THE ju-
reforms into effect. As presiding officer of the conference, °°N~
.
the chief justice has thus been given a degree of super-
vision over the entire judicial system. Still another important reform
was the establishment in 1939 of an administrative office
of the United States courts, the director of which is ap- ISFRATIVE
pointed by the Supreme Court. Under the supervision oi the OFFICE OF
. , i • rr i 11 i /- -1 THE COURTS.
senior circuit court judges, this omce handles the financial
and bookkeeping details as well as much of the routine administrative
work incidental to the operation of the lower federal courts. -It also keeps
the supervising judges informed of the volume of business in the various
courts, the state of their dockets, etc. Likewise, it provides the federal
courts with equipment and supplies. Finally, it has the function of
auditing the accounts of court officials and employees. The establishment
of this office has relieved the judges of the responsibility for handling all
manner of routine details.
In the constitutional courts of the federal system, the judges are ap-
pointed for life or during good behavior. They are removable only by
impeachment before the Senate of the United States. Their
salaries may not be diminished during their tenure of office.
The rule covering these matters cannot be paraphrased DEPENDENCE
into any clearer or more concise language than that of the OF 1HE FFD"
FRAL COURTS.
Constitution itself;
The judges both of the supreme and inferior courts shall hold their offices
during good behavior, and shall, at stated times, receive for their services a
compensation which shall not be diminished during their continuance in office.
But this does not mean that Congress has no control over the courts.
It can reorganize, or even abolish, any federal court except the Supreme
Court. Even in the case of the Supreme Court, it can increase the number
of justices and thus change the character of the court. Congress could not
reduce the existing number of justices by dismissing some of them, but
it would be allowable to provide that vacancies shall be left unfilled until
a desired reduction is accomplished. Moreover, Congress can alter the
power of the Supreme Court to hear appeals, for (as already pointed out)
586 THE GOVERNMENT OF THE UNITED STATES
the Constitution provides that the Supreme Court "shall have appellate
jurisdiction . . . with such exceptions and under such regulations as
Congress shall make," l Finally, there is no way in which the judges in
any federal court can obtain their salaries except by means of a congres-
sional appropriation, and no court can mandamus Congress into making
an appropriation for this or any other purpose. The federal courts are
not independent in the sense that the people, through their representa-
tives, have no control over them. <
Some years ago the writer was listening to the discussion of an adjudi-
cated case in a law school classroom. The decision in this particular
instance appeared to have been in accord with the plain
JUSTICE"* intent of the law, but obviously unjust to one of the suitors.
"That may be good law," suggested one of the students,
"but it isn't justice!" "That may be true," replied the professor, "but
if it's justice you want to study, go over to the divinity school; it's law
we're studying here." This reply amused the class, of course; but the
student was merely making the sort of comment that most laymen would
have made under the circumstances. We speak of our courts as courts of
justice, and it is justice that the average layman expects them to ad-
minister. He forgets that what judges are sworn to administer is the law.
Yet the whole purpose of the law is to establish justice. Its design is to
ensure every man a square deal. Of course the law does not always suc-
ceed in achieving this end, for it is the product of human activity and as
such is subject to human deficiencies. A self-evident proposition it is, or
ought to be, that when the provisions of a law are clearly unjust, no
judge can wring justice out of them without violating his oath to ad-
minister the law without fear, favor, or affection. He may interpret the
written words broadly or narrowly, thus providing some leeway in the
interest of justice, but he cannot disregard the obvious intent of consti-
tutions or statutes. He cannot declare that property belongs injustice to
one man when by the provisions of the law it clearly belongs to another.
Many of the "unjust decisions" which arouse the ire of people from time
to time should therefore be blamed upon the lawmakers and ultimately
on the voters who choose these lawmakers. The people send inexperi-
enced and dull-witted men to represent them in Congress, or in the
state legislatures; these representatives enact some ill-advised law; the
judges then apply its plainly written provisions; and the result is an
indignant outcry against the autocracy of the courts. What are judges for,
the unthinking ask, if not to administer justice. The answer is that to
require the judges to administer what they believe to be justice, even in.
1 Article III, Section 2, paragraph a.
THE SUPREME COURT AND OTHER COURTS 587
disregard of constitutions and laws, would be the very essence of autoc-
racy. There would be no surer way to abolish a government of laws and
substitute a government of men.
REFERENCES
THE SUPREME COURT. The standard work on the Supreme Court is Charles
Warren's study of the great tribunal, The Supreme Court in United States History
(3rd edition, 2 vols., Boston, 1932), but there is also much good material in
Albert J. Beveridge's Life of John Marshall (4 vols, Boston, 1916-1919). This
latter work is supplemented by J. P. Cotton (editor), The Constitutional Decisions
of John Marshall (2 vols., New York, 1905). Attention should also be called to
Felix Frankfurter and J. M. Landis, The Business of the Supreme Court (New
York, 1927), Charles G. Haines, The Role of the Supreme Court in American Govern-
ment and Politics, 1789-1835 (Berkeley, Calif, 1944), Charles E. Hughes, The
Supreme Court of the United States (New York, 1928), and Ernest S. Bates, The
Story of the Supreme Court (new edition, Indianapolis, 1938).
POWER TO DECLARE LAWS UNCONSTITUTIONAL. For full disCUSSlOnS of this
topic reference may be made to Charles A. Beard, The Supreme Court and the
Constitution (New York, 1912), Charles Warren, Congress, the Constitution, and the
Supreme Court (Boston, 1925), Charles G. Haines, The American Doctrine of Judicial
Supremacy (2nd edition, Berkeley, 1932), Edward S. Corwin, The Doctrine of
Judicial Review (Princeton, 1914), W. M Meigs, The Relation of the Judiciary to the
Constitution (New York, 1920), A. C. McLaughlin, The Courts, the Constitution and
Parties (Chicago, 1912), Brinton Coxe, Judicial Power and Unconstitutional Legisla-
tion (Philadelphia, 1893), J. B. Thayer, The Origin and Scope of the American Doc-
trine of Constitutional Law (Boston, 1893), O P Field, The Effect of an Unconstitu-
tional Statute (Minneapolis, 1935), P. H. Loughran, Judicial Review of Federal
Executive Action (Charlottesville, Va., 1930), Edward S Corwin, The Twilight
of the Supreme Court (New Haven, 1934), D J Ettrude, Power of Congress to
.Nullify Supreme Court Decisions (New York, 1924), and H. L. McBain, The
Living Constitution (New York, 1927).
Those interested in discussions of the Supreme Court's position during the
past decade may find the following titles helpful' Edward S. Corwin, Court over
Constitution: A Study of Judicial Review as an Instrument of Popular Government
(Princeton, 1938), E. R. Nichols (editor), Congress or the Supreme Court: Which
Shall Rule America? (New York, 1935), I. Brant, Storm over the Constitution? (In-
dianapolis, 1936), Dean Alfange, The Supreme Court and the National Will (New
York, 1937), Henry Wallace, Whose Constitution? (New York, 1936), B. H. Levy,
Our Constitution: Tool or Testament? (New York, 1940), Robert Jackson, The
Struggle for Judicial Supremacy (New York, 1941), R. K. Carr, The Supreme Court
and Judicial Review (New York, 1942), E. M. Eriksson, The Supreme Court and the
New Deal (New York, 1940), and David Lawrence, Nine Honest Men (New York,
JUDICIAL PROBLEMS. James Brown Scott, Sovereign States and Suits (New York,
1925), and The Judicial Settlement of Controversies between States of the American Union
by the same author (New York, 1918), Charles Warren, The Supreme Court and
the Sovereign States (Princeton, 1924), H. A. Smith, The American Supreme Court as an
588 THE GOVERNMENT OF THE UNITED STATES
International Tribunal (New York, 1920), R. J. Harris, The Judicial Power of the
United States (Baton Rouge, 1940), Charles H. Butler, A Century of the Bar of the
Supreme Court (New York, 1942), Charles G. Post, uThe Supreme Court and Po-
litical Questions," Johns Hopkins University Studies in History and Political Science,
LIV, No. 4 (Baltimore, 1936), W. S. Carpenter, Judicial Tenure in the United
States (New Haven, 1918), Louis B. Boudin, Government by Judiciary (2 vols ,
New York, 1932), and F. N. Judson, The Judiciary and the People (New Haven,
1913). Attention is also called to the references at the close of the preceding chap-
ter (XXXIV).
BIOGRAPHIC MATERIAL. Edward S. Corwin, John Marshall and the Constitution
(New Haven, 1919), J. F. Dillon, John Marshall, Life, Character and Judicial
Services (3 vols , Chicago, 1903), Bernard C. Sterner, Life of Roger Brooke Taney
(Baltimore, 1922), Carl B. Swisher, Roger B Taney (New York, 1935), Roscoe
Pound, "The Place of Judge Story in the Making of American Law" in American
IMW Review, XLVIII, pp. 676-697 (1914), A. B. Hart, Salmon Portland Chase
(Boston, 1899), Felix Frankfurter, Mr. Justice Holmes and the Supreme Court
(Cambridge, Mass., 1938), Silas Bent, Justice Oliver Wendell Holmes (New York,
1932), Francis Biddle, Mr. Justice Holmes (New York, 1942), Alfred Lief (editor),
The Dissenting Opinions of Afr Justice Holmes (New York, 1929), Henry M. Field,
The Life of David Dudley Field (New York, 1898), C A. M Ewing, The Judges of
the Supreme Court, 1789-1937 (Minneapolis, 1938), J. P. Pollard, Mr. Justice
Cardoso — American Lawyer (New York, 1940), Alpheus T. Mason, Brandeis:
Lawyer and Judge in the Modern State (Princeton, 1933), B. R. Trimble, Chief
Justice Waite, Defender of the Public Interest (Princeton, 1938), Charles Fairman,
Mr. Justice Miller and the Supreme Court, 1862-1890 (Cambridge, Mass., 1939),
and K. B. Umbreit, Our Eleven Chief Justices' A History of the Supreme Court in
Terms of Their Personalities (New York, 1938).
CHAPTER XXXVI
THE PLACE OF THE STATES IN THE NATION:
PAST AND PRESENT
If there be any among us who wish to dissolve this Union, or to change its republican
form, let them stand undisturbed, as monuments of the safety with which error of opinion
may be tolerated where reason is left to combat it — Thomas Jefferson.
State government in the United States represents the exercise of those
powers which have not been delegated to the nation. These are the
powers which according to the tenth amendment are
reserved to the states or to the people. It was assumed by TIQLN OF
the framers of the Constitution that this residual authority POWERS TO
of the states would far outweigh the delegated powers of THE NA1ION
the nation. This assumption has, however, not been borne AND THE
out in practice. Liberal or loose construction and the EARLY VIG"
1 TORY OF
doctrine of implied powers won the day over strict construe- LIBERAL.
tion of the Constitution's clauses in the first years of Wash- CONSTRUC-
ing ton's administration; and the century and a half which
has since elapsed has witnessed the slow, but none the less certain, shift
of emphasis in political power from the states to the national government.
But though the states may have lost much of their potential authority
under the Constitution as it was designed by its makers, they are none
the less more important governmental entities today than
i . , r™ • . , , r , , CONTINUING
they have been in the past. 1 his is due to the fact that there IMPORTANCE
has been an over-all expansion of governmental power in OF THE
the country as a whole, and an intensification of govern-
mental activity at every level, local and state as well as national. The
individual states raise and spend far more money today than ever before;
they engage in a greater number of regulatory activities and provide
services to the public which, a generation or two ago, were supplied in a
rudimentary fashion or sometimes not at all.
Moreover, the states are still the pivot around which the whole
American political system revolves. Were it not for the states, the national
government could not function; a President could not be elected, nor
589
590 THE GOVERNMENT OF THE UNITED STATES
could congressmen be chosen; for it is the states that arrange the con-
gressional districts, prepare the voters' lists, and provide the machinery
of elections. In them, too, is to be found the organized party
THEIR SIG- , . r r i • • • i 11 r
NIFICANGE hfe of the nation, so important in the actual conduct ot our
IN THE FED- electoral institutions — national parties being little more
ERAL SYSTEM. , . r ,. . , . , . . , , ^ A
than instruments for coordinating the individual state units
of the same partisan allegiance for nation-wide electoral campaigns.
Again, without the action of the state legislatures (either by ratifying or
initiating proposals), no formal amendment could be added to the federal
Constitution. Likewise, if the states did not exist, there could be no
county, city, or town governments; for all of these derive their authority,
and even their legal existence, from state constitutions and state laws.
The average citizen has no adequate conception of how much the state
government does for him. When he speaks of the government, he usually
means the national government. Such an attitude of mind
WHAT THE ? i • 11
STATES DO has been accentuated during recent years by the concentra-
FOR THE tion of public attention upon the social and economic
experiments which have been sponsored by Congress and
the national executive, as well as by the increasingly important role which
the national government has had to play in international affairs. It is a
readily understandable attitude; but no responsible citizen should allow
it to obscure the fact that the state is still doing a large part of the govern-
ing. It is under the auspices and laws of the state that a citizen's birth is
registered, a school is provided for him, and often a state university; it is
the state which furnishes him with highways on which to travel and
regulates the speed thereon; it is the state which enfranchises the tele-
phone company, the lighting company, and most of the other public
utilities which serve him; it is the state which protects his life and prop-
erty, maintains peace on the home front, and punishes criminals who
threaten or injure him; it is the state which validates his marriage and
grants him his divorce (if he gets one) ; it is the state which licenses him to
practice a profession or permits him to pursue a trade; it is also the state
which often provides a hospital when he is ill and grants the burial permit
when he dies. From birth to death the citizen is in daily contact with the
state, whereas in normal times his contacts with the national government
are relatively infrequent and vicarious. American citizens generally
should take more interest in their state and local governments. The work
of the national government is more dramatic and receives more news-
paper headlines; but this does not mean that it is normally of larger
extent or of greater significance in the daily life of the individual.
THE PLACE OF THE STATES IN THE NATION 591
THE STATES IN THE UNION
f°.
The forty-eight states of the American Union are very unequal in size
and population, but they are equal before the law. All are sovereign
within their own sphere and all are subject to the same LEGAL
constitutional limitations. Much ink has been wasted in EQUALITY OF
disputations as to whether the states are really sovereign; THE STATES-
but here, as in many other political controversies, a great deal depends
upon what is meant by the term. The thirteen original states were
sovereign enough to make the nation; and they and the others which
have been admitted to the Union since 1789 possess the constitutional
power to unmake the nation if they choose. In other words, no power has
been given the national government which the states cannot take back
by constitutional amendment. Meanwhile, as members of the Union, all
states have the same obligations to the national government, to one
another, and to the citizens of the United States. No state has, or can
have, any special privileges under the existing national Constitution. At
the same time it must be re-emphasized that no state has THE UNION
the power on its own initiative to secede from the Union, is "INDE-
That issue, on which men so vigorously disagreed prior to STRUCTIBLE«
the Civil War, was irrevocably settled by the outcome of that great
conflict. From that time forth, as the Supreme Court tersely described
the situation, the nation has been an "indestructible Union composed
of indestructible states." *
Since all states are equal, Congress is not permitted to play any
favorites among them. It must treat them all with an even hand. At the
same time Congress may exact, and sometimes has exacted,
,.. i • r > i • • LIMITATIONS
certain conditions as the price ol a new state s admission to UPON NEW
the Union. Congress can do this because full discretion as STATES AT
, , i 11 i i • i • ADMISSION.
to whether a new state shall be admitted rests in its own
hands. "New states may be admitted by Congress into this Union" is
the wording of the Constitution, and these words clearly leave the terms
of admission to Congress to decide. Accordingly, in 1894, Utah was
required, as a condition of its admission, to abolish plural or polygamous
marriages and to make the abolition "irrevocable without the consent
of the United States." Again, in 1906, when Oklahoma was admitted
to the Union, Congress required that the constitution of the new state
should contain a provision which pledged that the state capital would
not be removed from the city of Guthrie for at least fifteen years. Several
1 Texas v. White, 7 Wallace 700 (1869).
592 THE GOVERNMENT OF THE UNITED STATES
other states have also been admitted with congressionally imposed
conditions.
But once the state is actually admitted to the Union, there is no legally
binding force to such promises or conditions. The new state is then the
political equal of all other states and cannot be held to any
IHESE LiMi- continuin^ political limitations which the federal Constitu-
IATIO.NS AK..L. '-'
INAPPLICABLE tion does not apply to all other states. Arizona, for example,
AFTER AD- was refusccj admission to statehood until she took out of her
MISSION.
proposed constitution a provision for the recall of judges.
Immediately after being admitted to full membership in the Union,
Arizona proceeded to restore this provision to her constitution, and
there was nothing that Congress, or any other body, could do about it.
The admission, having become an accomplished fact, became also an
irrevocable act, and from that point forward Arizona had the same right
to arrange her political institutions under the provisions of the federal
Constitution as was enjoyed by every other state. The Supreme Court
has, to be sure, sometimes interfered when a newly admitted state
violated a condition which Congress interposed precedent to statehood;
but such interference has occurred only when the condition related to
some property right which the national government had granted to the
new state, and the state had proceeded to abuse that right.1 The Supreme
Court has uniformly upheld the power of the newly admitted state to
violate any political condition which Congress may have imposed.
In connection with the admission of new states, the federal Consti-
tution declares that "no state shall be formed or erected within the
jurisdiction of any other state, nor shall any state be formed
^7 the junction of two or more states, or parts of states,
POWER TO without the consent of the legislatures of the states con-
cerncd-" 2 Hence, it would not be permissible to make New
York City a separate state, as has sometimes been proposed,
unless in addition to congressional authorization, the legislature of New
York State gave its consent, which it would not be likely to do. Actually
several states have been formed by partition of the domain of an existing
state with the consent of that state's legislature. Thus, Kentucky became
a part of the Union in 1 792 with the consent of the legislature of Virginia,
its territory having originally been a part of the Old Dominion. Likewise,
Maine was set up as a state in 1820 with the consent of the Massachusetts
legislature, the new state's territory having originally been claimed by
Massachusetts. Even the separation of the new state of West Virginia
1 Stearnes v. Minnesota, 179 U. S. 223 (1900).
2 Article IV, Section 3
THE PLACE OF THE STATES IN THE NATION 593
from Virginia in 1863 was accomplished with the technical consent of
the latter state, this consent having been given by those members of the
Virginia legislature who had not joined the Southern cause in the Civil
War and who, in the eyes of Congress, constituted the valid legislature of
the state.
The process of admission to statehood is relatively simple. The usual
first step is the presentation of a petition to Congress from the legislature
or people of a territory asking that they be organized as a THE PROGESS
state of the Union. If Congress regards this petition favor- OF ADMIS-
ably, it passes an enabling act, authorizing the people, SION>
through a constitutional convention, to draw up a state constitution.
This constitution, having been framed and accepted by the popular vote
of the territory concerned, is then submitted to Congress, whereupon the
territory is declared by resolution of Congress to be a state and its
representatives are admitted to the national legislature.
FEDERAL GUARANTEES TO THE STATES
All states, old and new, are entitled to certain guarantees at the hands
of the national government. The first of these is contained in the clause
of the Constitution which declares that "the United States
shall guarantee to every State in this Union a republican OCAN FORM
form of government." l There were those who thought OF GOVERN-
i • 11 • T> T A it i* MENT.
this guarantee a needless precaution. But James Madison,
the "father of the Constitution/' did not share these views. "... Who
can say," he wrote, "what experiments may be produced by the caprice
of various states, by the ambition of enterprising leaders, or by the
intrigues and influence of foreign powers"? Exactly what is WHAT THIS
meant by "republican government" the Constitution docs GUARANTEE
not explain; but it is reasonable to suppose that its makers IMPLIES-
had in mind the type of government existing in the original states at the
time the Constitution was adopted. Hence, as long as a state continues
to maintain a reasonable approximation to a government which derives
all of its powers directly or indirectly from the great body of the people,
it is deemed to have a republican form of government. The denial of
suffrage to women by many of the states, prior to the adoption of the
nineteenth amendment, did not make their governments "unrepub-
lican." Neither does the partial substitution of direct for representative
methods of legislation by means of the initiative and referendum.
The question of whether or not a particular state has a republican
1 Article IV, Section 4.
594 THE GOVERNMENT OF THE UNITED STATES
form of government has sometimes been presented to the Supreme Court;
and, although that tribunal has taken occasion to comment
APOLITICAL 7 ° . .r 111-1
AND NOT A upon the meaning of the clause, it has uniformly declined
JUSTICIABLE to give a definitive interpretation or to decide whether the
QUESTION. government of a particular state is "republican." The court
takes the view that this is a political question, and that the decision must
rest finally with the President or Congress. The latter body can discharge
this responsibility through its power to determine whether senators or
representatives from any state shall be allowed to take their seats in
Washington. As explained earlier,1 each House of Congress decides all
questions relating to the qualifications of its own members. There is no
way in which any senator or representative can take his seat if the Senate
or the House refuses to let him take the oath of office. So, if Congress
holds the government of any state to be unrepublican in form, it need
only refuse admission to senators or representatives from that state until
matters are set right. Congress, of course, is likely to be rather indulgent
towards any state where "unrepublican" practices are alleged to exist,
because its members, fearful of establishing precedents which might
some day be used against themselves, hesitate to apply the sanction of
excluding all of a state's representatives for any but the gravest reasons.
Hence, in practice, a good deal of latitude is likely to be given to the
definition of republican government. This, however, is not to be de-
plored; for any narrow definition of this term would restrain the develop-
ment of state government and prevent a reasonable and legitimate
amount of experimentation with political institutions.
The Constitution also assures the states that the nation will "protect
each of them against invasion; and on application of the legislature, or
2. PROTEO °f the executive (when the legislature cannot be convened)
TION AGAINST against domestic violence." 2 This guarantee is couched in
AND^NTER- terms sufficiently definite to prevent any serious misconcep-
NAL DIS- tion of its scope. In case of invasion, the national govern-
ORDER. ment's intervention does not have to be invited. Such
intervention is a direct and immediate responsibility of the national
authorities. But in the event of riots or other internal disorder, an express
request must be made by the state authorities in the manner prescribed.
As early as 1 795, Congress placed on the statute book a law authorizing
the President to call the militia of the various states into the national
service to meet a request for intervention in a particular state; and dur-
ing the nineteenth century such interventions were fairly frequent.
Latterly they have been less common because the states now have
1 See pp. 275 and 37? * Article IV, Section 4.
THE PLACE OF THE STATES IN THE NATION 595
adequate forces of their own to cope with most internal emer-
gencies.
A point to be borne in mind in this connection is that the national
government may act directly in the case of local disturbances in a state,
even though the state has not invited intervention and,
. . . ,, DIRECT IN-
mdeed, even in opposition to the express wishes of the local TERVENTION
authorities. National authority to intervene directly arises BY NATIONAL
i i i i i* i t i rr -t AUTHORITIES.
when the local disturbances adversely affect some national
right or impede the proper exercise of some national function, such as the
transmission of the mails, the control of interstate commerce, or the
collection of national revenues. On this basis President Cleveland sent
United States troops to Chicago during the Pullman strike of 1894, in
spite of the vehement protests of Governor Altgeld of Illinois, who in-
sisted that state authorities had the situation well in hand. The Presi-
dent's action in this instance was subsequently upheld by the Supreme
Court.1
CONSTITUTIONAL LIMITATIONS ON THE STATES
The powers of the several states are not enumerated in the federal
Constitution. To look for them there would be to misconceive the funda-
mental nature of that document. The Constitution, as has
, . , . r 1-1 THE CONSTI-
bcen said, is a grant oi powers to the national government. TUTIONAL
That government may exercise all powers thus granted or DISTRIBUTION
i • i- i r i j Ail t_ OF POWERS.
properly implied from those granted. All other powers,
with exceptions to be noted presently, remain where they were conceived
to be originally — with the states. This point bears repetition, for despite
its simplicity and importance, there is no feature of the American con-
stitutional system so persistently misunderstood by citizens who consider
themselves intelligent.
In reserving powers to the states, the Constitution has indicated
certain express limitations or prohibitions. Some of these apply equally
to the national government, but several are peculiar to the
states. The prohibitions which are laid upon both the nation
and the states include those relating to bills of attainder, ex CONSTITU-
post facto laws, and titles of nobility, which are everywhere TIONAL RE"
1 ' -' 7 STRICTIONS.
forbidden. In addition, the Constitution forbids the states
to enter into any "treaty, alliance, or confederation," to coin money, or
to issue paper money, to make anything but gold and silver a legal tender
in payment of debts, to lay any general duty on imports or exports, to
keep troops or ships of war in time of peace, or to engage in war unless in
1 In re Debs, 158 U. S. 564 (1895).
596 THE GOVERNMENT OF THE UNITED STATES
imminent danger of invasion. The placing of these specific restrictions on
state power was designed to prevent interference by the states with the
powers committed to the national government, such as the conduct of
foreign relations and the control of foreign commerce. The restrictions
were also intended to render certain national powers exclusive in their
nature. There are also various implied restrictions upon the states; for
example, they must not lay burdens upon interstate commerce or inter-
fere with the administration of justice in the national courts.
A specific restriction upon the states which has given rise to some
famous controversies is that which forbids them to pass any "law impciir-
insr the obligation of contracts." One of the earliest, and
IMPAIRING -I! 11 r i i i^ i
THE OBLIGA- certainly the most notable, of these was the Dartmouth
TION ot College Case, which came before the Supreme Court in
CONTRACfS. ~ rr-,1 . . 1111 r i^v
1019. 1 he point at issue was whether the charter oi Dart-
mouth College, which had been granted by the crown in colonial days,
was a "contract" and, hence, protected against any hostile interference
on the part of the state legislature. The legislature of New Hampshire
had passed a law changing the provisions of this charter,
MOUTH COL- despite the opposition of the college. The Supreme Court
LEGE CASE held that "in the opinion of the court it [the college charter]
is a contract, the obligation of which canhot be impaired
without violating the Constitution of the United States." The great
advocate, Daniel Webster, who was an alumnus of the college, repre-
sented its interests before the court; and Chief Justice Marshall wrote
the court's decision. It aroused a storm of protest, especially among the
followers of Jefferson, who branded it as a species of graveyard govern-
ment, and demanded to know whether the earth belonged to the living
or to the dead.
But the decision in this case docs not mean that when a private cor-
poration is once given a charter it can never be taken away or changed.
THIS DECISION State legislatures, in granting charters, can make them
NO LONGER revocable at will and virtually all of them now do so. Even
IMPORTANT. jf Sucj1 a reservation is not made, a charter has no greater
protection against the state's regulatory power than any other form of
property. The state's right of eminent domain, that is, its power to take
property with compensation for a public purpose, can clearly limit
or extinguish a contractual obligation. Nor is such an obligation in the
form of a charter a bar to the state's taxing power. Moreover, if the
impairment of the obligation of a contract or corporate charter is
demanded in the interests of public safety, health, or morals, the police
1 Dartmouth College v. Woodward, 4 Wheaton 518.
THE PLACE OF THE STATES IN THE NATION 597
power of the state is sufficient to alter or annul it without any compensa-
tion whatsoever.
It should be added that the rule of the Dartmouth College Case applies
only to the charters of private corporations. The charters of public
corporations, such as cities and towns, are not contracts DOES NOT
and are in no case protected by this constitutional provision APPLY TO
against revocation at the will of the state legislature. CHARTERS
Municipalities and other local government bodies are AND OTHER
merely agents of the state established for the more con- PRIVILEGES-
venient administration of local functions. If they enjoy a measure of
"home rule" and other forms of local autonomy, this is the result of
specific limitations which are nowadays often inserted in the state con-
stitution to restrict the otherwise unqualified discretion of the state
legislature in controlling the affairs of local government and administra-
tion. Furthermore, the "contract clause" of the national Constitution
does not protect a license to engage in a vocation or to practice a pro-
fession, since such a license is not regarded as a contract. Neither is its
protection extended to an elective or appointive officeholder; a public
office is a right or privilege which does not rest on any contract. The
state legislature may abolish such offices and the holder thereof may
suffer considerable potential loss of salary without the right to recover.
Finally, the student should note (which he often overlooks) that the
"contract clause" in the national Constitution applies only to the states;
as far as this chiusc is concerned, Congress is not prohibited from passing
a law impairing the obligation of a contract.
Another significant limitation which the national Constitution places
upon the states is to be found among the provisions of the fourteenth
amendment. This is the stipulation that "no State shall
i i • , i 11 i • i i • -i LIMITATIONS
make or enforce any law which shall abridge the privileges IN THE FOUR-
or immunities of citizens of the United States; nor . . . TEENTH
. r IT 1-1 -i AMENDMENT.
deprive any person ol hie, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." This is really a series of limitations; and in
the years which have elapsed since their insertion in the Constitution
just after the Civil War, they have had a most interesting history. Their
general intent is plain enough. The Negro had been set free, and these
provisions were intended to protect him against hostile THEIR PUR.
discriminations by future laws of the southern states. So POSE AND
clearly was this purpose understood, that not long after the SGOPE-
adoption of the amendment, the Supreme Court expressed doubt
"whether any action by the state not directed by way of discrimination
598 THE GOVERNMENT OF THE UNITED STATES
against the Negroes as a class or on account of their race" would ever
be held to be an infringement of its provisions.1
Yet strangely enough, during the past seventy years, the Negro has
rarely benefited from this solicitude. The Supreme Court presently
resolved its own doubts by ruling that "everyone every-
PRETA^ON" where," including corporations, was included among those
RESULTS IN entitled to the equal protection of the laws.2 The same de-
I-LOOD OF velopment occurred in the case of the "due process" clause
of the amendment. As a result, the court's docket began to
be filled with the appeals of corporations against alleged discriminations
on the part of the various states, while the Negro, for whose particular
benefit the amendment had been provided, virtually dropped out of the
picture. In due course the fourteenth amendment became the basis of
most of the appeals taken to the court to test the constitutionality of state
legislative action. Since 1875, many hundreds of decisions have been
rendered to elucidate its meaning and only rarely have these decisions
related to alleged discrimination against Negroes. Most of the cases have
involved appeals by corporations against attempts of state legislatures
to place restrictions upon them.
Due process of law is undoubtedly the most effective single guarantee
of individual liberty in the Constitution of the United States. Its meaning
has been defined earlier on these pages.3 In judicial theory
THE DUE . . , , v- • , • •
PROCESS its significance is the same whether reference is made to it in
CLAUSE IN t^ fourteenth amendment or in the fifth amendment,
THE STATES. . .... . ,
where it serves as a limitation on the national government.
Nevertheless, in practice, the clause is a more important governmental
limitation in the fourteenth amendment than in the fifth, simply because
it is applied far more frequently to the states than to the national govern-
ment. This condition may be ascribed in part to the fact that there are
more state laws than national laws and more state courts than national
courts. Moreover, despite the growing centralization of economic power
in the national government, it is still true that state laws affect the liberty
and property of individuals and corporations more directly and more
intimately than national regulations.
Equal protection of the laws, the second state limitation in the four-
teenth amendment, does not require that all individuals or corporations
THE MEANING shall be treated alike by the laws of the state. What the
OF EQUAL clause forbids is unreasonable or arbitrary classification
PROTECTION, which favors one individual group or class against others.
1 Slaughter House Cases, 16 Wallace 36 (1873).
2 Santa Clara Co. v. Southern Pacific Co., 1 18 U. S. 394 (1886). 3 See p 520.
THE PLACE OF THE STATES IN THE NATION 599
It merely insists that when any distinction is made by law between differ-
ent classes of individuals or corporations, it shall be based upon some
reasonable ground and shall not be of the nature of an unfair discrimina-
tion. It is proper, for example, to restrict certain professions, such as
teaching or the practice of the law, to citizens as against aliens, or to
residents of the state as against nonresidents. It is permissible to restrict
certain occupations, such as that of motormen on street railways, to
persons of the male sex. It is allowable to make rules relating to one class
of industries but not to others, provided the classification is a reasonable
one and warranted by actual conditions in the respective industries.
Coal mining, for instance, may be singled out from other hazardous
occupations and required to observe special safety standards. Indeed, the
mining of anthracite may be distinguished from the mining of bituminous
coal and separate regulations applied to each. The courts have even
justified the segregation of races by holding that the equal protection
clause is not violated if the state requires "separate but equal" accommo-
dations for Negroes on trains or other conveyances.
Hence, discriminations between individuals, corporations, or establish-
ments, when there is a relevant and reasonable differentiation between
them in fact, are not regarded as denying the equal pro-
tection of the laws. But where the laws of a state, or a QUIREMENT
municipal ordinance, are obviously designed to impose a PREVENTS
disability upon certain persons, corporations, or establish- DISCRIMINA-
mcnts, while giving immunity therefrom to others whose
position is substantially similar, or where there is an arbitrary exclusion
by law of a class of persons from some right or privilege, then the equal
protection clause may be invoked. Thus, a state may not impose a
penalty upon railways for nonpayment of debts which is not imposed
upon other delinquent debtors; nor may a state exclude persons from
participating in a primary election on the ground of race or color.1 The
lengths to which the Supreme Court will sometimes go to prevent arbi-
trary discrimination under the equal protection clause is illustrated by
its annulment in 1886 of a San Francisco ordinance, which required all
persons who wished to establish and operate laundries in frame buildings
to secure a license. Though apparently reasonable, it was clearly aimed
at Chinese laundries and was enforced in a discriminatory way; hence
it was declared unconstitutional. The reasoning of the court on this
occasion is summed up most succinctly in a single paragraph:
Though a law be fair on its face and impartial in appearance, yet, if it is
applied and administered by public authority with an evil eye and unequal hand,
1 Smith v Allwright, 321 U. S. 649 (1943).
600 THE GOVERNMENT OF THE UNITED STATES
so as practically to make unjust and illegal discriminations between persons in
similar circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.1
INTERSTATE COMITY
Among sovereign nations questions are constantly arising the solution
of which requires their cooperation. These questions may involve the
private rights of each other's citizens or certain public
TIONAL^ND rights and duties which nations owe each other. Inter-
INTERSTATE national law, or treaty, or international comity, usually
COOPERA- prescribe how these controversies shall be settled; although
far too often, as the past two generations have shown,
nations resort to war for their solution. In our federal system, problems
also arise which require some form of interstate comity or cooperation
for their settlement. And although, as we shall see, a good deal of this
cooperation is of an informal nature, most of it is precisely defined in the
national Constitution, which sets up some positive obligations which one
state owes another.
The first of these obligations relates to the giving of full faith and credit.
Questions involving the status of persons or their property rights often
arise in one state which involve action under the laws or
THE FULL
FAITH AND judicial decisions of another. To resolve such questions, the
CREDIT Constitution has prescribed that "full faith and credit shall
CLAUSE. . . . . . ... . i - i. . i
be given in each state to the public acts, records and judicial
proceedings of every other state." 2 Thus, when a civil issue has been
tried by the courts of one state, the judgment will be recogni/ed and
enforced by the courts of every other state without a retrial of the issue.
The person who holds the judgment can enforce it in another state as
soon as he proves that it was rendered in his favor by a court of competent
jurisdiction. The same rule holds for a marriage. If legally contracted in
one state, it is held to be valid in all other states, however different their
rules may happen to be. So with deeds, mortgages, wills, or other legal
papers. The laws of Massachusetts require that a will shall be attested by
three witnesses, each of whom shall sign in the presence of
OPERATES *ke testator and of one another. California, on the other
hand, requires only two witnesses. But a will made in the
latter state, by a resident thereof, and attested by only two witnesses
would be held valid in Massachusetts. Property in Massachusetts would
pass under such a will. The same is true of contracts. The lex loci con-
1 Yick Wo v. Hopkins, 1 18 U. S. 356 (1886).
2 Article IV, Section i .
THE PLACE OF THE STATES IN THE NATION 601
tractus, or law of the place of the contract, governs the making of it. If
valid there, the courts of every other state will lend their aid towards
having it carried out. It can readily be seen, therefore, that the full faith
arid credit clause is one of the most important provisions in the national
Constitution. Without it, the utmost confusion would prevail.
In the matter of divorces, the full faith and credit clause has had the
greatest strain put upon it. Divorces are granted in different states under
widely varying conditions. Until 1948, South Carolina
dllowed no divorces to be granted by any of its courts for NITION OF
any reason whatsoever. A few other states maintain rules so DIVORCE
strict that divorce decrees are infrequent. Others, again, let
people obtain them more easily, while one or two states (Nevada for
example) have regulations of the most lenient sort. They give decrees on
grounds which would not serve in most of the other commonwealths.
Yet despite this ridiculous case with which it may sometimes be obtained,
a decree of divorce, when granted to bona fide residents by a court having
rightful jurisdiction in any state, is held to be valid in every other
state.
The Supreme Court, however, has laid down some rules as to the
essentials of rightful jurisdiction. If a court grants a divorce decree in a
state where the two parties have lived as husband and wife, THE RULE
there is no question that the divorce must be accepted in AS TO
every state of the Union. The Supreme Court has also held RESIDLNCE-
that a divorce is binding in all states if granted by a court of competent
jurisdiction in a state where the plaintiff is a bona fide resident, provided
certain formalities have been complied with in the way of giving notice
to the defendant. It is because of this latter ruling that hostelries and
dude ranches in and necir Reno shelter so many guests who are acquiring
a legal residence in Nevada to take advantage of that state's lenient
divorce laws.
But, in spite of these requirements, the obligatory recognition of
divorce decrees, so easily obtained in a few states, has been unfair to all
the others, which arc striving to maintain respectable
i i T • r ii 11 r j POSSIBILITIES
standards. It is unfortunate that the whole matter ol deter- OF
the lethal grounds of divorce and regulating the SIONAL
. , . . ^ i ACTION.
procedure in such suits was not given to Congress at the
outset, so that it could be dealt with uniformly throughout the country.
Even now it would be possible for Congress to introduce some standards
into the situation and, indeed, regularize the whole process by which
states grant full faith and credit to the proceedings, acts, and records of
other states; for the Constitution clearly states that "Congress may by
602 THE GOVERNMENT OF THE UNITED STATES
general laws prescribe the manner in which such acts, records and pro-
ceedings shall be proved, and the effect thereof." l Unfortunately, up to
the present time, Congress has not seen fit to take any action.
Although the states of the Union must recognize and give effect to the
civil judgments of other states, they do not recognize criminal judgments;
THE EXTRA- nor ^° ^V attemPt to punish persons for crimes committed
DITION OF in another state. Instead, the Constitution requires them to
CRIMINALS. return an accused or guilty person to the state from which he
fled. The appropriate provision in the Constitution reads as follows:
A person charged in any state with treason, felony, or other crime who shall
flee from justice and be found in another state, shall on demand of the executive
authority of the state from which he fled, be delivered up, to be removed to the
state having jurisdiction of the crime.2
This process of delivering up fugitives from justice is known as interstate
rendition. The basic principle involved is that a person shall always be
tried and punished by the government having jurisdiction over the place
where he is alleged to have committed the crime and whose authority he
flouted.
The same principle is involved when one sovereign nation returns a
fugitive from justice to another nation from which he fled, a process
EXTRADITION known as international extradition. This process is based
AMONG on treaties and is governed by the general limitations con-
NATIONS. tained in these treaties. For that reason, an offender cannot
be extradited from one country to another unless his offense is one of those
enumerated in the treaty which has been concluded between them. An
accused person, moreover, if he be extradited for one crime, may not
be placed on trial for some different offense. It is usual to provide in
certain extradition treaties, again, that a nation shall not be required to
surrender persons who are charged with political misdemeanors. Subject
to these limitations, a criminal, or accused person, who makes his escape
from the United States to a foreign country can now be extradited or
brought back. The procedure is to send a request through the department
of state at Washington accompanied by various documents showing the
nature of the charge against the individual whose extradition is sought.
These papers go to the other country through the regular diplomatic
channels.
The surrender of fugitives by one state to another is based on the na-
tional Constitution and not on treaties. Hence, there is no detailed
enumeration of the crimes for which the return of an accused person may
1 Article IV, Section i * Article IV, Section a.
THE PLACE OF THE STATES IN THE NATION 603
be requested. The words of the Constitution are "treason, felony, or other
crime" — which is a very broad category. Nor is there any rule against
extraditing a fugitive on one charge and trying him upon DIFFERENCES
another. On the other hand, no person may be brought BETWEEN
back from one state of the Union to another unless he is ^^^L^AND
actually a "fugitive from justice," as the words of the Con- INTERSTATE
stitution expressly require. A state cannot demand the return EXTRADITION-
of anyone who was not actually within its jurisdiction at the time the
offense is alleged to have been committed.
This limitation has given rise to some interesting questions. If a man
commits a murder in Vermont and escapes into New Hampshire, the
matter is clear enough; he is a fugitive from justice and can SOME LOOP-
be brought back. But suppose a man, standing near the HOLES IN
boundary line of Vermont, fires a shot which kills somebody THE LATTER-
on the New Hampshire side of the border. Can he be tried in Vermont?
Not for killing anyone, for nobody was killed in Vermont. Can he be
extradited to New Hampshire and tried there? No, because he is not a
fugitive from that state. Or suppose someone sends a booby trap through
the mails from Wew York to Chicago. The recipient opens the package,
and that is the last seen of him. The sender is discovered and arrested.
Can he be tried for murder, and if so, where? Are the Illinois authorities
entitled to demand his surrender to them? What about the aviator who
drops a missile on a crowd in Baltimore while making a flight from
Washington to New York? Is New York under obligation to honor a
request for his extradition to Baltimore as a "fugitive from justice"?
Admittedly, these are extreme hypothetical cases; but they indicate that
the rendition clause of the Constitution has some puzzles in it.1
The procedure in securing the return of anyone who is really a fugitive
from justice is simple enough. Legal proceedings are started in the state
where the offense was committed, and an indictment is
, r^, ,* , i , , PROCEDURE
obtained. I he arrest of the accused person, wherever he IN INTER-
happens to be, is arranged for. Then a requisition, signed STATE
11 r^lJ _J« *^'^l 1 v RENDITION.
by the governor oi the demanding state, is taken by a police
officer to the governor of the state in which the offender has taken refuge.
If this requisition is found to be in proper form, it is honored by the
latter and the prisoner is handed over to the officer to be taken back.
Occasionally an accused fugitive, through his counsel, resists rendition,
in which case the governor holds a hearing to determine whether the
requisition ought to be honored. He may refuse to honor it on the
1 Some of these hypothetical cases might bring the national government into the picture;
this is especially true of the one involving criminal use of the United States mails.
604 THE GOVERNMENT OF THE UNITED STATES
ground that the charge is a trumped up one, or because he feels that
the prisoner, if surrendered, will not receive a fair trial, or on some other
ground. Not many years ago a New Jersey governor refused
IN FORM BUT to honor a requisition from the state of Georgia to return a
DISCRETION- convict who had fled from a Georgia "chain gang," appar-
ently because the governor considered Georgia's treatment
of its convicts] inhumane. Whenever rendition is refused, the fugitive is
safe so long as he stays where he is, or so long as the governor does not
change his mind, or a new governor with different opinions docs not
come upon the scene; for there is no way of forcing a governor's hand.
True, the words of the Constitution are "shall be delivered up"; but the
Supreme Court has decided that it cannot issue a writ of mandamus to a
governor in such matters, even though his action may appear to be a
gross abuse of the executive discretion.1 So, while the obligation to sur-
render a fugitive from justice is mandatory in form, it is discretionary if a
governor chooses to make it so.
Still another principle of interstate comity, directly affecting the wel-
fare of individuals, which the Constitution expressly defines, is to be
found in the provision that "the citizens of each State shall
THE PRIVI- • i , 11 • -i i • • • r - - r i
LEGES AND be entitled to all privileges and immunities of citizens ol the
IMMUNITIES several States." 2 This somewhat ambiguous statement is a
guarantee that no state of the Union will discriminate in
favor of its own citizens against a citizen of any other state. It cannot
prevent him from coming into its jurisdiction for business or recreational
reasons; it must grant him the same civil rights that it grants its own
citizens, including the right to own property and to secure the protection
of its courts. Should he take up permanent residence and thereby auto-
matically acquire citizenship in the state under the terms of the four-
teenth amendment, it must accord him all political rights and other
special privileges reserved to its own citizens on terms identical to those
prescribed for its existing citizenry. This provision of course applies only
to citizens who are natural persons (or individuals); it does
DOES NOT . . ~ . .
APPLY TO not apply to corporations, or artificial persons as they are
CORPORA- sometimes called. Some states have occasionally violated
the spirit if not the letter of this guarantee in barring visitors
from other states on the ground that they might become public charges;
but the courts have generally frowned on such a practice. In a country
where the penchant for moving about is as firmly established as in the
United States, the significance of this provision of the Constitution can
hardly be overestimated.
1 Kentucky v. Dennison, 24 Howard 66 (1861). 2 Article IV, Section 2.
THE PLACE OF THE STATES IN THE NATION 605
OTHER FORMS OF FEDERAL COOPERATION
Cooperative action among the states and between the states and the
national government, which the Constitution expressly enjoins, does not
preclude similar activities which may be carried on infor-
i i /* i i • • r i NEED FOR
mally or which result from changed interpretations of the INFORMAL
Constitution itself. The growing sense of national unity COOPERA-
and the increased demand for national standardization in
many directions makes such cooperation imperative, if we are to avoid
the alternative of an even greater degree of centralization of authority
in the national government than has taken place during the past half
century.
As between the states and the government at Washington, this co-
operation is often purely informal. Without being required to do so by
the laws or the Constitution, the states aid the national
government matericilly in executing many national policies ASSISTANCE
locally, thereby making an expanded national bureaucracy BY THE
unnecessary. The states have honored the request of the THE NA.
Washington authorities for their cooperation in providing TIONAL GOV-
,. r . , . . . . c . ERNMENT.
rcliei to the unemployed, preventing violations of the
national laws (e.g., against counterfeiting), handling epidemics, and
giving aid in time of disaster or economic emergency. During World
War I the governors of the states, at the request of the national govern-
ment, organized the civilian draft boards to administer the selective
service system. A similar request was honored in World War II. In
addition, during the latter conflict, the states took over many activities
connected with rationing, civilian defense, recruiting, the distribution of
manpower, and the wartime scrap and conservation drives. Their volun-
tary services were largely responsible for the success of much of this
activity during our wartime emergencies.
In the case of many of the normal peacetime activities of government,
joint action by the states and the nation has actually ripened into a
partnership which may eventually develop into an entirely
THE C*ROWTH
new type of federalism. Through the system of grants-in- Op NATIONAL-
aid, discussed on an earlier page, national and state govern- STATE PART-
ments share the cost of trunk highways, vocational educa-
tion, various aspects of national defense, and the social security system
adopted in 1935. Reforestation and irrigation projects have been
similarly handled in the past and there is talk at present of extending
this sort of partnership to the realm of general education, hitherto a
responsibility of the states and their local governments.
606 THE GOVERNMENT OF THE UNITED STATES
Likewise, the states and the nation have joined hands in financing
emergency public works as a measure of unemployment relief. In some
DIFFICULTIES cases, while the national government has provided most or
INHERENT IN all of the funds, the states have supplied the projects and
SUI^ORT^OF supervised the work. As an emergency arrangement, this
STATE has proved practicable; but it is doubtful whether, as a
PROJECTS. long-range plan, one government can furnish the money
while another administers the spending of it. Theoretically, such an
arrangement is possible, with the national government merely laying
down the general rules and the states performing the function of detailed
administration and management. Thus, centralization of control would
be combined with decentralization of management. But, as a matter of
practical politics, such an arrangement is full of difficulties. These arise,
in the main, from the fact that the national and state governments are
controlled from time to time by different political parties, both seeking
to obtain as much patronage as they can. To expect that a national
administration will forego these opportunities, in order that its political
opponents in many of the states may profit from such abstinence, is to
expect a great deal more than the traditions of American party warfare
would justify. Nevertheless, there is little reason to doubt that the
partnership embodied in the traditional grant-in-aid principle will
continue to expand as time goes on.
Informal cooperation among the states themselves has likewise
attained in our generation a volume and significance which too few
students of government have realized. Interstate com-
VOLUNTARY . . ° .
COOPERA- missions have been established to make recommendations
TION AMONG for overcoming tax conflicts, to deal with the problem of
THE STATES. , , i i i • i
interstate crime, and common problems relating to the
administration of social security. These recommendations serve as a
guide to the various state legislatures and administrative officers. Since
1892, moreover, a National Conference of Commissioners on Uniform
State Laws, consisting of representatives of every state, has been rec-
ommending model statutes to the various legislatures on a great
variety of subjects concerning which it is desirable to have a uniform
policy.
The coordinating body for most of these agencies on interstate co-
operation is the Council of State Governments, which came into being
in 1935, and derives its authority from commissions on
1*HE COUNCIL . t
OF STATE interstate cooperation appointed by the legislatures of the
GOVERN- states. One representative of each of these commissions
makes up the policy board of the council which meets every
THE PLACE OP THE STATES IN THE NATION 607^
six months. The council's administrative headquarters are in Chicago.
In addition to its planning and research activities, the council serves as a
clearing house for several other interstate bodies such as the National
Association of Attorneys General, the National Association of Secretaries
of State, and the Governors' Conference. The research activities and
facilities for collaborative action furnished by the council and its affiliated
agencies are in a measure responsible for the well-planned and concerted
attack which many states have announced they are prepared to make in
the wake of World War II upon common problems in the fields of
education, employment, agriculture, housing, and social services.1
An instrument to promote common action among various states which
is being used with increasing frequency is the interstate compact. This is a
formal agreement among interested states to settle a dispute INTERSTATE
or carry forward some project the scope of which transcends COMPACTS OR
the jurisdiction of any one state. Authority for forming such AGREEMENTS-
compacts, somewhat negatively stated, is to be found in the consti-
tutional provision which says that "No State shall, without the consent
of Congress . . . enter into any agreement or compact with another
State." 2 Many such compacts have been concluded, more than twenty-
five of them having been either initiated or ratified by Congress in the
past fifteen years. Some of these compacts relate to boundary questions.
Others relate to the diversion and use of waters of interstate lakes and
streams, the prevention of pollution in rivers and harbors, and flood
control. Still others provide for the interstate supervision of criminals
out on probation or parole, or relate to the building of bridges and other
structures on interstate waters, as well as to the conservation of fisheries
and other natural resources.
Among the more important recent compacts are those which concern
the use and diversion of the waters of two of the nation's great river
systems, the Colorado and the Columbia. Seven southwest-
ern riparian states signed the Colorado River Compact
between 1925 and 1939; four northwestern states signed the
Columbia River Compact, an agreement closely connected with the
construction of the Grand Coulee and Bonneville dams. By means of a
compact, New York and New Jersey have created a common port
authority to develop New York harbor; similarly they have agreed to the
joint development and management of the Palisades Interstate Park, an
area of some 44,000 acres along the Hudson, including the picturesque
1 The Council of State Governments publishes biennially The Book of the States, an invalu-
able source of information on current developments in state government and administration
•Article I, Section 10.
608 THE GOVERNMENT OF THE UNITED STATES
Palisades, and running from Fort Lee, New Jersey to Newburgh, New
York.
The possibilities of regional administration of matters falling into the
jurisdiction of several states, inherent in the device of the interstate
compact, have by no means been exhausted; and there are
A DEVICE FOR ,111.1. r i • r
SOLVING many who look to this device as a means of taking care ot
REGIONAL the growing number of problems which require a regional
solution. Others, however, consider the device quite in-
adequate for the purpose. As technical efficiency goes ahead, with its
changes in transportation, communication, industrial organization, mar-
keting, and the routine of daily life, there will be more and more prob-
lems which the individual states cannot hope to handle effectively.
National unity having been attained, and the old-time fear of national
tyranny diminished, the march of centralization, with its piling up of
legislative and administrative authority at Washington, seems bound to
continue, unless some more formal instrument for regional government
and administration is perfected.
Accordingly, it has been suggested that we ought to establish a number
of regional commonwealths in the United States. Now York, with her
twelve million people, might stand alone as one region, New
RATE PRO- " England as another, the South Atlantic seaboard as a third,
POSALS FOR etc., thus giving the nation some nine or ten regional
REGIONAL
commonwealths in all. Each of these, it is suggested, should
have its own regional legislature and perhaps an elective
governor general as its chief executive. Certain powers now vested in
Congress might be devolved upon these regional governments and
various powers now reserved to the states handed over as well. Thus, the
new regional commonwealths would obtain their endowment of author-
ity from two sources, from above and from below. The states could be
maintained in existence with most of their present powers intact, but they
would surrender to the new regional governments some of the authority
over economic and social relations which they arc no longer able to
exercise in an effective way.
All this would require, of course, a series of amendments to the national
Constitution; and, as a practical matter, such a plan would encounter
serious obstacles. No government ever shows itself willing to surrender any
of its powers. On the other hand, it is becoming reasonably clear that
our two-cylinder governmental machine will some day prove inadequate
to carry the load, if the present rate of increase of governmental functions
is continued. In point of governmental importance, the states are clearly
getting smaller, the nation larger. The gap between the two has been
THE PLACE OF THE STATES IN THE NATION 609
widening with startling rapidity during the past few years. Those who
deplore this inevitable drift of power, and demand that the national
government desist from its steady assumption of authority at the expense
of the states, are fighting a lost cause unless they can suggest a satisfactory
alternative. The helplessness of the states was all too vividly shown, for
example, when the banking system collapsed in 1933. Power cannot, and
will not, be devolved into hands which arc from the very nature of things
incapable of using it competently. The only alternative to excessive
national centralization, therefore, is some workable scheme of legislative
and administrative devolution.
REFERENCES
GENERAL. The place of the states in the American scheme of government is
discussed in several books on state government* A. N. Holcombe, State Govern-
ment in the Urnted States (3rd edition, New York, 1931), W. F. Dodd, State Govern-
ment (revised edition, New York, 1928), F. G. Bates and O. P. Field, State Gov-
ernment (revised edition, New York, 1939), F. G. Crawford, State Government
(New York, 1931), W. S. Carpenter and P. T. Stafford, State and Local Government
in the United States (New York, 1936), Austin F. Macdonald, American State
Government and Administration (revised edition, New York, 1940), W. Brooke
Graves, Ameruan State Government (revised edition, Boston, 1941), Arthur W.
Bromage, State Government and Administration in the United States (New York, 1936),
and J. M Ma thews, American State Government (revised edition, New York, 1934).
SPKCIAI Much useful material is included in H. V. Ames, State Documents on
Fedetal Relations (Philadelphia, 1906), and in H. L. West, Federal Power; Its
Growth and Xnessity (New York, 1918). Mention should also be made of J. M.
Beck, The Vanishing Rights of the States (New York, 1926), C. H. Woocldy, The
Growth of the Federal Government, /9/5-/9J2 (New York, 1934), Jane P. Clark,
The Rise of a J\ew Federalism: Federal-State Cooperation in the United States (New
York, 1938), L. T. Beman (editor), Selected Articles on States Rights (New York,
1920), W. Biooke Graves, Uniform State Action (Chapel Hill, N C., 1934),
G. S. C. Benson, 7 he .\ew Generalisation: A Study of Intergovernmental Relations in the
United States (New York, 1941), J. E. Kalienbach, Federal Cooperation with the
States under the Commerce Clause (Ann Arbor, 1942), and Emerson D. Fite, Govern-
ment by Cooperation (New York, 1932). Attention is also called to the references at
the close of Chapter XXIX.
STATE LIMIT VISIONS The limitations and obligations imposed by the national
Constitution upon the states are fully discussed in the various treatises which
have been listed at the close of Chapter XXXII. Special attention, however,
should be called to the volume by C. W. Collins on The Fourteenth Amendment and
the States (Boston, 1912). The standard work on Extradition and Interstate Rendition
is by John Bassett Moore (2 vols., Boston, 1891). A later work is J. A. Scott,
The Lair of Interstate Rendition (Chicai^o, 1917).
REGIONAI ISM. Donald Davidson, The Attack on Leviathan; Regionalism and Na-
tionalism in the United States (Chapel Hill, N. C., 1938), H. W. Odum and H. E.
Moore, American Regionalism (New York, 1938), William B. Munro, The Invisible
610 THE GOVERNMENT OF THE UNITED STATES
Government (New York, 1928), Chapter vi, R. L. Olson, The Colorado River
Compact (Los Angeles, 1926), Paul Studenski and Paul R. Mort, Centralized v.
Decentralized Government in Relation to Democracy (New York, 1941), and J. W.
Fesler, " Federal Administrative Regions," in the American Political Science Review >
XXX, pp. 257-268 (April, 1936).
CHAPTER XXXVII
THE STATE CONSTITUTIONS
No philosopher's stone of a constitution can produce golden conduct from leaden
instincts. — Herbert Spencer.
Each of the forty-eight states has a constitution as the basis of its
government. This constitution is the fundamental law in accordance
with which the state government is organized and carried
A,, , , • • • i , , i • /- - THE STATUS
on. All the thirteen original states adopted their first consti- Op STATE
tutions before the national convention met at Philadelphia CONSTITU-
in 1787. Since that date thirty-five other states have been
admitted to the Union, each with its own constitution in readiness at the
time of admission. Every state has the right to make and unmake its own
constitution at will, provided it does not run counter to any provision
in the Constitution of the United States. This means, for example, that
no state constitution can authorize the coining of money, or the establish-
ment of a state postal service, or the taking of private property for public
use without just compensation. Each state determines for itself the pro-
cedure by which its constitution shall be framed and amended —
whether by a constitutional convention, by the legislature, or by direct
action of the people through the initiative and referendum.
The usual method of framing a state constitution is to call a convention
for that purpose. Almost two hundred such bodies have been called
together in various states since the Revolution. The pro-
, /. • i, ^ i \ - p ,1 HOW A STATE
cedure in most states (but not in all of them) is as follows: CONSTITU-
The state legislature, when it sees fit or when required to do TION IS
MADE
so by the existing constitution,1 refers to the people the
question whether a constitutional convention shall be called. It puts this
question on the ballot at a state-wide election. Or the question, in some
states, may be put on the ballot by an initiative petition.2 In either case,
1 In some states the question of calling a convention must be submitted to the people at
stated intervals — every seven, or ten, or sixteen years — irrespective of any action by the
legislature. This is now the rule in eight states: Iowa, Maryland, Missouri, Michigan, New
Hampshire, New York, Ohio, and Oklahoma.
* See p. 665.
611
612 THE GOVERNMENT OF THE UNITED STATES
if the people vote in the affirmative, an election is held to choose the
members of the convention. As a rule, they are elected by senatorial or
assembly districts, but some are occasionally chosen by the voters of the
whole state. The size of the convention is sometimes fixed by the existing
constitution, but more often that question is left to be determined by the
state legislature. Normally the convention has at least a hundred mem-
bers, and sometimes two or three hundred. All of them sit together in one
body. A constitutional convention does not have two chambers like a
legislature.
In due course the delegates assemble at the state capitol, ordinarily at
a time when the legislature is not in session. This enables them to use
the legislative chambers. The delegates then elect their own
VENTION" presiding officer, appoint various committees, and proceed
to the only business of the convention, which is that of pre-
paring the draft of a new constitution or suggesting amendments to the
existing one. Proposals are filed, like bills in a legislature, and arc
referred to the appropriate committees. The various sections of the
existing constitution are also apportioned among the committees for
such revision as they may recommend.1 The committees hold hearings
and make their reports to the convention, which then proceeds to deal
with them as a legislature would do. It puts them on the calendar, debates
them in committee of the whole, and votes to accept or reject them.
The superficial resemblances between a constitutional convention and
a legislature are so obvious that the more fundamental differences be-
tween the two are apt to be overlooked.2 A legislature is
CONVEN-
•noNfc AMD avowedly a partisan body; its members are usuallv divided
LEGISLATURES jnto two well-defined party groups, each committed to the
COMPARED. r T ...
carrying out of a party program. In a constitutional con-
vention party lines are not so sharply drawn. Often the delegates arc
elected on ballots which bear no party designations. Compromises are
more frequent, for the constitutional convention is above all things a de-
liberative body. Of itself it can take no final action. All that it does must
go to the people for ratification.3 Compared with a legislature, the num-
1 Sometimes, in advance of the meeting, a commission is appointed to prepare data and
information for the convention, or to suggest changes in the constitution, or even to prepaic
the entire draft of a new constitution as an aid to the convention in its work Such a commis-
sion is sometimes authori/ed to submit its draft directly to the state legislature which can then,
if it sees fit, submit the proposals to the voters, thus obviating the need for a ( constitutional
convention altogether For a discussion of these commissions see Harvey Walker, Ijiwmaking
in the United States (New York, 1934).
2 For a full discussion of this subject, see The Procedure of Constitutional Conventions (Bulletin
No. i, Massachusetts Constitutional Convention, Boston, 1917).
8 There are occasional exceptions to this A few state constitutions have been put into eflcct
without popular ratification.
THE STATE CONSTITUTIONS 613
her of matters with which a constitutional convention has to deal are
relatively few, and they touch the fundamentals of government. They
are not matters of routine or detail.
The rules of a legislature, moreover, are designed to expedite business,
while those of a constitutional convention aim rather to afford the fullest
opportunity for careful deliberation. The work of a legis- SOME ^p^.
lature, again, is restricted by the state constitution. But TANT Dip-
conventions are not usually restricted in this way. Never- FERENGES-
thcless, if the state constitution contains limitations upon what the
convention may do, the latter must stay within these limits. A convention
is also subject to limitations which are implied in the nature of its
functions. Its job is to frame a constitution, not to appropriate money or
try to run the state government. Finally, the members of a legislature are
elected for a designated term, while the delegates in a constitutional
convention are chosen to perform a specified task and are not customarily
restricted as to the time in which they shall accomplish it. In fact it is a
debatable question whether the legislature, in calling a constitutional
convention, can impose a time limit or any other limitation upon the
latter, unless the existing state constitution authorizes it to do so.
When the convention has finished its work, the provisions of the new
constitution (or the group of amendments to an old constitution) are then
submitted to the people of the state at a regular or special RAT1F1CA_
election There are some practical advantages in submitting TION BY THE
amendments rather than a new constitution. When the PEOPLE-
convention submits a new constitution, the people have no option but to
accept or reject it as a whole. F.very voter who objects to any provision
in it then votes .Vo, and this cumulative opposition is usually enough to
ensure its defeat. New York afforded a good illustration in 1915. There
the constitutional convention did a good piece of work on the whole, but
it adopted a few provisions which aroused strong opposition in various
quarters. And, inasmuch as people usually vote their resentment rather
than their appreciation, they decided to reject the whole document.
The Nebraska convention of 1920, on the other hand, submitted
forty-one separate amendments, most of which were mtified at the polls.
This method affords each amendment an opportunity to stand or fall on
its own merits. It is possible, of course, to combine both plans — to
submit both a new constitution and a series of amendments containing
the controversial provisions. This makes it possible for the voters to adopt
a new constitution and at the same time choose the amendments which
they want added to it.
When the people desire merely to amend their state constitution,
614 THE GOVERNMENT OF THE UNITED STATES
without undertaking a general revision, it is not necessary or even
customary to call a convention of delegates. With the single
HOW STATE . ri .. rivT TT - . 1 1 x x.
CONSTITU- exception of the constitution of JNew Hampshire, all state
TIONS MAY constitutions provide for methods of amendment which are
BE AMENDED. reiat;ivejy simple. They allow the legislature (sometimes
i. BY LEGIS- requiring more than a majority vote, and sometimes requir-
L*™fCAT ing that the resolution be passed more than once) to submit
PROPOSAL. t-J A
AND POPULAR proposals of amendment. Except in Delaware, where favor-
RATIFIGA- akje actjon by two thirds of the members of two successive
TION. 9 J
sessions of the legislature is sufficient to enact an amend-
ment, proposals to amend go on the ballot, and if accepted by the voters
become a part of the constitution. Usually a bare majority of the voters
who vote upon the proposed amendment is sufficient, but in some states
special majorities are required. Tennessee, for example, demands a
majority of the votes cast for members of the legislature to sustain an
amendment; Wyoming requires a majority of its entire registered
electorate.
At least seven state constitutions require that a majority voting at the
particular election in which an amendment is placed on the ballot shall
support the proposal in order to validate it. The latter requirement, of
course, means that the ballot of everyone who votes for^candidatcs at the
election, but does not vote on the question of adopting the amendment,
is counted in the negative. An amendment may easily be defeated by this
requirement because many voters mark their ballots for the candidates
at a regular election and pay no attention to anything else. A defeated
amendment can be proposed a second time, but sometimes it may not be
resubmitted until after a designated lapse of time — four, five, or six
years. Occasionally, too, the existing constitution restricts the number
of amendments which the legislature may submit to the voters at any one
election. The constitution of Indiana, for instance, limits the number of
proposals to two.
The other method of amending a state constitution is by the use of
the initiative petition. This procedure will be more fully discussed in a
later chapter; it may suffice here to say that, in at least
2. BY THE .
INITIATIVE thirteen states, the voters may propose a constitutional
AND REFER- amendment by means of a petition setting forth their pro-
ENDUM. i T /* i * •• i t •• i r *
posal. it this petition bears the requisite number of sig-
natures (sometimes as many as fifty or a hundred thousand of them), the
proposal goes by referendum to the people, without any affirmative
action of the legislature being necessary, and if adopted at the polls
becomes a part of the constitution. The initiative method allows the
THE STATE CONSTITUTIONS 615
submission of several amendments on the same ballot, and at every
election various amendments are thus submitted in the states which per-
mit this procedure.
State constitutions display considerable variation. The oldest among
them arc to be found in the New England states. Nominally, at least, that
of Massachusetts is still the original document adopted in
1 780 although it has been greatly changed by successive NATURE OF
amendments. The newest of the state constitutions is that STATE CON-
of New Jersey, adopted in 1947. All the state constitutions
arc longer than the national document, but some of them are much
longer than others. The constitutions of Vermont and Rhode Island are
the shortest, with less than six thousand words, occupying some ten or
eleven pages; those of Louisiana and California are among the longest,
the former having more than sixty-three thousand words — enough to
fill a two-hundred-page volume. Whenever a new constitution is adopted,
it is reasonable to assume that it will be longer than its predecessor.
Consequently, it is a safe generalization that the constitutions most
recently adopted are the most elongated.
The inclusion of more and more details in constitutional documents
and their consequent steady lengthening has been a consistent process
from the beginning. The first state constitutions were short
and simple — that of Virginia, adopted in i 776, contained STEADY EX-
only about three thousand words. And down to the Civil PANSION IN
SIZE
War period there was no considerable expansion. During
the past eighty years, however, the constitutions have been including all
sorts of administrative details and have come to resemble veritable legal
codes. Some of them now fix the salaries of state officers (even subordinate
officers) and prescribe their duties in detail. They contain all manner
of provisions relating to the management of schools, the regulation of
banks, the control of public utilities and of other corporations, the budget,
the government of cities and towns — even the methods of taxation and
assessment. They sometimes contain specific regulations of such matters
as hours of labor, workmen's compensation, and minimum wages, not to
speak of pensions for public employees and the status of chiropractors.
The constitution of Oklahoma, for example, goes into such minute detail
as to provide that domestic science must be taught in the public schools.
Two or three reasons account for this steadily growing prolixity. One
is the fact that the functions of state government are expanding, and, to a
certain extent, the constitution must expand with them. As REASONS FOR
the pyramid enlarges, the base must broaden. But the THE EXPAN-
elaboration of state constitutions also betrays a waning SION*
616 THE GOVERNMENT OF THE UNITED STATES
public confidence in the wisdom and integrity of legislators. The makers
of state constitutions are more and more inclined to look upon these
documents as essential safeguards against legislative incapacity, favor-
itism, and corruption. Some of the newest constitutions have thus become
reiterated decalogues of Thou Shalt Nots.
Finally, the elaboration of these constitutional provisions is in some
measure a mark of public dissatisfaction with the decisions of the courts.
When a constitutional convention assembles, there is always a recital of
specific grievances (on the part of labor, or the farmers, or the municipal-
ities, or the public employees) due to what arc regarded as unjust
judicial decisions. To prevent such rulings in the future, various remedial
provisions are proposed and many of these are lobbied through the
convention. Taking one consideration with another, therefore, a con-
vention finds that the constitution has grown considerably in si/e by
the time its work is finished.
This practice of crowding a multitude of detailed matters into the
state constitutions has been unfortunate in its results. It has multiplied
SOME the opportunities for lawsuits and has tended to give a
EFFECTS legalistic tone to all discussions of social policy. Details,
OFIT- when placed in the constitution, shackle the hands of both
legislators and courts. The more voluminous a constitdtion, the more
quickly it loses touch with the social and economic needs of a growing
community. The more detailed and rigid the provisions of a constitution,
the greater are the obstacles in the way of prompt alteration and the
reform of abuses. The federal Constitution has been a marvel of adapta-
bility because its provisions are brief, broad, and general. Its framcrs
were wise enough to leave it silent on all matters which could be trusted
to work themselves out in the process of time. The statesmen of 1 787 did
not clothe themselves with the mantle of omniscience. They assumed that
posterity would be competent to look after its own interests. Makers of
state constitutions, during the past fifty years, have not been so trustful.
They have not hesitated in their attempt to fasten upon future genera-
tions the idiosyncrasies of the day.
There is danger that we may lose sight of the true purpose which
constitutions are intended to serve. A state constitution is supposed to be
the basis of government, not the whole superstructure. It is
LOSING . , , , rv* • i • • . -
SIGHT OF intended to make efficient administration easier, not to place
THE REAL obstacles in its way. A constitution should provide the vari-
ous branches of state government with an adequate endow-
ment of power and trust them to use it properly. Too often, however, it
surrounds them with a picket fence of prohibitions and restraints. In a
THE STATE CONSTITUTIONS 617
word, the constitution should take for granted that the people's repre-
sentatives will usually do the right thing if they are given a chance.
Only by starting with such an assumption can democratic government
function successfully.
What does a state constitution contain? First, there is usually a bill of
rights — a series of general guarantees and limitations designed to
safeguard the liberties of the citizen. This does not always
r- i • • r i .... WHAT A
come first among the provisions or the constitution (it more STATE GON-
often comes last), but historically it is the oldest feature. To STITUIION
. , , , . , ,. . CONTAINS:
a considerable extent these guarantees and limitations
merely repeat the safeguards which are contained in the T- BILL OF
RIPT-TTS
first ten amendments to the national Constitution. But the
newer state constitutions contain various additional guarantees, al-
though, as a practical matter, most of them are superfluous. They
guarantee to the citizen various rights that neither legislatures nor courts
have ever sought to take away and could not take away if they tried. It is
merely that we have acquired the habit of injecting into the state con-
stitution divers venerable platitudes concerning human equality, the
rights of man, freedom of speech, freedom of the press, freedom of religious
belief, freedom of assembly, the right of petition, the dignity of labor, the
aspiration for social justice, liberty, and peace, the value of education,
the duty of law observance, and the sanctity of the citizen's home.
Second, a state constitution makes provision for the frame of govern-
ment. It stipulates how the governor, the higher officials of state admin-
istration, and the members of the state legislature shall be 2 pRQ_
chosen. It sets forth their various powers and the relations VISIONS FOR
of each to the others. It provides for the organization of the THL FRAME
\ ° OF GOVLRN-
courts. It makes stipulations as to the mechanism of local MENT.
government in counties, cities, towns, and townships. ~ MISCEL-
Finally, it contains provisions relating to such matters as LANEOUS
impeachments, the militia, taxation, borrowing, budget SECriIONS-
procedure, public institutions, the public health, and education. Suffrage
and elections also commonly occupy a chapter. State constitutions, by
the way, are usually divided into chapters or articles; these, again, are
subdivided into sections, and sometimes the division is carried further
into subsections.
As a device for shortening state constitutions the administrative code
has been suggested. According to this proposal the constitution would
deal only with the fundamentals of state government. Anyone who dej
sires to know what is meant by this restriction to fundamentals need
only look over the national Constitution. All other matters, which now
618 THE GOVERNMENT OF THE UNITED STATES
go into state constitutions, would be relegated to an administrative code
which might be as elaborate as its framers choose to make
TION^OR" **• This code would be easier to change than a constitution,
SHORTENING that is, it would not require an affirmative vote of the people
CONSTITU- t ajter jts provisions. On the other hand, it would not be
TIONS. ^ '
as simple to amend as an ordinary statute. A two-thirds
or three-fourths vote of both legislative chambers, plus approval by the
governor, might be prescribed for such changes. Such an arrangement
would combine protection with flexibility, and something of the sort will
have to be devised if state constitutions are to be kept from inordinate
expansion in size.
Within its own sphere the state constitution is supreme. It binds the
executive, legislative, and judicial branches of state government. The
SUPREMACY state legislature, in the exercise of its lawmaking authority,
OF THE must respect all the limitations placed upon it by the state
sTiT^TOfT" constitution. In case of controversy, the highest court of the
IN ITS OWN state will decide whether the legislative measure in question
SPHERE. js^ Qr js not^ constitutional. As a matter of practice, however,
these courts always assume that the legislature has a power until the
contrary is shown. This rule, it will be noticed, is just the reverse of that
applied in interpreting the powers of the national goverriment. Congress
is not deemed to possess any power unless an actual grant of that power
can be demonstrated. But state legislatures are not rigidly held to this
rule by their own courts.
Strictly speaking, the only way in which a legislature can determine
whether any law is constitutional or not is to pass it and see. There is,
ADVISORY however, a plan by which at least ten states have managed
JUDICIAL to obtain authoritative opinions in advance, and thus to
O^CONSTI- guard against the passing of laws which would later be
TUTIONALITY thrown overboard. This is known as the method of advisory
OF LAWS. judicial opinions. Where it is in operation, the governor, or
either house of the legislature, may call upon the justices of the highest
court of the state for an advance opinion upon any constitutional ques-
tion which arises in connection with a pending legislative enactment.
But these opinions of the justices are usually not binding upon them in
case the same point should later arise in a regular suit or action at law.
They are merely advisory and, being arrived at without hearing the
arguments of interested parties, cannot properly be regarded as final
and are not so regarded except in Colorado. Nevertheless, they are
usually safe enough to follow.1
1 See also p. 735.
THE STATE CONSTITUTIONS 619
Several years ago a French scholar, in the course of giving a lecture on
American government, had this to say: "To understand the government
of the American state is a life-long task for any scholar
because there are forty-eight states, every one of which has
its own constitution and its own system of government — no IN STATE
CONSTITU-
two of them alike." Strictly speaking, he was right; but the
situation is by no means so confusing as his statement would
imply. It is true that the differences among the state constitutions, if all
of them were put down on paper, would fill a book of a thousand pages;
but the great majority of these (differences are of such slight importance
as to be hardly worth recording. The important thing is that the essential
features in all the forty-eight state constitutions are substantially alike.
They set up much the same scheme of government in all the states. The
various states are much more nearly alike in their systems of government
than in area, population, wealth, or even in political tendencies. The
resemblances far outweigh the differences. Hence, the American citizen,
when he moves from one state to another, does not find himself under a
government which sccrns new or strange to him.
Take a look at these fundamental resemblances. In the first place,
every state has the same status in the Union and has equal rights under
the national Constitution. Every state has a government of OUTSTAND.
inherent, not delegated, powers. Each is supreme within its ING POINTS
own sphere, and has a republican form of government, a
OF UNI-
governmcnt subject to popular control. Each has a con-
I REPUB"
stitution through which this ultimate popular control of the OCAN FORM
state government is exercised. Every state has universal OF GOVERN-
suffrage, although some limit it by the application of literacy MENT-
tests and, in the southern states, most colored citizens arc by one device
or another debarred from voting. In every state everyone is guaranteed
due process of law and equal protection of the laws. Every citizen of every
state is a citizen of the United States. In all these fundamental matters
the states arc uniform.
Second, all the states have substantially the same general scheme of
government — based upon the principle of division of powers. In every
state there is a governor, directly elected by the people, 2 THE
and he is vested with certain independent executive powers. FRAME OF
In every state, moreover, except Nebraska, there is a GOVERNMENT-
legislature of two chambers, both of which are elected by the people.1
And in every state there is a system of courts — usually a hierarchy of
three grades — with the highest of these courts empowered to declare
1 Since 1937 Nebraska has had a single-chamber legislature.
620 THE GOVERNMENT OF THE UNITED STATES
the unconstitutionality of state laws. The doctrine of separation of powers
is recognized in all the states by giving independent functions to the
executive, legislative, and judicial arms of the government. Every state
has its own system of civil and criminal law, and in all of them (with the
exception of the civil law in Louisiana) the common law of England forms
the basis of jurisprudence; hence, the underlying legal principles are
alike in all parts of the Union. That is why a lawyer who has been
admitted to practice in one state can move to another without much
difficulty in adjusting himself. But the English barrister who shifted
his office across thirty miles of channel into France would find himself
helpless.
Third, the forty-eight states are agreed on the principle that local
affairs should be locally handled. Hence, all the states are divided into
DEVOLU- areas f°r self-government. There are counties in all of them,
TION IN GOV- although in Louisiana they are called parishes. There arc
ERNMENT. cities in all of them. Most of them have towns or townships.
Some have boroughs as well, or incorporated villages. The detailed
arrangements for local government differ widely from state to state,
but the general principles are everywhere the same. For example, all
areas of local government derive their powers from the state, and in all
the states the officers of local government are directly uflder the control
of the people. Every American lives under four governments — national,
state, county, and municipal or rural, as the case may be. He may also
live in a school district which is separate from his municipality, and
perhaps in a sanitary district or road improvement or flood control
district as well. One thing he never lacks is government. All these various
governments insist on taxing him, however, and this sometimes dulls his
appreciation of them.
Finally, and this is of great importance, the party system is uniform in
all the states. The same parties operate in both national and state politics;
„ TTXT™OW they use the same names and the same methods. The voter
^. UNU'vJKM '
PARTY who is a Republican when he lives in Ohio will find his
CLEAVAGES. party doing business in New York if he moves there. The
Democrat who moves from North to South will find congenial company
(and plenty of it) wherever he goes. It is true, of course, that the party
lines in national and state politics do not exactly coincide, but they come
fairly close to it. Political parties, as has been shown, play a very im-
portant role in the actual work of government, and their unity through-
out the nation has a far-reaching influence upon politics in the states.
Outsiders are accustomed to overemphasize the element of variety in
American state constitutions. A great deal of variety there is, to be sure,
THE STATE CONSTITUTIONS 621'
but mostly in things that are inconsequential. In matters that really
count, there is a remarkable measure of uniformity among them all.
The differences amone the states arc not so much in their
. i i r .,. ,.. ,. THE INCLIN-
lorm or methods ot government as in their traditions, their ATION TO
point of view, and the kind of men whom they elect to gov- OVERSTRESS
. -TU U ^ ^ • 1- 4. U ? DIVERSITY.
ern them. 1 he older states incline to be more conservative,
and less ready to change their methods, than arc the newer common-
wealths of the West. Likewise, the industrial and the agricultural states
look at many issues from a different angle. But when one bears in mind
the great regional diversity of the United States, the marvel is not in the
differences but in the similarities.
REFERENCES
The best-known works relating to state constitutions are J. Q. Dealey, The
Growth of American State Constitutions (Boston, 1915), J. A. Jameson, A Treatise
on Constitutional Conventions (4th edition, Chicago, 1887,) Roger S. Hoar,
Constitutional Conventions: Their Nature, Powers, and Limitations (Boston, 1917),
W. F. Dodd, The Revision and Amendment of State Constitutions (Baltimore, 1922),
Charles Kettleborough, The State Co nstitutions (Indianapolis, 1918), W. McClure,
State Constitution- Making (Nashville, 1916), Vernon A. O'Rourke and Douglas
W. Campbell, Constitution- Making in a Democracy (Baltimore, 1943), and M. B.
McCarthy, The Widening Scope of American Constitutions (Washington, 1928).
Mention should also be made of the discussions which are included in the
books on state government by Holcombe, Dodd, Bates and Field, and others,
listed at the close of the previous chapter. An excellent summary may also be
found in Harvey Walker, Lawmaking in the United States (New York, 1934), pp.
^ 5— 79. The Annals of the American Academy of Political and Social Science, CLXXXI
(September, 1935) is devoted to a study of state constitutions and the problems
connected with constitution-making.
The National Municipal League has prepared and published a Model State
Constitution (4th edition, New York, 1941), which contains many interesting fea-
tures. Valuable comment on this document may be found in W. Brooke Graves,
"The Fourth Edition of the Model State Constitution," American Political Science
Review, XXXV, pp. 916-919 (October, 1941). Current constitutional changes
in the states are covered in the Book of the States published annually by the Coun-
cil of State Governments in Chicago.
For a discussion of constitution-making in particular states, the following may
be consulted: Charles R. Erdman, Jr., The New Jersey Constitution of 7776" (Prince-
ton, 1929), R. L. Bridgman, The Massachusetts Constitutional Convention of 79/7
(Boston, 1917), F. M. Green, Constitutional Development in the South Atlantic States,
1776-1860 (Chapel Hill, N. C., 1930), J. D. Hicks, "The Constitutions of the
Northwest States'* in the University of Nebraska Studies, XXIII, Nos. i and 2
(Lincoln, Neb., 1925), Thomas C. Donnelly, "The Making of the New Mexico
Constitution" in the New Mexico Qjmrterly Review (November, 1941 and Novem-
ber, 1942), and William L. Bradshaw, "Missouri's Proposed New Constitution"
622 THE GOVERNMENT OF THE UNITED STATES
in the American Political Science Review, XXXIX, pp. 61-65 (February, 1945).
The text of most of the state constitutions currently in effect may be found in a
compilation provided by a committee of the recent New York State Constitu-
tional Convention entitled Constitutions of the States and the United States (Albany,
1938).
CHAPTER XX XV III
STATE PARTIES AND PRACTICAL POLITICS
Along with constitutional government the American citizen must study the extra-
constitutional system. Its body and soul are to be found in the political parties. —
M. Osfrogorski.
Government is not merely a matter of constitutions and laws. Its
momentum comes from the people acting through the agency of party
organizations. And party organization in the United States
i • ri rr • • i i i • • r • 1 1* THEORETICAL
is chiefly a state ariair, with each state determining for itself AUTONOMY
the character of its party mechanism. Keep in mind the fact OF STATE
that the states decide how the election districts shall be
mapped out, and what share the party organizations shall have in the
election campaigns. Likewise, the system of party committees, the
methods of raising and spending party funds, and many other essentials
of party organization are largely determined by the state laws. In matters
afTecting the machinery and work of political parties, therefore, each
state has a large measure of self-government.1 The state legislatures can
even prescribe how the delegates to the national party conventions are
chosen, in other words, how candidates for the presidency shall be
nominated.
This being the case, it is conceivable that each state might have
developed a party system different from the others. Each might have
developed political parties based upon state issues, with no BUT STATE
reference to party organization in the other states. But that AND NA-
is not what has happened. Virtually the same party divisions J^TESHAVE
exist in all the states, and these divisions are not largely BECOME
determined by state issues. This is because the interest of the IDENTIFIED-
people in national policy has overshadowed their interest in matters
with which the individual states have to deal. It is true, of course, that
1 It is true that the national Constitution gives Congress the power to modify state regula-
tions concerning the "times, places and manner of holding elections for senators and repre-
sentatives" (except as to the places of choosing senators), and that Congress has passed various
laws relating to the election of its own members. Neveitheless the states retain a large amount
of discretion as to the manner of conducting all elections (e.g., the form of the ballot, the selec-
tion of election officials, etc.).
623
624 THE GOVERNMENT OF THE UNITED STATES
now and then a single state or a group of states will pass into the control
of a party organization which is based on local or sectional issues, as was
the case in Minnesota and Wisconsin a generation ago, but in general
the lines of party division are determined by questions of national politics.
This gives the American party system a nation-wide unity, despite the
fact that each state is free to go off on its own tangent if it so desires.
The reasons for this relatively close identification of state and national
party lines throughout the United States are both practical and historical.
As a practical matter it is not possible to separate state
FOR THIS issues from national issues. What each political party stands
IDENTIFICA- for js not merely a program but a point of view. It cannot
well be liberal in its attitude on state issues and conservative
on questions of nation-wide importance. As a practical matter, again, it
would be difficult to maintain two complete sets of rival party organiza-
tions, one pair based upon national and the other on local issues. As
every politician knows, it takes enough energy and funds to keep a single
party organization in good functioning order. All the practical con-
siderations, therefore, tend to the consolidation of party effort under a
unified command on both fronts. Historically, moreover, a reason for the
identification of national and state party lines is to be found in the fact
that, during the first fifty years after the formation of the Union, many
national questions of great importance forced themselves to the front,
while political affairs within the states commanded relatively little public
interest. These national issues ranged the people into two great camps
with the result that the state organizations were engulfed by the larger
groups.
They have remained engulfed. Under normal conditions the allegiance
of the average voter is to one of the national parties. His connection with
the same party in the state is in most instances incidental to
REGULARITY t'ie larger allegiance. A Republican in Montana feels a
kinship with a Republican in Rhode Island, three thousand
miles away, although neither may know anything about the local issues
which concern the other. Democrats in Savannah and in Syracuse are
brothers under the skin. Occasionally, to be sure, changes occur in the
party system. One of the two great parties may disintegrate, as happened
in the case of the Federalist party after 1812, or in the case of the Whig
party after 1856. Then, too, there are times when some new and highly
controversial issue (like the League of Nations or the New Deal) upsets
the old alignment and causes numerous desertions from one party into
another. Likewise, it sometimes happens that a party leader of un-
common popularity manages to swing large groups of voters from the
STATE PARTIES AND PRACTICAL POLITICS 625
ranks of his opponents into his own following. This has repeatedly taken
place in American politics. But, in the long run, continuity of party
allegiance is the rule. A new party takes over in place of an old party,
as happened when the Republicans succeeded to the Whigs after 1856,
and the two-party equilibrium is re-established. Or the old divisions are
restored, as happened in 1916 when the Progressives, who had left the
Republican camp to support Theodore Roosevelt, returned to their
former affiliation. Established party lines are hard to shatter permanently
because habit is the strongest of all factors in determining party loyalty.
Most people, whether they admit it or not, dislike to change their ac-
customed ways of thought or action. They may desert the beaten path
for a season but usually they drift back to it again. A political party
cannot survive unless it builds up a strong quota of "regulars" in its
ranks, that is, a body of dependablcs who stick to it through thick and
thin.
Principles and platforms are a factor in making converts for the party,
but not to the extent that is commonly supposed. Most voters do not
know just what their party principles are, nor do they read SHIFTS IN
party platforms. But many of them respond to a slogan PARIY
which conveys to their minds a general notion of what the ALLEGIANGE-
party stands for, or proposes to do. They understand (or think they do)
what is prefigured by such battle cries as "back to normalcy" or "a new
deal." That is sometimes as far as their thinking goes. Hence, a party
and its leaders may fail to carry through the specific promises of a plat-
form and yet retain their hold on a majority of the voters, provided the
general trend of its program has been followed. In any event, few people
pay much heed to what the state party programs contain. It is only the
national party platforms that receive any attention at all.
ORGANIZATION OF THE STATE PARTIES
How are the state party organizations constructed, and what are they
supposed to do? These organizations are much alike in all the states. The
central organ of the party in each state is a state central
committee, made up of committeemen who are chosen
directly or indirectly by the party voters. The choice is
usually made either by committees or by districts, which vary from state
to state; and, indeed, different parties within the same state may not use
the same districts for the selection of committeemen. In any event, the
state committees are made up of local party leaders, with a considerable
sprinkling of professional politicians among them.
626 THE GOVERNMENT OF THE UNITED STATES
In general, the function of a state ceniral committee is to see that the
local party organizations are kept alive and attend to such matters as
the registration of the party voters. It also has a voice in the
FUNCTIONS .. ° . r . . . ,
OF THE distribution of patronage, that is, appointments and other
STATE COM- favors, with the duty of seeing that these are used to the best
MITTEE
advantage of the party. In a word, it is the function of a
state committee to keep the whole party machine in repair and in run-
ning order. Between election campaigns the committee does not meet
often; its functions during these periods of political quiescence are
exercised usually by its chairman, or secretary, or both.
When the time for an election draws near, however, the committee
limbers up and makes the party's campaign plans, often determining
when and where the party convention shall be held, and
CAMPAIGN kow funcjs shall be raised. Sometimes it quietly hand-picks
its own slate of candidates. It matters little whether the
actual nominations are to be made by the convention or by means of a
primary election; in either case the state committee is likely to influence
the preliminary selections; and, under normal conditions, its action has a
fair chance of being ratified. Then, during the campaign, the committee
serves as a general board of strategy, arranging for the chief speakers,
soliciting contributions, and apportioning the available money for
expenses, preparing and issuing the campaign literature, etc. Most of
the actual work is done by the chairman or the secretary of the com-
mittee in cooperation with the local party committees all over the state,
but the committee itself usually decides all questions of campaign policy.
Sometimes it even frames the party platform.
While the chairman of the state central committee is nominally the
head of his party organization in the state, he is not always the real
leader or party boss. He may be the real leader, but more
often he takes the chairmanship with the understanding
that he will not give his full time to it or take too much
responsibility. Sometimes he is largely a figurehead, the real leadership
being exercised by someone who controls the committee without even
being a member of it. The secretary of the state central committee is
usually a paid official, an energetic worker with a capacity for handling
details. Likewise, there is a treasurer, upon whom devolves the duty of
helping to raise the campaign funds, paying the expenses, and finding
some way to liquidate the deficit after the election is over. This last
problem, it need scarcely be added, is less difficult when the party wins
than when it loses. A victorious party, with patronage in its gift, rarely
lacks good angels.
ITS CHAIR-
MAN.
STATE PARTIES AND PRACTICAL POLITICS 627
Mention has been made of the state party convention. Ordinarily
each party holds a convention some time prior to the state election. This
convention is composed of delegates who represent the THE STATE
party voters in the various municipalities or districts of the PARTY CON-
state. They may be chosen by counties, districts, or by VENTION-
smaller areas; the method of selection is regulated either by the rules of
the party or by the laws of the state. For the most part, the delegates arc
now directly chosen by the voters of the party at primary elections.
When the convention meets, it chooses its own chairman and proceeds
to business. Each party, of course, has its own convention.
One of the primary functions of a state party convention is to draft and
adopt the party platform. This is not usually an arduous task. National
party platforms are often indefinite and evasive on the THE STATE
important issues; state party platforms are even more so. PARTY
They aim to trim their "planks" into a form that will PLATFORMS-
antagonize nobody. They point with pride to what the party has done,
and view with alarm what the opposing party proposes. They are well
studded with patriotic platitudes and replete with all manner of ir-
rclcvancics — such as pronouncements on matters with which the state
government has nothing whatever to do. They may express
sympathy with the aspirations of the Chinese in Asia or give ™ASIVENESS
approval to the "good neighbor" policy towards Latin
America. One gleans from some of those platforms that India ought to
have self-government, that world peace is desirable, but not by means
of a super-state, and that the Jews, not the Arabs, should possess the
promised land.1 The party leaders try to agree upon a platform that will
"appeal to all classes among the voters" and hence will encounter no
opposition from any source. Obviously the best way to do this is to keep
out of the platform everything that offends and put into it a series of
resounding phrases. The possibilities of the English language, in the way
of saying much and meaning little, are considerable.
Here is an example:
Pointing to its history and relying on its fundamental principles, we declare
that the party has the genius, courage and constructive ability to end
executive usurpation and restore constitutional government; to fulfill our world
obligations without sacrificing our national independence; to raise the national
standards of education, health and general welfare; to reestablish a peace time
administration; to restore and maintain the national credit; to reform unequal
and burdensome taxes; to free business from all arbitrary and unnecessary
official control; to suppress disloyalty without the denial of justice; to repel the
1 There is no "Arab vote" in the United States.
628 THE GOVERNMENT OF THE UNITED STATES
arrogant challenge of any class and to maintain a government of all the people
as contrasted with government for some of the people, and finally, to allay un-
rest, suspicion and strife, and to secure the cooperation and unity of all citizens
in the solution of the complex problems of the day; to the end that our country,
happy and prosperous, proud of its past, sure of itself and of its institutions, may
look forward with confidence to the future.
THE DIRECT PRIMARY
In the old days an even more important function of the convention
than that of adopting a platform was the nomination of the party's
THE CONVEN- candidates for elective office. The party convention, it will
TION GIVES be recalled, was the successor of the party caucus which
PRIMARY™15 began to go out of fashion in Andrew Jackson's time. But
NOMINATING at the beginning of the twentieth century, the convention
CANDIDATES. took its turn at losing ground as a nominating agency. It
gradually gave way before the advance of the direct primary, and today
only two states, Connecticut and Rhode Island, continue to have all
their candidates for state elective offices nominated exclusively by this
body. In all the remaining forty-six states the convention is either sup-
plemented by the direct primary or has been entirely replaced by the
latter.
Under the direct primary system, candidates are usually required to
secure the signatures of a small number of voters in order to have their
OPERATION names placed upon the primary ballot; and at this primary
OF THE election the voters of each political party determine which of
PRIMARY. tjie varjous aspirants shall stand at the final election as the
authorized party candidates. In some cases there is, at the primary, a
special ballot for each party; in others, all the names are printed in
different columns on the same ballot. California permits what is known
as "cross filing," that is, a candidate is permitted to have his name on
the primary ballot of more than one political party. And not infrequently
he has been able to win both the Democratic and Republican nomina-
tions. This would seem to be a negation of what the party primary is
intended to achieve: namely, to choose an official party nominee.
The direct primary was welcomed, a generation ago, as a device
which would help raise the quality of elective officials. The old con-
vention, it was said, allowed the political bosses to put
THE PRIMARY forward candidates who would never have been selected
by the rank and file of the voters on their own initiative.
The way to remedy that situation, reformers urged, was to place directly
in the hands of the people the nomination as well as the election of their
STATE PARTIES AND PRACTICAL POLITICS 629
representatives. This would give a fair chance to men of ability and
independence, whose appeal could rest on their own merits and not
merely upon grounds of party regularity.
Under the convention plan, the voters of each party chose delegates
to the convention, and these delegates nominated the candidates. Under
the direct primary, the voters select the candidates themselves, without
the intervention of delegates. Those who wish to be nominated for the
legislature merely file petitions and their names are then placed on the
primary ballot without further action on their part. As a rule, the various
political parties hold their state primaries on the same day and use the
same voting places. The primary is conducted like a regular election,
but instead of electing, it merely nominates.
The new method of nomination has had a fair trial in state politics.
It has now been used for over forty years. Has it proved superior to the
convention as a means of securing capable legislators in the HAS IT
several states? On the whole, perhaps it has, although there JUSTIFIED
is no certainty of it. At its best, the convention was capable ITSELF-
of making good selections, and the direct primary has not often shown
itself able to reach as high a standard. On the other hand, the convention
at its worst could strike a level of trickery, incompetence, and corruption
to which a primary rarely descends. In a word, the primary seems to
afford protection against the worst fault of the convention, which was
the frequent selection of incapable and corrupt candidates at the behest
of a few political leaders. But it has not as yet demonstrated its own
ability to secure outstanding results of a positive character. It has not
rid the states of boss domination; on the other hand, it has increased the
expense which every candidate must incur, and it gives a marked ad-
vantage to the self-advertiser, to the man whose name has been made
well known to the voters, irrespective of his personal qualifications for
the office which he seeks.
The worst shortcoming of the primary, however, may be found in the
barrier which it interposes to responsible party leadership. The direct
primary is the people's affair; the party leaders are supposed ITS MOST
to let it alone. If they intervene openly, they are scolded as SERIOUS
bosses and dictators. So they try to manipulate the primary DEFEGT*
from behind the scenes, and often they succeed in doing it. The voice of
the direct primary is the voice of the people, but the hand is too often the
hand of the politicians. Nominations in some of the states under the
direct primary are not always determined by the people at the polls
They are fixed up at a stag party in some quiet hotel on a side street —
just as tney were in the old convention days.
630 THE GOVERNMENT OF THE UNITED STATES
The theory of the direct primary is that voters, of their own accord,
will go to the polls and act wisely while the party leaders keep their
hands off until after the nominations have been made. But
THEORY AND . • , , i i , -11
PRACTICE the tact is that neither the voters nor the party leaders will
AT PRIMARY Jo anything of the sort. Voters in large numbers do not go
ELECIIONS. , ,, , . .... , , !
to the polls on their own initiative; they have to be stimu-
lated by a publicity campaign. Moreover, they look to their party
leaders and to their party newspapers for guidance in marking their
ballots, because most voters are not personally informed about the merits
of the various candidates at a primary election. Party leaders try to con-
trol the primary because they want to control the election. The direct
primary puts them to extra trouble and makes them work under cover or
spend more money; but it has not put them out of business. That is why
the party leaders sometimes wonder why they ever feared the primary,
while reformers ask themselves why they were led into the error of expect-
ing so much in the way of a political miracle from it. If our experience in
this field can teach us anything, it is the age-old lesson that a regeneration
in American politics cannot be achieved by merely changing the con-
traptions through which the voters express their will.
But if not the direct primary, what then? Shall we abolish it in state
elections and return to the old convention system of nominating candi-
dates? A few states have taken that step (notably New York),
THE ALTER- but it is by no means likely that their action will be gcner-
NATIVE ajiy followed by the others. It is more probable that the
PRL-PRIMARY next move will be to try a combination of the two plans.
This, indeed, is what a few states have already done. They
have been experimenting with a scheme by which conventions are first
called by each party to make the nominations for all state-wide offices.
Then, if the members of the party are not satisfied, they may submit
alternative nominations by circulating petitions and a primary is there-
upon held to decide between the two. A few other states (Iowa and South
Dakota, for example) have reversed the process. There the primaries are
held first, but if no candidate receives more than 35 per cent of the party
vote, the choice of a nominee is left to the party convention.
All this, it will be seen, adds more wheels to the electoral machine. The
man who wants a state office must fight for it in the convention, then in
the primary (if there is opposition), and finally at the state election. Or, he
makes his first try in the primary and if his strength there is not sufficient,
he carries his fight to the floor of the convention. Both the primary and
the convention have their merits, and the problem is to devise some plan
which will gain the advantages of both without the defects of either.
STATE PARTIES AND PRACTICAL POLITICS 631
LOCAL AND AUXILIARY ORGANIZATION
The activities of the state central committees and the state conventions
are of a general nature. The committees plan and supervise, while the
actual work of getting the voters registered, organizing THF LOGAL
them, rallying them to meetings, arousing their enthusiasm, ORGANIZA-
and bringing them to the polls is done by the subordinate TIONS-
committees, which usually exist in each county, district, city, town, or
township. When the party is thoroughly organized, this committee
system extends to the wards of the cities, or even to the precincts within
the wards. Members of the local committees are chosen in a variety of
ways: by the voters at direct primaries, or by caucuses; sometimes they
are virtually self-perpetuating. Even when chosen at primaries, they
are likely to be self-perpetuating, because they arc usually permitted
to have the designation "incumbent" printed after their names on the
primary ballot, and this gives them a marked advantage with the mass of
the party voters who neither know nor care much about the personnel of
the local committees. In any event, these local committees are always
composed of active party workers. State conventions and committees
mav provide the platform and the funds; but the active work among
the voters must be done by local organizations. Victory in a close cam-
paign usually depends on their activities. The proof of good state leader-
ship is to be found in the efficiency with which the organization functions
in its lower ranges.
It is difficult to generalize concerning the make up of local committees.
The practice differs in rural and urban communities. A small town may
have local party committees of only five or six members,
while a large city is usually organized with ward and pre- COMMITrEES
cinct committees, which include many hundreds in their
membership. In these large centers, there is likewise a trusted party
worker (commonly called the precinct committeeman or precinct cap-
tain) in immediate charge of the party's interests in every precinct. Much
depends, moreover, on the local personalities. Hard workers get plenty
to do and arc correspondingly influential in the local organization, no
matter what their official positions may be.
In addition to the local committees there are various special campaign
organizations, particularly in the cities. These take the name of leagues or
clubs, and their main purpose is political, although they ANCIILARY
may have some social activities as well, especially when an PARTY OR-
election campaign is approaching. Groups of voters belong- GANIZATIONS»
ing to a party organize themselves as the Women's Re- AND CLUBS.
632 THE GOVERNMENT OF THE UNITED STATES
publican Club, or the League of Young Democrats, or under some
other such name. Then they rent a hall or vacant store as a head-
quarters, and make it their place of rendezvous. Volunteer workers
at these headquarters do whatever work is assigned to them. Usually
each club or league has some recognized leader as the moving spirit of
the organization. Occasionally the club bears this leader's name. When
a party is well organized, there will be at least one of these "clubs" in
every small city and in every ward of a large city. The members are
supposed to pay a small membership fee, but no one will ever be dropped
for nonpayment of dues as long as he votes regularly and votes right.
There are good reasons for having these guerrilla bands outside the
regular party organization. Not all the party workers can be given places
REASONS on the local committees. The clubs or leagues afford oppor-
FOR THEIR tunities for many others who are ready to help in an
PRACTICAL unofficial capacity. Moreover, these associations can do
AND PSYCHO- things which a regular party committee might hesitate to
LOGICAL. jo -phe activities and expenditures of the regular com-
mittees must be conducted strictly according to law, but the clubs are
not so rigidly hampered in their operations. The party welcomes their
help, but it can also disclaim responsibility when the need arises. Last,
but by no means inconsequential, there is a very human consideration.
Man is by nature a clubable fellow and likes to fraternize with others.
Here is a way to gratify his desire for companionship and recreation.
The ward club in the poorer districts of a large city provides a warm
place where one can go on cold evenings, play a game of pool or poker,
pick up a free cigar or two, and perhaps wheedle a nip from somebody's
pocket flask. Not much of a club, some may say; but it is the only one
that thousands of the city's wage earners ever get a chance to join.
These men are bound by a common loyalty, a personal loyalty. They are
inspired by the hope of a common victory.
MACHINES, BOSSES AND RINGS
In discussions of state or city politics, you will hear frequent references
to "the machine." What is a political machine? It is something that
cannot be explicitly defined, for it varies in structure from
MACHINE state to state, from city to city. In general, the active party
workers, the leaders, and the higher committeemen, the
county chairmen and the bosses, the heads of ward clubs, and the pre-
cinct workers — they are all cogs in the machine. There are big machines
covering the whole state, and little machines that cover only a small
town. There are personal machines which are virtually operated by a
STATE PARTIES AND PRACTICAL POLITICS 633
single leader or boss. They go into motion when he presses the button.
There may be two or three of these personal machines within the same
party, but all of them are in alliance when the final election comes. The
outstanding characteristic of a political machine is the smoothness with
which it functions. When a party organization, or some portion of it,
becomes so thoroughly disciplined that it works with rnachine-like pre-
cision, we call it a machine.
Political machines exist in America only. There are party "organiza-
tions" in other countries, but they are not called machines and do not
deserve the name. They are loosely constructed and, hence, A PURELY
do not always respond when they arc needed. Often they AMERICAN
go to pieces when the campaign is over. In England the INsnTUTION-
politicians have tried to build up machines, but without a great deal of
success, although they have made some headway in recent years. America
remains the classic land of machine politics. Yet the development of the
machine in America is not an accident. Various conditions and circum-
stances have contributed to its upbuilding.
Among these causes the most important is the frequency of elections,
due to the fret that so many officials of state government are elective and
hold their posts for short terms. In no other country do
1 f J WHY IT HAS
elections occur so often. In America the echoes of one cam- EVOLVED IN
paign have hardly died away before the preliminaries begin THL UN1IED
to be arranged for the next. The result is that those who K FRE1
look after the party's interests have time for little else. It is a QUENCY OF
r 1111 • ELECTIONS.
continuous perlormance, and those who take part in it
enter a profession. A fraternity of professional politicians is the outcome.
The professional politician is more in evidence among Americans than
among Europeans, for the simple reason that we provide more for him to
do. If political campaigns came only once in four or five years, it would
be difficult to keep party organizations in working trim from election
to election. But when voters arc called to the polls at least every year,
and sometimes two or three times a year, the political leaders are never
accorded a long vacation. The American political machine would rust
in other countries.
The system of political patronage has also had its part in creating the
machine. Patronage is of two sorts, offices and favors. The distribution of
offices under the spoils system, by which party workers are
rewarded with lucrative appointments, has been a natural NOURISH-
incentive to political diligence. State and local committee- MENT OF
men, organizers of clubs and leagues, ward leaders, bosses,
henchmen, heelers, and all the other votaries of the machine, FORMS:
634 THE GOVERNMENT OF THE UNITED STATES
do not give days and weeks to their work from motives of pure patriot-
ism. They are inspired by a lively sense of favors to come — favors for
themselves or their friends. The man who serves the machine
PATRONAGE without any hope of reward is a rarity — so rare a creature
that he ought to be protected by the game laws. The ma-
chine owes its sustenance to patronage, much of which comes in the
form of appointments, promotions, jobs, anything that will effect a
short circuit between the party worker's pockctbook and the public
treasury.
But there is another form of patronage, and although it has had less
prominence in public discussion, it is very influential in its contribution
to the vitality of the machine. This form of patronage
PATRONAGE includes the controlling of legislation for the benefit of
railroads, street railways, gas, electric, water, telegraph, and
telephone companies, labor organizations, the farmers as a class, banks,
newspapers, and industrial concerns — not to speak of liquor dealers,
race tracks, motion-picture houses, broadcasting stations, gasoline filling
stations — the great array of u interests" which stand to profit from laws
of one sort and to lose from laws of another. The machine will serve or
oppose any or all of thcrn as political strategy dictates. In either case it
exacts its price. Political patronage includes also the awarding of con-
tracts for public works and the bestowal of favors in a multitude of other
ways. In the old days, the man who sought or distributed patronage wore
a checked vest, sported diamond shirt studs, and pocketed his rake-off in
a wad of soiled currency. Today, he rides in a limousine, carries a brief
case under his arm, and sometimes calls himself a public relations man.
"Everybody is talkin5 these days about men growin' rich on graft,"
said Plunkitt of Tammany Hall, "but nobody thinks of drawin' the
distinction between honest graft and dishonest graft. There's all the
difference in the world between the two." l
The machine subsists, for the most part, on "honest graft." It dispenses
political favors, protection, friendliness. Its revenue comes from public
service corporations, or if corporations are prohibited by
CONTRIB- -t_ - r i • • i- i i
UTORS 10 law irom contributing to party funds, it is supplied by
THE PARTY individuals who are known to be in touch with them. It
WAR CHEST. r . i • • i r i
comes Irom contractors who want big jobs, or Irom those
who have supplies which they desire to sell to the state or the city. It
comes, to some extent, from legitimate business which, in an era of con-
stant governmental interference, desires to have friends at the state
capitol or the city hall. But it comes also from tax dodgers, narcotic
1 W. L. Riordon, Plunkitt of Tammany Hall (New York, 1905)
STATE PARTIES AND PRACTICAL POLITICS 635
pedlars, gamblers, racketeers, and the underworld in general, and from
that great variety of other sources where the urge to "keep things fixed"
is the mainspring of reluctant generosity. The machine, in a word,
flourishes because the system of practical politics, which exists in most of
the states, provides the sinews of war in the form of patronage and help.
Civil service reform has done something to minimize this evil, and strict
laws relating to the competitive awarding of contracts have also helped
in some measure. Yet party service and free-handed contributions to the
party chest continue to be recognized as the surest passports to official
favor.
Other factors have also, no doubt, contributed to the evolution of
political machines in America. The presence of newly naturalized
citizens in large numbers, particularly in some of the eastern
*-?. OTHER.
states, has been an incentive to thorough organization, i ACTORS
Assiduous party propaganda counts for much with these WHICH HAVE
I'll • i • i • i HEI PED THE
voters who have not, like the native-born, inherited a QROWJH ot
definite leaning towards either one of the regular parties. POLIUCAL
T-i i i 11 -^1 - ^ 1 J -4. a. MACHINES.
The long ballot with its party columns and its consequent
premium on voting a straight ticket has also played into the hands of the
machine. The material prosperity of the United States has been a con-
tributing factor as well. Prosperity, while it lasts, is a silencer of criticism,
a deterrent to reform. When people are absorbed in the business of
accumulating wealth, they do not begrudge the politician his share so
long as he lets them alone.
The head of the machine is usually known as the boss. He is the man
who gives the orders. The boss in politics is just like any other kind of
boss. Bossism, of course, is neither a modern nor an Amcr-
1111 i i r THE BOSS-
ican product — there have been bosses since the days 01
Pericles. It is the excellence of his work, not the nature of BOSSES AND
his position, that has brought the American boss into world- DISTIN-
wide prominence.1 Leader and boss are often used as OUISHED:
interchangeable words in the vernacular of practical T IN RE"
0 11-! SPONSIBILI1Y.
politics, but it is not accurate to employ them in that way.
A leader has a position which is clearly defined by law or by the rules of
the organization. He has definite duties and a direct responsibility which
he cannot conceal. His acts are performed in the open. A boss, on the
other hand, while he may be a party official, does not derive his power
from that fact. His authority comes through informal and undefined
1 See the chapter on "The Boss in Politics," in the author's Personality m Politics (new edition,
New York, 1934) also J. T. Salter, Boss Rule (New York, 1935), and Harold Zmk, City Bosses
in the United States (Durham, N. C., 1930).
636 THE GOVERNMENT OF THE UNITED STATES
channels; he uses his machine for personal as well as party ends; and he
does not owe any real responsibility to the rank and file of the voters.
In methods also, as well as in responsibility, leadership and bossism
are different. The leader leads, and the boss drives. The leader appeals
to the sense of loyalty of his followers; he tries to inspire
METHODS anc^ Persuadc. The boss does not argue, for he is a boss by
divine right. Yet bosses are not all alike in their political
methods. They differ as widely as men in any other profession. There arc
easy bosses and bosses who use the mailed fist. The newspaper cartoons
usually portray the boss as a heavy-set, beetle-browed fellow, who wears
loud clothes and chews the end of a black cigar. But the boss does not
look, or dress, or act, like that in real life. Not infrequently he is a man of
education with close friends among the captains of industry. A generation
ago there were bosses like "Bathhouse John" Coughlin of Chicago whose
eccentricities of attire and action kept him on the front pages of the
newspapers, but nowadays the successful boss keeps himself in the
background.
The boss holds his place by giving service. People who have business
with their government like to do it with somebody who has authority.
WHY THE Under the American scheme of state government, the power
BOSS is divided among a great many officials; so the* boss regathers
SUCCEEDS. jt jntQ kjg Qwn jianc]s whcre it can be utilized. He is the
broker who gets you what you want when you are ready and able to
meet his terms for it. In the crowded wards of the great cities, moreover,
the boss is the mediator between the higher-ups and the lower-downs. He
is the protector of the common man against his troubles of every sort.
Likewise, it is the boss who gets special favors for the well to do — for
example, an abatement of taxes or a lowered assessment on some piece
of property. All day and every clay he is doing favors, big and little.1
From those who can afford it, he expects, in return, a contribution to
his campaign funds: from the rest, he looks for votes on election day and
he usually gets them. By doing favors he obtains control of political
power, and by means of this political power, he is able to do more favors.
It is a circle hard to break.
Groups of bosses are known as "rings.55 A boss prefers the monarchical
form of government, with himself on the throne, but this type of rule is
not always practicable. So he sometimes finds it necessary
RINGS. . . .
to share his throne with others. Rings arc powerful as long
1 For a good account of the way in which he does it, see Alfred E. Smith, The Citizen and
His Government (New York, 1935) pp. 8-19.
STATE PARTIES AND PRACTICAL POLITICS 637
as the members work together; but eventually they disagree, and then
the ring goes to pieces. The two most famous rings in American political
history were the Tweed Ring, which dominated New York sixty years
ago, and the Gas Ring, which held Philadelphia in its clutches a little
earlier. But there are little rings all over the country — county rings,
courthouse rings, rings of road contractors, rings made up of politicians
and racketeers in alliance, rings of every sort. They are forming and dis-
solving all the time.
Many denunciations have been showered upon bosses and rings; but
both are logical products of political conditions which have existed in
most American states until recent years, and which still
THE POLIT~
continue in some of them. Discipline helps to win elections ICAL CIRCUM-
STANCES
as well as battles, and good discipline cannot be maintained
111- r i -11 iri t WI«CH HAVE
except by lodging vast final powers in the hands of a shrewd, ENCOURAGED
active, and experienced commander in chief. There will be B°SSISM IN
! . A i- • i i AMERICA.
bosses in American politics so long as government by patron-
age, the spoils system, the multiplicity of elective offices, the long ballot,
the frequency of polling, the lobby, the policy of legislation by trade and
bargaining, the gerrymander, the pork barrel, and a dozen other
iniquities combine to place at a disadvantage the leader who insists upon
fair and open methods of electoral combat. "Blessed are they who live
up to the law for they shall be licked when the votes are counted.55 That
beatitude of practical politics is unhappily too often true.
The cure for bossism is in the eradication of the things which have
brought it into being. The reduction in the number of elective offices,
the use of the short ballot, the extension of the merit system
. . THE
to all subordinate appointments and to all promotions, the REMEDIES
simplification of nominating and election machinery, the FOR BOSS
practice of requiring all campaign contributions and ex-
penditures to be made public, the placing of public contracts on an
open-competition basis, the purchase of supplies by public tender, the
rigid control of lobbying in legislatures, the extension of social service
facilities in the crowded sections of large cities, and the encouragement
of civic education — these reforms have helped and are helping to rid
the states of boss politics. Such riddance, moreover, is in the highest
degree desirable, for no political system can be really democratic so long
as it suffers any man to exercise large political powers without formal
authority or responsibility.
638 THE GOVERNMENT OF THE UNITED STATES
REFERENCES
Many readable books have been written on state parties, practical politics,
bossism, and kindred topics in recent years. Mention may be made of Samuel
P. Orth, The Boss and the Machine (New Haven, 1919), J. T. Salter, Boss Rule
(New York, 1935), and J. T. Salter (editor), The American Politician (Chapel
Hill, N. C., 1938), and The Pattern of Politics (New York, 1940), Frank R. Kent,
The Great Game oj Politics (revised edition, New York, 1930), and Political Be-
havior (New York, 1928), R. C. Brooks, Political Parties and Electoral Problems
(3rd edition, New York, 1933), P. O. Ray, An Introduction to Political Parties and
Practical Politics (3rd edition, New York, 1924), E. M. Sait, American Parties and
Elections (3rd edition, New York, 1942), Charles E. Merriam and Harold F.
Gosnell, The American Party System (revised edition, New York, 1940), H. R.
Bruce, American Parties and Politics (3rd edition, New York, 1936), James K.
Pollock, Jr., Party Campaign Funds (New York, 1926), W. E. Binkley, American
Political Parties; Their Natural History (New York, 1943), V. O. Key, Politics,
Parties and Pressure Groups (New York, 1942), Frederick S. Oliver, Politics and
Politicians (New York, 1934), and E. R. Sikes, State and Federal Corrupt Practices
Legislation (Durham, N. C., 1928).
Other books of interest and value are Charles E. Merriam, Chicago: A More
Intimate View oj Urban Politics (New York, 1929), Harold F. Gosnell, Boss Platt
and His New York Machine (New York, 1924), A. B. Paine, The Tweed Ring (New
York, 1905), Denis T. Lynch, "Boss" Tweed (New York, 1927), Lothrop Stod-
dard, Master of Manhattan (New York, 1931), E. E. Smith, The Philosophy of a
Politician (Minneapolis, 1932), Herbert Asbury, The Gangs oj New York; an
Informal History of the Underworld (New York, 1928), Louise Overacker, Money
in Elections (New York, 1932), V. B. Boothe, The Political Party as a Social Force
(Philadelphia, 1923), Harold Zink, City Bosses in the United States (Durham,
N. C., 1930), J. H. Wallis, The Politician, His Habits, Outcries and Protective Coloring
(New York, 1935), E. H. Lavine, ''Gimme" or How Politicians Get Rich (New York,
1931), Lincoln Steffens, Autobiography (New York, 1931), W. L. Riordon,
Plunkitt of Tammany Hall (New York, 1905), W. Chambers, Samuel Seabury; a
Challenge (New York, 1932), W. A. Mabry, The Negro in North Carolina Politics
since Reconstruction (Durham, N. C., 1940), and Thomas O. Harris, The King fish;
Huey P. Long^Dictator (New Orleans, 1938).
THE DIRECT PRIMARY. C. E. Merriam and Louise Overacker, Primary Elections
(revised edition, Chicago, 1928), R. S. Boots, The Direct Primary in New Jersey
(New York, 1917), H. M. Rocca, Nominating Methods with Special Reference to the
Direct Primary (Washington, 1927), Allen F. Lovejoy, La Follette and the Estab-
lishment of the Direct Primary in Wisconsin, 1890-1 904 (New Haven, 1941), C. H.
Wooddy, The Direct Primary in Chicago (Chicago, 1926), and Benjamin Glassman,
A. B.C. of the Direct Primary Law (3rd edition, New York, 1938).
See also the references at the close of Chapters VIII and IX.
CHAPTER XXXIX
THE STATE LEGISLATURE
I am not a politician and my other habits are good. — Artemus Ward.
The legislature is the paramount branch of American state govern-
ment. It makes the state laws, controls the expenditures, and determines
the duties which the administrative authorities perform. XMPQRTANT
It can investigate any branch of state administration at any ROLE OF
time. It is true that limitations in the state constitution f!^1?018"
LA TURKS IN
have everywhere circumscribed the jurisdiction of the AMERICAN
legislature, and that in many states the use of the initiative GOVERNMENT-
and referendum has further impaired its supremacy. It is also true that
the development of independent administrative officials and boards has
taken from it many of its regulatory functions. Yet the legislature main-
tains its position as the dominating branch of state government.
Many Americans have a wrong conception of what their state legis-
lature is supposed to be. They look upon it as a sort of secondary law-
making body which concerns itself mainly with minor A WRONG
questions that are not of sufficient importance to engage the CONCEPTION
attention of Congress. It rarely occurs to the average citizen OF IT*
that these state legislatures supply the motive power for the entire
mechanism of American government in nation, state, county, and city.
Without action by the state legislatures (in prescribing the qualifications
for voting, arranging the machinery of elections, and certifying the
results), there would be neither President nor Congress — at any rate,
neither could be chosen under the existing Constitution of the United
States. Without action by the state legislature, there would be no
elections, no voters' lists, no public schools, and no municipalities. In
this sense, the state legislature is the pivot of our entire governmental
system.
The citizen should take more interest in his state legislature. He should
be more concerned about its personnel and powers. For this body, to a
greater extent than Congress, determines his political privileges and his
immediate social relationships, tt regulates his civil rights and duties,
639
640 THE GOVERNMENT OF THE UNITED STATES
secures him in the tenure of his property, and makes most of the rules
that govern his daily movements. To do these things efficiently, it is
essential that the state legislature be properly orgcinized, truly repre-
sentative, unhampered by needless constitutional restrictions, and en-
dowed with adequate authority.
ORGANIZATION OF STATE LEGISLATURES
The organization of the legislature differs from state to state, but in
essentials it is the same throughout the country.1 In every state, except
Nebraska, it is made up of two elective chambers with
GENERAL i-n i i • r^i
STRUCTURE substantially concurrent lawmaking powers. Hie upper
OF THE chamber, called the senate, is the smaller of the two. Its
members are elected from senatorial districts and their
term of office is either two or four years, except in New Jersey where
it is three years. The lower chamber, which is variously known as
the house of representatives, or assembly, or house of delegates, is a
larger body; its members are chosen from smaller districts and the
term of office is sometimes shorter, being in most states only two years.2
These districts are rearranged from time to time, usually after each de-
cennial census, to make them approximately equal in population. This
redistricting provides an opportunity for gerrymandering, which the
majority party in the legislature almost invariably seizes to its own
advantage.3
Why have all the states been using this double-chamber or bi-
cameral system? To some extent the reason may be found in certain
reputed merits of the plan, but the influence of the national
example has also been important. When a two-house
SYSTEM HAS Congress was provided in the frame of national government,
BEEN tkjs t mocjei for aii other American legislatures. Accord-
ADOPTED. &
ingly, those states which began with one chamber replaced
it in due course with two.4 Then the new states, as they were formed,
established bicameral legislatures one after another. In some cases they
were also influenced by the fact that the double-chamber plan permitted
1 The nomenclature varies throughout the country. "Legislature" is the most common term,
but nineteen states use the term "general assembly " Massachusetts and New Hampshire
officially employ the quaint term "great and general court," but in popular usage the term
* 'legislature" is much more common in these two states
2 New Jersey's term is one year and the term in Louisiana, Alabama and Maryland is
four years.
8 The smallest state senate is that of Delaware, with 17 members; the largest is that of
Minnesota, with 67. The smallest lower chamber is that of Delaware, with 35 members,
the largest is that of New Hampshire, with 443.
4 J. B. Kingsbury, Umcameral Legislatures tn Early American States (St. Louis, 1925).
THE STATE LEGISLATURE 641
a dual suffrage, with a high property qualification for the state senate
and a lower one for the assembly. But gradually the distinction in suffrage
was abolished while the two chambers remained.
Then arose the idea that even if the two chambers were elected by the
same voters, they could nevertheless be made to represent different
interests — the senate, for example, representing geograph- VALUE OF
ical areas, such as counties, while the assembly represented DUAL REPRE-
quotas of population. With the growth of cities, and the SENTATION-
massing of people in them, more emphasis came to be laid upon the idea
of having the upper chamber represent counties equally, without regard
to differences in population. There also developed in the public mind a
belief in the usefulness of a divided legislature as a safeguard against
hasty lawmaking and as a part of the system of checks and balances.
The practice of discriminating against the urban centers in favor of
the rural districts is still common.1 In a few states there is a constitutional
provision that each county, irrespective of its size, shall have
the same number of senators: in others that each county
*
shall have a certain minimum and that no county shall have
more than a prescribed maximum of representation. Still others gain
advantage for the rural districts by delaying a reapportionment, when
they find the cities growing more rapidly than the rest of the state. As a
result of this, the rural districts usually control the upper chamber.
Baltimore has half the population of Maryland, but elects only one fifth
of the senators of that state. Rhode Island allows Providence only one
senator, although the city's population would entitle it to sixteen. Cook
County has more than half the population of Illinois, but elects only
about a third of the members in both chambers of the state legislature.
This jug-handled arrangement is defended on the ground that it would
be unwise to hand over full control of both chambers to a few large
industrial communities. And as a practical matter, it is perpetuated, in
many cases, by an alliance between the rural voters on the one hand and
the vested interests of the urban communities on the other. The latter
believe that a legislative chamber can more easily be kept friendly to
property rights when it is controlled by up-country members.
The grounds upon which the bicameral system is defended today are
not so convincing as they were a century ago.2 The danger of hasty or
secret action, under modern rules of legislative procedure, with the print-
1 For a full discussion see J. G. Thompson, Urbanization (New York, 1927), Chaps, i-ii;
A. Z. Reed, The Territorial Basis oj State Government (New York, 191 1), Chaps, vii— viii; and C.
M. Kneier, City Government in the United States (New York, 1934), Chap. viii.
2 Dorothy Schaffter, The Bicameral System in Practice (Iowa City, 1929).
642 THE GOVERNMENT OF THE UNITED STATES
ing of proposed measures and committee hearings open to all, likewise
with three readings of every measure in the legislature and with ample
opportunity for consideration, not to speak of a governor's veto power in
the background and sometimes a popular referendum as
a ^ast resort — with all these safeguards, the opportunities
SYSTEM AD- for slipping injudicious or unpopular measures upon the
statute book are very few. There is more danger nowadays
that a meritorious bill will perish on the long and tortuous
road to enactment than that an unworthy measure will get through
without proper scrutiny.
Nor does the idea that one chamber will exercise a helpful check upon
the other prove to be a sound one when put to the test of actual practice.
HOW IT Roth chambers are composed of party men. If the same
FUNCTIONS political party controls a majority in both, the check im-
IN PRACTICE, posed by one house upon the other is rarely of much value;
whereas if different political parties control the two chambers, the
checking often becomes so persistent that deadlocks ensue and progress
is blocked. It has been found that, under normal conditions, most of
the measures which pass one chamber are accepted by the other. Rarely,
under such circumstances, does one chamber reject as many as 10 per
cent of the bills passed by the other. This is not surprising, for the same
political leaders usually control both chambers, or if there are different
leaders, they work together. Complaint is made in some states, however,
that the upper chamber is more conservative than the lower and some-
times rejects important measures of a liberal character which have been
passed by the latter.
The bicameral system in the state legislature is retained, for the most
part, out of respect for tradition. The notion that cities and rural districts
have different interests in state legislation, and that this
DEFECTS OF -11
THE TWO- divergence requires dual representation, is not supported by
CHAMBER the records of votes taken in American legislative bodies. A
SYSTEM
study of the facts does not show that the bicameral system pos-
sesses, in any large measure, the merits which are commonly attributed to
it. On the other hand, the division of legislative authority has some serious
defects. It increases the cost and complexity of the lawmaking machinery;
it facilitates and even actively encourages the making of laws by a process
of compromise, bargaining, and log rolling; it compels all legislative
proposals to follow a circuitous route on their way to final enactment;
it provides countless opportunities for obstruction and delay; and it
facilitates the shifting of responsibility for unpopular legislation. Bills are
often passed by one chamber with the intent that they will be "given the
THE STATE LEGISLATURE 643
axe" in the other, in accordance with an understanding reached before-
hand. Finally, the double-chamber system has proved a barrier to the
planning of the laws. The coordination of leadership and planning is
difficult unless some dominating governor is able to provide it, or some
political boss steps in and arrogates it to himself. "Inasmuch as it is next
to impossible to determine who is running the legislature from the
inside," said Woodrow Wilson when he was governor of New Jersey,
"there is an instinctive desire to have some force directing and leading it
from the outside."
In the large cities of the United States, the bicameral system was
widely used a generation ago; today it has been abandoned almost
everywhere. Among the twelve largest American cities not ITS ABOLI.
one now maintains a double-chambered council, unless we TION IN THE
call the board of estimate an upper chamber in New York CITIES-
City. Some of our cities with single-chamber councils of nine, or fifteen,
or twenty-one members, are more populous than various states with
double-chamber legislatures; and their problems are surely just as com-
plicated. It seems curious that Nevada, Delaware, Wyoming, and Rhode
Island should require two chambers, while Chicago, Philadelphia,
Detroit, and Cleveland can get along with one.
In view of the criticisms which have been directed against the bi-
cameral system, the experiment with a single chamber in Nebraska
commands more than passing attention. The change to a
single chamber was approved in that state at a constitutional EXPFRIMENT
referendum in 1934, and the new arrangement went into WITH A
effect three years later. The Nebraska legislature now con- SINGLE
sists of 43 members elected on a nonpar tisan ballot for a
term of two years. Experience thus far indicates that some advantages
have been gained by the reduction from two chambers to one. The
number of bills introduced has been cut down, procedure has been
simplified, and the time consumed in legislative deliberation has been
shortened. The quality of the legislative output, in the opinion of those
qualified to speak, has been improved. But it is not certain that all this
can be attributed to the streamlined legislative machinery. Some of it
undoubtedly results from Nebraska's action in setting up a special body
known as the legislative council, the organization and purposes of which
are discussed towards the close of this chapter.1 At this point, however, it
should be explained that the legislative council is an appointive body
which prepares the legislative program in advance of the session, serves
as a bill-drafting agency, and assumes some responsibility for legislative
1 See p. 659
644 THE GOVERNMENT OF THE UNITED STATES
leadership. It is not unlikely that Nebraska's experience will inspire
movements for similar changes in other states.1
COMPOSITION OF THE LEGISLATURE
Candidates for the legislature are nowadays usually nominated by
means of the direct primary, although a few states still use the old con
vention system, or in some cases the party caucus. The poll-
jng jn many5 kut not jn au? Of tjie states is held upon the
STATE same date as the national elections. Each state, under the
LEGISLA- constitutional rules already set forth as to race and sex
TORS. J
discriminations, has the right to determine who may vote
for members of its own legislature, but universal suffrage is now the rule.
All the states have a minimum residence requirement and some of them
have poll-tax requirements and /or a literacy test for voting.
A plurality of votes is normally sufficient to elect. This practice is often
criticized because it can, and frequently does, lead to the election of a
PLURALITY representative from a district by a minority of the total vote
CHOICE cast, and technically leaves the combined opposition, which
SUFFICIENT. together may total a majority, without representation.
Nevertheless, the states have shown no favor for cumulative or prefer-
ential voting systems designed to insure a majority choice. Nor has any
state seriously considered adopting a system of proportional
TIONAL^REP- representation, designed to give all sizable minorities,
RESENTATION as well as the majority, a chance to elect representatives.
AND CUMULA- prOportional representation, however, is being used in
several large American cities with results which are still the
subject of much controversy.2 Only in Illinois has there been a departure
from the simple plan of plurality choice. There, since 1870, any voter
may cast one vote for each of three candidates for the lower house of the
legislature or he may "plump" all three votes for a single candidate.
This system, known as cumulative voting, is designed to give the minority
faction a chance to elect at least one of the three representatives who are
chosen from each assembly district. The system of cumulative voting in
Illinois has never been wholly popular, and one of the provisions in the
proposed new constitution of 1920 suggested its abolition. But this pro-
posed constitution was rejected in toto by the voters and the cumulative
system remains in force.
1 On Nebraska's experiment see John P. Senning, "Nebraska's First Unicameral Legisla-
tive Session," Annals of the Academy of Political and Social Science (Jan. 1938), pp 159-167.
2 For a favorable view of proportional representation see G. G. Hoag and G. H. Hallett,
Proportional Representation (New York, 1940); for an effective criticism of the system, F. A.
Hermens, Democracy or Anarchy? (Notre Dame, Ind., 1941).
THE STATE LEGISLATURE 645
The quality of state legislators is considerably higher in some parts of
the country than in others. It varies, indeed, in different parts of the same
state. On the whole, however, it is fairly representative of
QUALITY
the whole electorate. This is not the opinion generally held OF THE
by political reformers, but any careful study of the matter MEN
will show it to be the case. Almost every profession and
business vocation, almost every degree of intelligence and the lack of it,
almost every gradation of public spirit and self-interest, will be found
represented. Lawyers form the largest single element in American state
legislatures, except in the strongly agricultural states, and even there
they manage to figure considerably.
Most state legislators are relatively young men, thirty to forty-five
years of age. Women have been making their way into the legislative
chambers during recent years, but their number is still rather small.
Experience is of great advantage to a state legislator, but most of the
members do not stay long enough in either chamber to acquire much
of it. The turnover is fairly rapid, although there are exceptions and
one can occasionally find men who have served in state legislatures for
ten or even twenty years. It is a frequent assertion that the standards of
competence in the state legislatures are disappointingly low as far as a
knowledge of business problems is concerned, but they are probably above
the average of the populations which do the voting.
Only four states, New York, New Jersey, Rhode Island, and South
Carolina, hold regular sessions of the legislature every year. All the other
states content themselves with a session every two years. FREQUENCY
And whether annual or biennial, they are often limited by AND LENGUI
the state constitution to a session of not more than two OF SESSIONS-
months. Two states, Oregon and Wyoming, require that the legislature
shall finish its work within the space of 50 and 40 days respectively.
Where no time limit is prescribed, the same end is sometimes accom-
plished by a constitutional provision that legislators shall be paid so much
per diem for so many days and nothing thereafter. One of the results of
the relative infrequcncy of regular sessions and the arbitrary time
limitations imposed upon them is an increase in the number of special
sessions. Normally, these are called by the governor; and in a majority
of the states, he is permitted to determine what matters may be con-
sidered at a special session.
A novelty in legislative procedure, introduced by California in 1911,
is the bifurcated or split legislative session. Under this plan the legis-
lature holds a preliminary thirty-day session during which bills and
resolutions arc introduced. Then comes a recess of equal length which is
646 THE GOVERNMENT OF THE UNITED STATES
designed to give the legislators an opportunity to discuss these measuies
with the voters of their respective districts. Following the recess, the leg-
THE SPLIT islature resumes its work, with no limit upon the duration
LEGISLAIIVE of its session, except that the legislators get no pay after one
SESSION hundred days. New bills cannot be introduced during the
second portion of the legislative session except under certain procedural
restrictions, which are intended to discourage belated proposals. It was
hoped that this arrangement would enable the legislature to utilize its
time more efficiently and prevent the piling up of measures during the
last few days of legislative sessions, but these expectations have not been
altogether fulfilled. Although several other states have experimented with
the split session, New Mexico (1940) being the latest to provide for it,
there is not much likelihood that it will become a regular feature of
American legislative practice. The arrangement has some advantages,
but it has by no means relieved the congestion of business in the closing
days of the session.
The powers of the state legislature, as has been said, are broader and
more important than the casual student of American government re-
alizes. They comprise every field of governmental activity
POWERS OF . ' r ' . °. /
STATE LEG- not restricted by the federal Constitution or by the coiisti-
ISLATURES. tution of the state itself. Those limitations upon the states
LIMITATIONS which are provided by the federal Constitution have
THLREUPON: already been mentioned.1 Those which the state con-
i. IN IHE ... . . i . , r i • •
FEDERAL stitutions impose relate not only to the rights of the citizens,
CONS i ITU- kut to many other matters on which the limitations differ
from state to state. A few examples will illustrate the
general character of these prohibitions.
Legislatures arc sometimes forbidden by the terms of their own state
constitutions to grant special charters to municipalities or private
2 IN THE corporations, to authorize public borrowing beyond a fixed
STATE CON- point, to impose property qualifications for voting, to grant
SIITUTION. public money to sectarian institutions, to give perpetual
franchises to public service corporations, to lend the state's credit to
private enterprises, to change county seats without the consent of the
voters concerned, to reduce the salaries of judges, to make discriminations
in the tax laws, etc. In addition to these actual prohibitions, the state
constitutions often prescribe in detail the way in which many things
shall be done; even the methods of procedure in the legislature are some-
times set forth in detail. For example, it is often stipulated that all bilh
shall be printed before being acted upon, that no bill shall deal with
1 See pp. 595-600-
THE STATE LEGISLATURE 647
more than a single subject, and that there shall be a roll call on certain
measures. The tendency has been to increase the number and extent of
these restrictive provisions, so that the legislature now faces at almost
every turn the danger of having its laws declared unconstitutional.
Yet the legislature has a great many laws to make, for it is vested with
the duty of looking after a widely diversified list of matters. Either
directly or through the agency of subordinate municipal
authorities, the state legislature provides the citizen with FIEID
police protection, with redress for wrongs done to him, with WHIGI1 RE-
highways and sanitation, with libraries and recreation WITHIN
facilities. The state laws determine most of the taxes which THESL
1 ! r , . . , 1-11 LIMHS.
he pays, and most oi the civic duties which he must per-
form — such as serving on a jury. The state laws reach out into the shops
and factories, regulating the hours and conditions of labor. They provide
for the care of the poor, the insane, and the delinquents of all ages. State
laws are much more numerous than federal statutes; it has been esti-
mated that it takes about one hundred and fifty volumes to hold the
biennial output of state laws, not to speak of ordinances by the tens of
thousands which are annually adopted by county supervisors and city
councils under authority granted to them by the state legislatures.
In the exercise of this extensive lawmaking function, each state legis-
lature determines its own rules of procedure, subject, however, to any
provisions that happen to be laid down in the state consti-
tution. But practically all of the state legislatures follow PROCEDURE.
rules which are in general similar to those of Congress, so MODFIED ON
that the procedure used in legislative chambers throughout THAT OF
the United States is much the same. This applies to the CONGRESS-
introduction of bills, the three readings, the powers of the presiding
officer in each house, the system of committees, the rules of debate, the
methods by which the two chambers take action upon pending measures,
and the rules of order. There are innumerable differences in the detailed
rules, but relatively few in the general process of lawmaking.1
As for the presiding officers in state legislatures, the influence of the
federal analogy is everywhere apparent. When a state has a lieutenant
governor, he usually (but not always) presides over the state
senate, just as the Vice-President of the United States
occupies the chair in the upper House of Congress. But the OFFICERS OF
STATE LEG-
country elects its own speaker. In practice, the choice is
lower chamber of the state legislature in all parts of the
1 The situation i« fully discussed in Harvey Walker, Lawmaking in the United States (New York,
1934), Chaps, ix-xiv.
648 THE GOVERNMENT OF THE UNITED STATES
first determined by a caucus of members belonging to the political party
which controls a majority in the assembly and is then formally ratified
by the chamber as a whole. This speaker has the usual functions of a
presiding officer, including, in about two thirds of the legislatures, the
duty of appointing all members of committees from his own chamber.
In the remainder, committee assignments arc arranged, as in the national
House of Representatives, by a committee on committees. In the upper
house, or state senate, committees arc variously appointed by the pre-
siding officer, by a committee on rules, a committee on committees, or
by a special committee; and in at least two states, they are elected by the
senators directly. Each house of a state legislature also chooses its other
officers and employees, including chaplain, clerk, scrgeant-at-arms,
and messengers.
Much of the preliminary work of state legislation is performed by
committees, and every legislature maintains a considerable number of
these subordinate bodies.1 In most of them there are
separate committees for each chamber, but in a few (notably
in Massachusetts) nearly all committees arc joint committees
composed of members from both chambers. This system of joint com-
mittees avoids much duplication of work. In size the committees vary,
running from as few as five to as many as forty-five members or more.
The committees are also of varying importance. Some of them, such as
the committees on finance, on ways and means, on rules, on the judiciary,
on labor, on industrial affairs, on cities, on education, on public institu-
tions, and on public utilities, may have a great deal to do. Others, such
as those on printing, on fisheries and game, on pensions, and on federal
relations, may have very little. In addition to these regular or standing
committees, there are special committees which are appointed whenever
the occasion arises. Special commissions, including persons who do not
belong to the legislature, are also authorized to study important matters
and to make recommendations. This arrangement enables a legislature
to make use of expert assistance outside the ranks of its own membership.
Every measure introduced into either house of the legislature is forth-
with referred to the appropriate committee. There, in regular order,
hearings are held at which both the supporters and oppo-
FUNGTIONS. nents of the measure are entitled to appear. The members of
the committee sit patiently and listen — some of them do.
Unfortunately, a legislator may be a member of more than one com-
mittee and he cannot attend two hearings at the same time. So the
hearings are always held by committees with some members absent. In
1 For a full discussion see C. I Winslow, State Legislative Committees (Baltimore, 1931).
THE STATE LEGISLATURE 649
some states, the rules require that a hearing shall be advertised upon
every measure, and that before a certain date every matter referred to a
committee shall be reported back, favorably or otherwise, to the legis-
lature. In other states, such hearings are not held except upon important
matters, or when asked for; and committees are not under any obligation
to report upon every proposal that is turned over to them. In these
legislatures, as in Congress, matters may die in committee, that is, may
be left in the committee's files without any action until the legislative
session ends.
The committee system in its actual operation among the several states
has displayed great merits and equally grave defects. Legislation without
the aid of committees is practically impossible so lon^ as
~ ' r ° MERITS AND
legislatures retain their present size, for only by some such FAULTS OF
division of labor can the huge grist of bills receive any con- THE COM"
sideration at all. Where the committees are intelligently 1FM IN THE
constituted, the committee system means that all measures si ME IKGIS-
, r .. . , . , , LAIURES.
are entrusted lor preliminary consideration to those legis-
lators who know most about them. Legislators who sit on the municipal
affairs committee of a state legislature, for example, inevitably learn a
good deal about city problems and may become, after a while, quite pro-
ficient in that field. In principle, therefore, the committee system is sound.
But the trouble is that too often the committees are not properly
constituted. They are frequently made up by a process of political
manipulation. In other words, the members are not assigned according
to their personal aptitudes but on a basis of seniority and political
influence. A new member is automatically assigned to one or two minor
committees where he finds no inducement to become familiar with his
work, for he hopes and expects to get himself assigned to different and
better committees at the next session. Then, when he obtains this pro-
motion, he acquires the ambition to go still higher in the committee
scale, until finally he reaches the committee on rules or the committee
on appropriations, which are usually the most sought after. A good many
legislators think more about what they are going to do on next year's
committees than about what they should be doing on this year's.
Most state legislatures have too many committees. And in many of
them the committees are too large. Good work cannot be done by a
committee of thirty members, half of whom are absent from
each hearing. Moreover, the distribution of bills among the COMMITTEES
committees is very uneven; some are swamped with meas-
ures, while others have little or nothing to do. One committee may have a
hundred bills referred to it, while another gets only two or three bills
650 THE GOVERNMENT OF THE UNITED STATES
during the entire session. It all depends on whether the committee is
one that has to deal with an important and timely field — such as agri-
culture, or public utilities, or education. A legislative committee on fish
and game, or on sanitation, or on state monuments, may have only a
half-dozen bills per year. Finally, there is no coordination of committee
work. Each committee usually works by itself, even when matters closely
akin to the activities of some other committee are being studied.
Another feature which is destructive of efficient committee work is the
tendency of the legislature to disregard the reports of its committees and
FREQUENT ^Y ^ts own v°tcs to reject, without adequate reason, the
DISREGARD recommendations which committees have arrived at after
MITTEE" prolonged discussion. It is true that in most legislatures
RECOMMEN- the report of a committee, particularly if it is made unani-
DATIONS. mously, carries great weight; but nowhere is there any cer-
tainty that its recommendations will be accepted. A powerful lobby may
influence enough senators or assemblymen to reject it. Traditions and
practice in this matter differ greatly among the states; but, in general, it
can be said that the unconcern with which legislatures often set aside
the recommendations of their own committees is a serious weakness in
the American system of lawmaking.
The details of legislative procedure arc too complicated to be set forth
in brief form without the risk of serious inaccuracy. Yet this is a branch
of the subject which cannot be entirely omitted from any
IMPORTANCE • r A • r i •• ir
OF LEGISLA- discussion of American government, for the spirit and form
TIVE PRO- Of the laws are determined in some measure by the system
of legislative procedure. The quality of the statute book
depends on it — at least to some extent. Simplicity of procedure is
essential to the orderly making of laws. On the other hand, a certain
amount of formality is necessary to ensure that laws shall not be made or
unmade hastily, or in obedience to the dictates of prejudice and excite-
ment. American legislative procedure has been severely criticized because
of its complexity, and to the layman it docs seem needlessly complicated;
but lawmaking is a serious business and must be carried on under ade-
quate safeguards. Legislative bodies, moreover, are slaves to tradition.
Once a rule is adopted, it becomes almost impossible to change, no
matter how useless or even detrimental it may have become. It may be
frequently suspended, but it stays on the books. Thus, the rules pile up
until the task of learning them takes most of a new member's time during
his first session. And when he has mastered them, he usually opposes any
changes in these rules simply to avoid learning them all over again.
The prime purpose of legislative rules is to expedite business and pre-
THE STATE LEGISLATURE 651
vent congestion. But they have not usually been successful in achieving
this end. The congestion of business in many of the state THE CONGES.
legislatures, towards the end of the session, is notorious. TION OF
It is not uncommon to find hundreds of bills halfway BUSINESS-
through the legislature when it enters upon the last week of its session.
Even at this stage of the deliberations, moreover, new bills may be
introduced to complicate matters further. This often results in a series of
frantic all-night sessions at which the legislators try to hurry bills through
under suspension of the rules. The eleventh-hour congestion is partly due
to the dilatory action of committees in reporting bills, but it also arises
from the nonchalance with which the legislature fritters away its time
during the early weeks of the session. Legislatures could avoid most of
the trouble by placing strict limitations upon the introduction of new
bills after a certain deadline and by adopting a rule that committees
must report all bills before a prescribed date, this date being set well in
advance of the close of the session.
Let us take a look at the process of lawmaking in a state legislature.
The outline here given will not hold accurate in any one state, for there
are many differences in the detailed rules. Moreover, the THE PROG_
rules are not themselves to be depended on, for in some ESS OF
legislatures they are suspended at frequent intervals or even LAWMAKING-
ignored by unanimous consent. The rules, for example, may require that
a designated number of members shall be necessary for a quorum, but
unless someone rises in his place and complains that a quorum is not
present, the rule is generally ignored. And if a count shows less than the
required number to be in the chamber, when this point of order is raised,
the sergeant-at-arms or other attendant scurries out into the lobbies
and rounds up enough absentees to meet the requirement. Thus, when
the count is finished, they drift out again and the business goes right on
as before. So, not only do the rules of legislative procedure differ from
state to state, but there is considerable variation in the strictness with
which the printed rules are followed. Nevertheless, the general procedure
in the enactment of a law is about as follows:
First comes the drafting of the proposed bill. Every law has its embryo
in a bill, and every bill originates with an idea in somebody's head.
Usually it is somebody outside the legislature, for rarely do l THE
legislators originate new ideas. Nor, for that matter, do they DRAFTING
always understand old ones. Anyhow, the idea must be OFABILL-
elaborated into a bill before it can be introduced; and getting the bill
properly drafted is not an altogether simple job, although there are
plenty of amateur lawmakers who think that it is and do not disdain to
652 THE GOVERNMENT OF THE UNITED STATES
try their hands at it. Hence many bills are presented to state legislatures
in ungainly form, with provisions crudely expressed, ambiguous in
wording, and otherwise defective. The trouble is that, in America, we
assume the competence of any citizen to frame a law, an assumption
which may have been a workable one in early days when conditions of
life were simple, but which, in its application to the intricate mechanism
of modern society, is as absurd as it would be to assume that any citizen
is competent to command a battleship because he is able to paddle a
canoe.
The proper drafting of a law requires skill and experience. Not only
must the purpose of the proposed measure be clearly expressed, but care
BILL must be taken, or at least should be taken, to see that its
DRAFTING provisions are consistent with earlier legislation on the same
BY EXPERTS. Qr a rciatecj subject and that they do not unintentionally
repeal or reenact the provisions of earlier statutes. For this reason, many
of the bills now presented to the legislature are framed by lawyers who
have been employed for the purpose by civic organizations, private
corporations, or individuals. Those relating to counties, municipalities,
and other political subdivisions are usually prepared for them by their
own legal advisers.
But many bills are still drafted by the members of the legislature them-
selves, and in order to assist them, various services have been set up at
many of the state capitols. The first of these is the legislative
reference library.1 The staff of such a library gathers all
AND BILL- kinds of material which a legislator may find useful in his
DRAFTING
work, assembles data on the laws of other states, and often
SERVICES. ' '
indexes the existing laws and the public documents of the
home state. Occasionally it provides special research facilities to aid
legislators in the mastery of some specific legislative problem. All but
five states (Delaware, New Mexico, North Dakota, Tennessee, and Utah)
now have some sort of reference service. In almost all cases where a
reference service exists, moreover, the state has provided, in addition, a
bill-drafting bureau in which experts actually prepare such measures as
the legislators may request. Sometimes this bureau is a part of the refer-
ence library service; occasionally it is a separate service; while in other
instances the function of bill drafting is the responsibility of the attorney
general and his staff. These various facilities have unquestionably con-
tributed to the improvement of state laws, both in form and phraseology,
during recent years.
When a bill has been prepared in proper form, the next step is to have
1J. H. Leek, Legislative Reference Work: A Comparative Study (Philadelphia, 1925).
THE STATE LEGISLATURE 653
it introduced. The rules of a legislature usually require that some member
shall sponsor every bill that is regularly presented, thereby
assuming a technical responsibility for it. This does not iNrRODuc-
mean, of course, that the senator or assemblyman who TION IN THE
_. i -il • 11 • r r-0. T-l- • LEGISLATURE.
introduces a bill is personally in lavor ol it. 1 he requirement
of formal introduction by a member is merely a way of making sure
that bills arc presented in good faith. When requested to do so by some
voter or voters in his own district, a legislator will customarily introduce
any measure as a matter of courtesy. He does this by writing his name
on the bill and depositing it at the clerk's desk. In some state legislatures,
a member must go through the gesture of rising in his place and asking
permission to introduce a bill, but the permission is never refused. Bills
(with certain exceptions) may be introduced in either chamber, but must
usually be filed before a certain date, otherwise they can be intro-
duced only under suspension of the rules. There is no limit to the number
of bills that any member may bring in.
When bills arc introduced, they are given a "first reading," that is,
they are read by title only. Thereupon the presiding officer refers each bill
to an appropriate committee. Ordinarily there is no doubt
as to what committee should have a particular measure. ^E^Nr
Bills relating to taxation go to the committee on ways and AND REFER-
mcans; those relating to municipal affairs, to the committee ENCE T0 A
t ° ( l ' t COMMIT! H L
on cities. Those affecting the courts go to the committee on
the judiciary; those relating to labor are referred to the committee on
industrial relations, or whatever its name may be. But occasionally a
measure comes forward dealing with some matter which seems to be too
broad in its scope for any one committee, or it may be on the border line
between the jurisdiction of two different committees. Take the subject
of old-age pensions, for instance. Should a bill relating to that matter
go to the committee on industrial relations, or to the committee on in-
surance, or to the committee on social welfare? In such cases, the pro-
posed assignment made by the presiding officer may be discussed by the
legislators and possibly overruled. Or a compromise may be made by
referring the bill to two committees sitting jointly.
While awaiting consideration by a committee, the measure is printed,
the expense being borne by the state. This is done by the state printing
office (if there is one); otherwise by the concern which holds
T i , , 4- PRINTED
the contract for state printing. No matter how absurd the AND DIS.
bill may be, or how long its provisions, it goes into printed TRIBUTED
r * .u ui- . -n 4. • i J • ^u- u-il TO MEMBERS.
torm at the public cost. I he waste involved in this bill-
printing is considerable. Sometimes, at a single legislative session, several
654 THE GOVERNMENT OF THE UNITED STATES
hundred bills are printed and much of this represents a sheer waste of
paper and ink, for most of the measures receive no serious consideration
and deserve none. If people who introduce bills were required to pa/
half the cost of having them printed, there would be a considerable
reduction in the number of measures brought in.
The entire grist of measures which comes to a state legislature each
session may be grouped into four classes. First, there are certain bills of
broad scope and interest which have substantial backing
THE KINDS
OF BILLS behind them. They embody real issues and deserve the time
THAT ARE that the legislature spends in discussing them. Second, there
BROUGHT IN. . , ^ r 1 • 1 i i i_ • i
is a host 01 measures which, although meritorious, happen
to be of a minor sort and do not evoke any general interest — for ex-
ample, bills affecting some particular city or corporation, or making
slight amendments to the school laws, or affecting the duties of some
PERENNIALS public officer. Third come the " hardy perennials," as they
AND FREAK are called — bills which are promoted by some zealot or
BILLS- by some organization of reformers at every session, unde-
terred by successive defeats. Every state legislature gets its crop of these
measures, which include bills to close soda fountains on Sundays, to pro-
hibit the sale of cigarettes, to abolish nickel-in-the-slot machines, to
tax bachelors, to legalize a state lottery, to prohibit fraternities in the
state university, to abolish all taxes except a single tax on unimproved
land, and what not. Most of these bills have no chance of being passed.
They are merely a tribute to the persistence of some crusading individual
or group.
Then, in the fourth place, there are the bills to which legislators com-
monly give the name of "hold-up legislation." These are self-interest
THE SELF- measures, designed to give some class, or section, or business
INTEREST group an advantage which it does not possess under the
MEASURES. general laws, or which are intended to strike at some other
group or interest which has aroused antagonism. Thus, someone intro-
duces a measure requiring every public motor bus to carry a fire extin-
guisher to protect its passengers in case of accident. The chances arc,
ten to one, that such a bill is intended to increase the sale of extinguishers
rather than to protect passengers. Where public utilities, or banks, or
industries offend the politicians, it is a common practice of the latter to
retaliate by fathering proposals of adverse legislation which, although
not likely to pass, will serve to make the corporations uneasy. The fore-
going classes do not exhaust the whole calendar of bills, but they include
most of the better-known varieties.
What happens after one of these bills reaches the committee to which
THE STATE LEGISLATURE 655
it has been assigned? The first step is to place it on the committee's
calendar and to assign a date for a public hearing upon it.
When that date arrives, the hearing is held. Advocates and MITTEE
opponents of the measure may appear and argue for and HEARING
T -r • 11 r i i- J AND REPORT.
against it. In most states, if not in all of them, anybody
who wants to address the committee is accorded this privilege, and
naturally the privilege is sometimes abused. Cranks and hobby-riders
come and discourse at tedious length, while members of the committee
look bored and glance at their wrist watches. A few years ago, one
observant legislator noticed that a dapper young man was appearing
before some committee every few days and addressing it eloquently
on matters which were not always relevant to the bill under con-
sideration. On inquiring why this young man had such a versatility
of interest in legislative measures, he received the answer: "Oh, I am
not interested in any of these bills. I am a student at the College of
Oratory and my teacher told me that this would be a good way to get
practice."
Sometimes the hearing may take an hour or less; sometimes it may
continue all day, or for several days, or occasionally even for weeks,
when some very important measure is being considered.
Members of the committee ask questions and sometimes AT°HEARINGS
get into an argument with the advocates or opponents who
appear before them. At any rate, when both sides have had their say,
the hearing is closed; then the committee goes into executive session and
decides whether it will report favorably or unfavorably. Or it may post-
pone this decision until some convenient time several days, or even
weeks, after the hearing is over. Indeed, the committee may never vote
on the matter at all but merely let the bill expire on the table, unless the
house votes to take it out of the committee's hands. In some states, how-
ever, the rules require that every bill must be sent back to the legislature
with a definite report on it.
When a committee sends back a bill with its report, favorable or
unfavorable, it is listed upon the calendar of the assembly or the senate
as the case may be, and in due course comes before the ^
O. THE COM-
whole chamber. The committee's report is presented for MITTEE'S
acceptance or rejection. If the committee's report is unfavor- REPORT
able, someone may move that the bill be substituted for
the adverse report and given a second reading. The chief 7* SECOND
11 i n ,, , - , , READING.
debate on the floor takes place at this point: namely, on the
question of giving the bill its second reading. If not defeated 8- THIRD
i - - - i i i i i r i • i i- READING.
at that point, it is placed on the calendar lor a third reading,
656 THE GOVERNMENT OF THE UNITED STATES
and when it is again reached, a further discussion may take place,
9. PASSED although that is not customary. Having passed its third
TO ENGROSS- reading, and when it is reached once more, a further dis-
MENT AND . , , 111 i 1
SENT TO THE cussion may take place, although, again, that is not usual.
SENATE. Having passed its third reading, it is ordered to be engrossed
(or put into form for signature by the presiding officer) and is then foi-
warded to the other chamber.
There, it must go through a similar course all over again. If the two
chambers have separate committees, there is a further committee assign-
ment; but if the system of joint committees is used, there is
stN/uiT 1HE no nced f°r this- *n any caso? tne Mil Scts its three readings
in the second chamber, with two more opportunities for
a debate. If no amendments are made during these discussions, the meas-
ure is attested by the presiding officer of the second chamber and then
goes forward to the governor for his consideration. But any amendment,
however unimportant, brings the bill back to the original chamber for
10 THE concurrence; and in case the two houses fail to agree, a
MNAL committee of conference, representing both chambers, is
STEPS. named to effect a compromise if possible. The compromise
is then reported to both chambers and is usually accepted by them. If the
conference committee fails to reach a satisfactory compromise, the bill
is dead; but relatively few measures perish in conference after they have
gotten that far.
When a measure has run this gauntlet of two committee reports, four
debates, and a dozen votes in the two chambers (including votes to
ACTION BY reconsider, to postpone, or to amend), one might suppose
THE its troubles to be over. But this is not always the case. After
GOVERNOR. jt reachcs the governor's desk, he may decide not to append
his signature but to veto it, in which case he sends the bill back and it has
to be voted on again by both chambers. Then, unless it gets the requisite
majority (usually a two- thirds vote) in both houses, it remains vetoed.
Or, if the legislative session is near its close, the governor may decide
to let it take the "pocket veto," as will be explained in a subsequent
chapter.1
THE LEGISLATURE APPRAISED
By way of brief summary, then, the various stages in the making of a
law may be thus enumerated: (i) drafting the measure, (2) bill intro-
duced by some member, (3) given first reading, referred to
committee and printed, (4) committee consideration,
1 See p. 679.
THE STATE LEGISLATURE 657
hearing, and vote, (5) sent back to legislature and given second reading,
(6) given third reading and sent to the other chamber, (7) repeats the
same process there, (8) sent forward to the governor unamended or
referred back to original chamber with amendments, (9) in the latter
case, if amendments arc not accepted, goes to committee of conference,
(10) report of conference committee adopted by both chambers and
bill then sent to governor, (11) if the governor vetoes the bill, it is re-
turned and in each chamber a vote is taken on repassing the measure
over his veto.
Glancing over this outline, it will be seen that the making of a state
law is a long process, beset with plenty of pitfalls. It is even longer than
the foregoing outline would indicate, because rcconsidera- JAWMAKING
lion may be moved at almost any stage. Points of order may A IEDIOUS
be raised, hostile amendments offered, and roll calls dc- PROCESS
manded at every vote. There are innumerable ways of obstructing the
progress of a measure, when a fighting minority sets out to do it. Hence,
important bills often take several weeks, and even months, to go through
their various stages. Emergency measures can be rushed through in a
few clays, but only under suspension of the rules, and such suspension
occasionally requires unanimous consent.
Nevertheless, despite all this intricate procedure, the fact remains
that many measures go through the legislature without ever being read
by a considerable portion of the members. Sometimes the
THE INTRI~
clerk stands at his desk and wearily drones out the provisions GATE PRO-
of a measure with nobody listening to him; more often the CEDURE DOES
"reading" of the* bill consists in placing a printed copy on ANTEE THE
each member's desk, where he may or may not look it over. QUALITY OF
T , i r i • I EGISLATION.
It is a strange but actual fact that various measures go
through state legislatures at every session without having been read from
beginning to end by a single member except the one who introduced it,
and sometimes not even by him. If some legislator, during the debate,
queries a particular provision in the bill, everyone turns tq this provision
and reads it; but as for the rest of the measure, the legislators take for
granted that it must be all right if nobody opposes it. Flaws in impending
legislation are not usually discovered by the legislators themselves but
are pointed out to them by lobbyists. That is one useful purpose which
the lobby serves.
In short, then, elaborate rules and procedure are depended upon to
take the place of patient study and care on the part of those who make
the laws. The result is seen in the all-too-common enact- c<
TOKERS
ment of laws which contain "jokers,55 or provisions which
658 THE GOVERNMENT OF THE UNITED STATES
on careful scrutiny are not what they appear to be. Provisions inconsist-
ent with each other, and even ludicrous absurdities are sometimes found
in bills after they have passed through all their stages. Sometimes these
jokers are so palpable that no intelligent man could have read the bill
without discovering them.1 Measures are occasionally passed without
enacting clauses or lacking some other indispensable feature. A bill will
forbid something in drastic terms and then omit to provide any penalty
in case an offender is brought before the courts. These mishaps are not
peculiar to any one state. They are more or less common in all of them.
American state legislation has not set a high standard, either in form
or in substance. The popular tendency to look upon law as the remedy
for all political, social, and economic evils is one reason
REASONS FOR i - T - i • -A
THE INFERIOR for this. Legislation in America has been called upon to
QUALITY OF perform functions which in other countries are turned over
STATE LAWS. , . . . rr • ^ • i i- • T
to administrative officials with discretionary power. It
takes a dozen laws to do what can be done by one or two orders-in-coun-
cil or administrative regulations. America is a land of mass production,
and the manufacture of laws is no exception. Take the legislature of
Indiana as an illustration. It is forbidden by the constitution to prolong
its session beyond sixty-one days. But during this relatively short period
it usually manages to pass over three hundred laws — an average of five
a day. Only supermen could do the job well at that pace, and state
legislators are far from being supermen in the Hoosier state or anywhere
else. "Let me write the poetry of a nation," said an old-time poet, "and
I care not who writes the laws." Indiana, on the whole, has given her
people better poetry than laws, although even in law-making she has
done as well as any of her sister states.
Much of the trouble arises from the lack of legislative planning. In
most of the states little or nothing is done by way of preparation until
the legislature meets. Then the governor may send down some sugges-
tions which have been evolved out of his own head, often without any
1 A few examples:
"If any stallion or jack escape from his owner by accident, he shall be liable for all damages,
but shall not be liable to be fined as above provided."
"No one shall carry any dangerous weapon upon the public highways except for the purpose
of killing a noxious animal or a police officer in the discharge of his duty.'*
"All carpets and equipment used in offices and sleeping rooms of hotels and lodging houses,
including walls and ceilings, must be well plastered and kept in a clean and sanitary condition
at all times."
"Any seven persons, residents of the state, may organize a cooperative association with
capital stock . . . provided, however, that not more than one-tenth of said capital stock shall
be held by any one stockholder."
"The election shall be held on the Tuesday following the first Monday in November,
and on the fifth day thereafter the votes ihall be officially tabulated by the board of election
commissioners. '
THE STATE LEGISLATURE 659
real study of the difficulties involved. To remedy this defect, the legislative
leaders in some of the states have adopted the practice of getting together
for a pre-session conference, sometimes taking the governor THE LACK QF
into their confidence. Moreover, a majority of the state LEGISLATIVE
legislatures provide for various special committees which PLANNING-
meet between sessions for the study of particular problems. The activi-
ties of such committees may result in valuable recommendations and
suggestions for legislative action, but more often the reports and recom-
mendations of these interim committees fail to get very far. One reason
for this may be found in the fact that the committees are rarely provided
with expert guidance or research service in doing their work.
The most promising attack on this problem of better legislative plan-
ning is represented by the creation of a body known as the legislative
council. This council is usually composed of legislators
chosen by the two chambers, although in a few cases some LATIVE
administrative officials of the state are included. With the COUNCIL: A
SUGGESTED
assistance of an expert research staff, the legislative council
prepares a program for the ensuing legislative session and
compiles such data and information as are likely to be serviceable to the
whole body of legislators when they meet. Eight states l now provide for
such legislative councils with memberships ranging from five to twenty-
seven members. Experience indicates that they are proving helpful in
directing the legislature's attention to necessary and important measures,
by eliminating needless or undesirable legislation as well as by saving
time on the floor of the chamber. Ordinarily much time is wasted at
legislative sessions in answering questions which members would not
ask if the information were supplied to them in advance. It should be
mentioned, of course, that these legislative councils have no power to
enact any law. They merely prepare and present measures for the con-
sideration of the legislature when it meets.
Another problem with which all state legislatures have to contend is
presented by the various special interests and pressure groups which
descend upon them at every session. The representatives of
. , 11-11 THE LOBBY.
these interests, organizations, and groups, collectively make
up what is known as "the lobby" — sometimes facetiously designated as
the third chamber of the legislature. Lobbyists by the dozen perennially
infest the corridors of the capitol, exploiting every channel of persuasion
or pressure to secure the enactment of measures which their employers
favor or to defeat measures which the latter oppose. Some of them are
1 Connecticut, Illinois, Kansas, Kentucky, Maryland, Nebraska, Rhode Island, and Vir-
ginia.
660 THE GOVERNMENT OF THE UNITED STATES
interested in worthy social and educational reforms, but most lobbyists
are palpably engaged in furthering some personal, corporate, or group
advantage. They are seeking something that will benefit the farmers, or
organized labor, or big business, or little business, or the banks, the
public utilities, the liquor interest, the public school teachers, the war
veterans — even the colleges and universities occasionally have their
representatives on the job.
Now, if all lobbyists worked openly and confined their activities to
appearances at the public hearings of legislative committees, their
ATTEMPTS TO existence would not present much of a problem. But their
REGULATE methods are often devious and their machinations unscru-
ITS EVILS. pulous. Sometimes they threaten a legislator with opposi-
tion in his home district if he does not come across. Because of these and
other objectionable features in the work of the legislative agents (as they
like to call themselves), nearly three fourths of the states have now
enacted laws which are intended to regulate lobbying and subject the
lobbyists to the glare of publicity. About half of them require that all
paid lobbyists shall register, usually with the secretary of state, giving
information about themselves and their employers. In addition, about
one third of the states require lobbyists to file a statement of all expenses
incurred by them in their work, while several other states designate just
what methods the lobbyists may legally employ in their attempts to
influence legislation. Failure to comply with these requirements will
lead to disbarment as a lobbyist, the imposition of a fine, and even to a
sentence of imprisonment. These regulations have proved of some bene-
fit, but even when strictly enforced they have hardly sufficed to extirpate
some of the evils; and, indeed, it may well be doubted whether any set
of regulations, however drastic, will avail to transform the lobby into an
instrument of unalloyed beneficence. One defender of the lobby calls it
an essential concomitant of democratic lawmaking, with the added
remark that "there is lobbying in heaven and hell as well as on earth" —
which may be true, although it has never been demonstrated.
Every statute that passes a legislature affords a basis for future amend-
ments, additions, or repeals. "Once begin the dance of legislation," said
Woodrow Wilson in one of his whimsical moods, "and you
CONCLUSION roust struggle through its mazes as best you can to its breath-
less end — if any end there be." Our social and economic
conditions, as everyone knows, are becoming steadily more complicated.
The task of adjusting legislation to them becomes correspondingly more
difficult, requiring better planning, greater caution, more sagacity,
more courage on the part of those who make laws of the land, more
THE STATE LEGISLATURE 661
efficient machinery for lawmaking, simpler legislative procedure — and
perhaps more laws than the average citizen realizes are necessary.
Legislators, however, are not improving in quality, nor is the machinery
of legislation being greatly bettered. Legislative councils, bill-drafting
services, and reference bureaus will help, but the trouble is not merely
on the surface; it lies in the very foundations of American state govern-
ment. More specifically, it is connected with the absence of recognized
legislative leadership. The governor tries to lead the legislature, but
being an outsider, his activities in this direction are often resented. The
presiding officer of the state senate and the speaker of the assembly also
try to do it, but not with a great deal of success. A political boss can do it,
when there is one, but he has to work under cover. Under such a govern-
mental setup the state legislature usually tries to lead itself; and, when
a hundred or more ambitious politicians, in two legislative chambers,
endeavor to do this, the result is just about what would happen on the
campus gridiron if every player insisted on calling the signals instead of
leaving this job to the quarterback. The framers of the early state consti-
tutions were afraid of leadership (which they identified with prime
ministers), and fought shy of making any real provision for it. Their suc-
cessors have inherited this tradition. But it is not a sound one, and state
legislation will not easily attain high standards until we accept the
principle that legislatures, like all other bodies, do their best work under
unified guidance.
REFERENCES
GENERAL. Good chapters on the state legislature may be found in the various
texts on American government and on state government, including those by
Charles A. Beard, Frederic A. Ogg and P. O. Ray, James T. Young, J. M.
Mathews, W. F. Dodd, A. N. Holcombe, F. G. Bates and Oliver P. Field, Austin
F. Macdonald, and Finla G. Grawford, all of which have been listed at the close
of previous chapters. Attention should also be called to Robert Luce, Legisla-
tive Assemblies (Boston, 1924), A. E. Buck, Modernizing Our State Legislatures (Phila-
delphia, 1936), and T. H. Reed (editor), Legislatures and Legislative Problems
(Chicago, 1931). Current legislative problems are treated in an issue of the
Annals of the American Academy of Political and Social Science edited by W. B. Graves
and entitled "Our State Legislatures," CXCV (January, 1938). The unique
system of minority representation in the Illinois legislature is explained by
B. F. Moore, The History of Cumulative Voting and Minority Representation in Illinois,
1 870- 1 9 1 <) (2nd edition, Urbana, 1919).
LEGISLATIVE ORGANIZATION. The issue of unicameral versus bicameral legisla-
tures has recently received a good deal of attention. Among books and pam-
phlets on this theme are: A. W.Johnson, The Unicameral Legislature (Minneapolis,
1938), Thelrna I. Griswold, Bicameralism in Ohio (Cleveland, 1937), T. A. Rousse,
662 THE GOVERNMENT OF THE UNITED STATES
Bicameralism vs. Umcameralism (New York, 1937), D. B. Carroll, The Umcameral
Legislature of Vermont (Montpelier, Vt., 1932), J. P. Senning, The One-House
Legislature (New York, 1937), H. B. Summers, Umcameralism in Practice: The
Nebraska Legislative System (New York, 1937), and J. W. Manning, Umcameral
Legislation in the States (Lexington, Ky., 1938). Among studies of individual
legislatures the following may be mentioned: M. V. Holloway and C. W. Smith,
Jr., Government and Politics in Alabama (University, Ala., 1941), the Common-
wealth Club of California, The Legislature of California, Its Membership, Procedure,
and Work (San Francisco, 1943), and F. H. Guild and C. F. Snider, Legislative
Procedure in Kansas (Lawrence, Kan., 1930). The Book of the States, already re-
ferred to, gives details of current procedural changes in state legislatures and
comments on the current legislative output.
LEGISLATIVE PRINCIPLES AND STANDARDS. W. F. Willoughby, Principles of Legis-
lative Organization and Administration (Washington, 1934), Robert Luce, Legisla-
tive Principles (Boston, 1930), Ernst Freund, Standards oj American Legislation
(Chicago, 1917), the same author's Legislative Regulation (New York, 1932), and
E.Jordan, Theory oj Legislation (Indianapolis, 1930).
LEGISLATIVE PROCEDURE. Robert Luce, Legislative Procedure (Boston, 1922),
H. W. Dodds, Procedure in State Legislatures (Philadelphia, 1918), R. V. Harlow,
The History oj Legislative Methods in the Period before 1825 (New Haven, 1925),
C. I. Winslow, State Legislative Committees (Baltimore, 1931), Joseph P, Chamber-
lain, Legislative Processes; National and State (New York, 1936), Grace M. Kneed-
ler, Legislative Councils and Commissions (Berkeley, 1939)* and Harvey Walker,
Lawmaking in the United States (New York, 1934). Mention should also be made
of F. P. Lee, The Office oj Legislative Counsel (New York, 1929), and J. H. Leek,
Legislative Reference Work: A Comparative Study (Philadelphia, 1925).
LEGISLATIVE PRACTICES (LOBBYING). Edward B. Logan, Lobbying (Supplement
to Vol. CXLIV of the Annals oj the American Academy oj Political and Social Science,
July, 1929), and Peter H Odegard, Pressure Politics (New York, 1928).
Interesting current information is contained in State Government, published
monthly in Chicago as the organ of the American Legislators' Association.
CHAPTER XL
DIRECT LEGISLATION AND THE RECALL
I am certainly not an advocate for frequent and untried changes in laws and con-
stitutions. But I know also that laws and constitutions must go hand in hand with the
progress of the human mind. — Thomas Jefferson.
The purpose of popular government is to give the people what they
want. To help achieve this object is the duty of legislatures and con-
stitutional conventions. But these bodies have not proved
111 WHY DIRECT
themselves in all cases able to meet the popular demand. LEGISLATION
The people want their laws to fit the age, and they grow SEEMS
. • i i • i i • v L i • i i_ NECESSARY.
impatient with legislatures which move haltingly because
of constitutional restrictions, checks and balances, long debates, the
retarding influence of pressure groups, the blight of bossism, and the
wariness of the lawmakers. So they decide to take the power of lawmak-
ing into their own hands.
This explains the spread of the procedure known as direct legislation
by means of the initiative and referendum. These so-termed "newer
agencies of democratic government" afford a means THE INITIA.
whereby the people can make their laws directly, without TFVE
the intervention of the state legislature. The initiative is a DEFINED-
device by which any person or group of persons may draft a proposed
law or amendment to the state constitution, and by securing in its behalf
a designated number of signatures, may require that the proposal be
submitted to the voters; and, if it is approved by a legal majority at the
polls, it goes into effect. In some cases the requirement is that the
measure, having been duly signed by a sufficient number of voters, shall
be first submitted to the legislature and does not go to the people unless
the legislative body declines to accept it. This is known as the indirect
initiative^ in contrast to the direct initiative where the proposal goes to the
people without prior submission to the legislature. In at least three states,
moreover, the legislature, if it wishes, may submit a substitute proposal,
along with the popularly initiated proposal, to the voters who then decide
nhether one or neither of the proposals shall be adopted.
663
664 THE GOVERNMENT OF THE UNITED STATES
The referendum, on the other hand, is an arrangement whereby any
measure may be submitted to the people by the legislature, or one which
has passed the legislature may be withheld from going into
force until the people have had an opportunity to express
their opinion on it. In the latter case, the withholding re-
quires the filing of a petition signed by a designated number of qualified
voters. A distinction should be drawn between the constitutional referendum,
which is applied to proposed constitutional amendments, and the
statutory referendum, which applies to ordinary laws. The constitutional
referendum exists in forty-six states and is compulsory, that is, the
legislature must submit all proposed constitutional amendments to the
voters.1
The first American state to adopt the initiative and referendum as a
recognized procedure for the making of laws was South Dakota (1898).
TIIEIR DEVEL- -^n ^ general waY ^ copied the system used in the cantons of
OPMENT IN the Swiss Confederation. Other states followed soon after.
AMERICA. By the end of world War I, thirteen states had adopted the
constitutional initiative; eighteen states had made provision for the
initiative and referendum for ordinary laws; and two states, Maryland
and New Mexico, had provided for the legislatives referendum without
the initiative. As movements of such fundamental importance go, there-
fore, the spread of direct legislation was rapid during the years 1898-
1920; but since the latter date it has made virtually no progress at all.
Most of the states which adopted the system are situated west of the
Mississippi River, a region in which the Progressive movement proved
strong during the decade immediately preceding the outbreak of the
First World War. Relatively few converts were made among the eastern
or southern states, even when the movement was at its height.2
How did this desire for the use of the initiative and referendum
originate in the various states? The chief reason for the expansion of
REASONS FOR direct legislation in America, as has been said, can bo found
THEIR in the impatience of the people with the work of their state
ADOPTION: legislatures. Surveying this work, the voters in many of the
states were forced to the conclusion that, by their own direct action, they
could hardly do worse and might do better. Under such circumstances,
they did what an electorate always does when confronted with the
problem of securing better government. When democracy seems to be
working badly, the voters do not shorten sail; they set more sail to the
1 This device is discussed elsewhere. See p. 667.
2 The only states east of the Mississippi which adopted the most extreme device of direct
legislation, that is, the direct initiative for constitutional amendments, were Ohio, Michigan,
and Massachusetts.
DIRECT LEGISLATION AND THE RECALL 665
wind. "The cure for the evils of democracy," someone tells them, "is
more democracy" — and they believe it. At any rate, it can be set down
as an axiom of politics that the people will never blame the people when
things go wrong; they will set out to find a scapegoat in
some leader, some political party, some law, or some SEARCH
method of doing things. They will change leaders, change FOR A
i , i 111 i • SCAPEGOAT.
governments, change laws, or change methods; but, on this
side of the millennium, you won't find a suspicion among the voters that
the trouble originates with themselves. A democratic electorate attributes
to itself the perfection of Providence — and its ways are sometimes as
inscrutable. "You cannot indict a whole nation," said Edmund Burke,
and of course a whole nation will never indict itself.
So when legislators, chosen by the people, seemed to be betraying
their trust, the voters proceeded to change (not the legislators) the
methods of legislation. Resentment over the influence of
wealth upon legislation, distrust of professional politicians, TRUST OF
the nonfulfillment of campaign promises, the activities of L^GISLA-
pressure groups and the lobby, along with the feeling that
the laws were being made by lawyers in legislatures for the benefit of
lawyers everywhere — these things helped to popularize a demand for
the change. Likewise, the movement obtained a good deal of support
from radical leaders, who believed that it would be easier to obtain social
reforms by playing upon the emotions of the electorate than it would be
to wangle them out of a double-chambered legislature with a governor's
veto power in the background.
OPERATION OF DIRECT LEGISLATION
Now, as to the actual workings of the initiative and referendum:
they are attended by various formalities. No two states have exactly the
same requirements, although there is a similarity in essentials. The mode
of initiating a proposed law is universally by petition; the method of
enacting it (if the legislature does not act in the meantime) is by popular
vote. Between the starting of a petition, however, and the ultimate
decision of the people at the polls, there is a considerable intervening
procedure which will be summarized in the next paragraphs.
The first step in the exercise of the popular initiative is the framing of
a proposed law or constitutional amendment. This may be done by
anyone; but it is usually undertaken by some organization.
A proposed measure relating to labor, or agriculture, or
taxation, or the control of public utilities, for example, is
initiated by bodies which represent such interests or movements. Then
666 THE GOVERNMENT OF THE UNITED STATES
comes the quest for signatures. From 5 to 10 per cent of the qualified
voters is the usual requirement where a law is proposed; a higher per-
centage (from 8 to 15 per cent) is ordinarily required if the proposal is
for a constitutional amendment. In some cases, however, the percentage
is the same. If, accordingly, there are a million qualified voters in the
state, the number of required signatures will be from eighty thousand to
one hundred and fifty thousand according to the percentage stipulated.
In addition, some states require that the signatures be distributed geo-
graphically over a certain number of counties or congressional districts
in order to discourage purely sectional proposals. It can be seen that
obtaining the required number of signatures is no simple task and it often
requires the services of professional as well as volunteer canvassers.
When a petition has obtained the requisite number of signatures,
it is submitted to some designated state official, usually the secretary
of state, who checks the names and if he finds them sufficient
niakes out a certificate to that effect. Occasionally there is
provision for the filing of additional signatures in case those
on the original petition prove insufficient. Then the measure is placed
(usually in abbreviated form or by its title only) upon the ballot at the
next regular state election, or at a special election. As many measures
may be placed on the ballot as are properly petitioned for, and the
legislature may sometimes submit its own proposals in addition. If two
conflicting proposals appear on the ballot and both arc approved by the
voters, it is usually provided that the one receiving the greater number
of affirmative votes shall become effective. Ordinarily, a majority of the
votes recorded upon the measure is sufficient to pass it; but in a few
states it is provided that at least a designated percentage of the total vote
shall be cast on the question, otherwise the proposal is not to be regarded
as having been accepted by the people.
To inform the voters upon the questions submitted to them, publicity
pamphlets are prepared in some states and distributed to all registered
voters before the polling. Sometimes this pamphlet con-
PAMPHLETS. ta*ns t'le text °f t"ie measures which are to be voted upon,
together with arguments for and against each proposal,
these arguments being prepared by persons who are designated for the
purpose from among the supporters and opponents respectively. It is
called a pamphlet, but at times it runs into a booklet of a hundred pages
or more. While the expense of printing and mailing these booklets is
very considerable, and despite the fact that most of them (especially in
the cities) are thrown away without being read, the plan undoubtedly
DIRECT LEGISLATION AND THE RECALL 667
helps to inform a great many voters and stimulates their interest in the
questions submitted.
When a measure has been adopted by the people at the polls, it cannot
ordinarily be amended or repealed by any action of the legislature. No
measure referred to the people and adopted by them, moreover, can
be vetoed by the governor. If a proposal is rejected by the people, it
usually may be brought forward by another petition the next year; but
this liberty has been found to result in the too frequent submission of the
same question. Therefore some states have made provision that a rejected
measure may not be brought forward for at least three years, unless a
much larger than the customary number of signatures is secured.
The referendum follows the same general lines to secure and certify
signatures, when the legislature does not itself submit the proposal to
the voters. The popular petition, in this case, does not
11 111 2- THE
propose a new law, but merely asks that some measure REFERENDUM
passed by the legislature be submitted to the voters before IN OPERA-
being put into effect. If a majority of the voters at the polls
supports the measure, it then becomes effective; but if a majority votes
against the measure, it becomes invalid as though the legislature had
never enacted it.
The usual requirement is that a measure passed by the legislature
shall not go into force for a certain period (usually ninety days), so that
opportunity may be given for filing petitions against it.
But this requirement might prove to be a serious embarrass- ^E^SU'RES^
rncnt in case of emergency, as, for example, threatened in-
vasion, a general strike, or some state-wide disaster. As a precaution
against such an eventuality, it is usually provided that emergency
measures, that is, "measures immediately necessary for the preservation
of the public peace, health, and safety," may be put into force by the
legislature at once. To guard against the abuse of this privilege, however,
it is required that the existence of an emergency shall be explicitly stated
in the preamble of the measure, and that no emergency law shall be
passed except by a two-thirds vote of both chambers in the legislature.
In spite of these safeguards, the emergency privilege has been frequently
abused. To prevent the invoking of a referendum, the legislature some-
times attaches the emergency provision to measures which have no
urgency at all, but which two thirds of its members, for one reason or
another, are willing to support. An increase in the salary of some state
official, for example, has occasionally been authorized by the use of the
emergency provision.
668 THE GOVERNMENT OF THE UNITED STATES
Questions (in addition to the names of candidates) may thus be placed
upon the ballot in any one of three ways. First, the legislature may of
its own accord refer a measure to the voters for their deci-
THREE • n .... . . , ,
CHANNELS OF sion. Second, an initiative petition may be presented bear-
DIRECT ing the requisite number of signatures and asking that a
measure be placed upon the ballot. Third, a law may have
passed the legislature but, on presentation of an adequate petition, may
be withheld from going into force until approved by the voters. By one or
another of these methods a considerable batch of questions is every year
submitted to the voters of the various states. In some, the initiative and
referendum are used very freely; in others, they are hardly used at all.
California has frequently had more than twenty questions on a single
ballot, while Massachusetts has rarely had more than two or three.
THE PROS AND CONS OF DIRECT LEGISLATION
As to the merits and defects of the initiative and referendum, there are
wide differences of opinion. These agencies of direct legislation have
now been operating in American states for over forty years
MERITS OF anc| tjie jiave rcceivec| during this period, a trial under
THE SYSTEM. ^
sufficiently varied conditions to warrant an appraisal of
what they are worth. As a result of this experience a vast array of facts
and figures has become available. All this, however, does not help us
much because the advocates and opponents of direct legislation insist
on interpreting these facts and figures to suit themselves. They are no
nearer a consensus of opinion on the merits and defects of direct legisla-
tion than they were two generations ago, before we had any experience
to draw upon.
From the welter of pros and cons, however, a few argumentative high-
lights are worth attention. The reputed merits of direct legislation may
be summed up under four heads:
i . // makes democratic government more democratic. In legislatures the in-
fluence of some class, section, or partisan element among the people has
often determined the nature of the laws. The legislators succumb to the
influence of the lobby, the boss, the machine, the money power, in other
words to the "invisible government," as Elihu Root once called it. This
is hardly the place to particularize among legislatures, but the impact
of sinister influences upon the process of lawmaking has been far more
serious than the average citizen realizes. By the initiative and referen-
dum, it is asserted, the people regain control of their government.
Popular sovereignty is thus restored to where it belongs.
DIRECT LEGISLATION AND THE RECALL 669
2. It has an educative value. The average voter takes very little interest
in what the state legislature is doing. But people who are called upon to
vote upon measures will learn something about them before going to the
polls. When the legislators alone make laws, the individual voter feels
that he has no responsibility. But when the questions go on the ballot,
there is a general public discussion of the arguments for and against. The
newspapers devote whole columns to the issues. The questions are dis-
cussed before chambers of commerce, boards of trade, luncheon clubs,
civic leagues, women's societies, on the radio — everywhere. In this way
the whole body of the voters becomes informed on public problems. We
have the word of no less an authority than Lord Bryce that direct legis-
lation "is unequalled as an instrument of practical instruction in
politics." 1
3. // gives the ordinary citizen a chance to make his influence felt. The legis-
lature, in doing its work, docs not hear much from the more or less for-
gotten man, the plain citizen who attends to his own business and has
enough of it to keep him busy. Legislators hear chiefly from the repre-
sentatives of banks, insurance companies, industrial associations, and
public utilities on the one hand, or from labor organizations, farm bureau
federations, taxpayers' leagues, and congenital reformers on the other.
It is also subjected to pressure by social workers, real estate boards,
municipal leagues, public employees, veterans' associations, Utopians of
all varieties, and, last but not least, by party leaders and politicians. But a
considerable part of the population is made up of men and women who
belong to none of these categories; they are neither industrialists, re-
formers, nor politicians. Being unheard from, they are likely to be over-
looked. Direct legislation gives this silent section of the electorate a
chance.
4. It keeps legislative bodies on their good behavior and prevents representatives
from becoming misrepresentalives. The initiative and referendum are not
intended to supplant lawmaking by legislatures. Most of the laws will
continue to be made by the old process. Direct legislation is merely a
remedy in the hands of the people for use when the regular lawmaking
bodies fail to carry out the popular will. Knowing that the voters have
this weapon ready for use, the legislators are more careful about what
they do. They realize that an appeal may be taken to the voters and their
own decisions overturned. This is an incentive to better work on their
part. The best by-products of direct legislation will be found in the laws
placed on the statute book by the legislature. Hence, it is argued, the
initiative and referendum strengthen rather than weaken our system
1 Modern Democracies (2 vols., New York, 1921), Vol. II, p. 434.
670 THE GOVERNMENT OF THE UNITED STATES
of representative government. Likewise, it is said to heighten popular
respect for law, since all legislation, either by the action or inaction of
the people, bears the stamp of popular endorsement.
But there are arguments on the other side as well; and these also can
be arranged under four headings:
i . Direct legislation weakens the civil rights of the individual. These rights
are embodied in the state constitutions for the purpose of preserving
them. They were put there to place them beyond the mo-
ITS DEFECTS. J . f. * 7 . .
mentary emotionalism of the populace. But if a majority of
the voters can change these constitutions at any time, there is no longer
any fundamental security for the liberties of the citizen. This means that
there is no special protection for the rights of property, for free speech, or
for freedom of worship. A majority can ride roughshod over a minority
at any time. When any large fraction of the voters desires something in
its own interest, it can organize a campaign and sometimes secure the
adoption of laws that are oppressive to everyone but themselves. It may
be bad public finance to abolish the sales tax and collect the revenue by
increasing the rate of taxation on large individual incomes to an ex-
orbitant figure, but that does not deter great masses of voters from
approving such action at the polls if they arc given an opportunity.
They vote for their self-interest. Thus, direct legislation opens the door
to the danger embodied in Alexander Hamilton's warning: "Give the
power to the many and they will oppress the few."
2. Direct legislation is not lawmaking by the people but by a minority of the
people. Not more than 80 per cent of the registered voters ever cast their
ballots on election day; the proportion is usually much smaller. Of those
who go to the polls, many give all their attention to the candidates and
do not concern themselves with the questions at the bottom of the
ballot. Hence a measure is often adopted at the polls by the votes of only
25 or 30 per cent of the whole electorate — in other words, by a minority
of the people. That is not government by the people, but government by
a plurality of the politically active. It may well be doubted, moreover,
whether most of those who do vote on the questions really understand
what they are voting for or against. They have merely seen the billboards
and the windshields of automobiles placarded with the legend "Vote
YES on Question 5" or "Vote NO on Question 14"; they have heard it
plugged nightly on the radio; and, responding to the influence of
reiteration, they do what they are urged to do. This is particularly true
of complicated or technical issues which so often find their way upon
the ballot — the method of taxing franchises, for example, or the quali-
fications for admission to the various professions, or the details of a
DIRECT LEGISLATION AND THE RECALL 671
pension plan for school teachers. To submit such matters to a popular
vote is like asking a blind man to solve a cross-word puzzle.
3. The initiative and referendum merely call for the Yeas and Nays, not for
a real expression of public opinion. What the voter gets is a choice be-
tween two fixed alternatives. He may desire neither of them. The system
of direct legislation assumes that every voter is able and ready to give a
categorical Yes or No to every question of public policy, no matter what
it is. The unthinking voter may be able to do this, but very few intelli-
gent people can express their whole opinion, or their exact opinion, by
making a cross with two strokes of a pencil. Moreover, in the case of an
initiated measure there is no chance to compromise or amend, as in
legislatures. The measure must be accepted or rejected just as it stands.
Laws should be made by the process of discussion and deliberation, with
opportunity for the adjustment of conflicting interest, not by resort to
take it or leave it methods.
Finally, the initiative and referendum place an added burden upon the voters.
They lengthen the ballot, increase the expense of elections, and are a joy
to every fanatic who wants to put his hobby before the whole people at
the public expense. Moreover, as is well known to every practical
politician, you can sell a legislative nostrum to the populace just as you
sell a brand of chewing gum, or coffee, or tooth paste: namely, by per-
sistently advertising it. And advertising is merely a matter of spending
money. Hence, the initiative and referendum give a distinct advantage
to those proponents of any measure who have the funds and are willing
to spend them in organized propaganda — using the newspapers, the
billboards, the motion-picture flash, and the radio "plug" for this pur-
pose. As for the ordinary citizen who has no one to organize him and
spend money on his behalf — he does not stand to gain much from these
asscrtcdly democratic proceedings.
These are the chief arguments, for and against, as they are commonly
put forth by the two sides. The supporters of direct legislation magnify
its merits; the opponents overstate its defects. Direct legis- THE VfEilGlfT
lation has not ended the power of political bosses, or OF THE
destroyed the party system, or eliminated the influence of ARGUMENTS-
the pressure groups, or made all the laws as righteous as the Ten Com-
mandments. Lawmaking continues to be something of a racket, with
organized minorities endeavoring to bludgeon people in the people's
name. On the other hand, direct legislation has not led to the unbridled
rule of the demagogue nor has it seriously impaired the fundamental
rights of the citizen. Laws passed by means of the initiative and referen-
dum have been, on the whole, no better and no worse than laws passed
672 THE GOVERNMENT OF THE UNITED STATES
by legislatures. The probability is, if one may venture a guess, that less
use of direct legislation will be made as time goes on. This does not
mean, however, that the system will be valueless. It still remains a highly
important weapon of last resort which the people can use if they need it.
At any rate, no one need hesitate to make up his mind on the general
issue, for he will find himself in good company whichever side he takes.
THE RECALL
Commonly associated with direct legislation is the recall. It may be
defined as the right of a designated number of voters to demand the
OPERATION immediate removal of a governor or any other elective
OF THE officeholder, and to have their demand submitted to the
RECALL. voters for decision. A petition for removal, stating the
reasons for the desired action, is drawn up and circulated for signatures;
when enough signatures (usually a number equal to five per cent of the
registered electorate) have been obtained, the petition is submitted to
the proper authorities who thereupon order an election to decide the
matter. If a majority of the voters pronounce in favor of the recall, the
official steps out at once; otherwise, he continues in office. In some states,
the voters express themselves on the recall and at the same time vote for
a successor; in others, there is a second election in case the recall suc-
ceeds. In this second election the ousted official is sometimes permitted
to run as one of the candidates; and if the majority opposing him is
distributed among several other candidates, he may succeed in securing
reelection.
At least eleven states now make provision for the recall of some
officials. Unlike impeachment, which is a scmijudicial proceeding
normally used to rid the government of an official guilty of
YTS PURPOSE. • • , i it ? ,. • i • j • i
criminal acts, the recall is a political instrument designed
to secure stricter official accountability to the electorate. It enables the
people to oust any officeholder who fails to fulfill his trust. It makes
official responsibility continuous and direct. On the other hand, the
recall is a weapon which may easily be turned to wrongful use. If re-
sorted to frequently and without good reason, it could make official
tenure so uncertain as to deter the right sort of men and women from
accepting public office at all. But it has been, in fact, very little used.
Since its introduction in 1 908, only one governor and a half dozen other
important state officials have been recalled, which would seem to
indicate that it is generally looked upon as a weapon to be held in reserve
for emergencies rather than for routine use. It is like a fire escape on the
DIRECT LEGISLATION AND THE RECALL 673
exterior of a building — very useful and even a lifesaver when you need
it; but something that would become a considerable nuisance if everyone
decided to use it as a regular stairway.
REFERENCES
E. P. Oberholtzer, The Referendum in America (revised edition, New York,
191 1), D. F. Wilcox, Government by All the People (New York, 1912), J. D. Barnett,
The Operation of the Initiative and Referendum in Oregon (New York, 1915), Arnold
B. Hall, Popular Government (New York, 1921), Judson King, The American Voter
as a Lawmaker (Washington, 1923), F. L. Bird and F. M. Ryan, The Recall of
Public Officers: A Story of the Operation of the Recall in California (New York, 1930),
and Samuel Peterson, Democracy and Government (New York, 1919), are earlier
books of interest and value. More recent discussions are contained in V. O.
Key, Jr. and W. W. Crouch, Operation of the Initiative and the Referendum in Cali-
fornia (Berkeley, 1939), The Initiative and Referendum in Colorado (State Printer,
Denver, Colorado, 1939), J. K. Pollock, Jr., "The Initiative and Referendum in
Michigan," Michigan Governmental Studies, No. 6 (Ann Arbor, 1940), C. I. Wins-
low, "The Referendum in Maryland" in the American Political Science Review,
XXVII, pp. 75-79 (February, 1933), and Max Radin, "Popular Legislation
in California" in the Minnesota Law Review, XXIII, pp. 559-584 (August, 1939).
The Debates in the Massachusetts Constitutional Convention (Vol. II, Boston, 1918)
include over a thousand pages on direct legislation, covering every phase of it.
Current material may be found in the publications of the National Popular
Government League.
CHAPTER XL I
THE GOVERNOR
A government that is ill-executed, whatever it may be in theory, is in practice a bad
government. — Alexander Hamilton.
Every state of the Union has established an executive department,
independent of the legislature. This executive department consists of a
governor and various state officials such as the lieutenant
ORGANIZA- r * . . . i
TION OF governor, secretary of state, treasurer, attorney general,
THE STATE auditor, and superintendent of education. In addition,
EXECUTIVE each state has various administrative officers (bank com-
DEPARTMENT.
missioner, superintendent of charities, state librarian, fish
and game commissioner, etc.) and a number of administrative boards,
such as a board of health, a public utilities commission, a highway
commission, a board of agriculture, a prison board, etc.
What is the difference between an executive official and an admin-
istrative official in state government? It is this: the executive branch of
the government is established by the state constitution and
AND ADMIN- consists of high officers who have a considerable range of
ISTRATIVE discretionary power. Their functions are usually set forth
WORK
in the constitution and cannot be controlled by the legis-
lature. The administrative positions in state government, on the other
hand, have mostly been created by law, and hence their duties are de-
termined by the legislature. But the line between the two is not hard and
fast. In some of the state constitutions, there are provisions relating to
officials and boards which in other states arc left to be dealt with by
statute. In common parlance the higher state officers are called executive
while the lower ones are called administrative.
The governor is the chief executive officer in state government. He
occupies the oldest executive office in America. More than three hundred
years ago, before the first colonial assembly was called into
THE OFFICE • , .
OF COVER- existence, the position of governor made its appearance in
NOR: ITS Virginia, and it has continued as a New World institution
HISTORY. . T*« i r i i • i • i i
ever since. Each of the thirteen colonies had a governor
before the Revolution, and when the colonies became states they pro-
THE GOVERNOR 675
vided in every case for continuing the office. In some of them the function
of electing the governor was given to the people, but in the majority of
the thirteen original states it was left with the legislature. Gradually,
however, this plan of legislative election was abandoned, and today the
governor is universally chosen by popular vote.1
Candidates for the office of governor are nominated in most states
by state-wide primaries; but in some states, for example, New York and
Connecticut, the nominations are made by state party con- HOW GOV_
ventions composed of delegates from counties or assembly ERNORS ARE
districts. No one but a citizen is eligible as a candidate for CHOSEN-
the governorship; there is usually a requirement of at least five years5
residence in the state, and the customary minimum age limit is thirty
years. The election is by secret ballot, and a plurality of votes is ordi-
narily sufficient to determine a choice at the final polling. In a few states,
however, a clear majority is required; otherwise the choice is made by the
two houses of the state legislature in joint session.2 The election of the
governor is everywhere a party contest; but in states where one political
party controls a large majority, as for instance in most southern states,
the real contest takes place at that party's primary, and the subsequent
election is a mere formality.
The governor's term is two years in twenty states and four years in
the other twenty-eight. New Jersey had a three-year term but lengthened
it to four in 1947. Gubernatorial terms have been length- TERM AND
cncd from two to four years in quite a number of states METHOD OF
in recent years, and the tendency is distinctly in that direc- EIEGTION-
tion, the longer term being particularly desirable in states where the
legislature meets in regular session only once in two years. Reelection of
an incumbent governor is a common practice. Nevertheless, there are
twelve states which deny an incumbent governor the privilege of suc-
ceeding himself; there are four more which allow only two consecutive
terms; and one state, Tennessee, limits a governor to three consecutive
terms. Salaries range from three thousand dollars in South Dakota to
twenty-live thousand dollars in New York, and at least fifteen states pay
their governors ten thousand dollars or more. In addition, all states pro-
vide for certain allowances to defray official expenditures.
1 Mississippi might be considered an exception to this statement In that state each county is
assigned an electoral vote for governor equal to its representation in the lower house of the
state legislature The entire electoral vote of a county is given to that candidate who receives
the largest plurality of popular votes in the county. To secure election, a candidate for governor
must secuic both a majority of popular votes cast and a majority of the total electoral votes
in the state.
2 Georgia, Maine, and Vermont; in Mississippi, in case no candidate obtains a clear
majority of the popular and electoral votes, the lower house of the legislature elects.
676 THE GOVERNMENT OF THE UNITED STATES
All the state constitutions make provision for filling the governor's post
in case it should become vacant during the term for which he was elected.
Such vacancy may occur by reason of the governor's death
REMOVAL OF '. ' ^
GOVERNORS or through his removal by impeachment. Ihe lower house
BY IMPEACH- Of the legislature, following the federal analogy, has the
power to begin impeachment proceedings, while the upper
house hears and determines the issue. Occasionally, however, as in New
York, the justices of the highest state court sit with the upper chamber
during the trial. A verdict of conviction, which usually requires a two-
thirds vote, ousts the governor from office and may disqualify him from
ever again holding any civil office in the state. As a matter of history, few
governors have been removed from office in this way — only three or
four within the past sixty years.
As explained in the previous chapter,1 eleven states make it possible to
have the governor removed by means of a recall election. A petition
bearing a designated number of signatures must be filed
RECALL^ BV requesting that the matter of removing the governor br
submitted to the voters at an election.2 Reasons, as a rule,
must be given in the petition for the governor's recall, but they need not
amount to allegations of misconduct, such as would be required for his
impeachment. As already pointed out, actual removals by recall have
been few. Only one governor has been removed by this means; that was
Governor Lynn J. Frazier of North Dakota, who was recalled by the
voters in 1921, following an attempt to introduce various aspects of
agrarian socialism in that state.
When a governor is convicted on impeachment, or dies in office, or
i Asigns, he is succeeded in about two thirds of the states by the lieutenant
governor. This official is ordinarily chosen for the same
VACANCY IN term as the governor and by the same process of popular
i HE COVER- election. His main function, apart from that of being the
NORSHIP is governor's heir apparent, is to preside in the state senate.
In a few states he does not have this function but is the pre-
siding officer of the governor's council. Failing the lieutenant governor
(or in states where there is no such officer), the succession to the governor-
ship descends upon the secretary of state, or the president of the statr
senate, or the speaker of the lower chamber, as the state constitution
may provide. If a governor is removed by means of the recall, however,
this order of succession does not go into effect. His successor is chosen
1 See pp 672-673.
2 For a full discussion of the procedure followed in one of the states, see F L Bird and F. M.
Ryan, The Recall of Public Officers A Story of the Operation rf the Recall in California (New York,
193°)-
THE GOVERNOR 677
by the people either at the time of the recall or at a special election soon
afterwards.
THE GOVERNOR'S POWERS IN RELATION TO LEGISLATION
The powers of the governor are for the most part executive powers.
The theory of American state government is that a governor has no
legislative functions, and some of the state constitutions
THE GOV-
expressly prohibit him from exercising any. But in this case, ERNOR'S
as in so many others, the practice of government has run POWERS-
r . . , ™ , . . LEGISLATIVE.
away from its design.1 Ihe governors participation in
lawmaking is, in fact, both extensive and active everywhere — no matter
what the constitution permits or prohibits. Anyone familiar with the
realities of state politics can give you plenty of illustrations. The governor
may call special sessions of the legislature. At such sessions, as a rule,
the legislature can consider no matters except those specified
0 r r HOW HE
in the call. Even at regular sessions the governor initiates SECURES HIS
legislation, promotes it, often pushes it through both cham- IFWIATIVE
,, , ., r i - rr- • i • n i • r INFLUENCE
bers by the weight of his official influence, and signs it alter
it has passed. He is at all times potentially, and much of the time actually,
a participant in the lawmaking process.
Why do we have this palpable contradiction between the theory and
practice of state government? The constitution of Massachusetts, for
example, declares that "the executive shall not exercise
,.,. .,.., ., r . ,, A CURIOUS
legislative or judicial power or either oi them, yet every ANOMALY
governor of Massachusetts proposes laws in his messages to
the state legislature, actively urges them, and uses his influence to ensure
their passage. In other states the chief executive is similarly active in the
process of lawmaking. The governor, as a matter of fact, exercises more
real legislative power than any dozen members of the legislature. "More
than half my work as governor," wrote Theodore Roosevelt, "was in the
direction of getting needed and important legislation."
The reason for this may be found in the close relation which exists
between lawmaking and the party system. Members of state legislatures
are elected on a party basis, pledged to carry out the plat-
form of their party. And as a rule, though not always, the ENGE AS A
erovernor is the recognized leader of the party which con- P^RTY
i • • i i • i TAT! i r i LEADER.
trols a majority in the legislature. When, therefore, the
governor insists that some particular measure be passed or rejected, he
does not speak as the executive head of the state government but as the
1 H. G. Black, Hie Relation of Evewtive Power to Legislation (Princeton, 1919).
678 THE GOVERNMENT OF THE UNITED STATES
leader of his party in the state. His recommendations may be communi-
cated to the legislature in formal messages, or informally by conferences
with prominent members of his own party in the legislative chambers.
The latter is the way in which the governor exercises most of his influence
upon lawmaking. Outwardly he may appear to be keeping his hands off,
while day by day in his private office he is dexterously pulling the strings
to get what he wants.
Members of the legislature, moreover, are under the spell of a gover-
nor's influence. They are interested in appointments which he is going
to make; they are concerned about the passage of bills which
HK^NFLLN °F xv^ come before him for assent or veto; they have a real
ENCE WITH interest in appropriations which he may or may not recom-
INDIVIDUAL mend. By the strategical use of his executive discretion in
LEGISLATORS.
these matters, a governor can, if he so desires, put pressure
on senators and assemblymen to help him with his own legislative pro-
gram. Legislators are human, and the governor has his loaves and fishes
to distribute.
Moreover, if worst comes to worst, the governor can appeal unto
Caesar. He can arouse public opinion against the willful men who are
HIS APPEAI obstructing his efforts to carry out his pledges. He can send
TO THE statements to the newspapers in denunciation of the obsti-
ELECTORAFE. nate iegjsiatOrs, or he can betake himself to a radio station
and give them an ethereal panning. He can always get his side of the case
before the people, while the legislators have no effective way of making
a reply. There arc too many of them and their babel of rejoinders only
confuses the public car. The governor has a great advantage in all this,
for his own mind is unanimous whereas that of the legislature is riot. A
house divided against itself cannot stand — which is true of a house of
representatives. Thus the governor's activity in lawmaking is riot founded
on constitutional theory but on the logic of facts. If you desire to know
how extensive this power is, do not look for it in the state constitution.
Just go to the state capitol and watch the legislators flitting in and out
of the governor's antechamber. Then listen to what they say on the floor.
Of course the power of the governor in legislative matters is by no
means entirely the product of usage or the result of personal or partisan
influence. State constitutions at the present time are becom-
THE GROWING . . ! .r , i • i •
CONSTITU- mS generous in the specific powers relating to legislation
which they entrust to the governor. The framers of the thir-
^eGn original state constitutions were afraid of executive
tyranny. This fear was a legacy from colonial days when the
governor had to carry out the high-handed instructions which came to
THE GOVERNOR 679
him from England. At any rate, governors were in ill repute during the
years immediately following the Revolution, and in the constitutions of
the thirteen original states the governor's office was reduced to one of
relatively small importance. As Madison expressed it during the debates
in the federal convention of 1787: "The executives of the states are in
general little more than ciphers; the legislatures omnipotent." But, in
due course, legislatures encountered their season of unpopularity and
whenever state constitutions were revised, or new ones adopted, the
governor's powers were enlarged.1 For example, the veto power was
withheld from him in most of the original thirteen state
0 . ORIGIN AND
constitutions because it seemed to be too despotic a power DEVELOP-
to be placed in the hands of any one man. But having been MENT OF 1HE
VETO
given to the President by the federal Constitution, the idea
of placing a similar power in the hands of the governor gradually gained
in public favor, and one state after another adopted it during the course
of the nineteenth century. Today the governor has a power of veto in
every state except North Carolina.
In principle and in practice, the governor's veto power and the veto
power of the President are much alike.2 With a few exceptions every bill
or resolution which passes both houses of the state legislature HOW THL
must be presented to the governor for his signature. Like VETO POWER
the President, he has three options: he may sign it, or within IS EXERGISED-
the prescribed period send it back without his signature, or do neither.
In the first case, it becomes a law. In the second case, it does not become
a law unless both houses of the legislature, by a prescribed majority
(usually two thirds or three fifths) pass the measure over his veto. In the
third case, at the expiration of the prescribed time (from three to ten
days) it becomes a law without the governor's signature, provided the
legislature does not in the meantime end its session, in which case it
does not (in some states) become a law but receives the "pocket veto."
In a few of the states which have no pocket veto, the provision is that if
the legislature adjourns before the time limit for a regular veto has ex-
pired, the governor may withhold his assent and send measures back
at the beginning of the next session, otherwise they become laws. Most
of them, however, do not have this arrangement but provide that when
the legislature adjourns within the time limit, such action automatically
kills all bills which the governor does not subsequently approve.
1 M C Alexander, The Development of the Power of the Executive in New Tork (Northampton,
Massachusetts, 1917), and Charles J Rohr, The Governor of Maryland: A Constitutional Study
(Baltimore, 1932).
2 For example, see N. H. Debel, The Veto Power of the Governor of Illinois (Urbana, 1917).
680 THE GOVERNMENT OF THE UNITED STATES
During a legislative session the governor has a relatively short time
in which to nuike up his mind whether he will sign or veto a measure —
sometimes only three to five days. This is lonff enough when
THE LEEWAY ' ' . ' ~ . ,
AT THE END bills come to him one at a time. But in the closing days of a
OF THE session they arrive by the dozen — sometimes twenty or
SESSION. , . . . , ^r ... -i i r
thirty in a batch. Of course it is impossible for any gov-
ernor to examine all these bills within the time allotted. Moreover, it
is particularly important that these bills be given careful consideration
by the governor, for they are the product of the end-of-the-session rush
when many measures are enacted en bloc with the legislature's normal
procedure suspended and with only cursory attention to the details of a
measure. They are also the product of those final weeks which are most
auspicious for pushing through special legislation that would encounter
difficulty if the legislature were proceeding at a more leisurely pace.
Hence, many of the states provide that the governor shall have a longer
leeway, sometimes thirty days, in which to sign or veto bills after the
legislative session comes to an end. This is a sensible provision and one
which all the states ought to make, unless they can find some way of
reducing the congestion of bills in the closing days of the session.
The President of the United States cannot veto individual clauses or
items in any measure passed by Congress, but in most of the states the
erovernor has the ris^ht to veto individual items in appropria-
THE POWER
TO VETO ti°n bills. In Washington and South Carolina, moreover.
PARFS OF A this right of partial veto has been extended to any legislative
MEASURE: ... . . . , . ^
measure which contains items or sections; and in Oregon
the governor is permitted to veto items in bills which declare an emer-
gency to exist, apparently in order to permit him to checkmate the legis-
lature should it try to prevent a popular referendum on its measures by
indiscriminately labeling them "emergency measures." *
ITS MERITS. __ . * . ^
The partial veto is a very useful one, particularly in the case
of appropriation bills. It means that a governor is not faced with the
alternative of letting an objectionable item pass or else tying up the
entire list of appropriations, as he must if he has only a blanket veto.
Moreover, the partial veto establishes more clearly the governor's respon-
sibility for fiscal matters. It makes him a consenting party to every dollar
that is spent — save in those cases where the legislature passes an item
over his veto, a rare occurrence since appropriation measures are usually
passed at the end of a legislative session and the governor's veto is thus
normally absolute.
On the other hand, the practice of giving the governor power to strike
1 See p. 667.
THE GOVERNOR 681
out, or reduce, individual items in an appropriation bill has developed
some objectionable features. It has occasionally enabled a
governor to put undue pressure on those legislators who are
deeply interested in particular appropriations and who
consequently find it prudent to help the governor on other measures in
order to keep him from wielding his axe in retaliation. Likewise, it has
sometimes encouraged the governor's opponents to put into an appropri-
ation bill all sorts of favors for their own districts so that the governor
may incur the odium of striking them out.
Executive vetoes have been much more frequent in state than in the
federal government. They are much more common in some states than
in others. Occasionally the vetoes run as high as 10 per WORKINGS
cent of all the measures passed. Much depends, of course, OF THE VETO
upon the relations between the governor and the legislature SYSTEM-
as respects their party affiliations. A governor uses his veto power more
freely upon a hostile legislature than upon one which his own party
controls. Yet the entire number of measures vetoed in whole or in part
is seldom a large fraction of the total number which come to the gover-
nor's office for approval; and of those that arc guillotined by the chief
executive, a good many arc intended by the legislature to meet this
fate. Legislatures often pass measures in order to get themselves out of a
predicament and get the governor into one. A state senator was once
asked how he managed to keep himself so well entrenched in his district
and get reelected term after term. "I never vote in favor of a tax or
against an appropriation," he replied. "I let the governor balance the
budget and take the rap. That's what he's paid for."
It is not by his vetoes alone that the governor manages to stall legis-
lation of which he docs not approve. A hint from his office that some
measure, if passed, will not receive the executive signature
is often quite sufficient to prevent its further progress in the
legislature. Senators and assemblymen who are in charge
of measures often inquire from the governor what his attitude is likely to
be, and are sometimes told that changes must be made or a veto will be
forthcoming. Thereupon they bestir themselves to get their bills amended
before final enactment. Occasionally a measure is recalled by the legis-
lature for some amendment after it has gone to the governor's desk but
before he has acted upon it. And in a few states the governor has been
given the right to suggest amendments by officially transmitting them to
the legislature before the final vote is taken. It is true, of course, that
the legislature can defy the governor by passing any measure over his
veto, and this it sometimes does; but rounding up the requisite additional
682 THE GOVERNMENT OF THE UNITED STATES
votes for this purpose is not easy. Taking the states as a whole, it has been
estimated that less than five per cent of the bills vetoed by governors are
ever repassed by the required majority.
Like the President, the governors have developed a good deal of power
through the issue of executive orders. Many state laws are passed in
general terms, leaving it to the governor to provide the
THE GOV- «ii r i M ••i'ii« i • i
ERNOR'S detailed arrangements. 1 his is desirable in order to give the
ORDINANCE laws a reasonable degree of flexibility. Thus, for example,
the state legislature may provide that deer or partridge
must not be killed during a season of more than three weeks in any year,
leaving the governor to fix by proclamation the exact days on which the
hunting seasons shall open and close. Or it may stipulate that some
special commission shall be appointed and shall have such allowance
for expenses (not exceeding a certain sum) as the governor may approve.
Such executive orders do not constitute legislation in the ordinary sense,
but they have the force of law and they serve to relieve the legislature
from consideration of numerous details.
THE GOVERNOR'S EXECUTIVE POWERS
From what has been said in the preceding paragraphs, it should not
be assumed, however, that governors arc principally concerned with
PRINCIPAL legislation. They devote their principal attention to cxccu-
EXECUTIVE tive work. This work is varied in character but most of it
POWERS. can ke groupecj under seven heads: (i) appointments and
removals, (2) the general oversight of state administration, (3) financial
functions, (4) military functions, (5) duties in relation to the federal
government and to the other states, (6) the granting of pardons, and
(7) miscellaneous.
The appointing power of the governor is great, and it is steadily
growing. Many state constitutions stipulate that the governor shall
i THE AP- appoint certain designated officers and "all others whose
POINTING appointment or election is not otherwise provided for."
POWER. ^t Qne tjme most of the higher state officials were chosen
by the legislature, but now very few are selected in that way. Subsequently
the practice of choosing such officials by popular election attained con-
siderable vogue and it still has a strong grip in some states as respects a
number of the higher administrative officers; but in many others these
posts, or some of them, are now filled by persons whom the governor
appoints. This is particularly true of boards which have technical tasks
to perform, such as state boards of health or public service commissions.
Heads of executive departments (e.g., the state treasurer and the attorney
THE GOVERNOR 683
general) which have been established by the state constitution, however,
are still generally elected by the people. In the exercise of his appointing
power, in any event, the governor is usually subject to limitations, that
is to say, his appointments are not valid until confirmed. The confirming
authority is ordinarily the upper chamber of the state legislature; but in
exceptional cases, especially in the New England states, it is the gover-
nor's council.
This practice of subjecting the governor's appointments to confirma-
tion is one that harks back to the days of implicit confidence in the
principle of checks and balances. Fearing "one-man power" CHECKS
and the abuse of executive authority, the makers of state UPON THE
constitutions put various restraints upon it. And in many po^RTING
cases this requirement of confirmation has proved a whole- (a) CONFIR-
some check upon governors who otherwise would have MATION B^
repaid their own personal or political obligations by giving ITS ORIGIN
their supporters a lodgment upon the public pay roll. It AND MERITS-
has availed at times to prevent governors from using their patronage as
a means of building up political machines.
But just as frequently, on the other hand, the requirement of confirma-
tion has been used to balk a governor's plans for improving state adminis-
tration by the appointment of honest and capable officers. ITS OBTEG_
The confirming power is a weapon which a partisan state i ION ABLE
senate can hold over the governor's head, forcing him to FEAruRES-
withhold vetoes or to recommend expenditures in which individual
senators are interested. Whether there have been more examples of
salutary restraint or of senatorial intimidation is hard to say. With the
light sort of a governor, no confirmation would be needed; with the
wrong sort, it is doubtful whether the requirement of confirmation will
keep him from bargaining his appointments through. The outstanding
defect of the system is that it permits an evasion of responsibility for
appointments. In. municipal government, the power of confirmation,
which remained for many decades in the hands of aldermen or coun-
cilors, has been generally abolished, all responsibility for appointments
being thereby concentrated in the mayor. The results have been advan-
tageous.
The common check upon the governor's appointing power is the civil
service or merit system of appointment. About twenty states now have
state-wide merit systems; others have systems applicable /-b\ CIVIL
to particular administrative departments. Normally the SERVICE
restrictions of the civil service laws do not cover the heads RULES-
of departments and other high officials. They apply to subordinate
684 THE GOVERNMENT OF THE UNITED STATES
appointments only. Where there is a civil service or merit system, the
governor does not have full discretion as regards these minor positions.
He must make the appointments from "eligible lists" which are prepared
as the result of examinations held under the auspices of a civil service or
personnel board or department. These examinations are usually open
only to residents of the state, and eligible lists containing the names of
those who stand highest are then certified to the head of the department
in which the position is to be filled.
But this system has encountered various obstacles of a practical sort.
Sometimes it has been administered by pliant civil service boards which
OBSTACLES TO manage to ^ln(^ loopholes through which the proteges of
THE MERIT the politicians can be slipped into office. Legislatures have
SYSTEM. ajSQ intcrferccl ;n some instances by providing that former
service men must be given a "veterans' preference," that is, they must
be placed at the head of the eligible lists, or given a substantial extra
credit, if they pass the tests at all. This creation of a privileged order has
had a depressing effect upon the whole merit system. Unfortunately,
moreover, it is the failures in other lines of work who too frequently
become candidates for positions in the public service. Capable and self-
reliant young men and women rarely go hunting for minor government
jobs; they arc looking for something that offers a better opportunity of
advancement. Accordingly, it sometimes becomes difficult to select a
a single first-class appointee from a whole roomful of applicants.
The civil service system would bring better results if greater efforts
were made to recruit high-grade candidates for the examinations. Merit,
moreover, should determine not only appointments but
PROMOTIONS. . 1
promotions. Thus far, it has had relatively little to do with
promotions, and hence there is little incentive to exert one's self after
getting into the service. Promotions continue to be made, for the most
part, on a basis of seniority, or political influence, or the personal favor-
nism of department heads. When promotions are made, the public
employee who has worked diligently often finds himself superseded by
someone who has spent his time making friends among the politicians.
Some system of promotion based upon efficiency ratings ought to be
devised; but, although several attempts have been made in this direction,
none has as yet proved altogether successful. Nor is it easy to devise a
fair and workable plan, for general merit in a public employee is some-
thing that cannot be measured by any mechanical scheme of ratings,
plus and minus. On the other hand, unless the mechanism is made inflex-
ible, you will find that political favoritism creeps in. Give the appointing
authority the right to depart from the fixed routine and the danger is
THE GOVERNOR 685
that he will show partiality under the guise of "placing emphasis on
character and personality."
Along with the power of appointment goes the right to suspend or
remove state officials. Authority to suspend an official from office apper-
tains to the governor in most of the states, but governors
0 . ° REMOVALS.
do not, as a rule, have unrestricted power to remove even
those officials whom they themselves appoint. Charges must usually be
filed, hearings given, and in some states the concurrence of the upper
chamber of the state legislature is required. Here, again, the restriction
has often availed to forestall arbitrary and unjust removals, but quite as
often it has served to keep in office men of political influence whose
general inefficiency and indolence amply warranted dismissal. When
officials are appointed under civil service rules, moreover, they may
be removed only by compliance with such formalities as the laws pre-
scribe. These usually afford adequate protection against dismissal for
reasons other than actual misconduct or gross incompetence.
Second, the governor is charged with a general supervision over the
enforcement of the laws and the conduct of the state's administrative
affairs. Just how much actual authority he can exercise in 2 IHE
this capacity depends in part upon the personality of the
governor and in part upon the nature of his legal relations
with other state officials. A dominating personality in the ADMINISTRA-
governor's chair, if he has public opinion as an ally, will TIUN*
usually compel other state officials to help carry out his policy, no matter
how independent of his actual control they may be. His prestige and
authority as a party leader can also be helpful in this direction.
Yet from a constitutional point of view, the governor's executive
supremacy in state government is far from being so complete as is that
of the President in national affairs. It is here, more than FUNGTIONS
at any other point, that the analogy between the two posi- IN THIS
tions fails to hold. The President appoints the heads of the
national departments and the members of all the national ri HOSE OF THE
administrative boards; and though the Senate must often PRESIDENT-
confirm these appointments, it rarely thwarts his will. He can remove
the heads of the national departments at his discretion. His control over
them is well recognized, and his responsibility for their actions is com-
plete. In law and in fact, a federal department head is virtually the
alter ego of the President. But the heads of the state departments of ad-
ministration, in many instances, are not chosen by the governor, and
they normally cannot be removed by him except with the consent of the
state senate or after a hearing. Some of them are elected by the voters
686 THE GOVERNMENT OF THE UNITED STATES
and their mandate has the same popular significance as that of the gov-
ernor. When a governor comes into office, moreover, he usually finds
various high officials and members of administrative boards who were
appointed by his predecessors and whose terms have still some years to
run. His control over the actions of such men must at best be imperfect
and incomplete. To be sure, as we shall see in a subsequent chapter,1
a considerable number of states have reorganized their administrative
structures in recent years; and in most instances where such reorganiza-
tion has been effected, there is considerably less difference between the
positions of the governor and the President in the control of their respec-
tive administrations than formerly. But whatever the actual situation,
the average citizen docs not take into account the practical limitations
on the governor's powers but holds that officer responsible for the entire
conduct of the state administration.
Third, the governor has been acquiring, in some of the states, financial
powers of great importance. Until two or three decades ago the annual
FINAN- appropriation bills were drafted, in almost all cases, by
CIAL committees of the legislature. They were put through one
POWERS. j^ one ancj werc not embodied in a consolidated budget.
But, more recently, a reform in the making of appropriations has gained
headway and many of the states have installed a regular budget system.
In most of these states, moreover, the function of preparing the annual
budget and of transmitting it to the legislature has been given to the
governor or to some official under his control. No more need be said on
this topic at this juncture for it will be fully discussed a little later.2
Fourth, the governor has certain military powers, but these are not
now so extensive as they used to be. Nominally he is commander in chief
of the state militia, or national guard, and of the state guard,
which is usually organized when the national guard is called
into the federal service. As commander in chief, his func-
tions are determined by law, but for the most part they are actually per-
formed by an adjutant general or some similar officer. The governor may
appoint the officers of the militia or other armed forces of the state, unless
the state constitution directs differently, or the legislature makes some
other provision, as it often does. Each state has a body of laws relating
to the organization of its public forces, and these laws, like all other laws,
are for the governor to carry out according to their tenor. When the
state militia or national guard is mustered into the federal service, the
governor ceases to have anything to do with it; and, even in time of
peace, the authority of the federal army department over the state
1 Sec pp. 744-756. 2 See Chapter XLIII.
THE GOVERNOR 687
militia is now very extensive, having been made so by a recent army
reorganization act.1
Usually the state constitution and laws authorize the governor to call
out the militia in time of riot or other civil disorder. This may be, and
commonly is, done on the request of the mayor or other AID T0 THE
executive head of any municipality in which a serious dis- CIVIL
turbance has arisen, but governors as a rule have the right AUTHORITIES-
to act upon their own initiative as well. When the aid of federal troops is
required by any state to quell internal violence, the governor may call
upon the President of the United States for this assistance, provided the
state legislature is not in session. If it is in session, the legislature by
resolution makes the request for federal troops. Bear in mind, however,
that the President may send federal troops into any state to preserve
order, without request from cither the governor or the legislature, if the
disturbance is impeding the exercise of federal functions, such as the
carrying of the mails or the collection of customs duties. To cope with
disturbances which are not sufficiently serious to require the aid of
troops, many of the states have established a state police force or con-
stabulary. These bodies of well-disciplined men can be quickly mobilized
to deal with disorder which gets beyond the control of the local author-
ities in any part of the state. They arc at the disposal of the governor
when an emergency arises.
Fifth, there are powers and functions which the governor exercises in
relation to the federal government and the other states. He has become
the recognized medium of official intercourse between his r FUNC-
own state and the federal authorities. When the national TIONS IN
government has anything to say to the states, it communi- ToLraE°N
catcs through the governors. Proposals to amend the na- FEDERAL
tional Constitution, for example, after they have been GOVERNMENT-
initiated by Congress, are addressed to the governor by the secretary of
state at Washington and the governor, in turn, notifies that official
whenever the legislature of his state takes favorable action on a proposed
amendment. Moreover, the governor is the official addressed by the
national government whenever the informal cooperation of the state in
carrying out some national program is sought.2 It is the governors whose
aid has been sought in setting up draft boards and other volunteer
agencies to assist in national defense, and it is the governors who have
been addressed by the national authorities to secure the aid of the states
1 See pp 492-493.
2 See the article by A. N. Holcombe on "The States as Agents of the Nation" in South-
western Political Science Quarterly, I, pp. 307-327 (March, 1921)
688 THE GOVERNMENT OF THE UNITED STATES
in setting up relief agencies to combat an economic depression. Not as n
matter of constitutional obligation but as voluntary cooperators in a
common cause, the states have become, in many enterprises, the agents
of the nation.
The governor is also the channel of official communication between
his own state and other states. His functions in relation to the rendition
AND TO THE (or extraclition) of fugitives from justice have already been
OTHER referred to.1 When one state desires to sue another in the
STATES. Supreme Court, a statute authorizing the suit is usually
passed by the legislature; but the governor is regarded as having author-
ity, on his own initiative, to institute any such suit for the protection of
his state. He is also supposed to do what he can in the way of keeping his
own state on good terms with the other states.
In this connection, one may mention the governors' conference, to
which allusion has already been made.2 It is held each year to consider
THE COVER- questions of common interest to the states. Originally, it
NORS' CON- was hoped that these annual conferences would promote
FERENCE. uniformity of legislation among the states, but this hope has
hardly been justified. The reason may be found in the fact that the con-
ferences have tended to develop into social outings for the busy chief
executives who attend them. They have served a good purpose, however,
by providing a place for the interchange of opinions concerning a variety
of state problems.
Sixth among the governor's executive powers is the power to pardon
or reprieve offenders who have been convicted in the state courts.
6 THE Pardons may be either absolute or conditional. But the
POWER OF governor's pardon power is not everywhere unrestricted.
PARDON. jn many Of the states the power to pardon rests with the
governor alone, but in a number of them his authority has been limited
by the requirement that he must act in conjunction with a board of
pardons or with some similar body.3 One reason for limiting the gov-
nor's discretion in matters of executive clemency is the fear that it may
be used by a governor for personal or political ends. Some governors,
indeed, have used their pardoning power too freely and unwisely. It
should be emphasized that a governor has no authority to pardon any-
one who has been convicted in a federal court. That power belongs to
the President.
1 See pp. 602-604.
2 See pp. 606-607.
3 For a full account see Christen Jensen, The Pardoning Power in the American States (Chicago,
1922).
THE GOVERNOR 689
Finally, the governor has various powers which must be classed as
miscellaneous because no other designation will cover them. He may
issue an order for a special election whenever a vacancy 7 MISCEL
occurs in the legislature; he appoints a United States LANEOUS
senator if a vacancy occurs when the state legislature is not POWERS-
in session (provided it has authorized him to do so); he is ex-officio a
member of various state boards and commissions; he attends a large
number of official functions; receives distinguished visitors who come to
the state capitol; reviews parades; signs documents by the hundreds;
holds conferences with party leaders; listens to applicants for appoint-
ments (and to their insistent friends); and makes a speech somewhere
every few days. He listens to the requests of delegations and ploughs his
way through reports of pitiless length. Between times he dedicates new
public buildings, graces the head table at banquets, receives honorary
degrees at college commencements, and squeezes in a little home life
if he can.
From all of which it will be realized that the office of governor is no
sinecure. It demands sound judgment, a steady head, and unremitting
industry. He who holds the post is much in the public eye A IIARD
and continually under the fire of criticism from his political OFFICE 10
opponents. A governor is not only expected to do the work FILL*
of three or four men, but he is counted upon to achieve results which,
owing to the division of authority between himself and the legislature,
are not always within his power to secure. He is blamed when things go
wrong — when industry slackens and workers arc out of employment,
or when the price of living goes up, when taxes are high, or when there
is a crime wave.
To be sure, there arc governors who hardly justify the dignity which
has been conferred upon them. They arc the product of political ma-
chines and, in point of personal capacity, there is little to WEAK AND
distinguish them from the most ordinary of their fellow STRONG
citizens. The duties of the office weigh on them rather GOVERNORS-
lightly, and they are more than willing to neglect tedious but essential
executive chores for activities that accord them a fleeting and incon-
sequential popularity. More than one state capitol has sheltered for a
term in its executive office some bizarre hillbilly whose qualifications
for the proper performance of his job were a minus quantity. But if
democracy sometimes produces this type of governor, it also produces
real leaders, men of high personal and political integrity and of outstand-
ing administrative ability. Such men often become the logical candidates
for service on the wider plane of the nation. They may be called into the
690 THE GOVERNMENT OF THE UNITED STATES
national cabinet or to the nation's highest court; or they may be elected
to the Senate. Many have entered the lists for the presidency. Indeed, it
is now almost a truism in politics that a strong governor in a "pivotal"
state is presidential timber; and not a few have succeeded in attaining
the nation's highest office. Rutherford B. Hayes and William McKinley
of Ohio, Grover Cleveland, Theodore Roosevelt and Franklin Roosevelt
of New York, Woodrow Wilson of New Jersey, and Calvin Coolidgc of
Massachusetts — seven Presidents out of the last fourteen — were gov-
ernors of their respective states before going to the White House. Charles
E. Hughes, Alfred E. Smith and Thomas E. Dewey of New York,
James M. Cox of Ohio, and Alfred M. Landon of Kansas, also holders
of the gubernatorial office, have during the same period received the
nomination of their respective parties for the national presidency.
When one surveys the office of governor in its origin, its develop-
ment, and its present status, there can be no question that it has greatly
increased its powers during the peist hundred years. In the
CHANGES IN , , r i T T • i r i • i
THE POUTERS early days ot the union, the post was one of dignity and
AND PRESTIGE honor. But the influence of the governor on legislation, his
GOVERNOR patronage in appointments, his financial functions, and his
DURING THE power as a party leader were all of them far less extensive
at t^iat t*me t'ian *key are today- ^et> paradoxically enough,
although the governor's powers have greatly increased,
there does not appear to have been a corresponding enhancement in the
prestige of the governor's position. This may be due in part to our
republican tradition which is disinclined to set men up on a pedestal
merely because they happen to hold an important political office. Partly,
too, it is due to our habit of ascribing steadily greater importance to
various national offices and, hence, relatively less to state offices. Nowa-
days a governor willingly gives up his state post to become a United
States senator; it was not so in the early days. But whatever prestige may
or may not attach to the gubernatorial office, there is no doubt of its
practical significance among our American political institutions. It is
still a worthy goal for men of talent and ambition.
REFERENCES
In addition to the general books on state government which are listed at the
close of Chapter XXXVI, mention may be made of J. H. Finley and J. F. San-
derson, The American Executive and Executive Methods (New York, 1908), M. G.
Alexander, The Development of the Power of the Executive in New York (Northhamp-
ton, Mass., 1917), Harry A. Barth, Financial Control in the States with Emphasis on
Control by the Governor (Philadelphia, 1923), D. G. Gline, Executive Control over
THE GOVERNOR 691
State Expenditures in New Jersey (Princeton, 1934), L. D. \Vhite, Trends in Public
Administration (New York, 1933), H. C. Black, The Relation of Executive Power to
Legislation (Princeton, 1919), Christen Jensen, The Pardoning Power in the American
States (Chicago, 1922), Charles J. Rohr, 7 he Governor of Maryland: A Constitu-
tional Study (Baltimore, 1932), Leslie Lipson, The American State Governor: From
Figurehead to Leader (Chicago, 1939), R. S. Cheek, The Pardoning Power of the
Governor of North Carolina (Durham, N. C., 1934), and the articles on "American
Governors" in the .National Municipal Review, Vol XVI, pp 7 1 5-7 1 9 (November,
1927) and Vol. XX, pp. 152-158 (March, 1931).
CHAPTER XLII
STATE ADMINISTRATION
The liberty of the individual must be thus far limited; he must not make himself a
nuisance to other people. — John Stuart Mill
State administration represents the carrying out of policies determined
by the legislature. At the first establishment of state government in
America there were, in addition to the governor and the
THE ORIG- , r , - . .
INAL ADMIN- lieutenant governor, a small number or administrative
officials, notably a secretary, a treasurer, and an attorney
general. Sometimes these officials, with a few additional
elective members, formed a governor's council, an institution which still
survives in a few states of the Union. The secretary kept the official
records, the treasurer served as custodian of the public funds, and the
attorney general prosecuted suits in the name of the state. The functions
of the other officers were equally few and simple.
But presently other officials were added to the list and chosen in the
same way, an auditor or comptroller, a superintendent of education, a
commissioner of labor, etc., each at the head of a new
THEIR MUL-
TIPLICATION department. Then, with growth in population and the
IN RECENT consequent increase in problems, still other administrative
YEARS
departments were established, sometimes headed by a single
state official and sometimes by a board. This development, which has led
to an extraordinary dispersion of administrative functions and to an
uncoordinated and unplanned structure in state government, is largely
the product of the last fifty years. In all the larger states these officials
and boards have multiplied to formidable proportions, and in some of
them the total number of separate administrative agencies has now
reached sixty, eighty, even one hundred or more.
The changing relation between government and business has been
partly responsible for this elaboration of administrative machinery. The
era of governmental noninterference in business enterprises
FOR THIS has been rapidly drawing to a close. Banks and other finan-
DEVELOP- cial institutions, insurance companies, railroad, express,
telegraph, telephone, lighting, street railway, and other
STATE ADMINISTRATION 693
public service corporations, together with oil-producing concerns, hotels,
lodging houses, and even barber shops, have been brought within the
provisions of regulatory laws. To enforce these legal regulations, it has
been necessary to establish boards and commissions of all sorts. Laws
relating to the conditions and hours of labor, especially for women and
children, laws relating to sanitation in industrial establishments, laws
providing for workmen's compensation, for minimum wage scales in
certain employments, for the adjustment of labor disputes, for old-age
pensions — all this legislation has been crowding its way to a place upon
the statute book during the past generation. These have also brought in
their train a host of new administrative agencies, such as state bureaus
of labor, industrial accident boards, minimum wage commissions, and
the like. The public insistence on social welfare legislation, moreover, has
put many new regulatory laws on the lawyers' shelves — and such laws
almost always demand new machinery for their enforcement. A law
relating to motion pictures, for example, becomes father to a censorship
board; a law relating to fire prevention makes a job for a fire prevention
commissioner. Some states have enacted laws to regulate boxing bouts
and horse racing. Forthwith a boxing commission and a racing board
are added to their administrative machinery.
All regulatory laws beget officials and boards. Such laws would be
relatively futile unless they possessed this fecundity. For the boards serve
a dual purpose. First, they see to it that the detailed pro- WHY REGU.
visions of the laws are carried into effect; they receive LATION
complaints and adjust them; they prosecute violations, ^^^f8
Second, they provide the legislature, when it undertakes TRATIVE
any new step in the way of regulation, with a source of MACHINERY-
information. It is absolutely impossible to incorporate in any law specific
provisions for every case that may arise. Hence, the legislatures try to
make the provisions broad, and then leave their individual application
to men appointed for the purpose. In a word, our strict insistence upon a
government of laws has given way under the pressure of problems which
cannot be solved by a government of laws alone.
But there is another reason why the machinery of state administration
has become so extensive, with its far-flung array of officials and boards,
commissions and commissioners, bureau chiefs, directors. _OT ¥TTOT,
' J * \x\Ci LiUKb
deputies, superintendents, inspectors, auditors, examiners, OF THE
and all the rest. The reason is that each new agency provides PAY ROLL-
some jobs, and every new job is a lifrsaver for some politician's friend.
There is nourishment in helping the process along, and none in fighting
it. Laws, of themselves, usually provide no patronage for politiciansjto
694 THE GOVERNMENT OF THE UNITED STATES
distribute. But the administration of the laws may provide a great
deal.
So public administration grows by what it feeds on. More admin-
istrative work calls for more administrators; then the additional ad-
ministrators devise more work to do. A new administrative
OPERATES department usually begins in a small way — with a single
official or a small unpaid board. A little eight-by-ten office
in an unfrequented corner of the state capitol serves as the initial head-
quarters. But not for long. The fledgling board decides that it must justify
its existence by finding work to do. And having found more work} it asks
for more power, more money, more office room, a paid clerk, and a
couple of stenographers. These presently expand into a large roomful of
helpers, male and female, who are somehow kept busy each day from
nine o'clock till five. A few more years and the office has spread over a
whole wing of the capitol and its demands on the state budget run into
many thousands of dollars. That is the story in a paragraph. With sundry
variations it has been repeated in American state administration over
and over again.
Just try to halt this expansion and what will you find? At once the
officials and employees of the department mobilize'their political friends,
and friends of their friends, to prevent any interference with
THE GENERAL , , i „ • 11 i ....
ALLIANCE the invaluable service the department or board is giving
AGAINST DE- to the people. Other departments realize that their turn
FLATING IT. , , , -~ .
may come next, and hasten to the rescue. Delegations wait
on the governor to plead, to warn, to threaten. Wires are pulled from all
directions until every member of the legislature is importuned not to
constrain the "absolutely indispensable" work which the department is
doing. The only people interested in your proposal to keep the expansion
within bounds are the taxpayers, and they won't take the trouble to
attend legislative hearings. So the ballooning of administrative personnel
keeps right on because the only people who could stop it are too busy to
raise any unified protest. And today there is hardly a trade or profession
which does not, in some of its operations, come under the hand of
governmental administration and administrators.
Some state departments are established in accordance with provisions
of the state constitution, in which case the legislature has very little
ORGANIZA- control over them, except that it can reduce their appropria-
TION OF THE tions. Others are established by law and can be abolished at
BTRATO^MIN" any time- Some are headed by a single director or com-
DEPART- missioner while others are managed by a board — usually
MENTS. Qf tjiree or five members. Whether the single or plural head
STATE ADMINISTRATION 695
is to be preferred depends on the nature of the work to be done. If
promptness, firmness, and vigor of action is needed, as in the office of
the state auditor, the desirability of concentrating authority is self-
evident; but if deliberation, continuity of policy, and the representation of
varied interests is desired (as in the administration of the state university),
then it is equally obvious that a board of regents will best serve to achieve
these ends. Some heads of departments are elected by the people, while
others are appointed by the governor, either with or without confirma-
tion by the state senate.1 Where skill and experience are required, it is
difficult to obtain these qualities by the process of popular election.
When a department head is elected by the people, moreover, the
governor has no effective control over him. This is a weakness because
the governor is held responsible for efficiency and harmony in all
branches of state administration.
In general, the head of each department, be it a single director or a
board, is responsible for the management of its affairs. All subordinate
officials in the department are appointed by the department
head, although in some cases the governor's approval is FUNGTONS
required; and, in states where civil service regulations have OF THE
DEPART-
been established, they must be taken from the eligible lists.
Dismissals and suspensions are also ordered by the head of
the department, subject to the laws and regulations which govern such
actions. Within their own fields of jurisdiction, the heads of departments
authorize expenditures from appropriations which have been made to
them by the state legislature and issue administrative orders or regula-
tions in connection with their departmental activities. Such orders, if
issued within the scope of their authority, have the force of law.
AGENCIES OF STATE ADMINISTRATION AND THEIR
SERVICES
In most of the states the administrative units have now become so
numerous that they defy any exact classification. But the greater portion
of them can be grouped under about a dozen headings, based on the
principal functions which they are expected to perform.
First, there are the various officials and boards which have to do with
general administration — executive officials, they are more properly
called. Among these are the secretary of state, the treasurer, l GENERAL
the comptroller or auditor, the attorney general, the election STATE
board, and the civil service commission. The secretary of OFFICERS-
1 In a few eastern states a governor's council is the confirming body.
696 THE GOVERNMENT OF THE UNITED STATES
state not only keeps the official records but is entrusted with many other
THE SEGRE- functions, such as the issuance of charters to municipalities
TARY OF and private corporations, the distribution of public docu-
STATE. ments, and the custody of the state seal. Normally, too, he
is charged with certain duties relating to elections. The treasurer is the
custodian of the state's funds. He also pays out all moneys;
URER AUDI- but everY voucher or bill requiring the disbursement of
TOR AND money must be authorized by an appropriate administra-
OTHER tjve Officjai jn conformity with the law and must also be
OFFICIALS.
approved by the state auditor or comptroller. The treasurer
is likewise charged with the issuance of bonds when the state borrows.
The auditor or comptroller, to whom reference has just been made,
audits the books of the state, checks its accounts, and keeps a watchful
eye on the disbursement of funds. In authorizing the treasurer to make an
expenditure of public funds, it is the auditor's duty to be sure that the
legislature has already voted an appropriation to cover the intended
expenditure. The attorney general is the chief prosecuting officer of the
state, but he also acts as legal adviser to the governor, the legislature, and
all other state officials. Prosecution of offenders against the laws of the
state is usually handled by district or prosecuting attorneys elected by the
voters of each county; but, in certain states, the attorney general has
been given some supervision over the work of these local prosecutors.
Election boards, where they exist, control the machinery of polling, but
usually do this through local election officials. When there is a civil
service commission or state personnel board, it supervises the admin-
istration of the laws relating to the merit system of appointments, holds
competitive examinations, renders technical assistance in personnel
matters to the state's political subdivisions, and tries to protect the public
service against the evils of patronage.
A second group of state agencies includes those which handle sanitation
and public health protection. Nearly every state has a department of
2 PUBI ic public health with the duty of carrying out the laws relating
HEALTH AND to the collection of vital statistics, the prevention of disease,
SANITATION. ancj tkc protection of the people against epidemics. Usually
this department maintains some degree of supervision over the work of
local health boards or officials. The laws and regulations relating to the
public health have become numerous and complicated in the more
populous states; they cover a host of matters, such as the registration of
births and deaths, the reporting of contagious diseases, disinfection and
quarantine, the disposal of sewage and garbage, the protection of water
supplies, the inspection of food, especially of meats and milk, the abate-
STATE ADMINISTRATION 697
ment of nuisances, and the amelioration of unsanitary conditions in
restaurants, shops, and dwellings. The drift towards central supervision
in public health administration has been strong during recent years.
Individual communities are no longer left to make and apply their own
regulations in this vital field.
Third, there are the boards which have to do with the regulation of
public utilities. For a time, it was the policy of the states to let public
service companies (such as street railway and electric
1 J 3 THE REGU-
hghting companies) go unregulated, except insofar as LATION OF
oencral provisions could be prescribed in their franchises.
A i • • • T • r r i i U1ILITIES.
Administrative machinery lor enforcing these general
provisions was lacking. The result was that many large corporations,
particularly those engaged in furnishing water, gas, electricity, telephone
service, or transportation, abused their freedom from control and en-
riched themselves by overcharging the public. Then the states woke up
and not only stiffened the general laws relating to public utilities but
established boards to sec that these laws were enforced. Within this
category of supervising bodies, there are commissioners of corporations,
water-power boards, railroad commissions, and public service com-
missions.
In practically all the states, regulating bodies of this sort now exist.
Their functions are so multifarious that anything akin to a complete
summary would be impossible here. Some of these boards
arc endowed with large powers to hear complaints and DONE
adjust them, to make rules on their own initiative, to pass
upon the reasonableness of rates and conditions of service, and to compel
the submission of financial reports. Others have varying degrees of lesser
authority, and some have powers of an investigating and advisory
character only. Everywhere, however, the powers of such administrative
officials and boards are expanding and becoming more effective. Their
work constitutes a highly important phase of state government, but it is
not always competently performed because appointments to regulating
boards are sometimes treated as political patronage. Appointments to
these important bodies have more than occasionally been given to
"lame ducks," that is, to members of the state legislature who have
rendered valuable service to their party but, having been defeated at the
last election, have nowhere to go.
Fourth come the boards or commissioners for regulating banks,
insurance companies, and loan corporations. These fields of corporate
business have become subject to increasingly strict supervision in recent
years. To compel sound financial methods, the various state legislatures
698 THE GOVERNMENT OF THE UNITED STATES
have passed elaborate laws, and to be sure that such laws are strictly
enforced, most of them have established departments of banking and
insurance. These departments have power to examine the
4. THE REG- . r r
ULATION OF books of all insurance companies, loan companies, and
BANKING AND banks, which do business under state charters; to inspect
INSURANCE. . . , t_ i • •
their accounts, to make sure that their investments are in
legal securities; to insist upon adequate reserves; and, in general, to
require sound financial management. Many of the states also have a
commissioner of corporations with functions in relation to corporate
organizations other than banking and insurance companies.
For a number of years the states have been extending their supervisory
activities to the business of selling bonds and shares. The rules of super-
vision are embodied in so-called " blue-sky laws" and usually
ENFORCE-
MENT OF provide that no stocks or bonds may be offered for sale to
"BLUE-SKY" the public until adequate information concerning the
tangible assets behind them has been laid before the com-
missioner of corporations or some other state authority, and a permit
obtained from him.1 The issuing of this permit does not mean that the
bonds or stock of a corporation are recommended to the people for
investment or that the state vouches for the solvency of the companies
concerned.
The regulation of employment has also made a necessary addition
to the state's administrative machinery. Until fairly recent years the
* -r«r- T>^ amount of state control over ordinary industrial and mer-
S. I rlij K.ll.Lr'" »
ULATION OF cantile establishments was relatively small. Factories and
EMPLOYMENT. g^ops wcre considered to be outside the proper range of
government regulation. But this policy of laissez fairc has been rapidly
passing into the discard, and today the state no longer concedes the right
of manufacturers and merchants to do as they please in their own business
— particularly as regards their relations with their employees. Hence,
there has been a flood of laws dealing with sanitary conditions in indus-
trial and mercantile establishments, the hours of work, workmen's
compensation, minimum wages, unemployment insurance, child labor,
safety appliances, the arbitration of labor disputes, unfair labor practices,
fair employment practices, collective bargaining, the prohibition of
"yellow dog" contracts, the use of the injunction in labor disputes, and a
host of kindred subjects. In the past few years, moreover, there has been
1 The term "blue-sky laws" originated in Kansas, where the first law of this sort was enacted
in 1911. The implication was that many mining, gas, oil, and land companies were issuing
bonds and shares upon assets no more tangible than the blue sky. The necessity for such laws
in the states has been diminished, but not altogether eliminated, by the action of Congress in
regulating the sale of securities (see p. 415).
STATE ADMINISTRATION 699
a distinct trend towards the legal regulation of the workers' own organ-
izations, a half-dozen midwestcrn and southern states having passed
laws requiring labor unions to file financial and membership statements
with the public authorities and to refrain from certain kinds of organized
action against employers.
These laws have required, for their administration and enforcement,
an additional quota of officials, boards, and commissions. Conspicuous
among them are commissioners of labor, or labor boards, whose duty it
is to investigate industrial conditions, to enforce the laws relating to
employment, to see that factories are regularly inspected as to their
sanitary arrangements and their proper equipment with safety devices,
to eliminate the evils of sweatshop production, and in many cases to
mediate in disputes between employers and employees. In a few states
this last-named function is entrusted to a special state board of arbitration
or conciliation. Provision for the compulsory arbitration of labor con-
troversies does not yet exist in any of the states.1
The passing of workmen's compensation laws in nearly all the states,
moreover, has necessitated the establishment of special boards for the
detailed administration of these statutes. They are called WORKMEN'S
industrial accident commissions or workmen's compensation COMPENSA-
boards. Under the common law the workman secured *^™^™
AINL) 1 rlltilK.
redress for injuries only when the accident was due to the ADMINIS-
fault or negligence of his employer. The law gave no redress TRATION-
when the injury could be shown to be due to his own negligence or to the
negligence of a fellow workman. And even when the workman was
entitled to be compensated, he could obtain his redress (prior to the
passing of the compensation laws) only by bringing suit in the regular
courts, and this was always an expensive procedure. The basic principle
of workmen's compensation laws is that when an employee sustains an
injury in the course of his work, whether through the fault of others or
through his own fault, the resulting burden should not be placed wholly
upon himself, or upon his family, or even upon the employer, but should
be included in the cost of production and thus borne by the entire
consuming public.
Employers are therefore being compelled to insure their workmen
1 In 1920 the legislature of Kansas passed a law establishing in that state a court of industrial
relations, its judges appointed by the governor, with power to settle all industrial disputes of
whatever sort in "essential" industries, that is, in industries affecting food, clothing, fuel, and
transportation. The decisions of the court were made binding upon both employers and work-
ers. But this experiment was partially wrecked by the action of the United States Supreme
Court in declaring certain provisions of the Kansas act to be in conflict with the fourteenth
amendment. See Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 525 (1923)
700 THE GOVERNMENT OF THE UNITED STATES
against the industrial accidents which inevitably occur in most occupa-
tions and against other occupational hazards, such as disease contracted
because of the employment. The employers arc expected to set down
the cost of this insurance as one of their regular items of expense, like
taxes, or fire insurance, or the replacement of machinery. When machines
break down, the employer repairs the damage and charges the cost to the
consumer of his product. But men break down as well as machines. It is
the intent of the workmen's compensation laws that this damage shall be
taken care of in the same way. The boards or commissions set up to
administer these compensation laws decide upon the amount of com-
pensation to be paid in each case where liability exists, and how it shall
be paid. Only one state (Mississippi) at present has no workmen's com-
pensation law. Some of the states still permit an employer a choice
between having his liability to an injured employee determined under
the compensation act or having it assessed in court. Others compel the
employer to accept liability under the terms of the compensation act.
Approximately half of the states with compensation laws require that the
employer insure himself against potential claims of employees. Such
insurance may usually be placed with a special state insurance fund or
with private insurance companies, but several states require that it be
placed with the special state insurance fund.
Minimum wage laws affecting women and minors have been enacted
in many of the states. Occasionally the minimum wage, at least for
stipulated pursuits, is set down in the statute itself; normally,
WAG^LAWS however, a wage board is established to investigate living
conditions and the rates of wages paid to women and minors
in industrial and mercantile establishments; the board then determines
the minimum wage to be paid in each form of business. It may srt up a
different rate for different localities, for example, a higher minimum in
large cities than in small towns. Until a recent decision of the United
States Supreme Court,1 the power of a board to compel the employer to
pay a minimum wage thus established was in doubt, and the determina-
tion of the wage board depended largely on public opinion for its enforce-
ment. Now, however, there is no longer any question but that the em-
ployer can be legally required to pay the wage established, and most
minimum wage laws are now of the compulsory type. Justification for
this policy of compulsion is not unlike that for workmen's compensation
laws. It is argued that society as a whole cannot safely permit large
bodies of women and children to be employed at rates which are
below the normal standard of living; for if such conditions are tolerated,
1 West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937).
STATE ADMINISTRATION 701
the ultimate cost in crime, poverty, disease, and immorality will fall
upon the whole community. It is better, therefore, that the consumer
should pay higher prices for goods than that he should pay less for
what he buys and then make up the difference (or more than the
difference) in taxes for the support of jails, reformatories, poorhouses,
and other institutions which draw so many of their recruits from the
derelicts of industry.
Under the terms of the Social Security Act which passed Congress
in 1935, provision was made to assist the states in establishing various
forms of social security in addition to the old-age insurance c
D SOCIAL
scheme which is maintained and administered directly by AND INDUS-
the national government.1 This assistance covers state TRIAL
r i r i i 111-1 i SECURITY.
programs lor the support ot the aged poor, the blind, and
orphaned children, as well as a state system of insurance for able-bodied
workers out of employment. In general, the national government makes
grants to the states covering one half of the benefits as well as the entire
costs of administering the plan. Although several states had already
provided limited financial assistance to the needy aged, the
• 1-1 i i -i , r 11 ASSISTANCE
blind, and to children deprived or parental support, the T0 THE
federal government's offer of grants-in-aid made such AGED AND
n . - i i • 11 OTHERS.
programs virtually nation-wide and in some cases resulted
in raising the scale of benefits paid to the individuals. More than half a
billion dollars is now being annually expended for this assistance to the
aged, while sizable sums are likewise being spent to aid the blind and to
support needy children.
The state unemployment insurance programs have also developed re-
markably in recent years under the aegis of the national Social Security
Act. Relevant provisions of this act, discussed earlier, bear UNEMPLOY.
repetition here. A federal pay roll tax is imposed upon all MENT
employers in defined categories for the support of un- INSURANCE.
employment insurance, but employers are allowed to credit similar
taxes paid to a state unemployment insurance fund against this federal
tax up to a maximum of 90 per cent. The national government also
pays most of the administrative expenses of a state unemployment
program. Under the stimulus of this national generosity, most of the
states have now set up unemployment insurance plans. These vary in
details from state to state, but they are all similar in essentials. In
general, they provide for compensation from a state insurance fund
to those who are "involuntarily unemployed." The compensation
amounts to a certain percentage of normal weekly earnings, usually
1 See pp.
702 THE GOVERNMENT OF THE UNITED STATES
about 50 per cent, but these payments are limited to a maximum of
about sixteen weeks in any year. Proceeds accumulated from the state's
pay roll taxes are invested in an unemployment trust fund established by
the federal government; the total in that fund is now around the three-
billion-dollar mark. Although domestic servants, agricultural laborers,
persons employed by charitable institutions, and certain other types of
workers are not included in the plan, there are now nearly forty million
workers covered by these state unemployment insurance plans.
Needless to say, the national Social Security Act and the various state
welfare programs have required a good deal of new administrative
THE EXPAN- apparatus. Each state now has special agencies concerned
SIGN OF with unemployment compensation, old-age assistance, aid
ADMINIS- to tjie biinc] ancj other forms of public aid and assistance.
TRATIVE 0-111
AGENCIES Sometimes these have been set up as separate state depart-
IN THIS ments, commissions, or boards. Sometimes, on the other
hand, they have been incorporated as special bureaus or
divisions in existing agencies of state administration, such as the labor,
health, or welfare departments. It is worth noting that wherever such
administrative units have been set up, the Social Security Act requires
the states to staff them with personnel recruited under the merit system.
This has stimulated the extension of civil service in states where there
had been relatively little of it prior to the national government's
action.
Then there is the problem of those needy persons who do not qualify
as recipients of aid under any of the programs just described. Direct
7 CHARITIES relief f°r such persons, except in time of emergency, is gcn-
AND COR- crally regarded as the responsibility of the counties, cities,
RECTIONS towns, and villages in which they live. But there is usually
a state board of charities or public welfare, or whatever it may be called,
which supervises and coordinates the work of the local relief agencies.
During the depression of the igso's the states acted as agents of the
national government in handling work-relief projects and in distributing
direct relief to persons for whom public work could not be provided. In
addition to the state board of charities or public welfare, there is also a
department of public institutions which has charge of establishments
maintained by the state for the care of the insane as well as for the
instruction of the feebleminded, the deaf and dumb, or those otherwise
handicapped. The general supervision of state prisons and reformatories
is also a function which usually requires a department of its own.
Public property also calls for administration. Each state possesses
valuable assets in land and buildings; some of them also have harbors,
STATE ADMINISTRATION 703
docks, forests, mines, oil wells, and other properties. Various state depart-
ments are given supervisory functions in relation to these properties, but
there is the greatest variation in the names and duties of
the commissioners or other officials who do the work.
Throughout the greater part of the nineteenth century, the AND
natural resources of the country seemed inexhaustible NATURAL
RESOURCES.
and they were exploited, almost without hindrance, for
the profit of private individuals. Eventually, however, the country awoke
to the realization of the possible shortage in timber, coal, oil, and other
non-replaceable products of the earth. Public opinion called for a pro-
gram of conservation under government auspices. Conservation, how-
ever, does not merely mean avoidance of wastage; it involves restoration
also, where restoration is possible, as in the case of reforesting, the re-
plenishment of exhausted soil, the reclamation of swamp lands, and the
control of flood waters. In the case of mines and oil wells, the problem is
one of making the natural resources go farther by improved methods of
extraction from the earth. Conservation, in its broader sense, likewise
involves the improvement of harbors and waterways, so that they can
more completely fulfill their purposes. Perhaps the greatest of all oppor-
tunities for conservation lie in the steady improvement of agricultural
methods, thus making two blades of grass grow where one grew before.
As a result of all these activities, the states have developed their com-
missioners of conservation and reclamation, harbor boards, boards of
forestry and flood control, boards of agriculture, and a score of similar
administrative agencies.
The advent of the automobile created a nation-wide demand for hard-
surfaced wider highways with the elimination of dangerous curves. In
all the states there has been great activity in the endeavor
, . , _ _f ° . ' , ,9- HIGHWAYS.
to meet this demand, ihe national government has also
done its part and, since 1916, has made generous grants to the states for
the construction of main highways. But the states themselves have
financed an even larger part of the work by allocating to it the revenue
from motor-vehicle and gasoline taxes. Although various federal speci-
fications and standards must be complied with, the actual responsibility
for building the highways and keeping them in repair has normally
been entrusted to the state highway departments. These agencies often
use the services of private contractors in the work of road construction
and repair; but an increasing amount of the construction and much of
the maintenance is now undertaken by the state highway departments
directly.
The department of education is almost everywhere one of the ^nost
704 THE GOVERNMENT OF THE UNITED STATES
important among agencies of state administration. It was not always so.
In earlier days, education was left almost wholly to the
I O THK
SUPERVISION cities, towns, and rural areas, to be regulated by local school
OF PUBLIC boards according to their own ideas of educational effi-
ciency. Even yet the local school board is in immediate
control and in many cases its discretion is still unrestricted; but steadily
in all parts of the country the state is taking over a supervising jurisdic-
tion. Every state today has a department of education or of public
instruction under an executive head, commonly called the superin-
tendent of education or instruction. Many of them have state boards
of education as well, and some have special authorities for the super-
vision of the state university or for the other public institutions of higher
education — boards of regents, they are usually called.
The functions of a department of education vary with the degree of
centralized control which the state authorities have assumed. In no two
states are they alike. In some states the department outlines the program
of school studies, chooses the textbooks, apportions state funds to local
schools, prescribes the qualifications of teachers, appoints school super-
intendents, and settles nearly all the details of educational policy; in
some, it has more limited powers; and in others, again, its functions are
little more than advisory. On the whole, however, the tide has turned
towards centralization, towards giving the state departments of educa-
tion more power and leaving less discretion to the local school boards.
This is defended on the ground that central control is necessary for the
maintenance of proper educational standards.
The laws relating to the assessment of property for taxation and to the
methods of taxing this property have become so involved and technical
1 1 ASSESS- *kat ncw administrative agencies for interpreting and apply-
MENT AND ing their provisions have had to be created. State boards
TAXATION. Qf assessment or of equalization, state tax commissioners,
and various allied authorities, now figure upon the list of departments
in many of the states. There was a time when virtually complete de-
pendence for public revenue was placed upon property taxes. Such taxes
were easy to assess and, when imposed, could not be evaded. But with
the increase of "intangible" property in its varied forms — mortgages,
stocks, bonds, franchise values, bank deposits, notes, and bills payable —
the task of making this form of wealth contribute its just share of the
public revenue presents a much more difficult problem. Intangible
property, when left to be assessed and taxed by the local authorities, often
escapes taxation altogether. Taxes on the profits of corporations, on
franchise values, and on inheritances, also present practical difficulties
STATE ADMINISTRATION 705
in the way of local assessment. A gas company, for example, may operate
in a dozen municipalities and no fair valuation of its property can be
made by figuring it piecemeal. So the states, in some instances, have
taken the assessment of these taxes into their own hands. Usually, how-
ever, a portion of the proceeds is turned back to the local authorities.
State tax boards or commissioners now exist in most of the states, with
constantly increasing powers for the assessment of property and for the
collection of corporation, business, inheritance and income taxes, gaso-
line taxes, and a variety of other revenues.
In nearly all the states there are various boards whose business is to
issue certificates for the practice of different professions or trades. There
are examiners for admission to the practice of law, boards
of medical and dental examiners, boards of examiners in LATION OF
pharmacy, boards for the licensing of stationary engineers, THE PRO~
, , ., , , , . FESSIONS.
plumbers, pilots, real estate brokers, insurance agents,
nurses, hairdressers, cosmeticians, etc. The list is steadily expanding.
At the present rate of expansion, it will not be long before some sort of
state license is required for every type of mental or manual activity.
The general rules concerning eligibility for license to practice these
various professions and trades are made by the legislature; but the
boards conduct the examinations and grant the certificates. They have
also, in most cases, authority to hear charges made against any licensed
practitioner and to suspend or revoke certificates. The expense of main-
taining these licensing boards is usually defrayed by the fees which
applicants are required to pay.
All the original state constitutions paid particular attention to the
organization and control of the militia. It was taken for granted that
the military forces of each state would be largely within
I *? . SUPER-
its own jurisdiction, even though the federal Constitution VISION OF
gave to the national government certain authority in time MILITARY
AFFAIRS
of peace and complete powers in time of war. The national
laws (especially the Army Organization Act) have greatly reduced the
freedom which the several states formerly possessed with reference to
their national guard establishments;1 nevertheless, all the states con-
tinue to maintain departments of military affairs. These are customarily
headed by an officer known as the adjutant general. He is the right-hand
man of the governor, who is usually the titular commander in chief.
In addition to all the foregoing, there are various miscellaneous boards
which look after the innumerable odds and ends of state administration.
Each state has its quota of them. Some have state police departments,
1 See p. 492
706 THE GOVERNMENT OF THE UNITED STATES
for example; some have boards which license chiropractors, or grant
permits to race-tracks, or supervise boxing bouts and wrestling matches.
In addition, one finds various ad hoc bodies, that is, boards
J4"»^!^EL" created to exercise functions of a temporary nature such as
LANEOUS. *
the building of a state capitol, or the consolidation of the
state laws, or the taking of a census. Such bodies go out of existence when
their work is finished. Permanent or temporary, the number of state
administrative agencies is larger than the average taxpayer ever realizes.
In the more populous states there are a hundred or more of them, each
whirling around in its own orbit. Each has its own sphere of duty and is
independent of the others. There is usually no coordination except such
as the governor may be able to apply.
SOME CHARACTERISTICS AND PROBLEMS OF
STATE ADMINISTRATION
This somewhat detailed description of state administrative agencies
and services has been undertaken in order to emphasize two things:
OUTOTAND- first> t^ie amazing scope and variety of the state's respon-
ING sibilities, and second, the chaotic mechanism with which the
FEATURES. states are trying to have these functions performed. Even
more extensively than the multifarious agencies of the government at
Washington, these innumerable state boards and officials regulate,
supervise, and circumscribe the daily life of the American citizen. Their
personnel forms a great host which no man can number, and it is in-
creasing every year. Taking the entire forty-eight commonwealths, there
are now nearly a half million people who give their entire time to the
various branches of state administration and draw pay for doing it. The
exact figure cannot be given, for if you started counting them today,
your total would be wrong the day after tomorrow. The roster of adminis-
trative officials employed by the national government is much larger;
but there is this very important difference between the two: in the na-
tional government, every administrative officer, from highest to lowest
(save in a very few cases), is responsible to the President. He can give
directives to them, and can remove them from office if they do not work
together as he directs. But in state government, there is no such inte-
grated responsibility to the chief executive. Most state officials cannot
be ordered by the governor to do this or that. They cannot be removed
by him. Some of them are elected by the people directly and hence have
no responsibility either to the governor or to the legislature. Others are
appointed under state laws which give them freedom of action and security
of tenure. If you make a blueprint of national administration, you will
STATE ADMINISTRATION 707
find that you must draw hundreds of lines, but they virtually all run
upward and inward. They converge in the White House. But make a
blueprint of the administrative setup in any one of the states, and you
will get a layout that no one can describe and few can understand.
It is essential that this top-heaviness, disintegration, clumsiness, and
lack of concentrated responsibility in state administrative machinery be
impressed upon every student of American government.
At the present rate of increase, some of the states will soon
have more boards than there are members in the legis- INCREASE OF
lature. This tangled web of administrative organization, STATE
wholly unplanned in development, represents an endeavor
to cope with the new and urgent problems which growth in population
and in the complexity of life have thrown upon the public authorities.
The situation has been accentuated by the recurring emergencies of the
past thirty years. But it embodies an arrangement which cannot be
prolonged and expanded indefinitely. The maze of jurisdictions will
eventually break down of its own sheer weight. Some of the states have
been aroused to an appreciation of this fact and have busied themselves
with programs of administrative simplification. They have been trying
to reduce the number of state departments and endeavoring to centralize
responsibility. But this is another story and should be reserved for a later
chapter.1
The shortcomings of state administration, as one may observe them
at the present day, are not wholly due to the multiplication of depart-
ments or to the lack of cooperation among them. Something
*~ A PRACTICAL
is attributable to the difficulty which the departments en- DIFFICULTY
counter in obtaining capable helpers. Positions on the pay IN THE
roll of the state are everywhere eagerly sought, to be sure, ^Icm^r
but this is because the remuneration is better, the discipline STATE AD-
less strict, the hours of work fewer per day, and the holidays MINISTRA~
more frequent than in private employment for service of
the same quality. Unhappily those who seek the positions, and obtain
them, are not for the most part persons who would make a conspicuous
success in private vocations. Go into the various offices at the state
capitol, or indeed in any state building, and note the nonchalant way
in which most of the work is being done. Go to the counter and see how
long you wait to be served. Note also the enthusiasm with which the
exodus of employees takes place when (or even a few minutes before) the
clock strikes five. And why not? Most of these men and women are not
really interested in their daily routine. The service of the state in America
» See Chapter XLV.
708 THE GOVERNMENT OF THE UNITED STATES
has not yet managed to afford real careers for young men and women of
ability as it does in other countries.
The lack of a comprehensive and genuine merit system, covering not
only appointments but promotions, is chiefly to blame for this. We chid'*
the employees of the government for not showing more
THE HANDI~ ... 11*1 i*»i»i • i
CAP OF ambition and alacrity; but the fault is by no means entirely
INFERIOR theirs. Our system of appointing and promoting them is
where most of the blame belongs. The worker in a private
establishment exerts himself because he knows that his advancement de-
pends upon it. But those who work in the office of the tax commissioner,
or the registry of motor vehicles, or the bureau of audits, or in any other
state office, are well aware that personal ability and hard work afford no
certain guarantee of promotion when the time comes. Some friend of an
influential politician may go over the heads of those who have served
long and faithfully. It should not be so. And when it ceases to be so,
there will be far more interest and energy shown by public employees
in their work.
REFERENCES
\
GENERAL. Good chapters on state administration (with lists of references)
may be found in the textbooks by Bates and Field, Carpenter and Stafford,
Holcombe, Dodd, Macdonald, Crawford, and Mathews which are listed at
the close of Chapter XXXVI. W. F. Willoughby, Principles of Public Administra-
tion (Baltimore, 1927), also covers the subject adequately and contains an ample
bibliography. L. D. White, Introduction to the Study of Public Administration (revised
edition, New York, 1939), and the same author's Trends in Public Administration
(New York, 1933) contain good surveys of the subject. Attention should likewise
be called to John M. Pfiffner, Public Administration (New York, 1935).
ADMINISTRATIVE REORGANIZATION. G. A. Weber, Organised Efforts for the Im-
provement of Methods of Administration in the United States (New York, 1919), J. VV.
Fesler, The Independence of State Regulatory Agencies (Chicago, 1942), A E Buck,
Administrative Consolidation in the State Governments (5th edition, New York, 1930),
K. H. Porter, State Administration (New York, 1938), George A. Graham, Edu-
cation for Public Administration (Princeton, 1941), and the volume on Better
Government Personnel issued by the Commission of Inquiry on Public Personnel
(New York, 1935).
ADMINISTRATIVE PROBLEMS. Among volumes on administrative problems in
particular states and upon various departments of state administration, the
following may be mentioned: J. K. Coleman, State Administration in South Carolina
(New York, 1935), Dewey Anderson, California State Government (Stanford Uni-
versity, 1942), Jacob Tanger and H. F. Alderfer, Pennsylvania Government, State
and Local (revised edition, Harrisburg, Pa., 1939), Paul T. Stafford, Government
and the Needy; a Study of Public Assistance in New Jersey (Princeton, 1941), R. T.
Lansdale and others, The Administration of Old-Age Assistance in Three States
STATE ADMINISTRATION 709
(Chicago, 1936), G. G. Lentz, The Enforcement of Orders of State Public Service
Commissions (Urbana, 1940), W. E. Mosher and Fmla G Crawford, Public
Utility Regulation (New York, 1933), W. G. Smillie, Public Health Administration
in the United States (revised edition, New York, 1940), Marietta Stevenson,
Public Welfare Administration (New York, 1938), Frank B. Graves, Administration of
Amencan Education (New York, 1932), C. J. Hynning, State Conservation of Re-
sources (Washington, 1939), A. C. Comey and others, State and National Planning
(Cambridge, Mass., 1937), R- S. Troup, Forestry and State Control (New York,
1 939X J • J- Anderson, Federal and State Control of Banking (New York, 1934),
R. L Wise, Blue Sky Legislation (New York, 1930), John B. Andrews, Labor Laws
in Action (New York, 1938), D. A. Campbell, Workman's Compensation (2 vols.,
Los Angeles, 1939), G W. Pipkin, Social Legislation in the South (Chapel Hill,
N. C., 1936), R C White, Administering Unemployment Compensation (Chicago,
I9'39)> V. O. Key, Jr., The Administration of Federal Grants to the States (Chicago,
1937).
A Bibliography of Public Administration, Part /, General Literature by Sarah Greer
("New York, 1933), is a useful guide to the principal publications in this field.
CHAPTER XLIII
STATE FINANCE
Finance is not mere arithmetic: finance is a great policy. Without sound finance no
sound government is possible; without sound government no sound finance is possible.
— Woodrow Wilson.
Representative government owes its origin to financial necessities.
Mediaeval kings summoned the people to parliaments because they
THE SCOPE needed money. And public finance is still the chief problem
OF PUBLIC of legislatures. Originally it was a relatively simple one
FINANCE. because the states did not need much money, and they got
most of it easily enough. Their expenditures were of very modest pro-
portions. Many of them had no indebtedness at all. But the days of
simplicity and thrift have now gone by. The states have been enlarging
their activities; they do far more for the citizen than they did half a
century ago. Doing more, they have had to spend more. Spending more,
they have needed more revenue. Needing more revenue, they have had
to devise new forms of taxation, some of them exceedingly complicated.
Elaborate systems of budget-making and budgetary control have had to
be worked out as a means of keeping expenditures within bounds.
And notwithstanding this control, many of the states have piled up con-
siderable indebtedness.
From what sources do the states obtain their revenue? A certain
amount of financial assistance comes from the national government by
SOURCES OF way °^ grants-in-aid for highways, public works, social
STATE security, education, and other special purposes.1 Indeed,
REVENUE. more than half a billion dollars annually have come from
this source in recent years. Some states obtain income from public lands,
chiefly mineral and oil-bearing lands which they own, and from the
profits of a state enterprise, such as a publicly operated alcoholic beverage
dispensary or from state-owned docks, canals, and toll bridges. A con-
siderable amount comes each year from fees, licenses, fines, and for-
feitures, from interest on state funds deposited in banks, and from the
1 On the system of federal grants-in-aid, see pp. 483-485.
710
STATE FINANCE 711
sale of surplus state property. But taking the states as a whole, the bulk of
their revenue, at least 80 per cent, is derived from taxation.
Until fairly recent years, the principal source of tax revenue was the
"general property tax." This is a direct tax levied upon the assessed
value of real property, which includes lands and buildings, THE GENERAL
and upon personal property such as merchandise, bonds, PROPERTY
stocks, and mortgages. But certain types of excise taxes, at TAX*
present levied by many states, and the imposition of taxes on both indi-
vidual and corporate incomes have greatly reduced the significance of the
property tax. In the past few years, indeed, the yield from direct taxes
on property has accounted for less than ten per cent of the over-all
revenue of the forty-eight commonwealths for general governmental
purposes. Nevertheless, the property tax is still a very important fiscal
imposition because it is used to satisfy the revenue needs of the counties,
cities, towns, and other local subdivisions within the state.
As used in the earlier part of the nineteenth century, the general
property tax was levied upon all forms of property at a uniform rate.
Uniformity was in fact required by many of the state con-
stitutions. This requirement of uniformity was part and
parcel of a political philosophy which insisted upon the UNIFORMITY
IN PROPERTY
strict equality of all men before the law. The natural
equality of men was extended to their property. Land and
buildings, like natural-born citizens, were deemed to have been created
free and equal. Hence they should be made to share equally in the bur-
dens of government. In these earlier days, moreover, property consisted
for the most part of tangible things: lands, buildings, merchandise, and
slaves. What we now call "intangible" property, such as mortgages,
bonds, and stocks, did not then form a large factor in the total wealth of
the community.
But all this has now been changed. The growth of intangible property
during the past half century has been enormous; today it forms the
major portion of our entire national wealth. Its distribution ELIMINATION
among the people has become so unequal, moreover, that OF THESE RE-
the policy of taxing all kinds of property at a uniform rate is £UIREMENTS-
no longer justified. Tangible property, such as land, buildings, and
stocks in trade are in plain view for the assessor to see; but stocks and
bonds are stowed away in safe-deposit boxes, out of his sight. Uniformity
of tax rates, under such conditions, is likely to mean that taxes are not
levied in accordance with ability to pay but in accordance with inability
to evade. It is now generally believed that a fairer distribution of public
burdens can be made by classifying property into various forms and
712 THE GOVERNMENT OF THE UNITED STATES
letting the legislature impose a different rate upon each. The temptation
to evade the tax on intangibles is lessened by lowering the rate on such
property.
It is mainly for this practical reason that one state after another has
adopted, in recent years, the practice of separating tangible from in-
tangible property and levying a much lower rate upon the
©^TANGIBLE lattcr- This lowcr rate is either placed directly upon the
AND IN FAN- value of the intangible property itself, or it is levied upon
GIBLE the income derived from such property, thereby takiner the
PROPERTY. . .
form of an income tax. In cither case, there is usually a legal
requirement that every owner, trustee, or recipient of income (with
certain exceptions) must file a sworn declaration as the basis of a true
assessment. Only in some such way has it been practicable to make
wealth in the form of securities pay its due contribution to the public
revenues. In a word, the unmodified general property tax, under pre-
vailing economic conditions, is unsound in theory and unequal in
practice. It treats all kinds of property alike even though there are vast
differences in the various forms of modern property. It leads to tax
dodging on a large scale and tempts even honest men to evasion — for
if they paid the general property tax rate on their stocks and bonds, they
would often be giving up more than half the income from these invest-
ments.
Certain procedures are normally observed in levying property taxes.
One of these is the making of an assessment. In nearly all the states the
THE ASSESS- assessing of property is carried out by city and county
MENT assessors. The same lists are then used as the basis of state,
PROCESS. county, and municipal taxes. All tangible property is
supposed to be assessed at its fair market value or at some specified
percentage of this value. The assessments are revised from time to time,
sometimes every year; but for purposes of state and county taxation,
not usually more often than once in every three or five years. Throughout
the country the work of assessing is rather indifferently performed be-
cause the assessors are usually elective officials with no special training
for the function of estimating property values correctly.
When the assessors have finished their task, each owner is notified of
his assessment. An opportunity is given him to appeal if he thinks the
REVIEW AND assessment is too high. Such appeals are heard in the first
EQUALIZA- instance by a local board of revision or review. A further
TION* appeal to some higher authority is often permitted. Since
there are different assessors for each city, township, or county, the
assessments often disclose great inequalities; hence a state tax com-
STATE FINANCE 713
mission, or state board of equalization, or some equivalent authority,
goes over the lists and does what it can to equalize them. This is im-
portant because, as previously indicated, the local assessment lists are
used for the imposition of state as well as local property taxes; and unless
an attempt is made to equalize assessments, the taxpayers of some
counties would be required to pay a disproportionate share of the state
taxes. Besides acting as an equalization board, the state tax
commission also has the duty of directly assessing the
properties of railroads, telegraph and telephone companies, PROPERTY
and other public utilities, because such properties are BY STATE
AUTHORITIES.
distributed in various localities and are consequently
difficult to assess locally. Moreover, these enterprises often operate in
two or more states, and the question of just what proportion of their
property a particular state may assess for taxation is best left to a central
authority. Taxes on locally assessed property arc usually collected by
locally appointed or elected tax collectors, and the state's share is then
paid to the state authorities. Taxes on property assessed by state agencies
are collected by the state tax collectors and the localities subsequently
receive the shares due them, if any.
As already indicated, the direct property tax has, in recent years,
surrendered its primary position as a source of general state revenue, and
other forms of taxation have taken its place. Currently, one OTHERFORMS
of the most important sources of general revenue in many OF TAXATION:
of the states is the retail sales tax. Although this tax assumes SALES TAXES-
various forms and sometimes exempts the necessaries of life (particularly
food, clothing, and shelter), its normal form is a levy of from one to three
per cent on all retail sales. The retail sales tax is sometimes criticized as
being "regressive," that is, as being proportionally more burdensome on
the poor than on the well to do. A sales tax of three cents a gallon on
gasoline falls with equal burden whether a car is being driven to work or
on pleasure. There arc those who contend that this equality does not
represent social justice, whatever that term may mean. Yet, as a practical
matter, it would be very difficult to levy different rates in accordance
with the use made of commodities, whether essential or nonessential,
whether bv the poor or by the rich.
Another indictment sometimes lodged against the sales tax is its alleged
deflationary effect on business. It adds to the price of goods and hence,
to a certain extent, may discourage buying. This objection gains weight
when business is slackening and efforts are being made by governmental
action to stimulate it. On the other hand, the sales tax is very productive,
easy and inexpensive to collect, all-inclusive in its range, and reaches
714 THE GOVERNMENT OF THE UNITED STATES
millions of people who otherwise would contribute little or nothing to the
public revenues. At any rate, the imperative need for more revenue
during the depression period of the 1930*8 caused many of the states
to impose sales taxes, despite the objections which have been mentioned,
and there is no immediate likelihood that they will soon abandon this
type of taxation. The proceeds of sales taxes go for the most part into
the general state revenues; but in many states an exception is made in
the case of sales taxes on motor fuel. The revenue from the sales tax on
gasoline is frequently set aside for the construction and maintenance of
state highways, although in recent years the tendency has been to divert
at least a portion of this revenue into the general fund.
Two other taxes which now contribute largely to the general revenues
of the states are those imposed upon incomes and inheritances. More
™rv^rc AXTT. than half the states now levy income taxes, and all but one
INLtUMt. AINU *
INHERITANCE of them collect taxes on estates or inheritances.1 In most
LEVIES. instances, income taxes are levied upon both individuals
and corporations, although a few states limit them to corporations and
a few others to individual incomes. When levied upon a corporation,
they are sometimes regarded as a substitute for a tax upon the corpora-
tion's property. State income taxes are progressive in nature (i.e., the
higher the income the higher the rate of taxation), although rates are not
graduated so steeply as in the case of the federal income tax.
The inheritance tax, as its name implies, is a tax upon inherited prop-
erty. Its rates are also graduated, and smaller inheritances are sometimes
exempted from taxation altogether. Occasionally, too, the rate varies
according to the degree of the relationship of the heir, being higher for
distant relatives of the decedent and lower for closer relatives. One
objection to the inheritance tax, at least from the point of view of the
budget-making authority, arises from the fact that its proceeds cannot be
forecast in advance. It may be twice as productive one year as compared
with the next, depending upon how many rich residents happen to die.
One factor responsible for the widespread imposition of state inheritance
taxes is a provision in the federal tax law of 1926 which stipulates that
inheritance taxes paid to a state government may be credited against
inheritance tax payments to the federal government up to 80 per cent
of the total of the federal tax. This measure caused a number of states,
previously without an inheritance tax law, to adopt one.
A considerable variety of additional imposts may be found in one
state or another. Instead of being taxed on their net income, corporations
1 An estate tax is levied on the property which a decedent leaves. An inheritance tax is
levied on the property which an heir receives.
STATE FINANCE 715
are sometimes required to pay a tax on their capital. In addition, they
may be taxed for the privilege of existing as a corporation or for doing
business under the corporate form. Several states, particu-
larly in the South, have various forms of business or occupa- LANEOUS
tion taxes which provide considerable revenue. Others tax IMPOSTS:
the recording of mortgages and the transfer of shares in i. CORPORA-
corporations. A few have poll taxes. Likewise, in various TION AND
, • i • r i i • OTHER TAXES.
states there are special excises, as lor example on chain stores,
and on electric current, on the operation of race tracks 2* SPECIAL
_ _ , , . . • i r EXCISES.
and betting, and on admissions to certain places ol amuse-
ment. Various states derive revenue from the so-called "severance"
taxes. These are taxes on the utilization of natural resources, 3. SEVER-
especially on coal, oil, ore, and timber, whenever these are ANCE
TAXKS
"severed" from the earth. A large amount of revenue now
comes from the special pay roll taxes which are levied in 4- UNEM-
r r 7 PLOYMENT
every state to support unemployment insurance schemes. INSURANCE
But the proceeds of this tax are devoted exclusively to the TAX-
purpose for which it is levied and hence they contribute nothing to
the general support of the state's government.
Questions of jurisdiction sometimes arise out of the application of
the state's tax laws because the owner of the taxable property or the heir
to an estate may be a resident in some other state. It is a e^tv. TTTT>TC
' SOMk. JUK.IS~
rule that real estate and tangible property such as automo- DIGHONAL
biles, farm implements, and merchandise, are taxable ISSUES-
wherever they are situated, even though owned by nonresidents. Stocks,
bonds, and other intangible property may be taxed where the owner
resides or where the securities are kept. The usual plan, in accordance
with the principle mobilia sequuntur personam, is to tax such intangibles
in the state where the owner has his domicile or legal residence. The
same is true of income taxes when levied by the state. Inheritances may
be taxed at the domicile of the deceased owner or where the inherited
property is situated. Not infrequently the same inheritance is taxed in
both states. But by reciprocal legislation, most states have now exempted
securities owned by residents of other states from the provisions of their
inheritance tax laws. Sales taxes are collected where the sale takes place,
but some states are endeavoring to obtain the equivalent of this tax from
their own residents when purchases are made by them outside the state.
This is done by means of what is known as the "use tax," that is, a tax
upon the privilege of using, within the state, goods which have been
purchased outside the state. It is levied at the same rate as the sales
tax. Although this practice embodies an interference with interstate
716 THE GOVERNMENT OF THE UNITED STATES
commerce, which is wholly within the jurisdiction of the federal govern-
ment, the courts have thus far shown no disposition to interfere with it
so long as the use tax is not levied at a higher rate than the sales tax.
There are certain forms of property which the states may not tax under
any circumstances. Property owned by the federal government is one
of them — for example, army posts, navy yards, air fields,
government hospitals, as well as post offices, national forests,
and federal power plants such as those at Boulder Dam and
in the Tennessee Valley. For more than a hundred years, the same
exemption applied to the salaries of federal officers and employees; but
that exemption has now been removed by federal law, and the state may
tax the income paid by the national government to its officers and em-
ployees if they reside within the steite's boundaries.1
Goods passing across a state during their importation from foreign
countries, or carried in interstate commerce, are also immune from state
taxation. Incomes derived by individuals from savings bonds and other
obligations of the national government are likewise outside the state's
power to tax. As a rule, moreover, the states do not tax their own prop-
erty (such as the state capitol or the penitentiary), for that would be only
robbing Peter to pay Paul. Nor do they tax the property of their own
cities, towns, townships, or counties, and in many states they do not levy
taxes upon the real estate owned by colleges, churches, and similar
educational or religious institutions. These exemptions, however, do not
usually apply to special assessments or local improvement taxes which
are imposed upon nearby property to pay for a street widening or some
such betterment. These are not regarded as taxes in an ordinary sense
and are not subject to the general rules relating to taxation.
Almost any tax, taken by itself, can be shown to be unfair and oppres-
sive. If all the revenues of the state were derived from income taxes,
JUDGING sales taxes, property taxes, or inheritance taxes, we would
THE MERITS have a thoroughly inequitable situation. Yet any one of
OF A TAX. these taxes can be defended as part of a general tax system.
The purpose of a general tax system should be to raise sufficient public
revenue by requiring contributions from everyone according to his
capacity to pay, so far as this capacity can be estimated. No single form
of tax achieves this end. Every tax, whatsoever its nature, falls too
heavily on some and lets others off too lightly. The only solution of this
difficulty is to impose a variety of taxes, so that some of them may cancel
out the inequalities of the others, and in the end everyone may find him-*
1 This is a reciprocal arrangement: the federal government, in turn, is permitted to tax the
income of state officers and employees.
STATE FINANCE 717
self bearing a reasonable share of the common burden. In other words,
what we ought to consider is not the justice or injustice of any one tax,
taken by itself, but the operations and results of the tax system as a whole.
That, unfortunately, is not what the makers of our tax laws usually do.
They consider each tax separately, and too often with reference to its
political implications.
Everyone is agreed on the principle that people ought to be taxed
according to their ability to pay. But what is a man's ability to pay a
certain tax? It depends on. what other taxes arc levied upon THE DUPLI.
him, does it not? And nobody seems to be keeping track CATION OF
of that. Taxes on the sale of gasoline are being laid by the TAXES-
federal and state authorities. Sometimes the county has a gasoline tax
also. Inheritances and incomes arc being taxed by two or more taxing
authorities, each with very little heed to what the others are doing.
The result is a cumulative burden of taxes which in their totality may
become unjust and oppressive on one class of people. There are too
many taxing authorities in the United States and too little team-play
among them.
Suppose a man owns a ten thousand dollar house, with a five thousand
dollar mortagage on it, and that he rents this house to a tenant. There is
only ten thousand dollars (not fifteen thousand dollars)
IP i A r i - , 11 AN EXAMPLE.
worth oi property here. A tax of twenty or thirty dollars
per thousand on this property valuation might be considered fair enough.
But when, in addition to this, you tax the income which the owner
receives from his property in rent, also the face value of the mortgage,
and the interest which the mortgagee receives as income — when you
do all this, you may be making the same parcel of property yield a good
deal more than its proper share.
It has already been pointed out, but it will bear repetition, that taxes
do not usually stay where they are placed. Everyone on whom a tax is
laid will shift it to someone else if he can, and in many THE
cases he manages to do it. The owner of a store building SHIFTING
includes the taxes in the rent which the merchant pays; OF TAXES-
the latter passes it to his customers and they will shift it (if they can) to
their employers. Rents, prices, and wages respond, sooner or later, to
increased taxes. The ultimate consumer raises a hue and cry about the
sales tax, for he pays it directly and his pocket nerve feels the twinge at
every purchase; but he does not realize that the price tag has already
absorbed some other taxes before the sales tax gets added to it.
When taxes on real estate remain unpaid for a certain period, the
custom is to add a penalty. Then, after the lapse of a further period, the
718 THE GOVERNMENT OF THE UNITED STATES
property may be sold for taxes, either by the municipality or the state as
the case may be. During the economic depression which began in 1930,
large amounts of taxes were left unpaid and a great deal
MORATORIA °^ Pr°Pcrty became liable to sale. As an emergency meas-
ure, many of the states tried to give relief by reducing the
interest rate on overdue taxes by permitting the payment of such taxes
in installments over a term of years, or by writing down the delinquent
amounts, and in some cases by providing a moratorium on tax sales. In
many instances this policy did not avail to save properties from ultimate
forfeiture; on the other hand, it increased governmental deficits and
threw an added burden on those who, sometimes at great personal sacri-
fice, managed to pay their taxes on time.
A further outcome of the rise in tax delinquencies was a movement for
placing a rigid limit on tax rates. In several states, largely through the
joint efforts of farmers and real estate interests, flat limits
TAX LIMITS. ,,ii
have been placed upon the rate of taxation which may be
levied on real property. Realizing the need for some leeway in emergen-
cies, however, it is sometimes provided that the limit may be exceeded
by a two-thirds vote of the people in the taxing area or by the permission
of some designated county or state authority. Suqh rigid tax limits do
not, as a rule, serve a useful purpose. Often they merely result in deficits
or defaults. The only effective way to keep taxes down is to hold public
expenditures within bounds. So long as expenditures are permitted to
expand without restraint, a tax limit is not likely to prove of much assist-
ance.
STATE EXPENDITURES
When money comes into the state treasury, it can be paid out again
in only one way, that is, under authority of an appropriation duly voted
LEGISLA- kv the legislature. The appropriation may be specific, desig-
TIVE APPRO- nating a certain sum for a certain purpose, or it may be
PRIATIONS. general and continuing, as, for example, when it authorizes
a state department to expend such amounts as it may receive in fees. Most
of a state's income is appropriated annually or biennially upon estimates
of necessary or desirable expenditure submitted to the legislature by
the governor or the heads of departments, but appropriations are also
made by the legislature on the proposal of individual members.
Until about thirty-five years ago a haphazard system of originating
and voting appropriations was in vogue throughout the country. When
the legislature assembled, it was deluged with estimates and requests
from the various departments, bureaus, boards, and commissions. Each
STATE FINANCE 719
asked for more money than it had spent during the previous year, and
usually for more than it expected to get. These estimates then went to a
committee of the legislature or were divided among several
11 11111, THE OLDER
committees, whereupon each department and board pulled METHOD OF
wires to get what it wanted — and the strongest got the MAKING
THFM
most. It was not a question of merit but of influence.
Finally the estimates, after being reviewed and trimmed by the com-
mittees, were lumped into appropriation bills (often a dozen of them)
and passed by the legislature, after which they went to the governor.
If the state constitution empowered him to veto individual items in the
appropriation bills, the governor usually did some pruning on his own
account; but in many of the states he did not have this power and hence
had to accept or reject each appropriation bill as a whole.
Meanwhile, in addition to the appropriation bills, numerous measures
providing for special expenditures were introduced by individual legisla-
tors. These also were referred to committees, and many of SPECIAL
them ultimately passed both houses. Day by day these meas- APPROPRIA-
ures kept sliding through, with nobody doing much to pre- TIONS-
vent their passage. No one could tell, until the end of the session, how
much the total expenditure was going to be. Even then one could not be
certain, for many bills were rushed through in the last few hours. Conse-
quently the authorized expenditures often exceeded the state's revenue
by a considerable margin and the next legislature had to make good the
deficit.
The wastefulness of this haphazard system was long apparent, but
little progress in modifying it was made until the states undertook to
reform the procedure by the establishment of a regular THE NEWER
budget system. This movement began in 1911 and made BUDGET
such rapid progress that today virtually all the states have SYSTEMS-
established some form of budgetary control. Hardly any two of them,
however, follow exactly the same methods. A few states place responsi-
bility for the budget upon the legislature, to be handled for it by one
or more powerful committees; others entrust the responsibility to a
special board which includes both legislators and administrative officers;
but three fourths of the states now use the "executive budget" plan.
Under this last-named arrangement the governor is made wholly or
largely responsible for receiving the estimates of expenditure, revising
them, putting them in the form of a budget, and submitting THE EXECU.
this budget to the legislature with his recommendations. TIVE
At the same time he submits an estimate of what the state's BUDGET-
revenue for the ensuing year is likely to be. The governor, of course, is
720 THE GOVERNMENT OF THE UNITED STATES
not expected to do all this personally. He is assisted by some staff agency,
such as a department of finance or a budget bureau, the head of which
he appoints. On the advice of this agency the estimates are revised and
an attempt is made to balance the budget, that is, to make the anticipated
revenues and expenditures match each other. Then the governor trans-
mits his budget to the state legislature which refers it to a committee.
After this committee has made its report and recommendations, the
legislature is usually free to make such changes as it thinks proper —
but such action is subject to the governor's veto in states where he pos-
sesses power to reject individual items of expenditure.
The governor represents the state as a whole, and the general direction
of financial policy may on that account be properly committed to him.
Nevertheless, this tendency to give the governor the sole
IPS EFFECT .... . ,. . r • i r 11 i *ii
ON i HE initiative in expenditures, if consistently followed, will evcn-
GOVERNOR'S tually upset the balance of power in state government. It
POSITION ... . . • i i •/• i
will make the governor supreme, particularly it he possesses
the right to reject or reduce any item which the legislature has increased
during its passage through that body. Analogous action in city government
has raised the mayor to a dominating position and has reduced the city
council to virtual impotence. Primacy in government follows the power
of the purse. Whoever controls the expenditure controls the government,
for very little in government can be accomplished without money. The
executive budget system serves the ends of economy, but it does this
by curtailing the powers of the legislature and correspondingly enlarg-
ing the authority of the executive.
A sound budget system ought to have four essentials, and if these are
present the details do not much matter. First, all estimates of revenue
and expenditure should be prepared and placed in the
ESSENTIALS OF , r i i i 11, i r • , r
A GOOD STATE hands of a budget bureau a reasonable length of time before
BUDGET the legislature meets. Second, there should be, during this
SYSTEM. . , . . • r i • i
interval, a thorough scrutiny of every item by experienced
investigators who give all their time to the work. It is absurd to think
that a budget calling for the expenditure of a hundred million dollars or
more can be properly reviewed in a week or two by a committee of
legislators, or by a half-dozen members of an unpaid board, or by a
couple of clerks in the governor's office. It is a job for expert accountants
and trained investigators. Third, the appropriations should be incor-
porated, as far as possible, in a single bill, and the consideration of this
bill ought to be the first care of the legislature during its session. It
should have priority over all else and should be disposed of at an early
date. And, fourth, the rules of the legislature should provide that no
STATE FINANCE 721
appropriation shall be voted after the passage of the budget except on
recommendation of the governor or by a two-thirds vote in both houses.
This will take care of emergencies.
A budget system incorporating these four essentials will always prove
a powerful incentive to sound financing, yet no one should imagine that
all extravagance and wasting of public money can be A BUDGFT
stopped by merely establishing a "system" of some sort. An SYSTEM is
orderly procedure or routine, in the voting of appropria- N0 PANACEA-
tions, goes only part of the way. It gives the legislature a chance to be
economical; but it does not compel economy. There is only one way of
compelling legislators to practice economy, which is by bringing upon
them a relentless pressure of public opinion in favor of it. If the voters
as a whole are in an extravagant mood, or are indifferent to extrava-
gance, no budget system will protect the taxpayer. Hence an aggressive
taxpayers' association, organized on a state-wide basis, provided with a
competent staff, vigilant in following every move that the legislature
makes, and fearless in publishing the facts — such an organization can do
much to save the people's money from being wastefully expended.
Not all the wastefulness comes in making appropriations. Much of it
comes in spending them. No matter how worthy the purpose of an appro-
priation may be. there is waste if the money is frittered
. , , . . T i i i i WHERE MUCH
away without achieving its purpose. In the older days OF THE
budgetary appropriations were made in the form of "lump
sums" and this naturally encouraged wastefulness. Each
department head, under this system, enjoyed almost com- LUMP-SUM
, , . . . , . , . . . , , AND SEGRE-
plete discretion in spending his appropriations so long as he GATED
kept within the totals, and if he did not need all of it for one APPROPRIA-
thing he used it for another. A certain lump sum, for ex-
ample, would be voted for "supplies and equipment," but within this
total the department head could spend money for all sorts of things
whether they were needed or not. To guard against the abuses which
often arose out of this administrative freedom, the legislatures began the
practice of voting "segregated" budgets, that is, budgets in which each
appropriation is broken down into items of individual expenditure.
For example, instead of a lump sum for equipment and supplies, the
appropriation would specify so much for desks, so much for typewriting
machines, so much for ink, for paper, for pens, even for waste baskets.
Then the head of the department had to keep his expenses for each
purpose within the individual items.
This plan, however, proved too inflexible; it did not take into account
the changes in needs which inevitably arose during the year. A depart-
722 THE GOVERNMENT OF THE UNITED STATES
ment head, under this system, would often find himself with too much
money for one purpose, while running out of funds for something else
badly needed before the year was half over. A compromise
between the two foregoing plans has therefore been worked
out in some of the states. Known as the "allotment plan,"
this involves the making of the appropriations in lump sums, but re-
quires that the governor shall parcel out the funds voted to each spending
agency in the form of an installment or allotment every three months.
Under this arrangement the governor becomes, in a sense, a secondary
appropriating authority, for no money (even after it has been voted by
the legislature) may be spent unless it has been "allotted" by him. Every
spending agency must show that it needs the funds or the money remains
unspent. Clearly, this plan gives the governor a real opportunity to
prevent wastefulness — if he has the will to do it, which unfortunately
some governors have not. More than a dozen states have established
this allotment plan of making appropriations.
As another means of checking needless outlays, it is desirable that
every state shall have a system of accounting which makes perfectly
OTHFR clear where every dollar has gone. And before the Icgisla-
SAFE- ture votes the next appropriations, it should be given an
GUARDS. itemized statement showing all payments made — to whom
and for what purpose. Legislative committees can then call officials on
the carpet to explain and justify. There should be always before the eyes
of the spending officials a possibility that they may have to give a detailed
explanation of every item. This will help to prevent overpayment for
supplies and services, improvident contracts, fees or commissions to
political friends, and other common forms of leakage.
Much wastefulness can be avoided by the maintenance of a central
purchasing office.1 Such offices have now been established in nearly all
the states, either independently or in connection with some
CENTRAL
PURCHASING existing department. All supplies, equipment, and mate-
DEPART- riais (with certain exceptions) are bought through the
central purchasing authority. An endeavor is made to
standardize the various types of supplies (paper, ink, janitor's supplies,
etc.) so that orders can be placed in large quantities at low prices. This
system is generally replacing the older procedure whereby each de-
partment did its own buying, often at retail prices and from favored
concerns.
1 For a full discussion see Russell Forbes, Governmental Purchasing (New York, 1929), and the
same author's Organization and Administration of a Governmental Purchasing Office (New York,
1932).
STATE FINANCE 723
STATE DEBTS
The states, like the nation, have power to borrow money and are
unrestricted in the exercise of this authority by any provision of the na-
tional Constitution, except that they may not "emit bills
r .. „ . . , J , J Li- DEBT LIMITS.
of credit, that is to say, they may not borrow by the issue
of paper money. But nearly all the state constitutions have set their own
limitations upon the borrowing power of the legislature. These constitu-
tional debt limits are of several varieties. In some states a definite sum
is fixed, above which indebtedness must not be incurred except for
special purposes, or, in some instances, except with the express assent of
the people obtained at a referendum. In others, no specific sum is fixed
by the constitution, but the purposes for which debts may be incurred
are carefully set forth, and borrowing for other purposes is not permitted,
except when certain onerous formalities have been complied with. A few
states fix the limit of indebtedness at a certain percentage of the total
assessed value of taxable property. Finally, some states do not permit
the issue of bonds for any purpose except after approval by a majority
of the voters at the polls.
Naturally there is great variation in the amounts of indebtedness
which the several states are carrying. This is not due to the presence or
absence of constitutional checks upon the borrowing power,
but is mainly attributable to wide differences in what the PRESENT
several states have undertaken to do for their citizens. In DLBT BURDEN
, , , r i , • i i i i i • EXCESSIVE?
estimating the burden of a debt, it should be borne in
mind that a state with a relatively large per capita indebtedness docs not
necessarily impose a heavy burden upon its citizens because its per
capita wealth and income, and hence its ability to sustain a debt, may
be far higher than in the case of a state with a considerably lower per
capita debt. During the period between the two World Wars, state debts
increased at a rapid rate because of bond issues for highway construc-
tion, soldiers' bonuses, public buildings, and unemployment relief. These
debts would doubtless have grown to even greater proportions if, during
the depression years of the igso's, a large share of the relief load had
not been assumed by the national government.
Following America's entry into World War II, however, state revenues
began to climb as a result of the wartime boom in production and em-
ployment. At the same time, wartime priorities interfered with normal
construction programs and other state activities. As a consequence,
many of the states found themselves in the unusual, but none the less
agreeable, position of ending their fiscal years with surplus funds on
724 THE GOVERNMENT OF THE UNITED STATES
hand. A part of this windfall has been earmarked in many states as a
postwar reconstruction fund; the residue has been applied to debt reduc-
tion and an appreciable shrinkage in the outstanding obligations of the
states has been thereby effected. Nevertheless, the gross debt of all the
states is still in the neighborhood of three billion dollars, to which must
be added the debts incurred by their political subdivisions — the cities,
counties, towns, townships, and local improvement districts, which total
a still larger figure. Compared with the astronomical debt which the
national government is carrying, these state and local debts seem rather
diminutive. But they have to be reckoned into the total when one sets
out to figure the per capita debt which the American people are shoulder-
ing and on which they have to pay the interest out of their individual
earnings. The real burden of a debt depends, of course, on the rate of
interest which has to be paid on it, and fortunately this rate has been
greatly reduced during the past twenty-five years. Even so, it takes a lot
of taxes to service a debt of 270 billions.
The states borrow money, when they have occasion to do so, by the
issue of bonds. These bonds run from ten to fifty years or even longer in
some cases. A generation or two ago it was the almost in-
MLTHODS OF . , , . i i • i * • i • • r
BORROWING variable custom to issue bonds with no special provision lor
AND OF having funds on hand to pay them at maturity. Conse-
FOR^REPAY- quently, when the bonds fell due in twenty or fifty ycais
MENF: thereafter, there was no easy way of making payment
except by rcborrowing. Sometimes this could be effected
SINKING at a saving by the issue of new bonds bearing a lower rate
FUND of interest than the old. Paying off old bonds by issuing new
ones at a lower rate of interest is commonly known as
refunding. Later, it became the practice to provide a sinking fund into
which is paid every year out of current income a sum sufficient to enable
the bonds to be redeemed when they mature.
The sinking fund method of providing for the ultimate liquidation of
state debts is of course far better than no provision at all, yet in practice
DEFECTS ^ has shown serious defects. The necessary annual con-
OF THIS tributions to the fund are sometimes omitted for one reason
PLAN. or another, usually because of urgent demands from other
quarters. Or money is taken from the fund to meet a temporary
emergency and then is not replaced. The sinking funds are occa-
sionally invested without due care and lost. When a state invests its
sinking funds, it takes the same risk as a private individual. Because oi
losses in the past, the laws now restrict the investment of sinking funds in
such a way as to reduce the element of risk to a minimum. But in any
STATE FINANCE 725
case, the sinking fund places a large amount of money and securities in
the custody of a few officials who are usually chosen by popular vote:
namely, the state treasurer or a board of sinking fund commissioners.
The temptation to deposit the funds in favored banks or to use them for
political or personal ends in other ways is sometimes too strong to be
resisted. Hence it often happens, for one reason or another, that sinking
funds do not contain enough money, when the time comes, to use them
in extinguishing the state's obligations.
A better plan of borrowing is to serialize the dates of maturity in such
a way that one or more bonds will come due for payment each year.
This serial bond plan obviates entirely the need of creating
sinking funds. A definite proportion of the debt is regularly SERIAL
extinguished each year by applying from current revenue BOND
what would go into the sinking fund, more or less. Many
cities now use the serial plan, and some of the states have adopted it with
satisfactory results. Between the ultimate cost of the two plans, there is no
difference, provided each is carried out exactly as planned. But, in prac-
tice, the serial plan almost invariably works out to be the cheaper method
of borrowing, for it entails no long holding over and investing of money
with the attendant dangers of loss.
Nearly all business corporations, in issuing bonds, have made these
bonds callable and repayable (at the option of the corporation) under
certain conditions before their maturity date. Then, as NON_
interest rates go down, they are able to pay off their 5 per CALLABIE
cent bonds, let us say, with new money borrowed at 4 or OBLIGATIONS-
3 per cent. But the states and municipalities, in issuing bonds, rarely
took this precaution until very recent years. Consequently their old
high-interest bonds are noncallable until maturity, and this maturity
date is often many years away. That is why some states and cities have
to keep paying 5 per cent on bonds which they issued fifteen or twenty
years ago, although today they could borrow money at half that rate of
interest.
In addition to their funded debts, for which long-term bonds have
been issued, many of the states have "floating" debts, in other words
indebtedness which is financed by temporary borrowing. TEMPORARY
To cover expenditures which become necessary before the BORROWINGS
.... , r u x ^ AND TAX-
taxes come in, it is customary to arrange for short-term ANTICIPA.
loans from the banks. Or the interval can be tided over by TION
the issue of tax-anticipation warrants. These are drafts on WARRANTS-
the state or municipal treasury payable at some future date. They are
given to contractors and to public employees in lieu of their regular pay
726 THE GOVERNMENT OF THE UNITED STATES
checks. Then the local banks usually will cash these warrants, giving
their face value less interest to the date on which they become due.
Of old, it was the custom to look upon public indebtedness as a mis-
fortune. But in recent years, some people in and out of public life appear
to have the idea that nothing should be paid for out of
GENERAL current income if it can be financed by borrowing and thus
CONSIDERA- passed on to a future generation. Neither of these extreme
TIONS
points of view is sound. When money is needed for public
works of an enduring character, such as a state capitol or other public
building, or a system of state highways, borrowing is a legitimate and
equitable way of obtaining it. The cost of capital improvements may
fairly be prorated over the years in which they are destined to render
service to the public; and it is neither just nor expedient that the tax-
payers of today should be forced to bear their entire cost. A case can also
be made for public borrowing in a time of acute economic depression,
not only to take care of public emergency expenditures in such a period
but also to keep the citizen's tax burden down and thereby keep his
purchasing power up. But if such a policy is to be fairly pursued, the
government in times of economic prosperity should be ready to increase
taxes and reduce the debt. Those who shape public fiscal policy should
remember that future generations will have their own sufficient burdens
and ought not to be unduly hampered by legacies of debt from the past.
REFERENCES
PUBLIC FINANCE IN GENERAL. Useful books in this field are H. L. Lutz, Public
Finance (3rd edition, New York, 1936), Clyde L. King, Public Finance (New
York, 1935), C O. Plehn, Introduction to Public Finance (5th edition, New York,
1926), Alfred G Buehler, Public Finance (revised edition, New York, 1940), A. E.
Buck and others, Wartime Problems of State and Local Finance (Philadelphia, 1943),
J. P.Jensen, Problems of Public Finance (New York, 1924), M. C. Mills and G. W.
Starr, Readings in Public Finance and Taxation (New York, 1932), M. H. Hunter,
Outlines oj Public Finance (revised edition, New York, 1926), and W. J. Shultz,
American Public Finance (3rd edition, New York, 1942).
STATE TAXATION. H. G. Brown, The Economics of Taxation (New York, 1924),
W. R. Green, The Theory and Practice oj Modern Taxation (2nd edition, New York,
1938), Mabel Newcomer, Separation of State and Local Revenues in the United States
(New York, 1917), H. L. Lutz, The State Tax Commission (Cambridge, Mass.,
1918), J. P. Jensen, Property Taxation in the United States (Chicago, 1931), S. E.
Leland, The Classified Property Tax in the United States (New York, 1928), G. Leet
and R. M. Paige, Property Tax Limitation Laws (revised edition, Chicago, 1936),
E. C. Buehler, State and Local Tax Revision (New York, 1932), M. S. Kendrick,
Taxation Issues with Special Reference to State and Local Problems (New York, 1933),
R G. Hutchinson. State-Administered and Locally-Shared Taxes (New York, 1931),
STATE FINANCE 727
National Industrial Conference Board, State and Local Taxation of Property (New
York, 1930), J. D. Silverherz, The Assessment of Real Property in the United States
(Albany, 1936), and the Tax Research Foundation, Tax Systems of the World
(revised edition, Chicago, 1941).
SPECIAL FORMS OF TAXATION. The National Industrial Conference Board has
issued valuable publications in this field, especially State Income Taxes (2 vols ,
New York, 1930), State and Local Taxation of Business Corporations (New York,
1931), and Sales Taxes: General, Selective, and Retail (New York, 1932). Further
information on the taxation of sales may be found in E. R. Rankin, 7 he Sales Tax
(Chapel Hill, N. C., 1932), R. M. Haig and C Shoup, The Sales Tax in the
American States (New York, 1934), and Neil H Jacoby, Retail Sales Taxation
(Chicago, 1938). Taxes on gasoline are discussed in F. G. Crawford, The
Gasoline Tax in the United States (4th edition, Chicago, 1937), and Paul V. Betters,
State- Administered Municipally-Shared Gasoline Taxes (Chicago, 1932). Books by
R. G. Blakey, The State Income Tax (Minneapolis, 1932), and W. K. Tuller,
Treatise on the Taxing Powers with Particular Application to the State Income Tax
(Chicago, 1937) should also be mentioned.
For information on inheritance taxes, reference may be made to W. J Shultz,
The Taxation of Inheritances (Boston, 1926), Paul W. Pinkerton and J. H. Millsaps,
Inheritance and Estate Taxes (Chicago, 1926), A. Handy, Inheritance and Other Like
Taxes (New York, 1929), and Leon G. Simon, Inheritance Taxation (New Yoik,
1925). A publication of the National Industrial Conference Board entitled The
Taxation of Motor Vehicle Transportation (New York, 1933) fully discusses that
phase of state taxation.
STATE EXPENDITURES, BUDGETS, AND ALLIED MATTERS. Statistical data may be
found in Clarence Heer, 7 he Post-War Expansion oj State Expenditures (New York,
1926), National Industrial Conference Board, The Cost of Government in the United
States (New York, 1937), and in the Financial Statistics oj States issued annually
by the United States Bureau of the Census. General discussions of budgetary
problems are included in A. E. Buck, Budgetary Control (New York, 1934), the
same author's Public Budgeting (New York, 1929), and his The Budgets in Govern-
ments of Today (New York, 1934). Other useful books are Harry A. Barth,
Financial Control in the States with Emphasis on Control by the Governor (Philadelphia,
1923), A. F. Macdonald, Federal Aid (New York, 1928), Juanita K. Williams,
Grants-m-Aid undei the Public Works Administration (New York, 1939), Russell
Forbes, Governmental Purchasing (New York, 1929), M. L. Faust, The Custody of
State Funds (New York, 1925), and W. Kilpatrick, State Supervision of Local Budget
ing (New York, 1939).
STATE DEBTS. Paul Studenski, Public Borrowing (New York, 1930), E. Clark
The Internal Debt of the United States (New York, 1933), W. L Raymond, State
and Municipal Bonds (2nd edition, Boston, 1932), B. U. Blatchford, American
State Debts (Durham, N. C., 1941), R. C. Crane, Foreign Bondholders and American
State Debts (New York, 1935), an<^ Ernst H. Feilchenfeld, Public Debts and State
Succession (New York, 1931).
The monthly publication, State Government, presents from time to time up-to-
date tables relating to taxation, expenditures, and indebtedness.
CHAPTER XLIV
THE STATE COURTS
Justice, Sir, is the greatest interest of man on earth. — Daniel Webster.
In addition to the federal courts, which have been already described,
every state has its own system of courts established under the provisions
of its own constitution and laws. These state courts do
RELATION OF not stancj below the federal courts. They are on an equal
COURTS TO plane and possess full jurisdiction within their own field.
THE FEDERAL Between the state courts and the federal courts there
COURTS. ..... r . , , .
are many similarities ot organization and procedure, but
CONTRASTS two essential differences are to be noted. In the first place,
THE^^WO ^e Judges are elccted by the people *in most of the states,
whereas there are no elective judges in any of the federal
courts. The other difference applies to the range of jurisdiction possessed
by the two sets of tribunals. The matters with which the federal courts
may deal are explicitly defined in the Constitution of the United States.
The federal courts possess such jurisdiction as is there enumerated, and
no more. They administer the law of the United States. The state courts,
on the other hand, are vested with all remaining judicial authority. They
administer the law of the state. And since this law deals with a greater
variety of matters, the state courts exercise authority over a wider range,
and handle a much larger proportion of the total litigation.
In the thirteen colonies, the judges were appointed by the governor or
the colonial legislature and, after the winning of independence, this plan
was generally continued. The framers of the national
AMON^THE8 Constitution accepted the idea of an appointive judiciary
STATE as a matter of course and empowered the President to
COURTS nominate all federal judges for confirmation by the Senate.
t IN As time went on, however, the practice of electing judges
METHODS OF came into vogue with the new frontier states of the West.
Pioneer communities usually insist that justice shall be
speedv, inexpensive, and devoid of technicalities. They
want the law administered and interpreted on a "democratic" basis. It
728
THE STATE COURTS 729
was so during the development of the great American hinterland. Most
of the new states in this region organized their courts on an elective basis
and the influence of their example backwashed to some of the older states.
In time, very few of the commonwealths, almost all of them from among
the original thirteen, continued to select judges by some other method
than that of popular election. Recently, however, there has been a slight
trend away from this method, and some seventeen states have one or more
grades of judges (in one case, only judges of the court of claims) selected
by the legislature, by the governor, by other judges, or by a process
which combines appointment by the governor in association with a
judicial commission, and eventual ratification or rejection of the appoint-
ment by the voters.
No two states have exactly the same system of court organization or of
judicial procedure. Yet the differences are not great save in one case.
This is Louisiana, where the civil procedure has been
influenced by the Code Napoleon of France. In the other *" *!L.,rTT_
' L PR.OCjfciDlJR.Iii.
forty-seven states, the backbone of judicial procedure is
uniformly that of the common law, originally derived from England. The
pattern of procedure in the federal courts has also exerted cm influence
in the direction of uniformity and the courts of one state often rely upon
the precedents, procedural and otherwise, of courts in other states. Hence
it is that when a man studies law and is admitted to practice in one state,
he finds himself at no great disadvantage if he moves to another. The
fundamentals are the same. It does not take him long to familiarize
himself with the differences in procedure and terminology.
In every state there are three grades of courts, and sometimes more.
First, there are the local courts presided over by justices of the peace,
municipal justices, or similar officers, who are chosen by
popular election in all but a very few states. The jurisdiction ORGANIZA-
of these local courts is limited to civil and criminal cases of TION OF
S FATE
relatively minor importance. Frequently, however, the COURTS:
local justice conducts the preliminary hearings where K THE
serious criminal charges have been made and determines IOWEST
whether or not the accused shall be held for the grand GOURTS:
jury or for trial by a higher court. These local courts do not usually hold
jury trials; their procedure is of a summary character and their decisions
are subject to appeal. As a rule, the justices of the peace in
rural districts have had no training in the law, but in towns AREAS
and cities it is customary to choose men who are better
equipped. In most of the cities, the unpaid justices of the peace have been
replaced by salaried magistrates or police justices who hold court every day .
730 THE GOVERNMENT OF THE UNITED STATES
A word should be added with respect to the local courts of the cities —
municipal courts, magistrates' courts, or police courts, as they are vari-
ously called. The judges or magistrates in these courts are
usually elected by the people, but sometimes they are
appointed by the mayor. In a few states they are selected by the
governor of the state in which the city is located. There may be
several of these courts in the same large city, each working independ-
ently; but in most of the largest municipalities they have become con-
solidated into a unified municipal court. This court then divides its work
among various sections or branches which deal with traffic cases, juvenile
offenses, small claims, domestic relations, civil controversies, etc., each
confining itself to its own special field.
The work of these local courts is of greater importance than most
students of government realize. They deal with an enormous number of
T*,™T,T^XT,-^ cases and come into contact with more people than do all
IMi UK. I ANCjll. *• *
OF THEIR the other courts put together. Hence it is from them that the
WORK. average man obtains his opinion of American justice. When
these courts are arbitrary, inefficient, or corrupt (as has too often been
the case), they throw public suspicion on the whole judiciary, no matter
how competent, fair, and honest the higher courts may be. Unfortu-
nately the personnel and work of the local courts, especially in the cities,
have been too often made the prey of party politics. Big and little bosses
have frequently controlled the selection of judges and magistrates.
Justice, too often, has been tempered by political favoritism. Any reform
of the judiciary, to be effective, must therefore begin at the bottom. The
local courts are lowest in jurisdiction but not in importance.
Next comes a higher range of courts, known by various names. Most
commonly they arc called county courts, but sometimes appellate courts,
2 THE district courts, superior courts, circuit courts, or courts of
COURTS OF common pleas. But whatever they may be called, they are
RECORD. tjie jowest courts of record, that is, they are the courts
lowest in the judicial hierarchy which keep a complete transcript of the
testimony, pleadings, and disposition of the issues of a case and observe
an established procedure. They may hear appeals from the decisions of
the local justices and also have original jurisdiction, that is, jurisdiction
in the first instance, over a considerable range of cases, both civil and
criminal. Sometimes separate courts of the same grade are established for
criminal and civil matters, or a separate section of the same court may
be set up to hear and determine civil or criminal causes. These courts are
staffed by regular judges who have been trained in the law. On points of
law there is usually a right of appeal from these tribunals to a court of
THE STATE COURTS 731
appellate grade or to the supreme court of the state. In many states, the
county court is given charge of probate matters when no special probate
courts exist; and, in some states, it also has various administrative
functions, such as supervision over road construction and poor relief.
This is a legacy from England where the county courts, in the old days,
performed many administrative duties.
It is to the county courts that the grand jury makes its report and
presents its indictments on the basis of which the local county or district
attorney prosecutes criminal charges.1 Occasionally, in lieu
of a grand jury indictment, the district attorney may lodge
what is known as an information with the court, alleging JURY IN
sufficient ground for a prosecution; and such a statement srATE
will suffice to begin a criminal action in the court. Almost
invariably the county court sits with a petit or trial jury, which decides
all questions of fact, questions of law being supposedly decided by the
judge. Traclitionc\lly, the trial jury, in the state courts, as in the federal
courts, is a common law jury of twelve men (or men and women) chosen
from the community. Several of the states have, however, modified the
jury system considerably. Nearly all of them, for example, permit the
parties to a civil suit to dispense with a jury altogether. The great
majority of the states also permit the accused to waive a jury in a case
where a minor offense is charged; and about a third of them allow the
same privilege where a more serious offense is in issue; none, however,
permits a waiver in capital cases. The ancient requirement of unanimity
in verdicts has also been modified here and there in civil actions, and
occasionally in criminal cases of minor degree, an affirmative vote of
two thirds or three fourths of the jurors being sufficient for a verdict.
Likewise, most of the states now accept a jury of less than twelve mem-
bers, some requiring only half that number in civil cases, and a few have
made the same change in criminal prosecutions where the offense is not
of a capital nature.
These changes are evidence that there is some dissatisfaction with the
jury system. Occasionally, indeed, the more impetuous reformers have
suggested its abolition altogether. This is a situation which
cannot be passed over lightly by those who still consider
trial by one's peers a cornerstone of free government. Much WITH -HIE
could be done to reduce prevailing dissatisfaction if the JURY
jury were restricted to its proper role of deciding merely the
issues of fact, and if the law allowed judges greater discretion in guiding
its deliberations. Improvement would also result in the quality of jurors
1 For the organization and procedure of grand juries, see p. 561.
732 THE GOVERNMENT OF THE UNITED STATES
if the too numerous exemptions, which now permit various classes of
citizens to escape jury duty, were abolished. These exemptions usually
include professional men of all types as well as persons employed in the
public service. Too often the discourtesy shown to jurors by court
officials and the attitude exhibited towards them by the general public
gives the impression that the jurors are the culprits in a case rather thai
the accused and that jury duty is a kind of civic penalty rather than a
patriotic service to the commonwealth. Instances have been known in
which the jurors were locked up (to keep them from being influenced)
while the prisoner was out on bail. It is not surprising that men who have
important business of their own demanding attention should seek to
avoid a duty which requires them to sit on a hard bench all clay, and day
after day, listening to the verbosity of lawyers. The jury system would
function more satisfactorily if judges were given more authority to
shorten the proceedings.
Above the county court, in some states, there is frequently an inter-
mediate grade of tribunal known by various names, such as the court of
appeal. In New York State, this court is known as the
"supreme court," but it is not supreme in fact, since the
INIERME- highest New York court is known as the court of appeals.
DITETRI"
L The functions of these intermediate courts are chiefly
appellate, that is, they review questions of law which are
appealed from the lower courts. In some matters their decisions are
final, hence they lighten the burden of appeals to the state's highest court.
This tribunal, known generally as the supreme court,1 usually consists
of from five to seven justices; although four states limit its bench to three
THESUPREM* justices, while New Jersey's court, by far the largest, has
COURT OF sixteen justices. Normally, the entire bench of the court sits
THESIAFE. jn a casc ancj rencjcrs a decision by a majority vote; but,
in more than a third of the states, the membership may be divided into
sections to hear and decide certain cases. Sometimes the justices sit
individually, but only to deal with routine matters such as the hearing of
motions or the issuance of temporary writs. In at least eight states,
moreover, the supreme court may sit in more than one city to hear and
decide cases. In a few instances, the justices are appointed by the gov-
ernor or elected by the legislature, but in most cases they arc elected by
the voters, often on a nonpartisan ballot. Where the justices arc elective,
they are sometimes chosen by the voters in special judicial districts
1 In Maine, Massachusetts, and New Hampshire, it is called the "supreme judicial court";
in Connecticut, the "supreme court of errors", in Virginia and West Virginia, the "supreme
court of appeals", in Kentucky, Maryland, and New York, the "court of appeals"; and in
New Jersey, the "court of errors and appeals."
THE STATE COURTS 733
instead of in the state at large, thus providing an element of geographical
representation. Terms vary all the way from two years in Vermont to
twenty-one years in Pennsylvania. Three New England states, Massa-
chusetts, New Hampshire and Rhode Island, grant their justices tenure
for life or during good behavior. The normal elective term is six or eight
years, but even in these cases long tenure is the rule because of the prac-
tice of reclecting justices at the end of their terms. Compensation is
usually higher than in other branches of the public service, varying from
$3,000 in South Dakota to $22,000 in New York, the usual salary being
about $7,500. A chief justice presides over each supreme court.
The state supreme court devotes itself almost entirely to the hearing of
appeals on points of law. Only in exceptional cases does it exercise
jurisdiction by hearing cases in the first instance. Not having
to do with questions of fact, it docs not sit with a jury. On FUNGIION
most matters its decisions arc final. They arc final whenever
the issue relates solely to rights claimed under the constitution and laws
of the state, with no important question of federal right involved. And
this is true of more than nine tenths of the litigation in the state courts.
If, however, the controversy involves some substantial right claimed
under the federal Constitution or the national laws or a national treaty,
an appeal may usually be taken by a writ of certiorari to the Supreme
Court of the United States.
This point will bear emphasis, for there is a widespread popular
impression that all state courts are subordinate to all federal courts, that
the lowest court in the federal system is superior to the THF SUPREM.
highest court in the state. But the federal and state courts ACY OF THE
do not form a hierarchy, one above the other. They run
IN
parallel. Each set of courts is independent, each has its own THLIR OWN
field of jurisdiction, and within that field each is immune SPHERE-
from interference by the other. When you start a suit at law, your lawyer
will advise you whether it should be begun in a state court or in a federal
court. His advice, if he is a good lawyer, will depend on the nature of the
suit and the residence of the suitors. If the issue concerns matters or
persons within state jurisdiction, the state courts handle it; if it concerns
matters or persons within federal authority, it goes before the federal
courts. In some cases, particularly where the parties to a civil suit are
residents of different states, there may be an option r on the part of the
plaintiff or defendant. And if a suit is entered in one court, and it sub-
sequently appears that it should have been entered in another, it can be
removed thereto.
1 Sec p. 554.
734 THE GOVERNMENT OF THE UNITED STATES
Most of our judicial work and expense falls on the states. The vast
majority of prosecutions and lawsuits originate in the state courts, are
decided there, and go no farther. When the highest court
^ET^™ of a state has rendered its decision, there is only a limited
I riti UNH.C.JD '
STATES possibility of appealing to the United States Supreme Court.
SUPREME y CJQ as in(jicatecj in an earlier chapter, it must be shown
COURT. ' .....
that the highest state court having jurisdiction has held
valid some state law which is alleged to violate the federal Constitution, a
federal law or treaty, or has declared a federal law or treaty invalid.
On rare occasions also, the Supreme Court may review a case in which
the state court has held a state law contrary to the federal Constitution,
laws, or treaties. If an appeal is taken, an appropriate writ, nowadays
normally the writ of certiorari, is directed to the state court calling up
the case. But the United States Supreme Court has circumscribed the
right of appeal even further by refusing to issue a writ ''unless it appears
affirmatively that not only was a federal question presented for decision
to the highest court of the state having jurisdiction, but that its decision
was necessary to the determination of the cause, and that it was actually
decided, or that the judgment as rendered could not have been given
without deciding it." l In at least 99 per cent of the cases which are
adjudicated in the state courts, this condition cannot be met and there is
consequently no appeal.
When you hear that a state law has been declared "unconstitutional,"
this may mean either of two things: first, that the supreme court of the
state has declared it to be in conflict with the state constitu-
LAWS^A^BE ^on or> seconcl, that ^c Supreme Court of the United
DECLARED States has declared it to bo in conflict with the national
Constitution. It may, indeed, be in conflict with both, but
as a rule it is the state constitution that forms the barrier.
Let this point sink into the reader's mind, for nine laymen out of ten
think only of the national Constitution when they hear that some state
law has been shattered by a head-on collision. Most state laws, when they
come to grief, do so at the hands of their own courts.
In addition to its regular tribunals, every state has certain courts of a
special character. Among these are probate or surrogate courts for the
SPECIAL settlement of questions relating to wills and inheritances,
STATE although in some states there are no special courts for these
COURTS. matters, the work being done by the regular county courts.
In a few states, there are land courts which have to do with the investiga-
tion and registration of land titles. In one or two others, there are court?
1 De Saussure v. Gaillard, 127 U. S. 216.
THE STATE COURTS 735
of claims to decide cases in which private parties are permitted by the
state laws to sue the state. The regular courts, moreover, often appoint
persons known as referees or masters, to ascertain and report on facts
which are highly complicated and would take too much of the court's
time to unravel. This is done, for example, in suits which arise over the
keeping of accounts or the management of trust funds. The referee, or
master, hears the testimony of accountants and others; he ascertains the
facts as best he can and submits his findings to the court, which uses
them in reaching its decision. Thus it will be seen that the tendency
is towards specialization in both the organization and work of the
courts.
In general, it is the function of all the state courts, regular and special,
to decide only cases which actually come before them. Courts do not
pass upon hypothetical cases; they have enough to do in ADVISORY
dealing with controversies which actually arise. But in JUDICIAL
about one fifth of the states, the constitution provides that OPINIONS-
the governor or the legislature may call upon the justices of the state's
highest court for an "advisory judicial opinion" on the interpretation or
constitutionality of an existing law or a proposed law. Inasmuch as such
advisory opinions are necessarily given without the opportunity of hear-
ing counsel on both sides, they arc not binding on the court in case an
actual controversy on the point arises later, although one state, Colorado,
appears to have given such advisory opinions the status of final judicial
determinations. But though they may be merely "advisory" in nature,
such opinions arc of great value, especially to legislatures, and on numer-
ous occasions have forestalled the enactment of laws which, had they
been enacted, would have been declared invalid.
There is another exception to the rule that court decisions are restricted
to actual suits: namely, the right of the courts in some states to render
"declaratory judgments." 1 Within recent years a number DEGLARA.
of American states have authorized their courts to pro- TORYJUDG-
nounce, on matters of existing law, declarations which have MENTS-
the force of judgments, although no lawsuit is actually before them.
The idea is to enable the courts to explain, in advance of numerous
controversies, such matters as the meaning of a "community property
law," or a new statute relating to land titles. In other words, the courts
are empowered to make clear what the rights and obligations of the
citizen are before litigation arises, not after it. Thus the declaratory
judgment is an agency of preventive justice, supplementing the courts5
regular function of remedial justice.
1 E. M. Borchard, Declaratory Judgments (second edition, Cleveland, 1941).
736 THE GOVERNMENT OF THE UNITED STATES
SOME CURRENT PROBLEMS CONNECTED WITH
STATE COURTS
Several important questions come up in every discussion of the state
courts and their work. The first relates to the method of choosing judges.
This is an old question; lawyers and statesmen have been
ELECTION wrangling about it for over a hundred years. Choosing
OF judges by popular vote is an American contribution to the
science of government and one which other democracies
have not copied. Yet popular election of judges has acquired so extensive
a vogue in the United States that selection of a judge of a regular court
by any other method is an unusual proceeding in any state west of the
Alleghenies. The reasons for this extension of the elective principle arc
partly historical and partly the outcome of practical considerations.
During the period when the frontier spirit dominated a large part of the
United States, there developed the idea that true democracy involved
popular control over the law-enforcing, as well as over the lawmaking,
branch of the government. If all able-bodied citizens were equal before
the law, they ought to be given an equal share in making the laws, en-
forcing them, and interpreting them. Hence, every citizen \vas qualified to
be a lawyer and every lawyer competent to be a judge — if he could get
his neighbors to elect him. This equalitarian philosophy was well enough
suited to a pioneer era and found wide acceptance. Quite as important,
moreover, was the practical consideration that legislatures and governors,
in these earlier days, often appointed judges of a pettifogging tempera-
ment who were so engrossed with technicalities that they did not dispense
justice simply and speedily, as befitted a democratic community.
So the principle of having judges elected by the people spread through
the newer West, and surged backward to the older East, until eventually
it gained acceptance in more than three fourths of the
states. In actual practice, however, the voters clo not really
i LECTIVE choose the judges. How, indeed, can a body of a hundred
JUDGES HAS thousand voters obtain the knowledge necessary to ensure
the placing of legal knowledge, sound judgment, and integ-
rity on the state bench? The answer is that the people do not have such
knowledge and do not usually presume to have it. In many states, there
is a tradition that a judge, when once elected, shall be
1 Mp TV-
FLUENGE OF retained in office so long as his conduct is satisfactory. This
INTERIM AP- means that vacancies on the bench rarely occur except
POINTMENTS. , -IT • T A 71 • • i •
when a judge dies or resigns. When vacancies come in this
way, the governor is usually given the right to make an appointment
THE STATE COURTS 737
until the next election, and this appointee is then likely to be a candi-
date with the chances much in his favor. Many elective judges, therefore,
really owe their election to a governor's temporary appointment.
If it happens, on the other hand, that a judge retires upon the expiry
of his elective term, the choice among aspirants for his place is usually
made, in the first instance, by the leaders of the political INFLUENCE
organizations. They regard juclgcships as a form of high- OF BAR AS-
i i • • i Alll^l 4. J SOGIATIONS
class political patronage. All that the voters can do, as a AND OF
rule, is to make their final choice from among the candi- POLITICAL
dates thus presented to them by political leaders who desire LEADERS-
to bring the judiciary into the orbit of partisan politics. Occasionally, to
make the assurance doubly sure, the leaders of the opposing political
parties go into conference and agree upon a bipartisan slate of can-
didates, each o/ganization getting its share. In some states, there are no
party designations on the judiciary ballot, in which case the state bar
association (or organization of lawyers) is in the habit of recommending
a slate of candidates to the voters.
"How did you manage to get elected?" said a newspaper reporter to
a young New York lawyer who had just received a majority at the polls.
CCI was not elected; I was appointed. The boss appointed
me and the people took his word for it," was the frank ELECTION OF
reply. Elective judi»eships are often, in reality, appointive. JUDCES AL-
' . . . , . . , . MOST ALWAYS
Ihe appointing power resides somewhere — with the MEANS
political bosses, or the state party committee, or the state de facto AP-
! . t . i i mi- r POINTMEN1.
bar association, or the governor through the tilling of
vacancies. Whether the plan of election works well or badly depends
upon the way in which this appointing power is exercised. When good
candidates arc nominated, good judges are chosen, and the reverse is
equally true. Some excellent judges have owed their places on the bench
to popular election and some of the worst have found their way there by
the same method.
It is commonly assumed by reformers, but it is by no means certain,
that the state judiciary would be notably improved if we were to abandon
the practice of electing judges and provide for their appoint-
i . • 11 T~I i THE AP~
ment by the governor in all cases, ror most governors, be POINTIVE
it remembered, are politicians of high degree. They work SYSTEM
RFTTFR^
hand in hand with the party organization, and their
appointing power is generally influenced by a desire to help it. There are
all sorts of governors, as there are all sorts of electorates. Figs do not grow
on thistles. There is no reason why the wrong sort of governor should
appoint the right sort of judge. The plan of having the governor appoint
738 THE GOVERNMENT OF THE UNITED STATES
judges for life has functioned admirably in a few states. It has put their
courts on a high plane of competence and nonpartisanship. Outsiders
point to this as an example of what other states might secure by adopting
the same plan of selection.
But it does not follow. In such states as Massachusetts, Maine, and
New Hampshire, where the governor appoints the judges, or Connecticut,
where the governor nominates them and the legislature chooses them,
good judges have been secured by electing good governors. If the office
of governor deteriorates, the judiciary will descend with it. These states,
moreover, have done no better than Wisconsin, Iowa, and Maryland,
for example, where judges are chosen by popular vote. In each state the
people get the sort of judiciary they insist upon having; whether they
use the method of election or appointment does not make a world of
difference, although it is much easier to fix the responsibility for a poo^
choice when the latter method is used.
Criticism of the elective principle has recently brought about one or
two novel experiments in judicial selection in which the elective and
RECENT appointive principles have been combined. In California,
ATTEMPTS TO since 1 934, a supreme court justice, at the expiration of his
COMBINE AP- term, may "run against his record," that is, he can have his
POINTIVE ' , , i, -i - ,- ,
AND ELEG- name placed upon the ballot without opposing candidates,
TIVE and the voters then rcelect or reject him.1 If they reject him,
METHODS. . . . ill
the governor then nominates someone else who must sub-
sequently be confirmed by a special judicial commission which includes
the chief justice and the attorney general. This same procedure is
followed when a vacancy occurs between elections. A nominee thus
appointed and confirmed remains on the bench until the next general
election, when he must be accepted by a majority of the voters if he is
to continue for the full statutory term. A somewhat similar plan is used
in Missouri for the metropolitan area around St. Louis, although in that
state nominations arc made to the governor by a judicial committee of
selection, and the governor's appointment must subsequently be con-
firmed by a majority of the voters. The apparent purpose of this rather
complicated scheme is to preserve the principle of popular voting but
guarantee that the candidates will be men of training and experience.
Closely connected with the question of appointing judges is the method
of removing them from the bench. Judges of the federal courts may be
removed in one way only, that is, by impeachment. State judges, in all
but three states, may be removed by impeachment also, but the process
1 If he does not wish to be a candidate for reelection, the governor names one, so that in anv
event only one name appears on the ballot.
THE STATE COURTS 739
of impeachment is not the same in all the states. As a rule, however, the
charges are framed by the lower chamber of the state legislature and the
impeachment is heard by the state senate. Aside from im- 2 THE RE-
peachment, there arc several other methods by which a MOVAL OF
judge may be removed before the expiration of his term. In JUDGES-
a half-dozen states, the magistrates of inferior tribunals may be removed
by the bench of a higher court. In more than half the states, certain
judges may be removed by a joint address (or resolution) of the legisla-
ture or by the governor at the request of the legislature.
Finally six states permit the recall of judges from office by
popular vote. This device is elsewhere explained with
respect to the executive and legislative branches of state government;1
its machinery and workings are much the same when applied to the
judiciary. A petition signed by a designated number of voters is pre-
sented asking for the recall of a judge from office. The question is put
upon the ballot, and if the popular verdict is adverse, the judge steps
down. The reputed merit of the plan is that it serves to keep the inter-
pretation and enforcement of the laws in harmony with public sentiment.
On the other hand, the objections commonly urged against the recall of
administrative officials apply with even greater force in the case of judges.
Some years ago, Colorado adopted a constitutional amendment by
virtue of which the recall procedure might be applied not merely to the
judges but to their decisions. The arrangement, briefly THE REGALL
stated, was this: whenever the supreme court of Colorado OF JUDICIAL
declared a law unconstitutional, a stated number of the DECIS10NS-
voters might petition for a popular referendum on the question of en-
forcing the law in spite of the court's ruling. And if the people voted
affirmatively, the law would be enforced. But the supreme court of
Colorado declared the constitutional amendment providing for the
recall of judicial decisions to be itself unconstitutional, that is, in con-
flict with the provisions of the federal Constitution.
Many other problems are connected with the organization and work
of the state courts at the present day. The judicial system, in most of the
states, is largely a heritage from the past. Starting with a
simple organization, well adapted to the needs of a century FORM OF
ago, the older states have steadily added more judicial COURT OR-
machincry bit by bit, until there is no longer any unity
or coherence to the whole. The jurisdictions of the various courts,
regular and special, are so badly articulated that even the judges are
liiemselvcs very often in doubt.
1 Sec p. 672.
740 THE GOVERNMENT OF THE UNITED STATES
The procedure of the state courts has also come in for much criticism.
Litigation is slow and expensive. The poor litigant, or even one moder-
ately well off, may find the quest for justice so time-con-
4 THE RE- 7. 1111 • i • l J
FORM OF suming and costly that he comes to consider it a burden
COURT rather than a privilege. The jury system, especially in civil
PROCEDURE. ! , I'M 111 i i -
cases, has been so heavily overworked that it is breaking
clown. The lower courts are doing so much unsatisfactory work that the
higher tribunals are deluged with appeals; their calendars have become
so badly congested that if an appeal is entered today it may be a year 01
even two yeiirs before the case can be heard. The delays, the expense,
the technicalities, and the uncertainty — they all tend to work injustice.
They play into the hands of the shyster and his clients. The student of
civics who told his teacher that "a courthouse is a place where justice is
dispensed with," was not so far wide of the mark as those who laughed at
him may have supposed.
Certain it is that American state courts give the crook a better run for
his money (when he has the money) than he would obtain in the courts
of any other country. He can secure postponements, file exceptions, enter
pleas in avoidance, challenge jurors endlessly, or secure a change of
venue, or appeal, or get a stay of sentence, or give bail and jump it, or
be let off on probation. It is not that the judges encourage this situation,
or are in any considerable measure responsible for it. Their hands are
tied. They are compelled to follow a procedure which is laid clown for
them. This procedure has been framed by lawyers, in the interest of
lawyers — not by judges in the interest of justice. Much of the pro-
cedure is archciic and quite out of keeping with the needs of today. It
needs to be reformed.
What many of the states ought to do is to reorganize and simplify
their entire hierarchy of courts from top to bottom. To this end it has
been proposed that all the courts of a particular state should
A PROPOSAL r r . 1-1.
TO UNIFY be unified into one tribunal with appropriate departments
STATE anc[ divisions, with the chief justice (with or without a few
JUDICIARIES. N r ... .
associates; given power to transfer cases, assign judges, and
establish minor procedural changes. Under a coordinated bench of this
type, crowded dockets could be more readily cleared and opportunity
afforded for a greater degree of specialization by various judges in par-
ticular types of cases. Possibly also the procedure for making appeals
could be simplified, the more archaic technicalities dispensed with,
record keeping systematized, and the entire judicial process toned up.
At any rate, this suggestion of a unified judiciary has more to commend
it than many of the projects in the arsenal of the political reformer. But
Klb 741
lawyers, as a class, are not enthusiastic about any such overhauling and
their influence in legislatures is powerful. As the English jurist, Jeremy
Bentham, pointed out long ago, it is believed to be of advantage to the
legal profession that the courts and the law should remain (like a physi-
cian's prescriptions) somewhat beyond the layman's comprehension.
Otherwise there would not be so much business for lawyers.
Another step in the direction of reform is embodied in the judicial
councils which were first established in Ohio and Massachusetts two
decades ago and which now exist in somewhat more than 1H1? m_
half the states. Composed usually of judges and lawyers and CIAL
with memberships varying from a minimum of five to a counGIL-
maximum of more than fifty, these councils compile judicial statistics
and engage in research on matters relating to judicial organiz£ition and
procedure. Up to the present, at least, most of these bodies have been
relatively innocuous. They can, and often do, make recommendations
to the legislature and sometimes to the courts directly for expediting
judicial business; but they are essentially fact-finding and advisory
bodies. With but one exception, they have no administrative or super-
visory powers over the actual activity of the courts.
Finally, there is the ever-recurring question whether the courts of the
states should retain their power to declare state laws unconstitutional.
This power they are now exercising freely and in the face of
i . • • r ' i i i 5 THE DE'
much criticism trom various elements among the people. B \TEOVER
Not infrequently the supreme court of a state invalidates JUDICIAL
, , i- • i i r • • i i REVIEW.
a law by a divided vote oi its own justices, the court stand-
ing five to four or four to three. The reasons given for their action, in
many instances, arc so technical that intelligent laymen (and sometimes
lawyers as well) find difficulty in following them. A state law is uncon-
stitutional, for example, if it deprives a citizen of his property without
"due process of law," for such a clause (or its equivalent) appears in
practically all the state constitutions as well as in the fourteenth amend-
ment to the Constitution of the United States. But what is due process?
It is virtually impossible to give a precise definition of that term.1 Due
process is what the court says it is. It is one thing today and may be an-
other thing next autumn.
It has been remarked that " giving a man due process is giving him a
square deal" — but the squareness of a deal varies with a man's point
of view. Hence it is that the due process clause gives the THE UDUE
judges wide latitude in testing the constitutionality of laws. PROCESS"
Presumably they follow previous decisions of their own and GLAUSE-
1 Sec p. 520.
742 THE GOVERNMENT OF THE UNITED STATES
other courts; but these do not provide a hard-and-fast rule. The truth is
that their yardstick is often their own opinions, particularly when novel
legislation is up for consideration. And since judges are of diverse
opinions in different states, there are no two states in which due process
of law means exactly the same thing. Thus, a zoning ordinance may be
held to deprive a man of his property without due process of law in one
state, while the same ordinance, word for word, is held to afford due
process in another. Under such circumstances, the layman may be
pardoned for believing that the courts are exercising far too much dis-
cretion in determining public policy and thereby usurping the place of
the legislature.
Judicial review is a characteristic American institution and there are
few critics who would abandon it altogether; but there are some who
CURBS ON would curb what they consider its excesses. Efforts to curb
THE COURTS' it have, in fact, been more numerous and more effective
POWERS. than is commonly supposed. The constitutional initiative,
introduced in several states, was partly designed to provide the electorate
with a weapon which could be used to change a clause of the constitu-
tion when such a clause had been invoked by the courts to invalidate a
popular law. Indeed, the whole trend towards expediting changes in
the constitution by means of the referendum and otherwise, and the
frequency with which the process of amendment is used, has provided
an effective check on the courts' power since amendments can be, and
have been, used to cancel decisions of the courts. Attention has been
called to the abortive attempt of Colorado to provide for the popular
recall of judicial decisions, still another proposal to limit judicial dis-
cretion. In three states (Nebraska, North Dakota, and Ohio) more than
a majority of the judges is required in order to declare a state law un-
constitutional. At the present time, indeed, there seems to be less likeli-
hood that the highest state courts will abuse their power of review than
that this power will become so attenuated by the curbs erected against
it as to lose most of its earlier significance.
Much could be done to overcome lack of confidence in judicial deci-
sions and the prevailing irritation with them if the highest state courts
SOME would introduce a greater degree of uniformity in their
SUGGESTED decisions on constitutional questions, especially where
REMEDIES. issues common to legislation in many states are presented.
Constitution-makers might also help the situation if they were less prone
to use phraseology which is legalistic, ambiguous, or obscure. Finally, it
has been suggested that little would be lost and much gained in pro-
moting uniformity of decisions, if the states would eliminate from their
THE STATE COURTS 745
constitutions those provisions which substantially duplicate the federal
Bill of Rights and the other safeguards for life, liberty, and property,
which are contained in the national Constitution.
REFERENCES
BIBLIOGRAPHY. An elaborate list of materials relating to courts and judicial
procedure is included in the Report on Prosecution published by the National Com-
mission on Law Observance and Enforcement (Washington, 1931), pp. 223—289.
GENERAL OUTLINES. Those desiring a brief survey will find good chapters on
the state judiciary in each of the books on state government which have been
already listed, including those of A. N. Holcombe, F. G. Bates and O. P. Field,
J. M. Mathews, F. G. Crawford, and A. F. Macdonald.
SPECIAL STUDIES. More extended discussions may be found in W. F. Wil-
loughby, Principles oj Judicial Administration (Washington, 1929), which contains
an extensive bibliography, S. E. Baldwin, The American Judiciary (New York,
1905), C. N. Callender, American Courts: Their Organization and Procedure (New
York, 1927), B. N. Cardozo, The Nature oj the Judicial Process (New Haven, 1921),
F. N. Judson, The Judiciary and the People (New Haven, 1913), W. S. Caipenter,
Judicial Tenure in the lrmted States (New Haven, 1918), A. A. Bruce, The American
Judge (New York, 1924), L. B. Orfield, Criminal Appeals in America (Boston, 1939),
t J B. Waite, Criminal Law in Action (New York, 1934), A. S Osborn, The Mind oj
the Juror (Albany, 1937), E. S. Robinson, Law and the Lawyers (New York, 1935),
Raymond Molcy, Ow Criminal Courts (New York, 1930), E. M. Borchard,
Declaratory Judgments (second edition, Cleveland, 1941), Harry Best, Crime and
Criminal Law in the United States (New York, 1930), Harlan F. Stone, Law and Its
Administration (New York, 1915), and T. W. Shelton, The Spirit oj the Courts (Balti-
more, 1918).
JUDICIAL REFORM. On the improvement of judicial administration in the states
there are such books as Moorficld Storey, The Reform oj Legal Procedure (New
Haven, 1911), Raymond Moley, Politics and Criminal Prosecution (New York,
1929), D T. Lynch, Criminals and Politicians (New York, 1932), R. Hi Smith,
Justice and the Pooi (^rd edition, New York, 1924), L. T. Beman (editor), Election
verms Appointment of Judges (New York, 1926), F. R. Aumann, The Changing
American Legal System (Columbus, 1940), L. P Goldberg and E. Levinson, Lawless
Judges (New York, 1935), S. B. Warner and H. B. Cabot, Judges and Law Reform
(Cambridge, Mass., 1936), J. E. Johnsen (editor), The Jury System (New York,
1928), James Kirby, Selected Articles on Criminal Justice (New York, 1926),
Thomas F. McDonald, "Missouri's Ideal Judicial Selection Law" in the Journal
oj the American Judicature Society, XXIV, pp. 194-198 (April, 1941), Malcolm
C. Moos, "Judicial Elections and Partisan Endorsement of Judicial Candidates
in Minnesota'' in the American Political Science Review, XXXV, pp. 69-75
(February, 1941), Fred J. Milligan, "The Proposed Changes in the Selection
and Tenure of Judges in Ohio" in the Ohio State University Law Journal, IV, pp.
157-177 (March, 1938), and the Report oj the Commission on the Administration oj
Juscice in New York State (Albany, 1934).
CHAPTER XLV
THE REORGANIZATION OF STATE
GOVERNMENT
No government can expect to be permanent unless it guarantees progress as well as
order; nor can it continue to secure order unless it promotes progress — John Stuait
Mill
Surveying American state government as a whole, what are its most
obvious defects and by what steps may they be remedied? There is a
widespread but none too well founded impression that state
STATE GOV- 1 *
i-RNMENTHAs government in the United States has been rather satis-
BEEN LESS factory. One reason for this may be found in the fact that
SAIISFAGIORY ' . . '
THAN is the government oi cities, on the whole, has been so much
COMMONLY worse. Their misgovernment engaged, for many years, most
REALIZED r i r i • r-r«i , r r i
of the reformers attention. 1 he delects of state admin-
istration, moreover, have been to some extent screened by the way in
which the federal government has stepped in and helped the states with
their emergency problems. Had it not been for this federal assistance
during recent years, the inherent weaknesses of state government would
have stood out in much bolder relief.
The shortcomings of state government are due in part to faulty organ-
ization. The thirteen original commonwealths began with a scheme of
REASONS FOR government which was well suited to the needs of pioneer
THIS communities. Public administration was a simple task in
SITUATION. those days. The chief and almost the only function of a state
government was to make laws. But during the past hundred years, there
has been an enormous expansion in the work which a state government
is expected to do. Administration in all its branches, particularly in its
application to social, economic, and humanitarian activities, has grown
to huge proportions and now quite overshadows cill else. Governing an
American commonwealth has become a formidably complicated business.
Yet the states are trying to carry on with the old machinery. They are
endeavoring to conduct great public enterprises (such as the building of
highways, the safeguarding of the public health, and the supervision of
REORGANIZATION OF STATE GOVERNMENT 745
business corporations) with an organization which was designed for the
making of laws and the protection of popular liberties. STATE
They are trying to get from an old-fashioned steam engine FUNCTIONS
the performance of a Diesel motor. The ancient mechanism OROWN'TH'E
has been patched up, added to, and otherwise tinkered OLD MACHIN-
with, so that it has not entirely broken clown under the ERY*
load ; but no state has as yet been courageous enough to scrap the old
machine and install a wholly new one.
For the most part, the tinkering process has been carried on by con-
stitutional revision and amendment. State constitutions, as a rule, are
easy to change — so changes are made almost every year.
7 ° b 7 7 THE ESSEN-
Sometimcs as many as a dozen proposed changes appear on TIALS OF A
the ballot at a single election. Things are put into the con- SATISFACTORY
. , , TAri i STRUCTURE:
stitution one year and taken out the next. Whole statutes are
sometimes submitted to the people as amendments to the state constitu-
tion. Then, when changes are desired, more amendments become
necessary. Even appropriations for certain public buildings are occasion-
ally voted as constitutional amendments. The result is that many state
constitutions have been extended to inordinate length, arc full of detailed
provisions, and are no longer what they were originally intended to be:
namely, documents representing a consensus on the fundamental prin-
ciples of government.
Constitutional revision, in some of the states, has become a continuous
performance. A new edition is needed annually. Limitations of every
conceivable sort are crowded into these documents until
, , . , , i i • • • i T- FEWER
the legislature, the governor, the administrative depart- CONSTITU-
ments, and even the courts find themselves without suffi- TIONAL PRO-
cient elbowroom for the satisfactory performance of their EspE<^LIY
respective duties. Details of governmental organization, IN THE WAY
rules of procedure, and even the salaries of officials clutter OF LIMITA"
" ' . IIONS.
up the pages. A document which is supposed to bestow an
endowment of power is being transformed into a governmental strait-
jacket. The reconstruction of state government should begin, accordingly,
with the state constitution itself.
Constitution-makers should return to the true purpose and the proper
scope of a constitution, which is to set forth the basic principles and the
general organization of government, not to provide a code THE NEED OF
of laws. There is little need for this relentless piling on of A RETURN
limitations. Neither the liberty of the individual nor the PR^^'LES IN
welfare of the community demands it. The restrictions CONSTITU-
which stand in the federal Constitution are relatively few, TION-MAKING-
746 THE GOVERNMENT OF THE UNITED STATES
yet who will say that the rights of the citizen are less sufficiently guarded
there? Who will assert that the states, with their constitutions a hundred
pages long, have found in these highly elaborated documents a more
effective instrumentality of government?
The time has come, moreover, to resurvey the doctrine of checks and
balances in its practical workings. For three or four generations in
Q. LESS America, it was accounted political heresy to question the
REVERENCE infallibility of this dogma. It was reverenced as the very
f™,!!^ ™, cornerstone of the democratic edifice. To eliminate it
rOivMULA \JF
DIVISION OF seemed quite out of the question. One might as well move
POWERS. to repeaj the jaw Of gravitation. Today, however, this
attitude is visibly changing. The idea that ct power must be a check to
power" has been repudiated in several hundred American cities and is
being rudely assailed as an obstacle to efficient government in the states
as well. Especially in times of economic stress the people want action,
not deliberation. They have become impatient of the continual lack of
team-play between the two legislative chambers and between the legis-
lature and the executive. Public opinion is inclined to applaud any
executive who rides roughshod over checks and balances in order to
accomplish things.
A government organized upon the principle of divided responsibility
draws both strength and weakness therefrom. Division of powers makes
MERITS AND ^or safety. It provides the ship of state with watertight
DEFECTS OF compartments. When one compartment floods, the others
MULATrTrrs hold firm, keeping the craft afloat and on its course. So long
PRACTICAL as the balance of powers is preserved, no one branch of
APPLICATION, government can arrogate to itself any dangerous excess of
authority. But, on the other hand, the system of checks and balances
means that action will often be slow, indecisive, the result of com-
promises, and with no concentration of responsibility for what is done.
Moreover, this system of segregated authority impedes effective leader-
ship. The chief executive of the state cannot be sure of exercising a
dominant leadership because the legislature may, and often docs, refuse
to follow him. On the other hand, the legislature cannot produce its
own leader because the governor stands in the way.
The three prime essentials of effective government are responsibility,
harmony, and leadership. Is it wise to sacrifice all three in the interest of
keeping a government "safe" by precluding the concen-
ESSENTIALS tration of power anywhere? In the case of the national
government, that question quite properly received an
affirmative answer in 1787, for the federal Constitution represented a
REORGANIZATION OF STATE GOVERNMENT 747
novel and precarious experiment. The states were asked to give over
great powers, and they were wise in taking no chance that a despotic
exercise of this vast authority should some day dissipate all that the
Revolution had won. Hence, safety was the first consideration in plan-
ning the new national government. But time and circumstance have now
changed the situation. Rightly or wrongly the people seem to have lost
their fear of overpowering executives.
And in the case of the state governments, there never was an equally
strong reason for adopting a scheme of divided powers as a safeguard
against executive dictatorship or legislative tyranny. The
b . , ~ „ t IN STATE
national Constitution guarantees to every state a repub- GOVERNMENT
lican form of government," which means that the whole THE MERITS
iriTT.. MIT i i r» DISAPPEAR.
strength ol the Union is available to protect the people of
each state from any gross infringement of their liberties. So long as a
system of free government is maintained in the nation as a whole, the
danger of a permanent despotism in any state is rather fanciful. Accord-
ingly, it may be questioned whether the principle of divided powers ought
to be given full recognition in state government. Today it is probably
doing more harm than good. This is because the states AND THE
have pushed the principle of separated powers to an ex- DEFECTS ARE
treme, enforcing it not only as between the legislative, MAGNIFIED.
executive, and judicial organs of government but even within the
executive branch itself. In the national system, the President remains
the supreme administrative authority, sharing his powers with no one
else. But the state governor, as has been shown, occupies no such
position. He is frequently held responsible by the voters for the work of
state officials whom he does not appoint and whom he cannot remove.
It would appear, therefore, that a clean-cut division of powers is no
longer needed by the states in the interest of safety; that it impairs the
responsibility of state government to the people and
stands in the way of vigorous political leadership; that it
has been carried to an extreme in the decentralizing of
executive power; and that the states should seek a greater concentration
of political authority.
But by what type of organization might the present system be re-
placed? Two courses are open. The legislative branch of state government
might be restored to a position of supremacy and given full
control of the executive, or, as an alternative, the powers
of the executive might be so increased as to make the legis- POWERS BE
lature a subordinate branch of state government. The ABANDONED»
/* i • i T i « « • WHAT THEN.
former alternative would be in line with the practice of
748 THE GOVERNMENT OF THE UNITED STATES
responsible government in other countries. It would place the governor
in the position of a prime minister, dependent on the legislature for
continuance in office but, at the same time, vested with full responsibility
for legislative leadership. Such a plan, however, is not likely to find much
favor. It is out of keeping with American political traditions. The whole
development of state government during the past fifty years, moreover,
has been entirely in the other direction. The legislatures have nowhere
been increasing their control over the executive; they have been sinking
to a less dominant place in the active direction of public policy. Consti-
tutional amendments have been circumscribing the powers of state
legislatures while the progress of the executive branch to greater prestige
and power has gone steadily forward.
Hence, the executive branch of state government is nearly everywhere
more vigorous, more influential, and more secure in public confidence
today than it was a generation ago. It is unlikely that this
^ T,TTr,TrA movement can be halted and a march beoun in the opposite
Or PUBLIC* *-- * *
CONFIDENCE direction. Whatever the logic of the situation, one must face
IN LEGIS- tjlc fact tjiat a Distrust ;n thc capacity and in the integrity
of legislatures is prevalent in many quarters. Proposals to
widen the powers of the state legislature seem to find little support any-
where; while plans for expanding the powers of the governor seem to
command popular approval.
Note, for example, the way in which the movement for budget reform
is taking from the legislature its initiative in finance and giving this to
the executive, both in national and in state government. There arc
astonishingly few people (even among the legislators themselves) who
look upon the state legislature with undiluted admiration. This is partly
because so many low-voltage politicians manage to get themselves elected
to these bodies, and partly because the problems of state government
have become so exacting that they can no longer be competently handled
by unwieldy groups of lawmakers, no matter how competent the indi-
vidual members may be. Even if every Athenian citizen had been a
Socrates, the Athenian system of government by mass meeting could
never have been a real success.
Would the situation be improved by abolishing the bicameral system
SHOULD WE ancl replacing it with a one-house legislature of relatively
REDUCE THE small size? That is what Nebraska did in 1937. Comment
LA^R^T^A on ^1C nature °f this change and on the still somewhat ten-
SINGLE tative results have been made on a previous page.1 Un-
CHAMBER? doubtedly a single chamber concentrates responsibility for
* See p. 643.
THE
REORGANIZATION OF STATE GOVERNMENT 749
lawmaking and operates with greater speed. Possibly it will act with too
great speed and enact poorly conceived and ill-considered legislation:
but the governor's veto and sometimes the popular referendum provide
safeguards. Other states may follow Nebraska's lead although as yet
none of them has done so and our political traditions are all against it.
When a country has maintained any governmental institu-
tion for over a hundred and fifty years, the difficulties of ^nori,AOT1?c
' ' ' UrJb 1 AU.Llio.
abolishing it are by no means inconsiderable. Add to this
the fact that the rural areas have been able, in many cases, to secure
ovcrrepresentation under the two-house system and will resist an attempt
to make them give it up. Still, we have seen a lot of old American insti-
tutions go by the board during the past fifty years — the ward caucus
and the anti-third-tcrm tradition, the silk hat and the minstrel show, the
torchlight procession and the five-cent cigar, the livery stable and the
low tariff. Perhaps the next generation will sec the bicameral legislature
headed for the junk yard. But only a courageous man would venture to
predict that outcome.
But a more urgent problem in the government of the American states
than the status and powers of the governor or the size of the legislature
relates to the machinery by which the vast and varied
, . . . r i • i • • i rr^i • THE NEED
administrative work ot the state is being carried on. 1 his FOR ADMIN-
machincry, as has been shown, is extensive and complicated, ISIRATIVE
being composed of departments, boards, bureaus, sections
of bureaus, and offices by the score. It has been built up without plan or
set purpose. In scarcely a state of the Union does the scheme of admin-
istrative organization conform to the simplest requirements of unity and
cooperation. It embraces, for the most part, a group of disjointed author-
ities, with the lines of responsibility running in all directions, with powers
which are ill-defined and functions which overlap, and with almost no
means of working in unison. The situation in many states continues
today just as it was thirty years ago, when a distinguished New Yorker
spoke of the numberless "outlying administrative agencies, big and little,
lying around loose, accountable to nobody, spending all the money
they can get, and violating every principle of economy, of efficiency,
and of the proper transaction of business." 1 pR
The simplifying of state administrative machinery has AND PROG-
been repeatedly ureed by governors in all parts of the RESS IN THIS
i-ii i i rr,f . i DIRECTION
country during the last two decades. 1 heir annual messages DURING
have had more to say on this than on almost any other RECENT
T • i , ill • YEARS.
topic. Legislatures have responded by appointing com-
1 Speech of the Hon. Elihu Root in the New York Constitutional Convention of 1915.
750 THE GOVERNMENT OF THE UNITED STATES
mittees to study the question, but there the matter has too often ended.
THE OBSTA- One reason for this is to be found in the fact that projects
CLES WHICH Of administrative reform usually require changes in the
HAVE BEEN . . . . , . „ . . _ p
ENGOUN- state constitution, and it is dithcult to make the masses or
TERED: the voters understand so complicated a matter as a general
I. CONSTITU- . f. , . . . , .
TIONAL revamping ot administrative machinery.
BARRIERS. Apart from this difficulty, moreover, the legislatures have
been slow to act. Most legislators do not develop much enthusiasm over
any plan that proposes to abolish jobs, reduce the state pay roll, and
eliminate patronage. Opposition to the radical consolida-
2. OPPOSI- . r . . , . . rr . . , .
TION OF tion ol existing administrative departments comes also, and
STATE quite naturally, from the officials of these departments
themselves, a considerable proportion of whom arc, or have
been, prominent party leaders. Their influence with the legislature, when
they oppose reform unitedly, is very great; and, in many of the states,
it has proved to be the chief practical hindrance to any plan of admin-
istrative reconstruction.
Nevertheless, considerable activity in the direction of reorganizing
state administrative structures was witnessed during the period between
WHAT HAS *he two World Wars, more than half of the states having
BEEN ACCOM- undertaken to authorize changes cither by statute or by
PLISHED. constitutional amendment. These reorganizations varied
considerably in scope and effectiveness. Some of them, in fact, might
more properly be described as a reshuffling of administrative agencies
than a thorough overhauling of the whole administrative structure. In
every instance the professed aim was to consolidate existing agencies.
This has usually meant the abolition of some administrative units and
the transference of their activities to other agencies. It has also meant
that numerous boards and commissions, formerly independent, have
lost this independence, and that those in related fields of activity have
been merged into a single integrated department under an administrative
head directly responsible to the governor. Occasionally, where a board's
autonomy has been preserved because it performed quasi-judicial or
quasi-legislative functions, it has none the less been formally incorporated
into the structure of an administrative department for budgetary and
related purposes. Thus, administrative reorganization has sought, first,
the consolidation of functions; second, the concentration of supervisory
authority by substituting single commissioners for boards or commissions;
and third, the unifying of ultimate responsibility for state administration
in the hands of officials who are directly responsible to the governor.
Certain incidental features of the reform programs may also be men-
REORGANIZATION OF STATE GOVERNMENT 751
tioned. The governor's term has sometimes been lengthened from two to
four years, and the terms of all the principal administrative OTHER
officers have been made to correspond with it, thus avoiding VALUABLE
the difficulties caused when a governor comes into office REFORMS-
and finds that his chief subordinates are holdovers from a previous
administration. As a result of the lengthened term and the transfer of
many elective state offices to the appointive class, the ballot has been
appreciably shortened in some of the states. Perhaps most important of
all is the effort which has been made to improve administrative pro-
cedure, particularly in such matters as the awarding of contracts, the
purchase of supplies, and the keeping of accounts.
One should hasten to make clear that not all plans for state admin-
istrative reform have achieved conspicuous success. Some of them were
emasculated during their passage through the legislature. PROSPECTS
In a few states some of the reforms were definitely rejected FOR THE
through fear of unduly strengthening the governor's FUTURE-
authority to a point where the legislature's control over administration
might be impaired. Some real progress, however, has been made.
The ice of traditionalism has been broken, and there is little reason to
doubt that any of the states will permanently tolerate a network of
administration that shows itself unable to cope with the complex prob-
lems of a modern commonwealth. And, in any event, one should re-
member that machinery is not the only thing. The mechanics of state
administration are important, to be sure, for a badly designed setup can
often frustrate the best intentions of the best officials; but no admin-
istrative mechanism, however streamlined and perfected, can ever turn
corrupt or incompetent administrators into honest and efficient ones.
That ought to be a self-evident truth, but it is not. There are reformers
who still seem to believe that you can make a silken purse out of a sow's
ear.
The growing importance of administration in state government has
brought some other problems to the forefront. One of these is related to
the steadily increasing volume of rules, orders, and direc-
tives, which are fired, like shells from a bazooka, by the ™E PROBLEM
' Or ADMINIS—
various state administrative agencies to which the legis- TRATIVE
lature has given discretionary powers. To all intents and RULES AND
purposes, these rules and orders have the force of law. And
often they intimately concern the citizen's liberty or property. Yet they
emanate from so many agencies, and are often so inconsistent with one
another, that even when the citizen knows what the law is today, he can
never be sure what it is tomorrow. Even the agencies themselves do not
752 THE GOVERNMENT OF THE UNITED STATES
always have a complete and accessible record of what they have ordered
people to do. A similar difficulty was partly overcome by the national
government when it established the Federal Register in 1935. This official
publication incorporates every new federal administrative order, ruling,
or regulation. Taken with the Code of Federal Regulations, which contains
all the older regulations still in force, we now have an adequate and up-
to-date compendium of federal administrative law. The suggestion has
been made that each state adopt a similar plan, and two or three of them
have done so. Others provide for the prompt publication of some (but
not all) of their administrative orders, while still others issue periodical
summaries or digests. It would seem to be fairly arguable that when
administrative regulations have the force of law, they should be promul-
gated, published, and indexed, as laws arc. The old legal rule that
ignorance of the law never excuses a violation of it is still in force; hence
the citizen should have a reasonable opportunity of knowing what
regulations, with the force of law, he is expected to obey.
Various comprehensive plans for the entire reconstruction of state
government have been advocated from time to time by reform organiza-
THE Model tions. The most widely known is the plan set forth in the
State Con- Model State Constitution, published by the National Municipal
stitutwn. League. Four editions of this model constitution have been
published, the latest in 1941. Like the actual constitutions of existing
states, this model document grows longer with each revision, the latest
edition having one hundred and sixteen sections, whereas the previous
edition had ninety-five. It proposes a one-house legislature elected by a
system of proportional representation. A legislative council, consisting
of the governor and a few members of this one-house legislature, is to
assist the latter by collecting information, drafting proposed laws, and
making recommendations on any matter of state government. The
executive power is concentrated under this plan in a governor elected for
a four-year term. He becomes the responsible administrative head of the
state. All department heads are appointed by him and removable by
him at pleasure. Various agencies are set up to aid the governor in the
discharge of his duties, all of them directly responsible to him. A unified
state judiciary is recommended, with responsibility for the operation of
the courts vested in an elective chief justice, who is assisted by a judicial
council. Judges are nominated by this council, appointed by the chief
justice, and are then subject to recall by the voters, if the latter demand
it. Various other provisions relate to the governor's veto power, the
initiative and referendum, the budget, and municipal home rule. The
model constitution has been widely discussed, but no state has adopted
REORGANIZATION OF STATE GOVERNMENT 753
it as a whole; nor is any state likely to do so, for some of its provisions
represent a too radical departure from what we have come to look upon
as the American way of life as applied to state government.
Yet the developments of recent years have made the reconstruction
of state government more urgent than ever before. The economic depres-
sion of the 1930*5 brought with it a drop in state revenues WHY RECON.
through a reduction of property values and an increase in STRUGTION
tax delinquencies. On the other hand, the expenditures ^^^^
for relief underwent a great and necessary enlargement. MORE
This made it imperative to discontinue some existing state URGENT-
functions and often to reduce the salaries of those officials whose remu-
neration was not fixed by the state constitution. The war and its attendant
prosperity improved the financial position of the states, at least tempo-
rarily; but with the close of the war, there is bound to be some falling off
in revenues as well as an increase in expenditures for necessary public
works, which were held up by war-created shortages in material and
manpower. The postwar period will doubtless also bring increased state
outlays for the welfare of veterans, even though the federal government
boars most of this burden. Federal enterprises conducted during the
depression and war years, moreover, have encouraged the states to
extend their functions with respect to various branches of economic
activity by fixing maximum hours of labor and providing a minimum
wage, by prohibiting various unfair trade practices, and by embarking
upon various schemes of social insurance.
For this excursion into the domain of managed economic life, the
existing mechanism of state government is not well fitted, and the ur-
gency of a general overhauling has now become more widely recognized.
There is a prevailing belief, both among students of political science and
among experienced public administrators, that no mere patchwork
reform of state government will avail. If we are to have a steady expan-
sion of state supervision over many forms of private business, as seems to
be likely, the whole level of public administrative efficiency must be
raised. This will require a replanning which does not stop with the
administrative branch of state government but must be carried through
the entire structure.
But no attempt to raise public administrative efficiency can make
much headway unless a sincere and persistent effort is made to improve
the quality of the personnel in the public service. This may THE CON_
be stating a platitude, but the public mind does not seem to TINUED NEED
sense the fundamental truth that is contained in it. The FOR CIVIL
SERVICE
national government enacted its first civil service law (the REFORM.
754 THE GOVERNMENT OF THE UNITED STATES
Pendleton Act) in 1883. The states of New York and Massachusetts
adopted similar measures about the same time and, after the turn
of the century, a few other states, such as Wisconsin, New Jersey,
Colorado, Illinois, and California, did likewise. More recently some other
states have joined the procession. Nevertheless, more than sixty years
after the initiation of civil service reform in the United States, only about
twenty states have state- wide merit systems of appointment to positions
in the public service. A few others have applied the merit principle to
their welfare and social service departments in order to qualify for finan-
cial grants under the national Social Security Act. Elsewhere, the principle
of political preferment and the spoils system, in unadulterated form, con-
tinue to hold sway. Yet no one (other than the spoilsman himself) will
question the proposition that places on the state pay roll should be given
to those who can do their work competently, rather than to men and
women whose only qualification is the favor of some influential politi-
cian. The difficulty lies in transforming this proposition from an axiom
into an actuality.
The party system, as the mother of spoils and patronage, is a vital
factor in the actual workings of government and should never be left out
of account. Undeniably, it has been responsible for many
LESS HOS- . ,
TILITY TO administrative abuses. But why have we permitted these
THE PARTY abuses to develop at the hands of the party system? It is
SYSTEM
chiefly because the laws have either ignored political parties
altogether or have gone after them in a hostile spirit. Rarely have the
state laws been framed to recognize, improve, and encourage honest
party effort. Lawmakers have not appreciated the fact that political
parties are inevitable in a democracy and that the only choice is between
compelling them to be helpful or permitting them to be a hindrance.
The time has come, therefore, to make a truce with party ism, to take
it into camp as an ally of responsible government, to recognize, legalize,
PARTY R anc* intelligently encourage it. Constitutions and laws
GANIZATIONS should lend their assistance to the upbuilding of strong
SHOULD BE political parties with regularized organizations. These
ENCOURAGED, r . . 1,1111, • , r
NOT IGNORED organizations should be looked upon as integral factors
OR RE- jn actual government (which they are) and dealt with ac-
PRESSED. .. , ^ i i i i_ • i r
cordingly. I hey should be given the same measure 01
friendly consideration with respect to their proper and necessary func-
tions that is accorded to the labor organizations, for example. Constitu-
tions and laws should recognize that parties need leaders and ought
to be provided with a rightful way of choosing them. These posts of
leadership should be dignified, in keeping with the real power which
REORGANIZATION OF STATE GOVERNMENT 755
they represent, and not treated as representing a species of political
usurpation.
It is also time to recognize that party organizations (like labor organ-
izations) need money, and that they should be provided with convenient
and lawful means of obtaining it. In placing limits upon
, . ,. , • i r i i THEY SHOULD
their expenditures, we ought to recognize the fact that the ALSO BE
people like to sec a real campaign and that a real campaign GIVEN A
costs money, usually a good deal of it. In some of the larger CHANC^TO^
states there are two million voters or more. Suppose a po- RAISE AND
litical party spends only fifty cents per head (for newspaper ^E^
and billboard advertising, printing and mailing circulars,
holding meetings, radio broadcasting, and getting out the vote on elec-
tion day), it will have spent a million dollars. At once there will be
;:rics of slush fund, debauching the electorate, buying the governorship.
Vet how much educating of the whole people, whether on political issues
Dr in any other field of knowledge, is it possible to do on less than a half
dollar per capita? Placing an unreasonably drastic limit on campaign
expenditures merely encourages resort to evasions and subterfuges. The
money is spent all the same, but in ways which circumvent the letter of
the law.
Finally, no program of reconstruction will assure a lasting improve-
ment in the quality of state government if it begins and ends with laws
alone. The voter — not the constitution, the governor, the
legislature, the administrative system, the party, or the
boss — the voter is the fundamental fact in all democratic MENT OF
government. If you want to reconstruct and regenerate, ™£ ELEC"
you must begin with him. And the difficulty about recon-
structing a voter is that you have to begin with his grandfather, for
he has probably inherited his grandfather's political ideas, traditions,
whims, and prejudices.
Our reformers, it is to be feared, have been giving the people too many
peppered chocolates. Mechanical changes in government, including
the initiative and referendum, the recall, direct primaries, THE MERE
short ballots, single-chamber legislatures, legislative coun- RECONSTRUC-
cils, proportional representation, the merit system, admin- MACHINERY
istrative reorganization, tax limits, modern methods of WILL NOT
budget-making, city and county managers, and all the rest, AVAIL-
may be helpful as far as they go; but no one of them, or all of them put
together, will ever make a genuine democracy out of an indifferent or
loose-thinking electorate. The same is true of social and economic reforms
when inaugurated by legislative enactment. So long as the masses of the
756 THE GOVERNMENT OF THE UNITED STATES
voters remain befuddled as to the real issues at stake, so long as they are
unable to discriminate between everyday facts and Utopian futilities, so
long as they respond to every claptrap appeal that comes to them out of
the ether — just so long will we have government marked by confusion,
emotionalism, class warfare, and wastefulness.
A convenient formula for disposing of this fundamental problem is the
assurance that education can and will ultimately provide the remedy.
Perhaps it can and will, but as yet it has shown no convinc-
EPILOGUE. . mr ri. J-, t . ,,- r, 11
ing signs ot doing so. Education and clarity of thought do
not seem to be twin sisters, nor docs education necessarily render its
beneficiary impervious to political skulduggery. On the other hand,
we have by no means exhausted our possibilities in the way of civic en-
lightenment through agencies of public education. It is difficult to believe
that the schools and colleges of the United States cannot render a greater
service towards the upbuilding of a more sophisticated electorate. By
what processes of instruction can they most effectively do itp That is a
question for educators rather than for students of government.
REFERENCES
\
Problems connected with the reconstruction of state government are discussed
in the various textbooks which have been mentioned at the close of previous
chapters. J. M. Mathews, American State Government (revised edition, New York,
1934), contains an extensive list of references. Mention should also be made of
Charles G. and B. M. Haines, Principles and Problems of Government (New York,
'934)-
Volumes dealing more directly with various phases of the subject are: G. A.
Weber, Organized Efforts for the Improvement of Methods of Administration in the
United States (New York, 1919), A. E. Buck, The Reorganisation of State Govern-
ments in the United States (New York, 1938), Jane Perry Clark, The Rise of a New
Federalism; Federal-State Cooperation in the United States (New York, 1939), Leonard
D. White, Introduction to the Study of Public Administration (revised edition, New
York, 1939), W. E. Mosher and J. D. Kingsley, Public Personnel Administration
(revised edition, New York, 1941), George A. Graham, Education for Public
Administration (Princeton, 1941), and D. B. Trurnan, Administrative Decentraliza-
tion (Chicago, 1941). The report on State Planning' Programs and Accomplishments
issued by the National Resources Planning Committee (Washington, 1937)
contains useful information. Attention should likewise be called to the elaborate
report of the so-called Benjamin Commission on the problem of administrative
adjudication in New York entitled Administrative Adjudication in the State of New
York — a report to the Governor by Robert M. Benjamin, Commissioner; text
of the report is in Vol. I; supplementary reports are in Vols. II-VI (New York,
1942).
The Model State Constitution of the National Municipal League (4th edition,
New York, 1941) may be obtained from the League's headquarters in New
York City.
CHAPTER XL VI
THE GOVERNMENT OF CITIES
To make the city is what we are here for He who makes the city makes the world.
For whether our national life is great or mean depends on the city. — Henry Drummond.
Considerably more than half the people of the United States now live
in the cities and towns. Hence, it is in these urban communities that most
of the people's government is being carried on. The greater IMPORTANCE
part of the nation's leadership in business, in art and OF THE
literature, in science, in education, in philanthropy, and CITY*
even in statesmanship, comes from the cities. Most of the propaganda
for every cause or movement originates there. The influence of the city
upon the national life is far greater than the figures of urban population
imply. A nation is known by the cities that it builds.
The development of these urban communities has been the most
striking social phenomenon of the past hundred years. The United States,
111 1835, had only twenty places of eight thousand inhabit- A CENTURY
ants or more, and they contained less than seven per cent OF CITY
of the country's total population. In 1935, a century later, GROWTH-
there were over twelve hundred such communities and they contained
more people than were left in all the rural regions of the country put
together. During the next ten years a further migration from these rural
areas took place, especially into the centers of war industry. But whether
in war or in peace, there are no indications that the cities are likely to
stop growing. Depressions do not seem to be successful in sending the
people back to the farms. It seems probable, therefore, that the cities of
the United States will eventually contain three fourths of the national
population, perhaps more. This means that the problem of maintaining
high standards of city government is likely to become even more im-
portant and more difficult in the future than it has been in the past.
To govern a large city well is more difficult than to provide a rural
district with good administration. This is because the two areas are
different in many ways — in their social structure, their _,_ ^^^ A0
' ' I rlt, Lil 1 i Ao
point of view, and their problems. For one thing, the A SOCIAL
occupations of the people in a city are more diversified, with UNIT*
757
758 THE GOVERNMENT OF THE UNITED STATES
no bond of common vocation holding them together as in a rural com-
munity. Division of labor is carried to an extreme in the large cities,
TRAITS OF an<^ ^is high degree of specialization tends to narrow the
ITS POPU- horizon of the worker. It develops expertness in doing some
LATION. Qne thi^ with a dependence upon others for everything
else. The city dweller often looks for professional guidance in work and
play — even in politics. His life is so crowded with fleeting impressions
that it leaves little time for reflection. Agriculture, on the other hand,
is seasonal and its tempo is slower. Hence rural life may provide more
opportunity for leisure than urban life. Moreover the great cities — espe-
cially a metropolis like New York — contain large numbers of foreign-
born. Within the city's confines, they are inclined to settle in an area
with individuals of the same national origin, thus forming compact
communities in which the customs and even the speech of the country
of origin are preserved. To create fixed political traditions under such
conditions is difficult.
In many other respects, a city differs from a rural area of equal
population.1 It has a higher birth rate, a higher death rate, and a higher
OTHER ratio in the statistics of crime. Ifr has relatively fewer
URBAN illiterates, strange to sav, despite its larger proportion of
TRAITS aliens. The people of the city earn more per person and
spend more than those of rural sections. They preserve, as military
statistics have shown, a substantial equality with the rural population
in point of good physique and the absence of serious bodily defects. The
city, on the other hand, is a place where extremes meet. Wealth and
poverty, culture and ignorance, virtue and vice, are brought into close
proximity. There is an East Side and a West Side, only a few blocks
apart — but for all the one knows about the other, they might be in
different continents.
THE LEGAL POSITION OF CITIES
The city is a municipal corporation. As such it has some of the charac-
teristics of a private corporation, to which it is historically closely related.
But the resemblance to a private corporation should not be
THE CITY IS i r r i • • i •• ir
A PUBLIC pressed too far, for the municipal corporation is created for
CORPORA- public and not for private ends. Its aim is to provide for the
general welfare of the citizens, not to make profits and divi-
dends for stockholders. Moreover, since it is the creature of the state, it
1 Books which deal fully with this topic are J. G. Thompson, Urbanization (New York,
1927); Nels Anderson and E C. Lindeman, Urban Sociology (New York, 1928); M. R. Davie,
Problems oj City Life (New York, 1932), N P Gist and L. A. Halbert, Urban Society (New York,
1933); and Nilcs Carpenter, The Sociology oj City Lije (New York, 1932).
THE GOVERNMENT OF CITIES 759
enjoys none of the special protections which are vouchsafed to the prop-
erty and other rights of private corporations by the bills of rights of
national and state constitutions.
The basis of the city's legal existence and of its internal government is a
document known as the city charter. This document, as a rule, begins
with a statement of the city's boundaries and then declares ,,,„„ ^«Alsrron
' 1 titii dn AK. 1 rjK.
the city to be a municipal corporation with corporate AND WHAT
powers — the right to sue and be sued, to own property, IT CONTAINS-
to make contracts, etc. Next it stipulates what form of government
the city shall have. It describes the basic structure of this government,
lists the officers the city shall have, how they shall be chosen and for
how long, how they may be removed, and, sometimes, what salaries
shall be paid them. It sets forth, also, the powers and duties of
these various officials. Finally, there are many miscellaneous provisions
relating to such matters as awarding contracts, budget-making, auditing
accounts, and purchasing supplies. Some charters have provisions
relating to the initiative, referendum, and recall; a few provide for
proportional representation. A charter may contain only general pro-
visions or it may include a large mass of detail. The tendency, however,
is to make charters too long. And the more prolix a charter, the more
basis there is for controversies and litigation. The greater the elaboration
of details, the greater is the temptation to circumvent and evade.
All city charters emanate from the state legislature which, in the
absence of specific constitutional restrictions to the contrary, exercises
complete discretion in formulating this document. But
HOW
legislatures may be, and nowadays are, restricted by pro- CHARTERS
visions of the state constitution as to the degree in which ARE
, . ! . . 1-11 GRANTED.
they may exercise control over cities, and particularly as to
the manner in which city charters are granted. In some states, each city
receives from the legislature a special charter which may not resemble
that of any other city; in others, the same type of charter is granted to
all cities of approximately the same size; in still others, the legislature
provides several alternative charters and allows each city a choice among
these alternatives. In a fourth group of states, there has been what is
known as a home-rule charter system under which the legislature permits
each city (within certain limitations) to frame its own charter.
This home-rule charter system, which is now available either to some
or to all of the cities in seventeen states, deserves a word of explanation.1
1 For a complete discussion see Howard L. McBain, The Law and the Practice of Municipal
Home Rule (New York, 1916), which is supplemented by Joseph D. McGoldrick, The Law and
Practice of Municipal Home Rule, 1916—1930 (New York, 1933).
760 THE GOVERNMENT OF THE UNITED STATES
As its name implies, it is a plan whereby cities make their own charters
just as states make their own constitutions. Usually the drafting of the
home-rule charter is entrusted to a body of citizens known
RULEH°YSTEM as a board of freeholders or charter commission, elected by
popular vote. When the board has completed its work,
the charter is submitted to the people of the city at a general or special
election. If it is approved by a majority of the voters, it goes to the legis-
lature which gives the charter its final enactment.1 Individual amend-
ments to home-rule charters are ordinarily initiated by petition and
adopted by the voters in the same way.
In actual practice, however, the home-rule charter system does not
grant the city as much local freedom as this brief description might
indicate. The cities, in making their own charters, are
LIMITATIONS . r 7 7 J / • 1 \
OF THE restricted to matters of local concern and (quite properly)
HOME-RULE are not permitted to deal with matters of state-wide interest.
But what are matters of local concern? The line of demarca-
tion between municipal affairs on the one hand and matters of state-wide
importance on the other is not firmly fixed, and this gives rise to much
controversy. The courts, for example, have ruled that state affairs include
such matters as assessment, taxation, elections, police, licenses, education,
public health, and poor relief, which at first glance might be deemed to
be matters of municipal jurisdiction. The provisions of home-rule
charters must keep within the bounds of the general state laws on these
and many other matters. Municipal home rule does not mean, therefore,
that each city can set up a little rock-ribbed republic, but merely that it
may choose for itself the general outlines of its own government and that
it shall be free from state interference within that rather limited area
which is usually designated as the field of "strictly municipal affairs."
Notwithstanding these limitations, however, the home-rule charter
system has some tangible advantages. It relieves the legislature from
having to do with a multitude of local matters at everv
ITS MERITS. . ° .
session, thus affording more time for the consideration of
state-wide problems. Under the special charter system, it has been found
that municipal affairs frequently consume from one fifth to one fourth of
a legislature's time. The home-rule system also helps to divorce state from
municipal politics, and it has also proved an agency of political edu-
cation, encouraging the voters of the city to take an active interest in
1 In Arizona and Oklahoma, however, it goes first to the governor, who may withhold his
signature if he finds the charter in conflict with the state constitution or laws. In California,
it goes to the legislature, which may accept or reject a home-rule c harter, but may not alter it.
But neither governors nor legislatures are in the habit of interfering with home-rule charters
after they have been adopted by the people of the cities concerned.
THE GOVERNMENT OF CITIES 761
the form and functions of their local government. When things go wrong,
they cannot blame the state legislature, as they always do when there is
interference from outside. But its greatest advantage lies in the fact that,
under the home-rule plan, a city gets a frame of government which suits
its own special needs. It obtains the sort of charter its people desire, pro-
vided, of course, that their desires do not run counter to the general
interests of the state as a whole. Something may also be said for the
home-rule system as a promoter of new experiments in city government,
for it is only by giving new methods a trial that we can ascertain their
value.
Within the provisions of its charter, the American municipality exer-
cises' considerable autonomy. But to the extent that it is not restricted
by the constitution, the legislature of the state may, and
often does, pass laws relating to all cities or to individual TROJ.S
cities. At times there are differences of opinion as to whether EXERTED
^ r cci i 35 i-ii- OVER CITIES.
a matter is one oi local concern, over which the city
exercises full control, or whether it is one of "general concern" and,
hence, subject to the intervention of the state legislature. In such cases,
the courts arc called upon to settle the disagreement. Sometimes they
find this difficult to do, because the existence of numerous cities in the
same areas, with their boundaries touching one another, renders it
impractical to look upon each of them as miniature sovereignties.
Nevertheless, the American tradition is that local government should
be, in the main, government by the locality, and when there is doubt,
the courts have been disposed to give the city the benefit of it. In this
respect the American tradition differs from that which exists in the
countries of Continental Europe or even in Great Britain, where a great
deal of centralized administrative control is exerted over municipal
activities. In other words, the exercise of discretionary powers by a
municipality in those countries is more or less regularly subject to review
by some administrative branch of the central government. It is only right
to add, however, that this administrative supervision over municipal
affairs is also growing in the United States. A considerable variety of
municipal functions, for example, those relating to health, education,
welfare, public works, and the auditing of municipal accounts, are now
being subjected to the scrutiny or supervision of state administrative
agencies. And the likelihood is that this type of control will increase in
the future. It is part of a general tendency throughout the whole system
of American government.
In a strictly constitutional sense, the national government has nothing
to do with the administration of the cities, this being a matter which falls
762 THE GOVERNMENT OF THE UNITED STATES
exclusively within the province of the state governments. But recent
developments, arising particularly out of the economic depression of
CITIES AND tke ^S0'8? have brought about a good deal of informal
THE FEDERAL connection between the municipalities of the country and
GOVERNMENT. the gOVCrnmcnt at Washington. The latter has assisted
cities financially in slum clearance and low-cost housing projects, in
constructing public works, and in permitting them to borrow money
from federal agencies such as the reconstruction finance corporation.
The national government has also attempted to improve municipal credit
by appropriate bankruptcy legislation, which has enabled cities to make
terms with their creditors, and in a great variety of ways it has assisted
the cities in providing relief to citizens in distress. In these things; the
agencies of the national government have in some cases adopted the
practice of by-passing the states and dealing with the city authorities
directly, which is something that was not common in earlier days.
Various forms of government are established in cities by their charters,
but they may all be grouped under three headings: namely, the mayor-
ancl-council plan, the commission plan, and the city
manager plan. The first is the oldest It has existed in some
TYPES OF American cities ever since colonial days. Originally, the
C1^Y council consisted of two chambers, usually known as the
board of aldermen and the common council; but this bi-
cameral system has been generally abolished. In most of the larger and
medium-sized cities, this simplified mayor-and-council plan continues to
hold sway, while the other two types of municipal government have made
their chief progress in the smaller communities.
MAYOR-AND-COUNCIL GOVERNMENT
Mayor-and-council government is based, in a general way, on the
analogy of state and national government. A mayor, directly elected by
GENERAL tbe people, and a body of administrative heads perform
PRINCIPLES the executive functions of city government. They arc inde-
A\i>AYOR" pendent of the city council to the same extent that the
COUNCIL governor is independent of the state legislature. The council,
GOVERNMENT. ajso eiectecj ^y fa^. voters, is endowed with legislative, or
policy-determining, authority. It is supposed to have no executive func-
tions, but frequently has a share in deciding such matters as the granting
of franchises to public utility companies and occasionally it appoints
certain municipal officers such as the city clerk and treasurer.
Frequently a distinction is made between "weak" and "strong"
THE GOVERNMENT OF CITIES 763
mayor-council governments. The difference is largely one of degree.
The system is said to be "weak" if administration is de- «WEAK» AND
centralized and largely beyond the control of the mayor; "STRONG"
that is, if the heads of administrative agencies are largely TYPES-
elective; or if their appointment and removal by the mayor requires the
assent of the council; if the mayor lacks power to initiate budgetary and
fiscal policies; and if his veto power over the council is merely suspensory.
On the other hand, the system is said to be "strong" if the mayor is
legally the dominant, or tends to be the dominant, figure. His dominance
is distinguished by the fact that administration is centralized in various
department heads who are appointed by him, usually without council
confirmation, and who hold office during the mayor's pleasure. It is
distinguished further by the mayor's primary authority in financial
matters, especially with reference to the city's expenditures. Somewhat
over half of America's cities (urban centers having populations of five
thousand or more) have the mayor-council plan of government; and
many of these plans, probably a majority, would be classified as
"weak." The trend, however, has been towards the "strong" plan, with
increased power for the mayor. When city charters arc revised, the
tendency is still in that direction.
The mayor's term is either two or four years in most cities, the former
being customary in nearly all but the largest ones. Usually a mayor may
be chosen for a second term; but in a few cities this is not
j -ru re • 1 i • i r THE MAYOR-
permitted, ihe oriice carries a salary which varies Irom
a few hundred dollars in some of the smallest cities to twenty-five
thousand in New York. Elections are usually on a partisan basis, although
in some cities a nonpartisan ballot is used. The mayoralty of a large city
ought to be a stepping-stone to a higher office in the state or nation, but
rarely has it proved to be such. Relatively few mayors of large cities
have ever gone any higher in the political scale. New York City, for
example, has had some colorful mayors, but not one of them in more
than a hundred years succeeded in reaching the governor's post at
Albany.
According to the theory of the mayor-and-council plan, the mayor
has no share in legislation, that is, in making the city ordinances. But
he may send recommendations to the city council and may
veto any ordinance which he disapproves, hence his actual ^ RECOM.
influence upon municipal legislation is considerable. MENDATIONS
Recommendations to the city council are sent in written
communications which are read by the council's clerk and
then referred to the appropriate committees. Whether they will be
764 THE GOVERNMENT OF THE UNITED STATES
adopted depends to a large extent upon the political relations which
exist between the two branches of the city's government. The mayor is
usually a local party leader, and if his party controls a majority in the
council, the chances of favorable action by the latter are naturally much
greater than when the political situation is otherwise.
Most city charters operating under the mayor-council plan provide
that any ordinance or resolution which passes the city council shall
be sent to the mayor for his approval. If the mayor approves
2. THE VETO. i • • -r i i i
the measure, he signs it; 11 he does not approve, he may
return it unsigned within a designated number of days and state his
reasons for disapproval. The council may then pass the ordinance over
the mayor's disapproval, or veto, by a two-thirds vote. In a few cities the
requirement is a three-fourths vote. There is also, in most cases, a pro-
vision that if the mayor neither signs nor returns a proposed ordinance
within the prescribed time, it becomes valid without his signature. The
general resemblance between the veto power in federal and in municipal
government is thus plainly recognizable. Its merits and defects, more-
over, are pretty much the same in both these fields.1
The higher officials of city administration, such as the auditor, city
attorney, police commissioner, superintendent of* streets, together with
the members of the various boards and commissions, are
MEiJrePOINT" usually appointed by the mayor; but in many cities there
is a requirement that appointments made by the mayor to
these higher administrative positions must have the concurrence of the
city council (or the upper branch of that body) before they become valid.
This requirement of confirmation is another example of the influence of
the federal system upon local government. In the cities its merits are
open to question, for while the plan has at times served to prevent the
making of improper appointments, it has more often divided the re-
sponsibility between the mayor and the council to such an extent that
the people are not able to hold either of them to a strict accountability.
Accordingly, some of the larger communities (New York and Boston, for
example) have abolished the system of council confirmation. Others
(including Chicago, Philadelphia, St. Louis, and Los Angeles) retain it.
The President of the United States may remove national executive
officials without the consent of the Senate; but in this respect, with a few
notable exceptions, cities have not followed the national ex-
4. REMOVALS. ^
ample. In many instances, the city charters stipulate that
removals may not be made by the mayor unless the council concurs. Here
again an opportunity is afforded for the evasion of responsibility. It is
1 Sec pp.
THE GOVERNMENT OF CITIES 765
desirable that the power of removal should be vested in the mayor alone,
and some city charters have so arranged it. Where the appointments
have been made under civil service rules, however, it is proper to provide
that removals shall not be made except on definite charges and after a
public hearing.
Another group of mayoral powers relate to financial administration.
These powers differ greatly in extent from city to city, but the tendency
everywhere is towards their enlargement. In some cities, the
mayor is given the sole right to initiate proposals of expendi-
turc, the council being allowed to reduce any item in the
mayor's list of estimates but not to increase or to insert new items. And,
DII thfe whole, it seems desirable that the function of preparing the city's
annual budget should be given to the mayor, thus placing the onus for
extravagance in a definite spot — when extravagance occurs. When the
budget is prepared by the city council, every member is mainly con-
cerned with getting all he can get for his own ward or district. His chief
desire is to dip out as much gravy as he can without soiling the tablecloth.
Some miscellaneous powers also pertain to the mayor's office. He has
the right to investigate the work of the municipal departments; some-
times his approval is required when contracts for public
works arc awarded ; and not infrequently he has the powers
of a justice of the peace or local magistrate. The mayor
represents the city on all occasions of ceremony and ranks as the first
citizen of the community. Sometimes he may pardon offenders who are
convicted of violating municipal ordinances. Social duties, which are of
infinite variety, take a large share of his time and energy, so much so
that personal attention to the details of his official work has. become
exceedingly difficult in the larger cities. He is expected to receive and
welcome all distinguished visitors who come to the city; he is asked to
give an official greeting to conventions of every sort, to attend banquets
of the chamber of commerce, to lead the grand march at the Knights of
Columbus ball — his calendar each day is cluttered with such things.
Some years ago, the mayor of New York appointed an "official greeter,"
as he was popularly called, to take most of this job off his shoulders.
The mayor is assisted in his administrative work by various heads of
departments and boards. These are given immediate charge of such
activities as police and fire protection, streets, parks, water
r r . . THE HEADS
supply, and public health. For a long time it was customary Op CITY
to place a board at the head of each department. This was DEPART-
, , . ,. . . . , MENTS.
partly due to a prejudice against giving too much power
to any one officer, and partly because a board of three or five members
766 THE GOVERNMENT OF THE UNITED STATES
provided an opportunity to have both political parties represented on it,
But the bipartisan board rarely proved to be an efficient body, and it
has now been generally supplanted by a single commissioner. The board
system has some merits when applied to such departments as poor relief,
schools, city planning, or public libraries — in other words, where
deliberation and discussion are needed. But in other city departments
(such as police, fire, and health protection), where quickness of de-
cision and firmness in action arc essential, the board system is unsuit-
able and should give way to administration by a single head. These
heads of departments should be appointed by the mayor and removable
by him at will. They, in turn, should select their own subordinates and
assign duties to them under arrangements which will be explained in the
next chapter.
Then there is the city council. Originally, it was the chief governing
organ of the city, but it has long since lost this place. The council now
consists of a single chamber, except in a very few cities.
COUNCIL- T^ members are elected for terms of from one to four years.
The election is either by wards, or by the voters at large, or
ITS ORGAN- ky some combination of these two plans. Nominations are
usually made by means of a primary. In a few cities, the
members of the council are nominated by a petition and elected accord-
ing to a system of proportional representation.1
The relative merits of the ward and at-large methods of electing
councilors have been the theme of much controversy. The ward system
is the older plan and at one time was practically universal.
GENERAL ^ut ^ was rcgarclcd as responsible for the mediocre quality
TICKET of the men chosen to city councils, especially in the large
municipalities, and for the zeal with which every councilor
sought to obtain favors for his own district without much
regard for the interests of the city as a whole. The ward system has ac-
cordingly been supplanted in many cities by the plan of election at large.
The practical difficulty with this latter method, however, is that some
districts of the city are likely to be left unrepresented altogether. More-
over, if elections are conducted on a party basis, as is often the case, the
majority party will elect its entire slate of candidates, leaving the minor-
ity with no councilmen at all. A third objection is found in the time and
money which candidates must spend in making a city-wide campaign.
To overcome these practical objections, some cities have adopted a com-
bination of the two plans, electing one councilor from each ward and also
a designated number at large. If a city has nine wards and a council of
1 See p. 772.
THE GOVERNMENT OF CITIES 767
fifteen members, for example, each voter marks his ballot for seven
members, one to represent his own ward and six to be chosen at large.
This plan assures some geographical representation and some measure of
minority representation as well.
City councils hold regular meetings, usually once a week, and are gen-
erally empowered to select their own presiding officers. They also make
their own rules of procedure, which are similar to those used
i • i 11 •**• ^ PROCEDURE.
in state legislatures, although much less elaborate. Most of
a city council's work is done by committees, the members of which are
appointed by the presiding officer. These committees examine the various
matters which come before the council; they hold public hearings, and
make recommendations, which may or may not be accepted.
Chief among the functions of a city council is that of passing ordinances
or local laws. These ordinances relate to a wide variety of matters, the
protection of life and property, traffic in the streets, sanita-
u ixi_ i • u -u- i *.- ' ' i . FUNCTIONS
tion, health, housing, building regulations, zoning, weights OF THF CITY
and measures, billboards, places of amusement, etc. They COUNCIL:
must not, however, be inconsistent with the provisions of the l THE
city charter or any other state law.) Ordinances must be ENACTING
enacted with due regard for the prescribed formalities and OF ORDI"
must in most cases receive the approval of the mayor before
they go into effect. But when properly enacted they are enforceable by
the regular courts.
City councils also possess various powers in relation to local finance.
No taxes can be levied, no appropriations made, and no money borrowed
except with the council's approval. It is true that the nature 2 FINAN.
of taxes is determined by the state laws, but the city council CIAL AU-
fixes the tax rate by ordinance. The list of appropriations, THORITY-
too, is often prepared by the mayor, but no appropriation becomes effec-
tive until the city council has given its approval. Thus, it has the ultimate
budgeting power, subject to the mayor's veto. And in the matter of
municipal borrowing the council determines the amount, the term of
the loan, and the rate of interest to be paid. In many cities municipal
borrowing by the issue of bonds requires also a majority vote of the people
at the polls.
In most cities the council retains the power to grant franchises to
public service corporations such as lighting, telephone, and street railway
companies. In former times, it had complete authority over POWERS IN
such matters, but unfortunately abused its trust. Franchises RELATION TO
were often given for long periods, and sometimes in per- FRANCHISES-
petuity, without securing adequate compensation for the city. This was
768 THE GOVERNMENT OF THE UNITED STATES
done as the outcome of malodorous bargains between councilors and the
public utility owners. The state legislatures accordingly stepped in and
restricted the council's power by providing that no franchise may be
granted for more than a certain term of years and that all companies
which receive such privileges shall be subject to regulation by state
commissions.
Finally, a city council possesses some powers of a miscellaneous nature
which cannot be readily classified. They include such matters as author-
MISCEL- izing the purchase of land for public buildings, deciding the
LANEOUS location and naming of new strebt^, the approval of certain
POWERS. important contracts, the adjustment of- salaries and pensions
for public officials, the fixing of water rates, and the acceptance OP rejec-
tion of permissive state legislation, in other words, of laws which are
passed by the legislature with a provision that they will go into effect
in any city when the city council accepts them.
This brief survey of the council's powers may seem to indicate that they
are of considerable scope, but they are not so important in actuality
as they appear on paper. The council continues to be the
TH^CITY chief legislative organ. of the city; but municipal government
COUNCIL IN is not largely a matter of legislation. It has become, lor the
AMERICAN most part, administrative in character. Building arid repair-
ing streets, providing police and fire protection, erecting
public works, guarding the public health, providing public recreation,
supplying water, relieving the unemployed — these are the chief func-
tions of city government today. As previously indicated, the drift of
municipal development in the mayor-and-council cities, therefore, is to-
wards a subordination of the legislative to the administrative branch
of the government. City councils have become less consequential, while
the mayor and the heads of departments have been steadily gaining in
power.
The chief defect of the mayor-and-council type of city government,
surveying it as a whole, has been its emphasis upon the principle of
checks and balances. This has divided authority between
l^e two branches of local government. The endeavor to
THE AMERI- model the political organization of the city upon that of the
DA? !!^™~ federal government was unwise in its day, and has proved
PAL SYSIIiM. • ' *
to be unfortunate in its consequences. It has resulted in
placing upon the cities a governmental mechanism which is clumsy and
slow moving, productive of needless friction, and ill-adapted for the work
which a modern city is expected to do for its people. What a city requires'
nowadays is a simple framework of government that will enable it to do
THE GOVERNMENT OF CITIES 769
business as business is done in a twentieth-century world, which means
that the power of quick decision must be given to one man or one body
of men and not divided between them. Some cities have been trying to
gain this end by abolishing the mayor-and-council plan, replacing it
with another type of government which provides for a better concentra-
tion of power and responsibility. This is known as the commission plan.
THE COMMISSION PLAN
The commission plan of city government originated in Galveston
about forty-five years ago. As the result of inundation by a tidal wave,
which destroyed a great deal of municipal property and left
thousands of the citizens unable to pay their taxes, Galveston
was forced to the verge of bankruptcy. In this emergency,
the Texas legislature passed a law abolishing the existing mayor-and-
council government and set up a small commission of five members
in its place. To the commission was given all legislative and executive
authority combined. No one anticipated that the new plan of government
would be permanent. It was regarded as a sort of municipal receivership.
But it proved so successful in its restoration of the city that it has been
retained there ever since. Meanwhile, many other cities, in various parts
of the country, took their cue from Galveston and set up municipal gov-
ernments of the commission type. Most of these, however, are relatively
small communities, although the list also includes a number of large
ones, notably New Orleans, Jersey City, Newark, St. Paul, Birmingham,
Omaha, and Portland (Oregon).
The essential feature of the commission plan is a board of five commis-
sioners chosen by the people. The commissioners are elected at large for
a term of two or four years and are usually paid for their
~ r . ' . . , . ESSENTIAL
services. One of the nve commissioners serves as chairman FEATURES OF
of the commission and is customarily given the title of chair- THE COMMIS-
i A J- . .1 • • 1 • • 1 SION PLAN.
man or mayor.1 According to the original commission plan,
the chairman or mayor was given no veto power and no authority to
make appointments; his duties were to preside at meetings of the commis
sion and to keep an eye on the general course of the administration,
nothing more. This arrangement has not been strictly followed by other
cities, some of which give the mayor additional powers.
In any event, each commissioner (usually including the mayor) takes
• * It was originally intended that the commissioners, after their election, should choose one
ot their own members as chairman or mayor. The more common practice now is to have the
people choose the mayor directly.
770 THE GOVERNMENT OF THE UNITED STATES
charge of a group of administrative functions. As there are only five
commissioners, there can be only five departments or groups
HOW ADMIN- J r i • 1
ISTRAHVE of departments, no matter how numerous and varied the
WORK is city administrative activities may be. The usual grouping
is somewhat as follows: public works, public health, public
safety, and two other groups which may be either accounts and finance,
public affairs, public property, public utilities, or public welfare. Various
combinations of functions are possible. The apportionment of duties
among the commissioners maybe done in any one of three ways: namely,
by the direct election of commissioners to specific commissionerships, by
vote of the commission, or by the mayor. The second plan is the one most
commonly used.
What are the advantages and disadvantages of this system? The most
obvious merit of the commission plan is its simplicity. It eliminates the
diffusion of power and responsibility which the mayor-and-
council type of city government has often carried to an
absurd extreme. There is but one governing authority —
the commission; all municipal powers are exercised by it alone.1 That,
of course, has enabled the commission to set ne\v standards of harmony,
promptness, and publicity in municipal business. A very sagacious man
once said that "in a multitude of counsellors there is wisdom"; but it
was not city councilors that he had in mind. A multitude of councilors
and other officials, each sharing in the determination of municipal
policy, is a far better guarantee of bickerings and inaction than of collec-
tive wisdom. Five men can work in harmony where fifty cannot. And it
is easier to get better men into posts of responsibility when the number
of elective offices is reduced to a very few.
On the other hand, the commission plan has disclosed some serious
defects, and it is because of these that few converts to the plan have been
made in recent years. A body of five commissioners, it has
been found, is too small to be adequately representative
as a municipal legislature. Moreover, it is too large to be
efficient as a municipal executive. In trying to be both it sometimes suc-
ceeds in being neither. It is a five-headed executive, a pyramid without
an apex. Hence, it has the customary handicap of board government in
that it tends to become a house divided within itself. Plural executives
rarely give satisfaction; they have shown their weakness in county gov-
ernment everywhere.
Another practical objection to the commission plan is that it discour-
1 An exception is usually made in the case of schools, which remain in the hands of a separate
board.
THE GOVERNMENT OF CITIES 771
ages the placing of capable and experienced officials at the head of the
various city departments. Each commissioner, as has been said, insists on
assuming direct responsibility for a share of the city's administrative
work. Just why a commissioner, who is almost always an amateur and
unversed in administration, should do this is somewhat difficult to
fathom. In England, where nominal responsibility for the discharge of
administrative functions is regularly confided to amateur committees of
the borough council, the councilmen rarely if ever seek to discharge th^
responsibility directly. They hire administrative experts for this work
and merely exert general supervision. One reason, perhaps, is that the
average American still feels that public administration is an art which
any able-bodied citizen can quickly master. This notion harks back to
the days of Andrew Jackson and his policy of rotation in office; but in
spite of a century of experience to the contrary, it is still difficult to make
the mass of the voters believe that specialized administrative competence
does not always, or even usually, go with vote-getting ability.
There is another reason. Most commission-governed cities cannot
afford to pay two salaries for the same work, one salary to an elective
commissioner of public health, for example, and another to a qualified
health expert. Members of the commission, accordingly, are tempted to
go beyond their depth and handle health problems which are beyond the
competence of laymen. No one can be divested of his strictly amateur
status by merely calling him commissioner of public works, or giving him
some such high-sounding title. There is no reason, of course, why the
pursuit of any honest occupation should debar a man from service as a
representative, but to be a successful administrator in the technical branches
of municipal business (such as water supply or street construction), one
must possess something more than common honesty and good intentions.
In view of the organic shortcomings which the commission plan has
disclosed in actual operation, it is unlikely that American cities, especially
the larger ones, will find emancipation from their difficulties
i i • • AT II • • -11 J i 1 THE FUTURE
by adopting it. Many small communities will doubtless Op THE COM-
retain it, but such places can get along with any form of MISSION
...... i A ii ... PLAN.
government provided it is simple. Among the larger cities it
is not probable that the commission form of government will do more
than hold its own. For it is weak at the very point where government
must be strong in order to help solve those complicated problems which
confront the larger urban communities of today. Let it not be concluded
from this, however, that the commission movement has failed to render
a great service to the cause of better municipal government. Its rise
embodied a protest against an old order, and compelled American cities,
772 THE GOVERNMENT OF THE UNITED STATES
both big and little, to clean house. It set things going in the right direc-
tion, and they are still headed that way.
THE CITY MANAGER PLAN
The two fundamental defects of commission government, as indicated
in the foregoing paragraphs (namely, its failure to make provision for a
A NEWER unified central control over the entire administrative work
DEVELOP- of the city, and its practice of putting the various city
MENT- departments under the supervision of men who have no
technical qualifications), made it necessary to devise some arrangement
which would overcome this inherent weakness. So municipal reformers
turned to the analogy of the business corporation and decided that in-
stead of having the five commissioners divide the work of administration
among themselves, they ought to "hire a manager" to do it for them,
just as the directors of a railroad or factory arc in the habit of doing. In
that way the city government would be able to unify its administrative
functions without having any division of ultimate authority. The com-
mission (or city council) would retain final power in all things, but it
would delegate all administrative responsibility tp a manager, chosen by
itself and acting as its agent.
The first large city to try the manager plan was Dayton, Ohio, which
inaugurated the new system in 1914. Presently it spread to other cities
irs ORIGIN and, after a lapse of thirty years, the plan seems to have lost
AND little of its popularity. True, Cleveland, Ohio, the largest
SPREAD. manager-governed city, abandoned the plan after a trial of
about a decade; and two dozen or so smaller communities have likewise
discontinued the plan. But new converts are being added to the j\st of
manager-governed cities, which now totals more than five hundred
communities. Most of these, it is true, are cities of less than ten thousand
people; nevertheless, the list includes a number of large urban centers
such as Cincinnati, Kansas City, Rochester, Toledo, Miami, Oakland,
Fort Worth, Dallas, Cambridge, Dayton, Yonkers, Grand Rapids, and
San Diego.1
What are the outstanding features of the manager plan? First, there is
ITS ESSENTIAL a commissi°n or council, usually consisting of from five to
FEATURES. nine members, elected by the voters of the city, sometimes
THE COUNCIL. ^ a system of proportional representation.2 This constitutes
1 Discussions of the city manager plan, with references to additional material, may be found
in the books which are listed at the close of this chapter.
2 This system may be explained as iollows: the names of all candidates are printed alpha
betically on the ballot and the voter indicates his choices by marking the figure i after the name
THE GOVERNMENT OF CITIES 773
a "policy-determining body." It enacts the ordinances, makes the ap-
propriations, authorizes borrowing, grants franchises, and decides all
general questions. But it does not assume any direct share in the adminis-
trative work of government. Instead it appoints an official known as the
city manager and devolves this work upon him. In other words, the
council hires a general manager for the municipal corporation.
The functions of the city manager may be grouped under four heads.
First, he is the council's advisory expert on all questions of municipal
policy. He attends its meetings, takes part in the discussions FUNCTIONS
(but does not vote), and provides the commissioners with OF THE cnv
such data as they may need for reaching decisions. He is the MANAGER-
connecting link between the legislative and administrative departments
of the city government. Second, the city manager is the council's agent
for enforcing the ordinances and carrying its votes into effect. In this
respect he inherits a function which belongs to the mayor in the mayor-
and-council cities. Third, he has the right to appoint and remove all
municipal officials,1 subject, of course, to the civil service regulations
wherever these are in operation. These regulations usually give the city
manager a free hand in selecting the heads of the various departments
(such as streets, parks, police, etc.) but require that appointees to all
subordinate positions shall be taken from the lists supplied by the civil
service board. Subject to the same restrictions, he has the right to suspend
or to remove appointive officials. Fourth, the city manager takes general
responsibility for the conduct of the city's business in all its branches. It
is his duty to instruct the heads of departments, to secure a proper inter-
lacing of their functions, to investigate complaints concerning their work,
and to compose any differences which may arise among them.
The city manager is chosen for no definite term. He may be 'dismissed
of his first choice, the figure 2 after the name of his second choice, etc. Then, when the polls
arc closed, the election officers compute the number of votes needed to elect a candidate and
this is called "the quota." This they do by dividing the total number of votes cast by the num-
ber of places to be filled, plus one, and then adding one to the quotient. For example, let us
suppose that 10,000 votes have been cast and that there arc seven candidates to be elected
Ten thousand divided by eight (seven plus one) is 1,250, and any candidate who receives
1,251 first choice votes is declared elected. If such candidate, however, has more votes than
enough to fill his quota, the surplus votes are distributed in accordance with the indicated
second choices among candidates whose quotas have not been filled If enough candidates
are not elected by this process, the candidate with the smallest number of first choices is then
dropped and his votes arc distributed in the same way This process of elimination and distri-
bution goes on until enough candidates have filled their quotas or until the successive elimina-
tions have left no more than enough to fill the vacant positions. For an exhaustive explana-
tion sec C. G. Hoag and G. H. Hallett, Proportional Representation (revised edition, New Yoik,
1940).
1 The city auditor or controller, the city attorney, and sometimes the city clerk are usually
cxcepted from this rule.
774 THE GOVERNMENT OF THE UNITED STATES
by the council or commission at any time. He need not be, at the time
of his appointment, a resident of the city, and it has been
SALARY, quite common for cities to bring in an outside man. He is
AND QUALI- paid a good salary, gives all his time to his job, and is as-
FIGATIONS. , . • i • • • i 111- i
sumed to be secure in his position so long as he does his work
acceptably. Members of the council are forbidden to interfere with him
in the performance of his administrative work. The manager prepares
the city budget and submits it to the council, which may change it at
will. But once having adopted a budget, the council has nothing to do
with the spending of the money. That comes wholly within the mana-
ger's jurisdiction.
On paper, this seems to be an admirable plan, sound in its conception
and free from the obvious shortcomings which characterize the two
other types of municipal government. How has it fared in
THE PLAN actual operation? Unquestionably it has helped to unify
administrative work and eliminate friction among the vari-
ous departments. It has_j2road£ned--fche field from which the city may
choose its Administrative talent. It has paved the way for the introduc-
tion of better budget-making methods in the smaller cities, as well as
for improved accounting, the centralized purchasing of supplies, and the
honest awarding of contracts. Floating debts have been wiped out in
many cities and expenditures kept within the appropriations. There has
been a noticeable improvement in administrative routine, in the methods
of reckoning unit costs, and in the fixing of regular salary schedules for
city employees. The managep-plan has relieved the councilmen from the
necessity of dealing with innumerable minor problems and has thus en-
abled them to concentrate^ their attention upon the larger problems of
municipal policy.^.
On the other hand, the adoption of the city manager plan has not
always enabled cities to lower their tax rates, or to make any appreciable
WHAT IT reduction in annual expenditures, or to cut down their
HAS FAILED bonded indebtedness. It has accomplished some of these
ro DO. things in individual cities, but not in general. It has not
always eliminated the evil of deficits at the end of the fiscal year. The
manager plan has helped to raise the standards of integrity and com-
petence in municipal administration, but it has not been able to remove
political pressure from the work of the city departments. In gen-
eral, it has given new proof to the old axiom that the people of a city
will get no better government than they insist on getting.
One thing has become plain enough: namely, that the city managers
are themselves the biggest factors in determining the ultimate success
THE GOVERNMENT OF CITIES 775
or failure of the plan. The theory is that a nonresident ought to be
chosen without hesitation if he seems to be the best man in sight; like-
wise that he shall be paid a salary in keeping with his at-
THE MOST IM-
tainments, and that when installed in office, he shall be left PORTANT
there so long as his work proves satisfactory. Those ideals FACTOR IN
are certainly the right ones, but they are not always lived ^c^oRC
up to. One finds, here and there, an insistence that the city FAILURE is
manager shall be a local man. "one who knows local condi- THEMANAGER
5 . ' HIMSELF.
tions," not an outsider who will have to learn his way around.
This insistence upon a local man, if it becomes general, will ultimately
mean the selection of some local politician who is influential enough to
get a majority of the council pledged to him. If the people
will tolerate it, politicians will electioneer for the office of SERIOUS
city manager as they have electioneered for the office of DANGER
i .,1 -i-ii !• - i i • i WHICH THE
mayor; they will organize, build up political machines, and CITY MAN-
endeavor to see that men of independent attitude are not AGER PLAN
elected to the council. From pledged-in-advance councilmen
it would not be a long step to the direct election of city managers by the
people. Then we would have managers of the mayoral type under a dif-
ferent name.
So the greatest problem of city manager government is to get the right
manager. And no city can solve this problem unless it is prepared to pay
the price. It must pay a higher salary than it was accus- FINDING THE
tomed to pay its mayor, but local sentiment often recoils RIGHT
from doing this. A business finds it worth while to pay MANAGER-
twenty or thirty thousand dollars per year in order to get the right man-
ager; but the people of the city balk at doing anything of the sort. Councils
do not dare to bid high because there are many voters to whom twenty
or even ten thousand dollars looks more like a fortune than a salary.
The average voter thinks of the city manager in terms of work rather than
in terms of responsibility. The position looks to him like a soft job, with
short hours and plenty of help.
As a matter of fact, it is everything but that. The successful city man-
ager must not only be well versed in the technical phases of city adminis-
tration; he must have energy, good judgment, and ability
to get along with his subordinates. He must hold the confi- ™^ NEEDED
dence of the city council in order to retain his job, which
means that he must not make mistakes which recoil on the council-
men. If he does, they get rid of him; and the ratio of official mortality
among city managers has been high. Many of them have been unable to
stay in office more than four or five years. The manager
776 THE GOVERNMENT OF THE UNITED STATES
how to deal with the press, the public, the city employees, and the local
politicians. In a word, he needs the wisdom of Solomon, the statesman-
ship of Moses, the patience of Job, the courage of Daniel, and the hide of
a rhinoceros.
But men possessing these qualities are not plentiful and their services
are rarely to be had for the salaries that attract politicians. Most of the
WHERE CITY c*ty managers now m office have been drawn from the engi-
MANAGERS ncering profession, and naturally so, because the physical
COME FROM. enterprises (streets, parks, water supply, sewerage, public
lighting, etc.) bulk large in city administration. But competent engineers
are not always proficient in their grasp of the city's legal, financial, and
social problems. One sometimes hears the criticism that most city man-
agers turn out to be engineering technicians rather than all-around
administrators. If this criticism is well founded, it points to the fact that
there has been no form of professional training available for city man-
agers. There has been no place where a man could get a combined educa-
tion in engineering, municipal law, budget-making, social welfare, and
practical politics. Such a training could readily be provided by most
American universities, but they are reluctant to encourage young men to
prepare for this profession until they are sure that a city managership is
not merely a brief interlude between appointment and dismissal.
One serious defect of the city manager plan is that it makes no provi-
sion for authoritative political leadership. The city manager is supposed
THE ouEsnoN to ta^e no hanc^ m local politics. The council has a chairman
OF POLITICAL (sometimes called a mayor), but he is not vested with the
LEADERSHIP. function of political leadership. Yet leadership there must
be, and if it is not provided from inside the frame of government it will
arise from outside. City government is not merely business; it is also
philanthropy, human relations, and politics too. You cannot keep politics
entirely out of any form of government except a despotism. Problems
which are tinged with politics will come to the city manager's desk,
whether he wants them there or not. He cannot wholly disregard the
political bearings of the recommendations which he makes to the city
council. For if he does, the councilmcn will soon find him an embarrass-
ment. On the other hand, if he takes politics into account he becomes,
sooner or later, something of a politician himself and he usually turns
out to be a poor one, fitted for the role by neither temperament nor
training.
Yet when all has been said, pro and con, it cannot be denied that the
city manager plan has great merits and has been a boon to most of the '
cities that have tried it. It does not guarantee efficient administration,
THE GOVERNMENT OF CITIES 777
of course, but to a larger extent than any other plan it facilitates that
kind of administration. Cities should bear in mind that the manager,
however competent, is only half the governmental setup. The THE CREDIT
council is the other half, or more than half, for the ultimate SIDE OF
power rests in its hands. With a partisan, small-minded* THE LEDGER-
3elf-seeking, spoils-grabbing set of councilmen, no city manager can
instill much real efficiency into the city's administration. The voters
must do their part at the council elections in order to make the plan
succeed.
The preceding pages have indicated that the past half century has
witnessed an amazing amount of experimentation in the structure and
methods of municipal government in the United States.
. t i ,. CONCLUSION.
Mayor-council governments have in many cases been modi-
fied to strengthen the mayor and to centralize administration. In many
instances, this form of government has been supplanted by the commis-
sion plan, while both mayor-council and commission plans have in many
instances given way to the manager plan. On the whole, the effect of this
experimentation has been good, although people have sometimes been
persuaded into the belief that if one brand of city government were only
replaced by a different one, the political millennium would begin to dawn.
Reformers have too often led them to expect that, with the advent of the
new setup, tax rates would drop, the budget would be balanced, the
city debt would be reduced, corruption even in its subtler forms would
vanish, political bossism would shrivel before the blasts of civic virtue,
incompetence among public officials would disappear, and local democ-
racy in its noblest and purest form would come into its own. Then, when
the Utopia failed to materialize, there has been disappointment and
chagrin. On the other hand, those cities which set a curb on their initial
enthusiasm have in most cases achieved from their new municipal re-
gimes most of what they had hoped for. At any rate, the past fifty years
have seen a renaissance of civic interest in the United States. Standards of
municipal government are everywhere higher than they were a half
century ago. To be sure, much remains to be done, but no longer would
any distinguished foreign student of the American political scene have
the hardihood to designate the government of cities a "conspicuous
failure" in the United States, as Lord Bryce did in his notable book on
The American Commonwealth sixty years ago. Nor would a volume on
The Shame of the Cities by an American author be able to incorporate in its
chapters today much of the shamefulness that was §Q> freely at the muck-
raker's disposal when the present century was young.
The problem of governing metropolitan communities has become one
778 THE GOVERNMENT OF THE UNITED STATES
of great difficulty during the past fifty years. With improved methods of
vfETROPOLi- transportation each large city has developed an encircling
FAN GOVERN- ring of satellite communities outside its own municipal
^ENT- boundaries. These outlying municipalities have their own
systems of local government, each independent of the others; neverthe-
less, the whole region forms a single metropolitan area as regards its
problems of city planning, transportation, water supply, and business
integration. In some cases, the solution has been sought by the outright
annexation of these satellites; in other instances, the attempt has been
made to work out some sort of federal organization which would cen-
tralize control over metropolitan services while leaving the individual
units a certain amount of local autonomy. The latter plan has not proved
very practicable in the United States, although some European cities,
motably London, have found it advantageous.1 Still another solution
occasionally applied has been to establish special districts embracing
the entire metropolitan area for the administration of some specific func-
tion, such as water supply or the establishment and maintenance of
Darks and recreational facilities. One objection to this plan is that it
nvolves a further division of governmental responsibilities and adds
>ome new public authorities for the voter to watch.
REFERENCES
General surveys of American city government may be found in Thomas H.
R.eed, Municipal Government in the United States (revised edition, New York, 1934),
Uharles M. Kneier, City Government in the United States (New York, 1934), Austin
F. Macdonald, American City Government and Administration (revised edition, New
ifork, 1941), C. C. Maxey, Urban Democracy (New York, 1929), William B.
Vlunro, The Government of American Cities (4th edition, New York, 1926), William
\nderson, American City Government (New York, 1925), and Harold Zink,
Government of Cities in the United States (New York, 1939). Early municipal history
s outlined in E. S. Griffith, History of American City Government: The Colonial Period
^New York, 1938). In each of these books will be found lists of references relat-
ng to such topics as the history of American city government, the social structure
>f the urban community, state control over cities, municipal home rule, city
:harters, the legal powers and obligations of cities, the forms of city government,
md proposals for municipal reconstruction.
The following volumes touch upon the physical and social as well as the gov-
ernmental problems of cities: Earl E. Muntz, Urban Sociology (New York, 1938),
5. A. Queen and L. F. Thomas, The City: A Study of Urbamsm in the United States
]New York, 1939), Elliel'Saarinen, The City: Its Growth, Its Decay, Its Future
* For a full discussion see Thomas H. Reed, Municipal Government in the United States (re-
dsed edition, New York, 1934), Chap, xxii, Paul Studenski, The Government of Metropol\tan «
ireas (New York, 1930), and V. Jones, Metropolitan Government (Chicago, 1942). The related
>roblem of metropolitan counties is touched upon in the present volume, see p. 809.
THE GOVERNMENT OF CITIES 779
(New York, 1943), E. L. Thorndike, Tour City (New York, 1939), Jose L. Sert,
Can Our Cities Survive? (Cambridge, Mass., 1942), D. W. Hoan, City Government,
the Record of the Milwaukee Experiment (New York, 1936), and Arthur Pound,
Detroit: Dynamic City (New York, 1940). Mention should also be made of the
publications entitled Our Cities: Their Role in the National Economy (1937) and
Urban Government (1939) issued by the National Resources Committee in Wash-
ington.
The legal relations of cities with the state and nation are treated in A. Le-
pawsky, Home Rule for Metropolitan Chicago (Chicago, 1935), P. V. Betters (editor),
Recent Federal-City Relations (Washington, 1936), H. P. Horlacher and J. C.
Phillips, City-State Relations (Philadelphia, 1937), and Schuyler Wallace, State
Administrative Supervision over Cities in the United States (New York, 1928).
There is a long list of monographs dealing with the city manager form of
government. Among them are Harold A. Stone and others, City Manager Govern-
ment in the United States (Chicago, 1940), Charles P. Taft, City Management;
the Cincinnati Experiment (New York, 1933), Frederick C. Mosher, City Manager
Government in Rochester (Chicago, 1940), Andrew G. Miller, City Manager Govern-
ment in Long Beach (Chicago, 1940), Arthur Harris, City Manager Government in
Berkeley (Chicago, 1940), Edward P. Dow and Orren C. Hormell, City Manager
Government in Portland, Maine (Orono, Me., 1940), and Arthur W. Bromage,
Manager Plan Abandonments (New York, 1940). The commission plan of city
government is discussed in C. R. Woodruff (editor), City Government by Com-
mission (New York, 1911).
The problem of metropolitan areas is discussed in Paul Studenski (editor),
The Government oj Metropolitan Areas in the United States (New York, 1930), and
Victor Jones, Metropolitan Government (Chicago, 1942).
Attention should also be called to the Model City Charter prepared under the
sponsorship of the National Municipal League in New York City. A monthly
publication, the National Municipal Review, official organ of the League, contains
information on current problems of city government. Also valuable is the
Municipal Yearbook of the International City Managers' Association, edited by
Clarence E. Ridley and Orin F. Nolting, published in Chicago.
See also the references at the close of the next chapter.
CHAPTER XLVI1
MUNICIPAL ADMINISTRATION
In many of its more important aspects a city is not so much a miniature state as it is
a business corporation, its business being to wisely administer the local aifairs and
economically spend the revenue of an incorporated community. As we learn thisr lesson
and apply business methods to municipal affairs, we are on the right road to better and
more satisfactory results — John F Dillon
At the close of each year, the city authorities issue a printed volume,
its pages well packed with figures. This is called the annual report; it
GOVERNMENT contains a statement of revenues and expenditures, a
OR BUSINESS summary of what each department has done during the
WHICH is ir? ycar5 anci a great many other facts about the work of the
city officials. Very few people ever read these annual reports, and not
many would understand them if they did. But any thoughtful man or
woman who takes the trouble to look through one of these publications
is tempted to ask: why do they call such things government? Here is an
account of how streets have been paved, water distributed to the people,
public buildings constructed, property protected, parks maintained,
supplies purchased, contracts awarded, labor employed, money col-
lected and money paid out — aren't these simply business operations?
The problems that arise in connection with them are business problems;
the methods needed are business methods; the organization best fitted
to do the work is a business organization.
Of course there is a good deal to be said for this point of view. A large
part of the city's work is not governmental in the usual sense; that is, it
EXTENT TO docs not consist in making or enforcing laws. Most of the
WHICH IT is laws which now apply within the confines of the city are
APPLICABLE. macic by the state legislature. Even in a large municipality
there are surprisingly few ordinances passed by the city authorities in the
course of an entire year. Most of the city government's work has to do
with the voting of appropriations, the appointment of officials, the
employment of labor, the awarding of contracts, the purchase of sup-
plies, and other such functions which ought not to be performed in a
political or partisan spirit. It is work which requires honesty, skill, and
780
MUNICIPAL ADMINISTRATION 781
experience on the part of those who do it. It is work that cannot be well
done if political influence and personal favoritism are permitted to sway
the minds of the authorities.
Nevertheless, and in spite of all this, the administration of a city is not
merely a business problem. It is more than that. The business analogy, if
pressed too far, does harm. The aim of business is to make a WHERE THE
profit, while the aim of a city government is to promote the ANALOGY
best interests of the citizens on a nonprofit basis so far as FAILS-
financial resources permit. The city's mission is not to make *• BUSINESS
. . -o • i j AND GOVERN-
money but to spend money. Business seeks to produce a MLNTDONOT
surplus, but the city has accomplished its purpose if it HAVE SIMILAR
manages to make both ends meet. The city authorities, AIMS'
moreover, must spend money in accordance with the desires of the
people; they cannot always follow their own judgment in determining
what is the wisest expenditure.
A business organization does not have to heed the public at every turn,
but the officials who carry on the business of government must defer to it.
They must give effect to the desires of the citizens, even when those
desires are at variance with what is believed to be the best policy; other-
Wise the voters will change the officials. For this reason the heads of a
business organization have a far greater range of discretion; they can
plan and decide with a freedom which the public authorities do not
possess. One reason why municipal affairs arc not always conducted in a
businesslike way may be found in the simple fact that public opinion
often insists on methods which are not businesslike.
Another consideration is worth bearing in mind. Some branches of
municipal administration lend themselves very easily to the use of
business methods, while others do not. Acquiring land for
new streets, paving them, cleaning them, keeping them
lighted — these are business operations. The sole problem is SOCIAL AS
is to get the maximum material value for the amount of WELL AS
money expended. But this does not hold true to the same
extent in the department of public charities, or unemployment relief, or
public recreation. In these branches of work the human touch is essential.
It will not be denied, of course, that here also the ahYi is to get the best
results for the money, but this cannot always be done by applying routine
methods and refusing to take any but economic considerations into
account. Goodwill and contentment among the people who arc most
concerned (be they recipients of relief, or unfortunates in public institu-
tions) are worth paying for.
The administration of a city, therefore, is more than "a series of
782 THE GOVERNMENT OF THE UNITED STATES
business problems." It must take political and social, as well as economic,
conditions into account. It is, in general, the problem of satisfying a large
number of self-willed and insistent voters who often desire things whicn
are not for their own best interest. The voter, as well as the dollar, is a
unit in municipal government; although to read some discussions of the
subject, you would not suspect it. To make a city administration efficient,
while still keeping it popular, is a more difficult task than most people
realize. To be a success, a city administration must be able to succeed
itself, that is, to get a vote of confidence from the people when the next
election comes around.
The administrative activities of the American city fall into a number of
general divisions. First, are the protective functions, including the main-
THE GENERAL tenance of police and fire departments. This includes not
DIVISIONS OF only the safeguarding of life and property by the usual
ADMINIS^ S methods, but all measures that are taken for the prevention
TRATIVE of crime and conflagration. Second, comes a group of
WORK. physical activities connected with public works such as
streets, parks, and public buildings. City planning naturally has a close
relation to this branch of municipal administration. Third, there are
enterprises connected with public health and sanitation. Fourth, come
education, recreation, and public welfare. Fifth, there are functions
relating to public utilities, such as water supply, lighting, and trans-
portation. Sixth, we have financial administration, including such
matters as assessments, taxation, expenditures, auditing, and loans.
And, finally, there are numerous administrative activities of a miscel-
laneous sort which do not fall readily into any of the foregoing groups.
Municipal administration, therefore, covers a wide range. It includes
work of a varied character, extending all the way from the registration of
births to the planning of bridges, from the holding of
irs RANGE elections to the management of a lighting plant. Obviously
the work has to be apportioned among various departments
— a street department, water department, health department, finance
department, and others. The number of these departments must depend
upon the size of the city and the scope of its activities. Under the com-
mission plan of government (as described in the immediately preceding
chapter), there can be only five departments. In a large city this is too
few. It involves the crowding of unrelated functions into the same depart-
ment. On the other hand, the tendency in most mayor-and-council cities
has been to multiply departments needlessly. Some have twenty or thirty
of them. The proper number cannot be determined by applying any ruk\
There ought to be enough administrative machinery to do the work, and
MUNICIPAL ADMINISTRATION 783
no more. The heads of departments ought to be appointed by the mayor
or the city manager. Some departments (such as police and fire protec-
tion) are best managed by single heads; others (such as relief, parks, and
public recreation) may very well be placed under the control of a board.
In any event, the heads of departments, with one or two exceptions (such
as the school department, for example) should be responsible to the city's
chief executive. It is only in this way that good cooperation among all the
departments can be secured.
Public safety, the safeguarding of life and property, is an important
function in all organized communities. It includes, primarily, the two
departments of police and fire protection. Modern police
• . i • f\ • n rv * PUBLIC
organisation began in 1829 with the enactment of Sir SAFETY.
Robert Peel's famous statute for reorganizing the police
administration of London. The statute swept away the old INCLUDES:
watch and ward system of day constables and night watch-
'men, replacing it with a body of professional, uniformed
police officers.1 The results were so advantageous that other English cities
adopted the plan, and it was eventually copied by American munici-
palities as well. Today, the work of policing is entrusted in all urban
communities to officers who devote their entire time to the service. The
system of part-time constables remains in small towns and rural areas
only.
In large American cities, the police department is headed by a board
or a single commissioner, the latter being the more common plan.2 He is
usually appointed by the mayor; but in four large cities the
head of the police department is appointed by the state CONTROL
authorities.3 In cities which have adopted the commission
type of government, the police and fire departments are combined under
a commissioner of public safety, and this plan is also followed in some
cities which retain the mayor-and-council form. In smaller and medium-
sized communities, this combination has some important advantages;
but, in large centers, each department is of sufficient importance to have
its own head. The commissioner, superintendent, or chief is in immediate
charge of the entire force and supervises its work from headquarters.
Whether police administration will be honest, efficient, and humane
1 Sir Robert Peel, who established the first regular police force in England, made himself
very unpopular for a time by this step. The members of the new police force, by way of ridicule,
were called "peelers" and "bobbies," and these nicknames persist in England to the present
day. They wore blue coats with copper buttons, for which reason the London youngsters also
referred to the policeman as "the copper " In America we have shortened it to "the cop."
2 Sometimes he is called superintendent, marshal, or chief.
8 St. Louis, Boston, Baltimore, and Providence.
784 THE GOVERNMENT OF THE UNITED STATES
depends in large measure upon the patrolmen. The method of selecting
these officers is accordingly a matter of prime importance.
ESSENTIALS . . ... t
OF GOOD rorty or iilty years ago it was the invariable custom to let
POLICE OR- political and personal influence dictate appointments and
GANIZA11ON. , , . . i ,.
promotions, but today in a great many cities the police
department has been brought under civil service rules. Likewise it was
the practice to set patrolmen at work without any preliminary training,
but the largest cities nowadays maintain regular training schools, in
which the essentials of a police officer's duty arc taught. In large urban
centers, actual supervision of patrolmen is entrusted to officers of the
force who bear military titles (captain, lieutenant, and sergeant), but
special bureaus or divisions are established at headquarters to -handle
v£irious types of police work, such as criminal identification, homicides,
traffic regulation, and missing persons.
The steady growth of traffic congestion has placed a new and heavy
burden upon the police establishment. Thirty-five years ago there were
no traffic officers in any cities except the largest, and very
it MS OF few of them even there. Today the officers assigned to
TRAFFIC REG- traffic duty during the day hours constitute in some cities
ULATION. , r i • V r™ r
more than one quarter of the entire force. 1 he use of auto-
matic traffic-control devices is keeping this percentage from being further
increased. It is customary in the larger communities to have a traffic
division within the police department, and the officers who serve in this
division are cither connected with police headquarters or are distributed
to the several stations. Patrolmen are usually detailed to the traffic
division from the regular force, but in the larger cities they are given some
special training in traffic duties before being assigned.
European and American police systems have frequently been com-
pared to the disadvantage of the latter. The almost entire absence of
police scandals in English cities, for example, has been con-
EUROPEAN l . . L
AND AMERI- trasted with their all-too-frcquent recurrence in the cities
CAN POLICE of the United States. It should be borne in mind, however,
COMPARED. . . . t r • r T i • • •
that the problem of satisfactory police administration is a
much more complicated and difficult one in America than it is on the
other side of the Atlantic. In European cities the populations are
homogeneous, and almost wholly native-born; in the majority of
large American municipalities, there is a great diversity of racial back-
ground, with no uniform traditions of personal liberty. European police,
moreover, have wider powers and are not restricted to the same extent
by constitutional provisions which so often give the lawbreaker moie
than an even chance in his dealings with the public authorities.
MUNICIPAL ADMINISTRATION 785
The maintenance of law and order in cities depends not only upon the
efficiency of the police, however, but upon the honesty and fairness of the
local courts. The magistrates or judges of these municipal
courts are usually elected, and too often their attitude COURTS
towards the strict enforcement of the law is influenced by
political considerations. It is sometimes argued that the practice of
electing these judges of city courts is advantageous, because it secures
men who know and understand the conditions under which the people
live and who can, on that account, administer the laws more justly. On
the other hand, the elective system has its manifest dangers in the way of
political pressure. Some large cities, therefore, have sought a safeguard by
providing that the judges of the municipal courts shall be appointed by
the mayor.
The second branch of public safety service is the protection of property
against destruction by fire. This includes two separate functions: namely,
•fire prevention and fire fighting. Until recent years very
little attention was bestowed upon the former, while so PRQTEGTION
much was given to the latter that American fire-fighting
organizations became the best in the world. The annual wastage by fire
loss in the United States is appalling; in the cities alone, it is over one
hundred million dollars every year. The chief reasons, of course, are the
high percentage of inflammable wooden structures, the laxity of the
laws relating to fire hazards, and that most conspicuous of American
traits, the readiness to take chances.
The science of fire prevention, which has made noteworthy progress
in recent years, is concerned primarily with four remedial measures.
First, there is the fixing of what are commonly known as
fire limits, that is to say, regions in which inflammable ™E^™NCE
buildings must not be erected. These areas include the PREVENTION:
business sections. Second, the cities have tried to eliminate WHvr Ir
those structural features which experience has shown to be
fire-spreading agencies, such as combustible party walls in apartment
houses, wooden shingle roofs, unprotected elevator wells, and inflam-
mable connections between the cellars and the first floors of tenement
houses. Third, the science of fire prevention has been* applied to special
structures such as theaters, factories, department stores, and schools, by
the enforcment of rules adapted to the needs of each type. Frequent
inspections to ensure compliance with these regulations are made by the
authorities. Finally, there are campaigns of popular education planned
t* teach people that ignorance and carelessness are the chief factors in
causing unintended fires to start. Wooden walls and shingled roofs do
786 THE GOVERNMENT OF THE UNITED STATES
not cause fires to begin, but merely enable them to make rapid
headway. Fires break out, in most cases, as the outcome of humar
negligence.
The fire department in nearly all American cities is under a com-
missioner, or chief, who is usually appointed by the mayor. The officers
THE FIRE anc^ men under his control are organized into companies
DEPART- on a semimilitary plan, one company being assigned to each
MENTS. £re District or precinct of the city with a fire station as its
headquarters. Firemen are normally divided into two platoons, each of
which is on duty for a portion of the twenty-four-hour day, a lesser num-
ber of hours being usually included in the daytime than in the nighttime
shift. Sometimes, however, three platoons are maintained and the work
is then divided into eight-hour shifts. In most of the larger cities, firemen
are now appointed under civil service rules, and a few cities have training
schools for the new men. American fire departments have been brought
to a high plane of efficiency, much higher than those of European cities.
This is because the need for quick and effective work, owing to the high
conflagration risks, is greater here than there.
Every American city is engaged in the construction and maintenance
of public property. This public property includes' streets, sewers, bridge?,
parks, playgrounds, and public buildings. The convenience
PROPERTY of the people requires that they shall all be carefully planned
AND CITY anci built with an eye to future needs; but for the most part,
this has not been done because mayors and other city offi-
cials serve in office for short terms, and their main concern is to do what-
ever happens to be urgent at the time, leaving the long-range problems
for their successors. Much of their work has therefore been makeshift in
character — a street widened, an additional schoolhouse erected, a fire
engine bought, and a few branch sewers put in — but no comprehensive
plan for street improvement or schoolhouse construction or the motor-
ization of fire apparatus or sewage disposal has usually been made and
followed.
Public buildings have often been badly placed because political in-
fluences, rather than public convenience, determined their location. The
congestion of traffic on the downtown streets, the lack of parks and open
spaces in certain sections of the city, the unsightliness due to the myriad of
poles, wires, signs, and billboards in many of the city's thoroughfares —
these things are due in large measure to the absence of planning. It is the
habit of cities to take little or no thought for the morrow. They expect to
grow bigger and busier, but they give small thought to the impending
problems which this growth is bound to bring. The best-built city in the
MUNICIPAL ADMINISTRATION 787
United States is Washington, the streets and parks of which were all
planned before a single building was erected.1
City planning is the science of designing cities, or parts of cities, so that
they may be better places for people to live in. It includes the arranging
of streets, the locating of public buildings, the providing
of parks and playgrounds, the devising of a proper trans- PLANNING
portation system, and the regulating of private property in 1NCLUDES*
such way as to promote the best interests of the whole com- SCOPE OF
munity. It is, therefore, or ought to be, the center or focus CITY
r ,, , , ... t /•!•!! iit PLANNING.
of all the city s activities, each one of which should be
carried on in harmony with the general plan. Only in this way can a
great w'aste of the city's money and serious inconvenience to all classes
of the people be prevented.
City planning also includes zoning, which is the procedure by which
the use and occupancy of land is controlled. By the provisions of a zoning
ordinance the city is divided into various zones — indus-
• i -i i -i • i TAT- i • i • ZONING.
trial, mercantile, and residential. Within these various zones
all new buildings are restricted to the type and use specified. The purpose
of zoning is to make the city develop according to a plan, and not in a
haphazard way, with industries and shops encroaching on the residential
districts. Zoning thus tends to stabilize property values. But the original
setup in a zoning ordinance is not intended to be inflexible; it is changed
from time to time as new conditions require.
The streets arc important factors in the daily life of every community.
They are the city's arteries. On their surface the streets carry pedestrians
and vehicles of every sort. They also afford locations for
. 11111 -11 i THE S TREE 1^.
lamp posts, telephone poles, hydrants, mailboxes, and
many other instrumentalities of public service. Underneath the street
surface are sewers, waler mains, gas pipes, and conduits; while overhead
are wires and signs and balconies. The streets give access to the shops and
houses; they are likewise the principal channels for light and air, both of
which are essential to life in the buildings alongside. Nearly every form of
public service depends upon the streets; without them private property
would have little or no value. About one third of all th^ land in the city is
occupied by the streets, so that proper street planning becomes a matter
of great importance to the community.
1 More than a hundred and fifty years ago, when it was decided to build the nation's
capital on the shores of the Potomac, President Washington sent to France for Major L'Enfant,
an engineer, who had served in the American army during the Revolution, and entrusted to
hijn the task of laying out the new city. L* Enfant took great pains to provide for wide streets,
he designated the location of the important public buildings (such as the Capitol and the
White House) and left plenty of open spaces in his plan.
788 THE GOVERNMENT OF THE UNITED STATES
In most American cities the streets are laid out in rectangular form,
with long, broad avenues running one way and narrower cross-streets
the other. This means that each intersects the other at right
THE LAY°uT angles and the city blocks become squares like those on a
OF STREETS. o / i.
checkerboard. This plan has been widely used in America
because it takes less land for streets than any other plan would require
and it makes all building lots of convenient rectangular shape. The chief
objection to this gridiron plan is that it makes traffic more congested at
the junction of important thoroughfares. It also gives a sameness to the
appearance of all the streets and hampers the development of archi-
tectural variety. European visitors often comment on this. Street after
street in the shopping or residential districts of American cities all look
alike to the stranger; for they have been laid out with a pencil and ruler;
and the long rows of houses seem to be all of the same type. In the cities
of Europe, on the other hand, the streets are more often curved or wind-
ing; some are very broad and some very narrow, so that each street has
its own individuality. Increasingly, however, American cities are now
laying out diagonal and winding streets in their newer suburbs on the
principle that attractiveness ought to be combined with utility.
Until very recent years in all American cities, and even yet in some of
them, the practice has been to lay out streets in widths of forty, sixty, or
eighty feet — always using multiples of ten. This is a mere
THE NEWEiTD rulc-of- thumb method and bears no direct relation to the
METHODS OF needs of traffic. The downtown streets of the older cities are,
DETERMIN- £Qr ^^ most part, too narrow; in the newer suburbs they
arc often a good deal wider than they need be. "But what
harm is done by having more street space than is necessary?" it may be
asked. Well, every square foot of street space costs money; it has to be
paved, kept in repair, cleaned, and lighted. The proper policy in laying
out streets is to adapt their width to the probable needs of future traffic.
This cannot always be done with mathematical accuracy, because the
density of traffic changes from decade to decade; but with careful study,
a fairly good estimate can usually be made.
The best practice nowadays is to fix the width of new streets in terms
of traffic zones, not merely in multiples of ten feet. A stream of traffic —
motor cars, trucks, and other vehicles following one another
<ZONE*»FIC — requires a certain sluiceway or zone to move in. This
zone is ordinarily reckoned as ten feet in width. A zone of
parked vehicles alongside the curb uses about eight feet. In order to
allow full parking privileges and still have space for two streams of traffic
to flow along easily (one in each direction), a street should be thirty-six
MUNICIPAL ADMINISTRATION 789
feet in width from curb to curb or about forty-six feet including the side-
walks. Anything less than this usually means that parking must be re-
stricted or the thoroughfare must be made a one-way street. Anything
more than this is useless unless a full zone of ten feet is added.
Apart from good planning and adequate width, the usefulness of a
street depends to a considerable extent on its paving. The qualities of an
ideal pavement are easy enough to specify, but riot so easy
to secure. To reach perfection, a street pavement should be
cheap to construct, durable, easy to repair, easy to keep
clean, smooth, safe for traffic, noiseless, and attractive in appearance.
Unfortunately there is no type of pavement possessing all these qualities.
A pavement of granite blocks will last for many years under heavy
traffic, but it is expensive to build, noisy, and hard to keep clean. Asphalt
pavement is cheaper, cleaner, and smoother to drive upon, but it is
slippery in wet weather and breaks down very quickly when heavy
traffic is allowed on it. Wood blocks came into favor in many cities for a
while because they were believed to make a pavement sufficiently strong
and yet afford a surface which is easy to drive over, not difficult to keep
clean, and relatively noiseless. But this form of pavement has not meas-
ured up to expectations. Oil-bound macadam (which is crushed rock,
rolled down and oiled) is now popular. But the point to remember is that
no one form of paving is best for all sections of the city and under all
circumstances. It is folly to lay asphalt in the wholesale district where the
streets are filled with five-ton trucks, and just as absurd to put eight-inch
concrete on the streets of fine residential districts from which all heavy
trucking is excluded.
When the pavement has been selected, it can be laid in either of two
ways — by contract or by c<force account," that is, by city labor. Most
pavements have been built by contract. The city officials
prepare the plans, and call for bids; paving contractors
submit their figures, and the contract is supposed to go to DIRECT
the one whose bid is the lowest. That, however, is not what l ABOR
SYSTEMS
always happens. Contracts for street paving have often
been awarded, on one pretext or another, to contraptors who were able
to exert political influence. In some cities the work is done by regular
employees of the street department, the city buying its own materials.
This plan is usually more expensive and it is not practicable when a city
wants a great deal of work done in a hurry; on the other hand, it results,
as a rule, in getting pavement of a better quality. Contract work, too
often, is done hastily, is not subjected to sufficiently rigid inspection and
proves defective.
790 THE GOVERNMENT OF THE UNITED STATES
Public parks are of two types: first, the large open spaces which cover
many acres and can be used by the whole city, and second, the small
areas which are provided for use by a single neighborhood
only. Every large city has parks of both types. The old-style
park, which served more for ornament than for use, is now out of favor.
Cities are placing more stress on grounds which can be used for athletic
games, picnics, or other forms of recreation. They are also building
swimming pools and municipal golf courses. In communities which have
the advantage of being located on the ocean, on a lake, or on a river, the
water front is a highly desirable addition to the available recreation
spaces. Suitable bathing beaches ought to be acquired by the cities for
free use by the people. The development of street railway and motor
transportation has lessened the pressure upon the downtown parks by
making it easier for the people to get out into the country.
From the standpoint of suitable location, the public buildings of a
city may be divided into three classes. First, there are those public
THE VARIOUS buildings which ought to be centrally located so that
CLASSES OF they may be easily reached from every part of the com-
ics BUIL°~ munity- Tnis class includes the post office, the city hall,
the courthouse, and the public library. In a few cities these
WHICH NEED buildings, or most of them, have been brought together in
CENTRAL a civic center; but, as a rule, they arc scattered here and
there all over the community, wherever they may chance
to have been placed in obedience to the influence or whims of the
moment.1 The desirability of bringing them together, both as a matter of
good planning and for the public convenience, is easy to realize.
Second, there are many public buildings which must be located in
different parts of the city rather than at a single center. These include
the fire-engine houses, police stations, elementary schools,
WHICH MUST and branch libraries. They must necessarily be scattered,
BESCAI- j^t this does not mean that they should be located heed-
lessly. Very often in the past these buildings have been
located at inconvenient points because political pressure, rather than the
public interest, ha$ determined the choice of the location. When a
prominent politician has land to sell at a fancy price, the city is too often
regarded as a good customer. There is no good reason why police and
fire stations should not be housed under the same roof. Nor is there any
good reason why the school, the public playground, and the branch
library should not be located close together, yet rarely are these three
places of instruction and recreation within sight of one another. Hap-
1 Good examples of a civic center may be found in Cleveland and in San Francisco.
MUNICIPAL ADMINISTRATION 791
hazard location and slipshod construction have resulted in large amounts
of needless expense in the case of these buildings.
Third, there are certain public buildings which have to be placed in
special locations. Public baths, for example, go to the water's edge,
wherever it is. The general hospital should be situated
*3 . 1 HOSE
outside the zone of heavy traffic and continuous noise. The WHICH NEED
city prison, the refuse incinerator, the contagious hospital, SPECIAL
i t_ i- 11 j i i -r LOCATIONS.
the garbage disposal plant, and the other waifs among
public buildings — nobody wants their company. They are not welcome
in any neighborhood, yet they must be placed somewhere. Timely
planning would help to solve this problem by securing convenient and
spacious tracts of land before the city grows so large that all available
sites are occupied, but most of our cities give little thought to such
questions until the problem becomes urgent.
No branch of municipal activity has made more conspicuous progress
during recent years than the care for the public health. This, in turn,
has been the result of the notable advance in preventive PIIBLIG
medicine and public hygiene. The old boards of health, HKALTH AND
with their hit-or-miss methods, arc giving way to trained HYGIENL-
health commissioners. The work of a municipal health department
includes the collection and interpretation of vital statistics as a means of
determining the health status of the community. Few people realize that
prompt and accurate reports relating to diseases and deaths form the
groundwork of efficient health administration. Public health work also
includes the quarantining of communicable diseases, the inspection of
food and milk — in fact the control of every agency by which disease
may be spread. As a result of this work, the death rate is being steadily
reduced.
Public sanitation is the term applied to the removal and disposal of
waste. The congestion of factories, shops, and dwellings in cities makes
waste disposal a problem of great importance. And, of PUBLIG
course, the most constantly dangerous of human wastes is SANITA-
sewage or polluted water. There are more than one hundred 7ION*
gallons of it to be handled daily for every head of population. Some
municipalities merely discharge their sewage into tlie ocean or into a
convenient lake or river. But this practice, particularly where it involves
inland waters, has run foul of the public health authorities, who are
properly concerned about the menace to the public health involved.
It also results in the partial destruction of marine life and impairs the
use of the beaches or river banks for recreational purposes. Many cities
have, therefore, installed elaborate plants which render sewage harmless
792 THE GOVERNMENT OF THE UNITED STATES
by chemical treatment, or by some other process, before it is discharged
into a waterway.
Garbage and refuse offer another major waste-disposal problem.
Cities nowadays normally assume responsibility for collecting these
wastes directly through their sanitation departments or by contract with
some private operator. Past methods of garbage disposal have evoked
much criticism. Often such material has been dumped on unsightly and
unsavory heaps just outside the city limits; or, in seaboard cities, it has
been thrown into the ocean where it is washed back upon the shores
with the next tide. Modern disposal plants, now being erected by an
increasing number of municipalities, eliminate most of such wastes
either by a garbage reduction process or by incineration, the latter being
the more common.
The term "public utilities" is used to designate such services as water
supply, gas, electricity, street railways, motor busses, telephones, power-
transmission lines, etc. These services are sometimes owned
UIILITIES an<^ operated by the city, but more often (except in the case of
water supply) they are supplied by private companies under
franchises. In that case, they arc subject to regulation by the municipal
or state authorities in order to ensure good service at reasonable rates.'
Water supply is the oldest and most essential among these various
public utilities. A few American cities still leave this service to be pro-
vided by private companies, but in the great majority it is
owned and operated by the municipality. The water
problem is twofold: first, to secure and maintain an ade-
quate and safe source of supply; second, to provide for its distribution to
the factories, shops, and homes of the city. In some cases, a safe and
adequate supply can be found within a reasonable distance of the city; in
others, the water must be brought a long way or must either be purified
by filtration or chemically treated to make it safe. Large groups of the
population make heavy demands upon water supply, averaging over one
hundred gallons per capita every day in the year. In its relation to pub-
lic health, the city's water supply is manifestly of supreme consequence,
and that is the chief reason for taking it directly under public control.
This health consideration does not operate to the same extent in the
case of gas, electricity, telephones, and transportation. Public ownership
is not so clearly indicated as the only way of protecting the
ING AND public interest. But public regulation is essential; the only
TRANSPOR- question is whether the regulation can be best provided by
each city for itself or by the state for all the cities within ifs
borders. The tendency is towards regulation by the state because the
MUNICIPAL ADMINISTRATION 793
same public utility (telephone or street railway service, for example)
may operate in several municipalities and local regulation cannot then
be made very effective.
A public utility is a natural monopoly. No ultimate good comes from
the maintenance of a competitive telephone service, because in that case
two instruments and two directories are needed in every ^TTT, T>T,r,TTT A
J I Hfc. K.h.(jU LA~
home in order to get full coverage. Public utilities occupy a IION OF
field in which competition means duplication of facilities, unLITILS-
public inconvenience, and a far higher cost of service in the end. Two
practical alternatives, and only two, arc open to a city. It may give a
complete monopoly to some one telephone company, street railway
company, or gcis company, within a defined area, and then trust to public
regulation for the protection of the public interest. Or it may acquire the
service and operate it under municipal ownership.
This latter alternative, municipal ownership and operation of public
utilities, has made considerable progress in the United States, although
not so much as in European countries. Among these utilities,
electric light and power plants have been especially favored OWNERSHIP
for municipal acquisition and operation, more than a fourth
of the total in the nation being publicly owned. But many of these serve
small constituencies; hence they do not account for a large percentage of
the total light and power output of the country. In recent years, some
municipalities have been encouraged to purchase their power from
private generating companies or from such nationally operated power
projects as the Tennessee Valley authority, in which case public owner-
ship extends only to the distributive apparatus. Gas plants have had no
comparable development, since there are only about thirty municipal
gas plants in the entire country, as compared with about 'fourteen
hundred in private hands. Among American cities having over 30,000
population, only five or six own and operate their own gas-producing or
distributing facilities.
In the matter of street railways, the cities of the United States have had
even less experience with the policy of municipal ownership until very
recent years. At the present time, however, San Francisco, Detroit, and
Seattle own and operate their street railway systems' in whole o'r in part.
Moreover, the nation's largest city, New York, after having experimented
for many years with a combination of public and private ownership of
certain of its facilities, has finally taken over its entire rapid transit
system and now operates it as a unified municipal service. In certain
'other large cities, the street-railway system is privately owned but is
operated on a "service-at-cost" basis by the public authorities.
794 THE GOVERNMENT OF THE UNITED STATES
Experience with municipal ownership in American cities would seem
to indicate that wages go up when the city takes control; that the quality
of the service rendered is not better than under private
AND DEFEcrs ownership; that an additional burden is usually placed on
the taxpayers; and that political considerations rather than
business principles often interfere with the proper management of the
utility. On the other hand, municipal ownership assures some protection
against the avaricious practices which have been so common under
private operation, such as the inflation of capital stock, the payment of
extravagant salaries for managerial and legal services, and the arbitrary
treatment of employees. The question as to which policy is the better
cannot be answered in general terms. It can only be determined with
reference to a particular city and a particular form of public service.
Many municipalities have a proprietary interest in various special
facilities. Those which are seaports often own piers and docks which
MISCELLA- they make available to steamship and other transportation
NEOUS ENTER- companies at a fair rental. The progress of transportation by
PRISES. ajr jias incjuceci many cities to establish and equip landing
fields and air terminals. New York, for example, has spent many millions
in building one of the world's largest and best-equipped air terminals
for domestic and transocean air commerce and is about to open a still
larger one. Some of the larger urban centers likewise operate wholesale
markets on the assumption that their congested populations require
the public authorities to facilitate an adequate supply of perishable
foods. These additional activities emphasize the expanding character
of municipal administration.
Measured by the amount of money spent upon it, education is the most
important of all municipal functions. Because of this, and the alleged
desire to keep the schools out of politics, the school system is
EDUCATION usually placed under the supervision of a separate board,
wholly or partly independent of the municipal government.
The members of the board are commonly elected directly by the people
but in some cities are appointed by the mayor. Sometimes the board of
education is elected by the voters of a school district which docs not
coincide with the ci'ty in its area. In general, these boards have three
groups of functions to perform. First, they provide the school buildings
and keep them in order. Second, they have duties of a business nature,
such as the purchase of fuel and supplies, the buying of school books, and
the management of school finances. In some cities, the school taxes are
assessed and collected under the direction of the board itself; but more*
often the funds for the support of the schools are obtained in part from
MUNICIPAL ADMINISTRATION 7S/5
the general city or county revenues and in part from the state. Finally,
these school boards have the duty of appointing the school superin-
tendent, engaging and promoting teachers, determining salaries,
approving changes in the school curricula, and settling all questions of
educational policy. These functions, when taken together, are of far-
reaching influence for good or ill.
To a greater extent than in most other city departments, the school
authorities have been called upon for many new public services during
recent years. A few cities, notably Cincinnati, Detroit, and
XT- i • i • i • r THE WIDEN-
New York, maintain educational institutions oi college ING SPHERE
grade. In the latter city, indeed, there are four separate OF PUBLIC
. • i 11 • i • i i i c EDUCATION.
municipal colleges, operating under a special board of
higher education, with some of the largest academic enrollments in the
world. In addition, educational authorities are nowadays required to
provide evening schools, part-time schools, continuation schools, junior
colleges, adult education, special classes for handicapped or defective
children, medical and dental inspection of pupils, vocational guidance,
and the use of schools as neighborhood centers in evening hours.
These indicate only a few of the more important services which large
communities now call upon their school authorities to provide in addi-
tion to the work of ordinary education. During recent years, moreover,
the establishment of public playgrounds and the supervision of play have
in many cities been transferred from the park to the school department.
Supervised play outside of school hours is now recognized as an integral
part of a community's educational system.
The public library is becoming a more effective agency of public
education than it used to be. A generation ago it was merely a depository
of books: today it has become, in many cities, an active
PUBLIC
agency of public enlightenment. It renders informational LIBRARY AD-
service to public officials, business organizations, news- MINISIRA-
papers, authors, and students of every subject. Illustrated
lectures are often provided; reference rooms are maintained with intelli-
gent attendants; seekers of books are sometimes permitted to browse
among the shelves; the whole atmosphere of a well-managed public
library has now become surcharged with a spirit of aptive service. A close
coordination between library and school administration has also had
beneficial results, for it is from the schools that the future patrons of the
library must be recruited.
Then there are the "public welfare activities" which city departments
are carrying on. One of the most important of these is relief for the
unemployed and unemployable. Occasionally, to be sure, this is the
796 THE GOVERNMENT OF THE UNITED STATES
responsibility of the county in which the city is located; but most of the
larger cities handle this task directly in cooperation with the state and
PUBLIC federal governments and with funds partially supplied from
WELFARE those sources. Municipal relief activities reached vast pro-
WORK. portions during the depression years after 1 930 and utterly
dwarfed the contributions from philanthropic sources which, prior to
that time, had carried most of the load. The relief was largely of the
"outdoor" variety; that is, food, services, shelter, and medical care were
supplied directly to persons and families officially adjudged to be in
need. At the same time, cities have continued their institutional relief
by supporting almshouses, orphanages, and other establishments for
the socially dependent, where private philanthropy has not supplied
adequate funds.
Municipal welfare departments are also likely to be charged with the
maintenance of local prisons and correctional institutions, although most
OTHER °f these establishments fall under the jurisdiction of the
wLLtARE county or state. The modern city is likewise engaging in a
ACTIVITIES. great number of other welfare activities, the purpose of
which is to diminish crime, disease, poverty, and delinquency. The list
of such activities would cover a whole page and is^steadily expanding. It
includes such things as free employment bureaus, free legal aid, mothers'
pensions, milk stations, district nursing, medical and dental clinics,
municipal lodging houses, recreational supervision, as well as band con-
certs and other entertainment. Recently, too, because of the opportunity
to secure federal aid, American cities have been showing interest in
public housing. Under recently enacted legislation, the federal govern-
ment makes loans and grants to local housing authorities in order that
they may condemn and raze slum areas, replacing the sordid living
quarters by decent housing facilities for low-income families. Public
housing projects have long been common in European cities, but not until
recently have American municipalities undertaken them. Like many other
municipal innovations, this one is sometimes stigmatized as paternalism;
but the proper housing of the people would seem to have a considerable
relation to several long-established municipal activities such as the safe-
guarding of the public health, the prevention of crime and delinquency,
the elimination of fire hazards, and the whole subject of zoning.
All these municipal enterprises cost money. Where does the money
come from? Most of it is obtained by levying a municipal tax upon real
estate and personal property. The property is assessed or
valued by officials known as assessors, but an appeal mayt
usually be made to a board of review. When the assessments
MUNICIPAL ADMINISTRATION 797
have been revised and confirmed, a tax rate is figured, sufficient to
provide such revenue as the city needs. This tax rate is fixed at so many
mills on the dollar, or so many cents per hundred dollars of valuation,
or so many dollars per thousand.1 Then the property owner gets his tax
bill, and pays it. If he docs not pay it, his property is sold by the city at
a tax sale, but the owner usually has the privilege of buying it back
(interest and costs added), within a specified time.
Other municipal income is derived from license fees, taxes upon public
utilities, profits from business enterprises owned by the city, subsidies
from the state1 treasury,2 special assessments for street paving orHFR
or other improvements, and sometimes revenue from sales SOURCES OF
and 6usinoss taxes. But all these put together do not usually INGOML-
form a third of the total revenue; by far the larger part comes from taxes
on property. And since the need for more revenue has been growing
steadily, this tax rate usually has to keep pace with it.
Out of chis annual revenue the city council (or commission) makes
appropriations for the use of the various municipal departments. These
appropriations arc embodied in a yearly budget which may
-11 * I.- i THE BUDGET.
be prepared by the mayor, or by the city manager, or by a
special board, or by a committee of the city council. In any case, the
budget docs not go into effect until the council (or commission) has
approved it. Public improvements of a permanent nature, such as the
widening of streets, are sometimes financed by borrowing money on the
general credit of the city; in other instances, a special
, • i . i ,1 .... . MUNICIPAL
assessment is levied upon the neighboring private property BORROWINU
which is assumed to be benefited by the work. Borrowing
is also resorted to when the city acquires some public utility qr under-
takes a large public improvement. Municipal borrowing by the issue of
bonds sometimes requires an affirmative vote of the people (or of the
property owners) at a "bond election," and, in any event, the state often
fixes a municipal debt limit above which the city cannot go. This limit is
ordinarily fixed at a percentage of the total assessed valuation of property
in the city — say 5 or 10 per cent. The bonds of municipalities are sold
to banks, brokers, and the investing public, and arp retired by methods
similar to those already discussed in the case of state bonds.3
1 A tax rate of 22 nulls on the dollar, or $2 20 per hundred dollars, or $22 per thousand, for
example, is merely the same rate expressed in different ways by diffcient cities
2 The state sometimes levies an income tax, foi example, and distributes a part of the pro-
ceeds to the cities In many states laige subsidies aie given for the support of the city schools
Again, in some instances, the state gives back to the cities, for the maintenance of streets, a
portion of the proceeds from the gasoline tax.
3 See p. 724.
798 THE GOVERNMENT OF THE UNITED STATES
All in all, the modern city is an organism of almost unbelievable
complexity. Its activities range over a far wider area than the ordinary
THE UNEND- citizen realizes. Every day in the year its officials have to
ING COM- deal with problems of law, finance, engineering, health,
MwaciPALF education, and social welfare. No man, even though he
ADMINIS- spend a lifetime in studying them, can become thoroughly
TRATION. familiar with what we call "the problems of municipal
administration." As for the ordinary citizen, he obtains only the most
rudimentary conception of them. He thinks it easy to administer the
affairs of a city, and wonders why it is not better done. As a first step
towards any marked improvement in municipal administration, it is
essential to convince the average citizen that the work is difficult, "often
highly technical, and requires far more competence than the general run
of local politicians can supply.
REFERENCES
General discussions of this subject may be found in L. D. Upson, The Practice
of Municipal Administration (revised edition, New York, 1941), Thomas H. Reed,
Municipal Management (New York, 1941), Stuart A. M^icCorkle, Municipal Ad-
ministration (New York, 1942), John M. PfifTner, Municipal Administration (New
York, 1940), Henry G. Hodges, City Management (New York, 1939), C. M.
Kneier, Illustrative Materials in Municipal Government and Administration (New
York, 1939), A. F. Macdonald, American City Government and Administration
(third edition, New York, 1941), and William B Munro, Municipal Administration
(New York, 1934). Full bibliographical references may be found in these vol-
umes, also in Sarah Greer, A Bibliography of Public Administration (2nd edition,
Part I, New York, 1933).
A few recent studies of special problems in municipal administration are
the following: L. A. Shattuck, Jr., Municipal Indebtedness (Baltimore, 1940),
C. H. Chatters and A. M. Hillhouse, Local Government Debt Administration (New
York, 1939), D. C. Stone, The Management of Municipal Public Works (Chicago,
1 939)> H- E. Babbitt and J. J. Doland, Water Supply Engineering (revised edition,
New York, 1939), G. Hjelte, The Administration of Public Recreation (New York,
1940), A. Vollmer, The Police and Modern Society (Berkeley, Calif., 1936), Bruce
Smith, Police Systems in the United States (New York, 1940), R. W. Cooper, Munic-
ipal Police Administration in Texas (Austin, Texas, 1939), Rollin M. Perkins,
Elements of Police Science, (Chicago, 1942), Edward M. Bassett, Boning (New York,
1940), A. E. Buck, Municipal Finance (New York, 1926), and Clarence E Ridley
and H. A. Simon, Measuring Municipal Activities (Chicago, 1938).
CHAPTER XLVIII
RURAL GOVERNMENT: COUNTIES, TOWNS, AND
TOWNSHIPS
Local institutions constitute the strength of free nations. — Tocquevtlle.
THE COUNTY
The rise of the city has tended to dwarf the rural community in the
public mind. Yet rural government is of no slight importance in the
United States. It has a close relation to the welfare of over „,„„ ^ „„,
1 HE DRIFT
sixty million Americans. So, if a discussion of the subject is OF THE
condensed into one brief chapter, this is not because it lacks PEOPLE-
significance in the national picture as a whole, but because rural govern-
ment is simpler and its administrative problems less complicated than are
those of the cities.
Within the general term of rural government is included the govern-
ment of counties, towns, boroughs, townships, villages, incorporated
districts, and other local communities known by a variety of WHAT RURAL
designations. These areas are not always strictly rural in GOVERNMENT
character; on the contrary, some counties are metropolitan INCLUDES-
and some towns are cities in everything but name. Moreover, it should
not be forgotten that for certain purposes the counties exercise juris-
diction within the territory of cities. For the most part, however, the
county, the town, and the township are agricultural communities or
closely related to agriculture.
Every state is divided into counties (in Louisiana they are parishes).
There are about 3,000 of them and they vary enormously in size. Bristol
County in Rhode Island contains less than twenty-five ^^^ ^
' ' EX.1ENT OF
square miles, while San Bernardino County in California COUNTY DI-
covers over twenty thousand. They also vary in population. VISIONS-
Cochran County in Texas has fewer than a hundred inhabitants, while
Cook County (which includes Chicago) has over four million. For the
most part, the county is a firmly established geographical area, and its
boundaries are rarely changed in the older states. In the newer states,
799
800 THE GOVERNMENT OF THE UNITED STATES
the counties were mapped out in the first instance on a large scale, hence
they are sometimes divided as population increases.
As a general rule, the creation of new counties is within the power of
the state legislature, but in many of the states there are constitutional
provisions which limit the legislature's authority by pro-
THE GREA- * . & 11-111
TION OF vidmg that new counties may not be established or the
COUNTIES. boundaries of existing counties changed without the consent
LEGISLATIVE of the voters concerned. The state legislature may determine
CONTROL OF fac form of county government, the location of the county
COUNTIES } ° . . \
AND GOUNIY scat (unless the state constitution restricts its doing so), and
"HOME ^he duties of the various county officials. This it has usually
RULE." . . . , i i • i
done by enacting a general county code, but it also passes
special laws relating to single counties, with much confusion as a result.
Hence, the constitutions of many states now set limitations upon the
legislature's discretion in dealing with county affairs. In about a half-
dozen states, the inhabitants of counties are permitted to determine their
own form of county government through the framing of a county charter
and the adoption of this charter by the vote of the people. Home rule for
counties thus appears to be following in the wake of home rule for cities.
It is to be doubted, however, that the home-rule system will ever gain
the headway in counties which it has gained in cities, for the reason that
such a large proportion of county functions are not really local but state
functions delegated to county officers. Moreover, the movement runs
counter to the recent policy of some of the states in exerting more ad-
ministrative supervision over county activities and in entrusting func-
tions, formerly discharged wholly by local officials, to state boards and
agencies.
Counties are established to serve as political, administrative, and
judicial districts. They are a political division because, in many of the
states, the county is the unit upon which representation in
GENERAL i . , . , , i
FUNCTIONS the state legislatures is based, each county electing one
OF THE or more senators and also its quota of assemblymen or
COUNTY AS . A _j • • • i • . • . u i
AN AREA OF representatives. As an administrative district, however, the
LOCAL GOV- county is much more important. Everywhere it is an area
o*™f*T.: of financial administration. The taxes arc in many states
V tJLI 1 IdAL} *
ADMINISTRA- assessed, levied, and collected by county officers, a part
TIVE, AND Qf t^e proceccis being turned over to the state, a part in
JUDICIAL. r ° . .
some cases to the towns or townships within the county,
and the remainder retained for county purposes.
Nearly everywhere, again, the county is given considerable authority,
with reference to the construction and repair of main highways and
RURAL GOVERNMENT 801
bridges. Occasionally it has the duty of providing other public works as
well. The relief of distress due to poverty or unemployment is also a
county function in many states. Particularly in the southern states the
system of elementary school administration is organized on a county
basis. The county is likewise a primary unit for the enforcement of law
and order through its sheriff and its deputy sheriffs, especially in sparsely
settled regions; and in some parts of the country, it is the unit of or-
ganization for the state militia. Finally, the county serves as a judicial
district. It is a district for the administration of civil and criminal justice,
usually also for the registry of deeds and the probating of wills, and
almost invariably for the maintenance of courthouses and institutions of
correction. In the judicial systems of the several states, the county court
and its various officers form an important part.
The center of county government is the county seat. The selection is
made by the legislature when the county is first established, and the
legislature may remove it to some other city or town at any
later time; but in many of the states, the constitution forbids s^r
this unless the voters of the county approve the change. The
county seat is the location of the county courthouse and the offices of
the county board.
The chief administrative organ of the county in nearly all the states
is a county board. Members of this board are usually known as com-
missioners or supervisors. They differ in number and in
method of selection from state to state. In most states the
boards are small, consisting of from three to seven members.
In some, however, the board is a larger body, including
from fifteen to twenty-five members or even more. Some-
times its members arc elected by the voters of the county at large;
sometimes they are chosen by the townships, one or more from each;
sometimes from the various towns and cities in the county, while some-
times (especially in the southern states) the board is made up of the
county judge, the justices of the peace, and certain other ex-officio
members. There is almost as much variety in American county govern-
ment as in city government.
The functions of the county board are established by law. Some states
have general laws on the subject, but in many of them the duties of
county commissioners or supervisors are set forth in a loner
. 111 -i r THE FUNC-
succession of separate and unrelated special acts of the TIONS OF
legislature, which may apply to one county and not to COUNTY
others. Taking the boards as a whole, however, their
functions may be grouped under six general heads: financial, highways
802 THE GOVERNMENT OF THE UNITED STATES
and bridges, other public works, welfare work, relief and prisons, elec-
tions, and miscellaneous.
Most county boards have the right to levy county taxes and to make
appropriations for expenditure. There are some exceptions to this,
however, notably in certain New England states, where the
CIAL. appropriations are made by the legislature (usually on the
TAXATION recommendation of the county commissioners). In most
AND APPRO- of the other states, where the county board both makes the
PRIATIONS. appropriations and spends them, there is a fusion of two
THE FUSION powers which arc usually kept separate in government. In
PRIATING" t'ie nati°nal government, Congress makes the appro-
AND SPEND- priations and the executive has the function of applying
ING POWERS. tjie money to trie purpose designated. In state government,
the legislature appropriates and the executive spends the funds. But in
county government throughout the larger part of the country, the same
board levies the taxes, votes the appropriations, and sometimes appoints
the officials who spend the money. This has been criticized as an unsafe
policy and in practice it has encouraged extravagance.
In addition to the function of levying county taxes, making appro-
priations, and supervising expenditures, the county board, as a rule, has
OTHER other financial duties. From time to time, both by general or
FINANCIAL special law, the board is given authority to borrow money
FUNCTIONS. on tke county's credit, either with or without the necessity
of first securing the approval of the voters. Borrowing powers are fre-
quently obtained in this way for the building of roads, bridges, and
county buildings. The county board, again, often serves as a tribunal of
appeal frpm the assessments made by local assessors or as a board of
equalization for making the proper adjustments in assessments among
different municipalities.
In many states all the important rural highways are either state or
county roads. The towns and townships are responsible for the minor
2 ROADS thoroughfares only. Nearly everywhere the county board
AND has authority to lay out, to construct, and to repair the
BRIDGES. rural highways which are designated as county roads; but
there are great differences among the states in the extent to which this
authority is exercised. Main bridges, especially those which connect two
cities, or towns, or townships, are also commonly built and maintained
by the county authorities.
Various other public works are provided by the county, including
the courthouse, the county jail, the house of correction, and the registry
of deeds. Such buildings are often erected on an expensive scale, more
RURAL GOVERNMENT 803
so than a county requires or can well afford. The management of these
buildings, their supervision, repair, and upkeep are also functions of
the board. In a few states the county officials have been OTHER
given other public enterprises to carry through, such PUBLIC
as the construction of irrigation works, the abolition of WORKS-
grade crossings, or the building of levees, dikes, and drains. In general,
when a project concerns all the municipalities in the county, or several
of them, the county board is the natural authority to have charge of it.
Welfare or charitable work is primarily a county rather than a munici-
pal function in most of the states. The county poor farm and workhouse,
as well as work camps for the unemployed, are usually under
the control of the county officers. Persons who need assist-
ance are sent to these institutions from the towns or town-
ships of the county. When the federal or state governments provide
for direct relief, because of depression and unemployment, these funds
are often allocated to the counties and distributed through agencies set
up by them. County hospitals exist in some of the states, but institutions
for the care of the insane and the feebleminded are usually provided by
the state, not by the county.
County boards have various duties with reference to elections, al-
though the New England states provide conspicuous exceptions to the
ereneral rule. Almost everywhere else the county board has
, r T i • i • 1 it- 5 ELECTIONS.
charge of election machinery; it designates the polling
places, appoints the poll officials, provides the ballot, and canvasses the
returns. Sometimes it also draws lots for the jury panels from the voters'
lists. The county, as has been already mentioned, is a common area for
the selection of senators in the state legislature.
Finally, the county board has miscellaneous powers. It appoints some
county officers, although in many instances these officials (such as the
sheriff, the county prosecuting attorney, the registrar of
deeds, the county treasurer, as well as the principal assessor
and county clerk) are elected by the voters. The county
board sometimes grants charters of incorporation to benevolent associa-
tions. Odds and ends of jurisdiction go to the county boards here and
there; for example, the extermination of noxious animals, the regulation
of schools for truants, the licensing of pedlars, etc.
It will be seen that the county board, as the chief organ of county
administration, gathers to itself a considerable variety of
, . -ru • i • i +• • «.u i • r SOME OF THE
functions. Ihey are in part legislative, since the levying of COUNTY
taxes and the making of appropriations are legislative func- BOARD'S
tions. But they are in larger part executive, as has been in-
804 THE GOVERNMENT OF THE UNITED STATES
dicated. And in some states the county board is officially listed as a
court. County boards cannot, therefore, be placed exclusively in the
legislative, executive, or judicial division of government, and they are
among the very few American political institutions of which that can
be said.
In virtually every county there is a county court, but it is not every-
where organized in the same way. Some states do not have a judge for
THE COUNTY cach county, but group the counties into judicial districts
AS AJUDI- with one judge for each district. This judge then goes on a
GIAL AREA. circuit, holding sessions at the courthouse of each county in
succession. Other states provide one or more judges for each county. The
judges are usually elected by the voters of the counties or districts, as the
case may be, but in reality they form an integral part of the state judici-
ary.
In addition to the county board and the judge of the county courts
there are other officials of county administration. One of the most im
portant, and at any rate the oldest of these offices, is that of
COUNTY sheriff. Every county in the United States has a sheriff and
OFFICIALS. the office is everywhere elective save in Rhode Island. There
i THE tjie iegjsiature appoints the county sheriffs. The name is an
abbreviation of the old Saxon shire-reeve, which antedates
the Norman conquest of England. During the middle period of English
history, the sheriff was the right arm of the crown in the counties, the
keeper of the king's peace, and the enforcer of the common law. These
functions, in a general way, the sheriff of an American county has
inherited. He is the chief conservator of law and order and the executive
agent of the county court. The sheriff appoints deputies who assist him
in keeping the peace, attending court sessions, making arrests, serving
court papers, etc. In sparsely settled counties the security of life and
property depends to a considerable extent upon the alertness, honesty,
and courage of the sheriff and his deputies.
The sheriff, in addition to his functions as guardian of the peace within
the county, is also the chief executive officer of the county court. It is
HIS COL- through his office that the judgments of the court are
LATERAL carried out. He is the keeper of the county jail and has the
EXECUTIVE custody of all the prisoners there. He looks after the comfort
OFFICER OF of juries while the court is in session. He, or his deputies,
THE COURT. scrve subpoenas upon witnesses, or seize property in satis-
faction of judgment, or place writs of attachment upon property, or per-
form whatever other duties the court may request.
RURAL GOVERNMENT 805
The coroner is another county officer whose functions relate to law
enforcement. His duty is to hold an inquest whenever a death takes
place under circumstances which excite suspicion of crime.
To assist him at the inquest, the coroner usually calls to- CORONER
gcther a jury of citizens (usually six) who hear the evidence
and render a verdict. If the jury finds grounds for believing that a crime
has been committed, it may so declare in its verdict, whereupon a formal
warrant is usually issued for the arrest of the person accused. But neither
the coroner nor his jury determines the question of guilt or innocence.
That function is left to the regular courts.
In most of the states coroners arc elected by popular vote. To perform
his work properly a coroner should be both doctor and lawyer, but as a
rule he is neither. His jury is selected by summoning any-
body who happens to be near at hand. On the whole, FACTORY
therefore, coroner's inquests have not contributed greatly CHARACTER
to the discovery of crimes or the apprehension of offenders. OF INQUESTS
J ... IN GENERAL.
The office of coroner has a long and interesting history
behind it, but its procedure is not well adapted to conditions of today.
In a few states the coroner has been supplanted by an appointive medical
examiner, a physician with a knowledge of criminal law. This medical
examiner makes his investigations without the aid of an improvised
jury and reports the results, if necessary, to the regular prosecuting
officials for action.
The regular prosecuting officer of the county is an attorney whose
office bears various designations such as prosecuting attorney, county
solicitor, district attorney, or state's attorney. Usually he is THE
elected by the people of the county or district. His chief PROSECUTING
duty is to conduct prosecutions in the name and on behalf ATJORNLY-
of the state. He prepares the evidence for presentation to the grand jury
and advises the jurymen as to whether there is sufficient ground for
an indictment. If an indictment is found, the prosecuting attorney is
responsible for the proper handling of the case when it is brought before
the trial jury. Hence, he has considerable discretion in the way of dis-
continuing prosecutions, either by entering a nolle proscqui (do not wish
to prosecute) or by asking that a case be placed 'on file. The court's
approval is sometimes necessary for such action, but more often the
prosecuting attorney takes the whole responsibility. As indicated earlier
(see p. 731), a few states have abolished the requirement of grand jury
action in all but the most serious cases. Proceedings there are begun by an
information, which is a sworn declaration made by the prosecuting
806 THE GOVERNMENT OF THE UNITED STATES
attorney to the effect that there is sufficient ground for placing an accused
person on trial. In some states a preliminary judicial hearing is a neces-
sary part of this process.
Most people do not realize that the office of prosecuting attorney is by
all means the most powerful among local offices. It has almost unlimited
possibilities for good or evil. A lax and corrupt prosecuting
VITAL CHAR- r ° . 11-11-
AGTER OF attorney can make a fortune lor himself by selling, delaying,
HIS or denying justice. Every lawless clement is interested in
OFFIOF
having that sort of attorney at the helm. On the other hand,
a prosecuting attorney who performs his duties with honesty and courage
is doing a work which law-abiding citizens ought to appreciate more than
they usually do.
Other county officers are the treasurer, who receives the revenue and
makes all payments out of the county funds; the auditor, who inspects
the accounts and prepares from time to time a statement of
^. THE
TREASURER, the county's financial condition for presentation to the
AUDITOR, county board; the assessors, who appraise property for
CLERK, ' taxation; the clerk of the county court, who looks after the
REGISTRAR, judicial records; the registrar of deeds or recorder; and the
ETC *
county superintendent of schools. These various officials are
usually elective, although some of them may be appointed by the county
board. It is generally admitted that there are too many elective county
officers and the result has been the selection of inferior men. The voter's
interest is centered upon the candidates for state office on the one hand
and for municipal office on the other. The county, coming in between,
receives too little of his attention. Consequently, county nominations
and elections have been proverbially dominated by small rings of pro-
fessional'politicians. That is why the county has sometimes been called
"the jungle of American politics."
County government, however, is not so bad as this expression might
imply, although it is by no means so good as it ought to be. Corruption
and political dishonesty have not been so prevalent in rural
ACTUAL .... m
WORKINGS OF counties as in the cities. But mediocrity in office, unpro-
COUNTY GOV- gressiveness in policy, a failure to get full value for expendi-
ERNMENT r . . . 1-1 • r
tures, favoritism in appointments and in the award of
contracts, lack of popular interest in county affairs — these things have
all too frequently characterized county administration in most of the
states. The situation has been tolerated because the need of reform in
other quarters appeared to be more pressing. Now that both state and
municipal governments have been improved, the tide of reform is*
directing itself towards county affairs.
RURAL GOVERNMENT 807
The reconstruction of county government will involve five changes in
the present system. First among the needs of county government is a
reconstruction of the county board in those states where
it is too large and cumbersome. There is no good reason COUNTY RE-
why a county board should have more than seven mem- CONSTRUC-
bers. They should be elected by the people of the whole r. THE
county, or, if this does not seem practicable, by a few COUNTY
lafgc districts. They should have substantially the same SHOULD BE
powers that the council possesses in cities under the council- REORGAN-
r r IZED.
manager iorm ot government.
Second, there is need for a unification of executive work in county
government. As matters now stand, there is no county official correspond-
ing to the president, governor, and mayor, in national,
state, and municipal governments. Executive responsibility COUNTY
is scattered, some of it devolving upon the county board, EXECUTIVE
and the remainder accruing to the various county officers, SHOULD BE
& 7 ' UNIFIED.
each of whom is more or less independent of the others.
There ought to be a single head with ultimate executive authority as in
national, state, and city governments.
Much may be said in favor of the "manager plan" in counties, as in
cities and towns. The county board should not try to handle the details
of administration. It should employ a qualified expert. A
few states have authorized the county-manager plan and MANAGERS
some counties have actually placed this plan in operation.1
Where it exists it has merits and defects roughly corresponding to those
which the council-manager plan has disclosed in the cities. There are
also isolated instances where a partial consolidation of county executive
functions has been made and a county executive created who may or
may not bear the title of county manager. Progress in the direction of
concentrating executive responsibility has been slow because of consti-
tutional difficulties and the unwillingness of vested political interests to
give way.
Third, there should be a reduction in the number of elective officials.
There is no good reason why treasurers, auditors, assessors, and clerks
should be appointed in cities and elected in counties. The
i • • i i 1-11 • • 3- ELECTIVE
elective principle, when applied to these positions, means an OFFICES
undue lengthening of the ballot with a consequent flagging SHOULD BE
of public interest in the candidates. With a dozen or more
1 For example, see J. C Calrow, "County Manager Government in Virginia," National
Municipal Review, Vol. XXVII, pp. 148-152 (March, 1938). For a full discussion see the chapter
on "The County Manager Plan" in Arthur W Bromage, American County Government (New
York, 1933), and Helen M Mullcr, County Manager Government (New York, 1930).
808 THE GOVERNMENT OF THE UNITED STATES
county officials to he elected, the average voter will not inform himself of
their qualifications, but will be guided entirely by party designations.
The party leaders, appreciating this lack of popular interest and informa-
tion, nominate men who would not be put forward for positions in the
state or municipal government. Men of administrative ability cannot be
secured for county offices by party nominations and popular election.
Officials who have only administrative duties to perform ought to be
appointed. When they exercise the function of enforcing the state laws
(as sheriffs and prosecuting attorneys do), they should be chosen and
paid by the state, not by the county. When they perform county functions
(as county treasurers, county auditors, and county clerks do), they should
be appointed by the county board or by the county manager.
Civil service reform has as yet made scarcely a ripple upon the face of
county politics in many of the states, yet selection by merit is a principle
4 CIVIL which ought to be applied to subordinate positions in the
SERVICE service of the county as in that oi the city, state, or nation.
SHOULD* BE Clerks in courthouses, keepers in jails, foremen in road
APPLIED TO construction, even the janitors in the county buildings are
COUNTIES. st-|^ -n most instances, chosen under, the spoils system. The
progress of civil service in other fields, moreover, has tended to make the
county service a last refuge for the incompetent. Those who cannot pass
the examinations conducted by the state or the city fall back on the
county and seek political influence to' place them on the pay roll there.
The cities of the United States have made great progress in their
business methods during the past twenty-five years. Many of them have
adopted new budget systems, improved their bookkeeping
BUSINESS an<^ accounting, standardized salaries, and established
METHODS central purchasing agencies. The counties, taking them as a
NEEDED whole, have not kept pace with all this. Many of them are
using methods which the best-governed cities have dis-
carded. For example, some county officers are paid no salaries but arc
permitted to keep the fees that they collect. In well-governed com-
munities this system of paying officials has long ago been abandoned.
In many counties, moreover, each official docs his own purchasing, a
practice which has also been largely abandoned in the cities. The fifth
need, then, is for a general modernizing of the business methods used by
county officers.
How may these five reforms in county government be brought about?
Presumably in the same way that American cities have been considerably
reformed during the past twenty-five years. The legislatures should give
the counties the same opportunities for reorganization that many of
RURAL GOVERNMENT 809
them have given to the eities — the opportunity to choose their own
form of government, to revise it, simplify it, improve it, and make it more
efficient. From municipal experience the counties can learn
much if they try. But it will not be enough to provide the IHFSE
opportunity for reconstruction and stop there. The pro- CHANCES BE
, . r , c EFI'LCIED?
pulsion to relorm in city government has not come from
the legislatures but from the people. Powerful civic organizations have
aroused the voters of the cities, but in the counties there has been no such
surge of reform propaganda. It is time for the reformers to concentrate
their attention upon this dark continent of American politics.
Special problems of county government arise whenever a large city
spreads itself over all, or a great portion, of the county area. This is the
situation, for example, in Cook County which contains
Chicago, in Philadelphia County which includes Phila- PROBLEMS OF
delphia, in Cuyahoga County which contains Cleveland, MLTRO-
ctc. In some such cases, as in San Francisco, Philadelphia, IOLI1AN
' ' I ' COUNTIES.
Boston, New Orleans, and Denver, the same body acts as a
combined city council and county board, while all or most of the city
and county administrative authorities have been consolidated. In other
instances, there eire separate authorities with powers which overlap and
are frequently ill-defined. The city council and the county board arc
engaged in performing similar functions within the same area. In some
instances, the city assessors go around and make their valuations for
municipal taxation; a week or two later, the county assessors make their
rounds and assess the same property for county taxes. The waste involved
in this is obvious. Much would be saved, both in time and money, by
making each large city a separate county, letting the regular municipal
authorities perform county functions. Such consolidation has undergone
a remarkable development in Great Britain, where it is known as the
county-borough; and if constitutional and popular objections could be
overcome, there are more than one hundred and fifty areas in the United
States to which a similar plan might well be applied.
Advantages might also be derived in many cases by the consolidation
of two or three small counties into a single large one. The automobile has
made many of the smaller units unnecessary. Diminutive COUNTY
counties arc a relic of horse-and-buggy clays. North Caro- CONSOLI-
lina, for example, has 100 counties, while Georgia has 159; DArlON-
Missouri, 114; Kentucky, 120; and Texas, 254. On the other hand,
Connecticut gets along with 8, Massachusetts with 14, Wyoming with
123, and Oregon with 36. Many of the smaller counties are poverty-
stricken yet attempt to maintain a complete mechanism of government.
810 THE GOVERNMENT OF THE UNITED STATES
Consolidation of two or more counties would be productive of both
efficiency and economy, and during the past twenty years the attempt
has been made in various states to bring such consolidations about. But,
as yet, very little progress in this direction has been made. Sentimental
objections are invariably interposed, and local politicians with a vested
interest in county jobs exert a powerful influence in favor of the status
quo. Almost invariably, too, constitutional difficulties stand in the way
of this and other county reforms.1 Recently the proposal has been made
that instead of outright consolidation, contiguous counties, while
retaining their identity for all other purposes, might combine for the
purpose of carrying out certain specific functions. This plan, which is
widely used by local governments in some European countries and which
has already been adopted in Virginia, may secure some support in the
future, particularly for the handling of newer and more expensive func-
tions which are being entrusted to counties.
TOWNS, TOWNSHIPS, VILLAGES, AND DISTRICTS
For purposes of local government counties are usually divided into
towns, districts, or townships, but whenever any portion of a county
becomes urban in character through the growth of popula-
THE
VARIOUS tion, it is commonly organized as an incorporated village,
AREAS OF town, borough, or city. The practice and the terminology
ERNMENT IN are very different in various parts of the country. Towns are
THE SEVERAL the outstanding units of local government in New England;
townships are found in the middle states and the north
central regions, but not in the southern or far western parts of the
country. Villages and boroughs appear here and there without much
reference to region. It would require a whole volume to explain the
variations of government in them all. So nothing more can be attempted
in these pages than a statement of the general principles and a summary
description of the more important local units, particularly the New
England town and the middle western township.
The details of organization in towns, townships, and villages are
wholly within the control of each state. Each state has full power to devise
its own' system of local government, and to modify this
RELATION OF -,11*1111 •
LOCAL TO system at will. But although each state is supreme as respects
STATE GOV- the form and functions of local government, the legislature
ERNMENT. , . , r i Y • i r-™
does not always have a tree hand in such matters. The state
constitutions contain many limiting provisions which guarantee rights
1 See the report on "Constitutional Barriers to Improvement in County Government"
issued as a Supplement to the National Municipal Review, XXI, No. 8 (August, 1932).
RURAL GOVERNMENT 811
to the inhabitants of the local areas. And as constitutions are revised, the
tendency is to insert more of these restrictive provisions. Within the
limits set by the state constitutions, however, the legislature incorporates
towns, boroughs, townships, villages, or special districts. It does this by
a general code or by special laws. In either case, it determines what
officers a community shall have, how they shall be chosen, and what their
duties shall be. These duties it changes at frequent intervals, until the
whole body of local government law is so voluminous and complicated
that even the officials themselves often do not know what their powers
are.
Of course, there is general agreement on the principle that local
jfunctibns should be left to these local officers without state interference,
but there is no agreement as to where the line between local
. HOME RULE
and state functions should be drawn. In all cases of doubt FOR SMALL
the state legislature gives itself the benefit. The little red COMMU-
in -111 11 i • T i • NITIES.
schoolhouse might be deemed a local institution, if anything
is; but the state legislature usually determines the qualifications of the
teacher who rules therein, how much she shall be paid, and what text-
books she shall use. For education, in the large, is a matter of state-wide
consequence. Local government, therefore, is merely state government
writ small. Its officials do, in the main, what the state laws tell them
to do.
Among areas of local government the New England town is the oldest
and most interesting.1 The town is not always, as the name might imply,
a thickly settled community. Some New England towns are 1HE NEW
places with populations running into many thousands, but ENGLAND
most of them arc what would elsewhere be called townships, TOWN-
for they arc agricultural regions covering thirty or forty square miles.
One Massachusetts town has a population of over fifty thousand;
another has less than three hundred. In Maine, Vermont, and Connecti-
cut, a few villages or boroughs have been incorporated within the limits
of the town; but in general this practice has not been pursued. A town
remains a town until its people secure incorporation as a city.
The New England town does not possess a charter of incorporation,
yet it has practically all the rights and privileges 'of a* municipal cor-
poration. Originally, the towns derived their powers from
the common law, but since the Revolution it has been a
well-settled legal doctrine that they can claim no powers
except such as "have been expressly conferred by statute or which are
1 A good book on the subject is John F. Sly, Town Government in Massachusetts: 1620-1930
(Cambridge, Mass., 1930).
812 THE GOVERNMENT OF THE UNITED STATES
necessary for conducting municipal affairs."" 1 The idea that the New
England town forms a sort of miniature republic is widely current, but it
is without any legal basis. The New England town is as completely under
the thumb of the state legislature as is the western township or any other
area of local government.
To some extent the powers now possessed by the towns have been
conferred by a general law dealing with town government; but special
GENERAL statutes have also, from time to time, added new privileges
POWERS OF or functions. Today the New England town has about the
TOWNS. same authority that a city charter conveys. It may sue and
be sued, make contracts, levy taxes, borrow money, and own property.
It may, by ordinance or bylaws, provide for the protection of life and
property, the public health, and public morals. It may buiJcl and main-
tain streets and sewers, provide a water supply, public lighting, police
and fire protection, parks and public buildings. It is required to establish
schools, and it may maintain a hospital, a public library, and a market.
Welfare work is also a town function in New England. The town, in fact,
provides many services which in other parts of the country arc among
the functions of counties.
The chief organ of town government in New England is the town
meeting. An annual town meeting is usually held in May, with special
meetings whenever necessary, but not more than two or
MEETINP™ three special meetings arc commonly called during the
year. Every voter of the town is entitled to attend these
town meetings, which convene in the town hall. As a rule, however, riot
more than half of them do attend, and the percentage is frequently much
smaller. The town meeting selects its own presiding officer, who is
known as the moderator, and this honor customarily goes to its most
prominent citizen.2
Town meetings are called with considerable formality, and their
procedure is strictly regulated by law and tradition. The call is in the
form of a warrant issued by the selectmen to the constables
ITS ORGAN- i.i
IZAIION of the town commanding them to notify and warn the
AND townsmen and to "make due return" of their having done
FUNCTIONS. t^. . ^ .- t . , ^ ...
so. I he warrant specifies item by item the matters which
are to be brought before the meeting and no other business can be con-
sidered. At the annual meeting the various town officers arc elected for
the year, a poll being opened for this purpose whenever there is a contest.
1 Bloomfield v Charter Oak Bank, 121 U. S. 129
2 It is the highest honor that the townsmen can bestow and is appreciated accordingly. 4
Even governors and United States senators do not disdain to serve as modeiators at the annual
meetings in their home to*""*
RURAL GOVERNMENT 813
Usually this polling takes place in the morning, the afternoon being
devoted to a business session in which the appropriations are voted and
all matters of general town policy settled. In the more populous towns,
however, the polling often continues throughout the day, with a business
session in the evening. When the warrant contains many items, it is
impossible to finish the entire docket of business at a single session, in
which case the meeting is adjourned to a subsequent afternoon or eve-
ning, and still further adjourned if necessary.
In the smaller rural towns the occasion of the annual town meeting
has always been, and still is, a neighborhood holiday. The debate,
particularly upon matters which the world would not regard HOW THE
as of ^momentous importance, is often spirited and piquant, SYSTEM
with no dearth of humor and an occasional flare-up of ^V°I*KS
personalities. A town meeting of sturdy farmers has been SMALLER
known to debate for more than an hour a proposal to spend TOWNS-
eight or ten dollars in repairing a culvert or a fence. It is a picturesque
gathering, this annual meeting in a small New England town, with its
copious flow of homely oratory, its insistence upon settling even the
smallest details by common voice, its prodigious emission of tobacco
smoke, and the general retail of local gossip which takes place around
the doors.
But in the larger towns things are quite different. There the business
of the town meeting is for the most part cut and dried beforehand; a few
active politicians monopolize the debate, and the large 1N
amount of business necessitates the strict application of LARGER
parliamentary rules. In some of these larger towns, more- r°WNS-
over, it has become the practice to have the moderator appoint a com-
mittee, usually of fifteen or more townsmen, which makes recommenda-
tions to the town meeting on all matters in the warrant, and these
recommendations are usually adopted.
The town meeting ceases to be a satisfactory organ of local government
when the population of the town exceeds five or six thousand. When that
point is reached, a reasonably full attendance of the voters
i • -111 i <<• i i. RFCENT
becomes impractical and the control of the town policy CHANGES IN
passes into the hands of whatever element happens to»be 1I?K TOWN
, • v • 11 -n i • MEL I ING.
the stronger or more aggressive politically, ror this reason
many towns, on reaching an unwieldy size, apply for incorporation as
cities. Some others, however, have been reluctant to give up local insti-
tutions which have served so long, and hence continue a scheme of
jgovernment which no longer suits their needs. Others, again, have
attempted to modify the town meeting without actually abolishing it,
814 THE GOVERNMENT OF THE UNITED STATES
but these halfway measures do not seem to be proving altogether suc-
cessful.
One modification is to provide for a "limited town meeting." In other
words, it is arranged that the voters of the town shall elect say two or
three hundred of their own number to constitute the town meeting,
These delegates, or representatives, sit at the front of the hall and do
all the voting. The rest of the hall, including the gallery, is thrown open
to all those who care to attend. Any townsman can speak on any subject
at the meeting; but only the delegates are permitted to vote. This
arrangement, however, is only a makeshift. There is no practical halting
place between direct and representative government. A town meeting
must be one thing or the other; it cannot be both.
In the earliest days of seaboard settlement, the town meeting was the
sole organ of town government. But it was soon found necessary to have
officials who would carry the decisions of the town meeting
MEN SELECT" into effect and who would also deal with minor matters in
the intervals between the meetings. Hence developed the
practice of choosing at the annual town meeting a committee of the
townsmen, usually three or five in number, known as the selectmen.1
Originally, these selectmen were chosen for one* year only, and that
practice is generally continued, except in Massachusetts, where the
term is three years in many of the towns, one selectman retiring annually.
But in any event reelections are common, and a selectman who is willing
to serve is frequently continued in office for ten or a dozen years.
The selectmen form the executive committee of the town meeting.
They have no legislative authority, pass no bylaws, levy no taxes,
borrow no money, and make no appropriations. All these
FUNCTIONS things require action by the town meeting. Nor do the
selectmen appoint the town officers. Even their admin-
istrative functions, although multifarious, are of a subsidiary character.
They prepare the warrants for the annual or special meetings; they grant
licenses under the authority of the state laws; they lay out highways and
sewers for acceptance by the town meeting; they make the arrangements
for state and local elections, and they have immediate charge of town
property. They usually award the contracts for public work, and all bills
against the town for work or services must be approved by them before
being paid. Schools are supervised by a school committee elected at the
annual town meeting. The selectmen may serve as overseers of the poor,
or as assessors, or as the town board of health; but in towns of any
1 In Rhode Island this body is not known as the board of selectmen, but as the town*
council.
RURAL GOVERNMENT 815
considerable size these functions are entrusted to separate boards, the
members of which are also chosen at the annual town meeting. The New
England town does not, therefore, possess a centralized executive author-
ity. The selectmen share executive functions with various boards and
officials who are not under their control.
The number and nature of these boards and officials depend upon the
size of the town. Most of the towns have a school committee or board of
school trustees, a board of health, and a board of overseers OTHFR TOWN
of the poor. A large town may also have a water board, a BOARDS AND
library board, and a board of park commissioners. As for OFFIGIALS-
administrative officials, every town has its town clerk, who is perhaps
the most important among local officers. Many functions are placed
upon him by state law, such as the issuing of marriage licenses, the regis-
tration of births and deaths, the transmission of various reports to the
state authorities, and in some states the recording of deeds and mortgages.
In addition, the town clerk is the keeper of the local records and the
general factotum of the selectmen. He is elected by the town meeting,
receives a salary, and is usually continued in office so long as he does his
work satisfactorily. Each town also has its assessors, its town treasurer,
its constables, and often a considerable list of minor officials, such as
poundkeepers, fence viewers, sealers of weights and measures, etc. These
officers are usually chosen by the town meeting, but in some towns the
selectmen appoint to the minor posts.
One reason for this multiplication of administrative boards and minor
officials, even in towns which have relatively small populations, may be
found in the fact that most town officers serve without pay. WHY SQ
If the work were concentrated in a few hands, there would MANY
be a demand for remuneration. In the smaller communities 0/FICIALS?
this plan of administration by scattered and unpaid agencies serves well
enough and has the merit of cheapness; but in the larger towns, where
there is much public business to be done, it falls far short of the require-
ments and has had to be in part abandoned. These places, as a rule, are
now putting paid officials in charge of the more important services. In
general, therefore, the New England system of town government, with
three centuries of good tradition behind it, is gradually giving way before
the march of industrialism and urbanization. It served well in early days
as a cradle of democracy, but it is not adapted to the needs of a populous
community anywhere.
Townships, as areas of local government, are important in the middle
western states. In some of them the territory is mapped out into uniform
blocks, six miles square. The surveying was done when these regions were
816 THE GOVERNMENT OF THE UNITED STATES
territories under the jurisdiction of Congress, hence the divisions arc
sometimes called congressional ownerships. In some of these states, the
TOWNSHIPS township meeting is an institution of local government, but
IN THE it has not developed much vitality,1 and its chief function
MIDDLE .. r ^ • i i • rr> T i
WESTERN ls t"at °* electing the township officers. In other states,
STATES. there is no town or township meeting, the work of local
administration being wholly carried on by officers elected at the polls.
The administrative work of township government is carried on either
by a board of trustees or by a single officer known as the supervisor.
Where the board system prevails, there are different ways
OF^OWN^AND °f constituting the board, although its members are always
TOWNSHIP elected by the voters. The powers of the board alsofrvary
GOVERN-
from state to state. So it is with the single supervisor, an
elective official, whose functions are more extensive in some
of the states than in others. Towns and townships also have their clerks,
treasurers, assessors, constables, highway overseers, justices of the peace,
and other local officials, all or most of them elected.
Township government has been greatly weakened by the practice of
incorporating as a separate municipality any portion of the township
THE INCOR- which becomes urban in character. Nearly all the states
PORATED now make provision by general law for the organization of
mEs^viL^ these thickly settled areas under the name of villages,
i AGES, AND boroughs, incorporated towns, or cities. The usual course is
BOROUGHS. fQr tjie inhabitants to present a petition to some designated
officer, who submits the question of incorporation to a vote of the people,
and if they decide affirmatively, the petition is granted. The region is
thereupon incorporated as a village, borough, town, or city, as the case
may be. Usually there is a minimum requirement as to population: from
two hundred to three hundred in the case of a village, from two thousand
to twelve thousand where the petition is for incorporation as a city.
When a region is thus incorporated, it passes from the jurisdiction of
the township officers and sets up its own local government. In the case of
a village, this government commonly consists of a board of trustees or a
council with from three to nine elected members, together with a chief
executive officer; called a mayor or village president, who is either chosen
by the trustees or by the village voters. In the case of a borough, an
incorporated town, or a city, the organization is along somewhat the same
lines; but the governmental mechanism is more elaborate. The general
1 The chief reason for this, no doubt, is the purely artificial nature of the township. It has
no social homogeneity or local self-consciousness like the New England town. By incorporation,
moreover, the thickly settled portions of townships are usually organized as cities or villages,
thus breaking into the original unit.
RURAL GOVERNMENT 817
laws of each state provide what powers these local governments shall
exercise, but they generally include the making of bylaws, the manage-
ment of streets, water supply, sanitation, police, fire protection, and
public recreation. Taking the United States as a whole, there are more
than ten thousand of these small incorporated municipalities. They
differ so widely in size, population, form of government, and functions,
that no general description will hold strictly true in relation to all or
even to any large number of them.
In the southern states, the county remains the dominant area of local
government. There are no towns as in New England, and only in
scattered regions any system of organized township govern-
ment. Instead of townships, the counties frequently main-
tain special divisions for such purposes as the management IN
SOUTHERN
of schools, the building of highways, the holding of elections,
*- *~ STATES.
and the administration of justice. These county divisions
are not corporate entities, like towns or townships; they have no taxing
power and they exist for certain designated purposes only. In some
southern states, they are called magisterial districts; in others, the name
township is used, although the term is misleading.
In the far western states, the system of incorporated districts has
become general. There, it is a common practice to divide the county into
school districts, sanitary districts, flood-control districts, THE INGOR.
irrigation districts, fire-prevention districts, park districts, PORATED
and road districts, each for the purpose indicated by its ^^ATES
name. Each elects its own district trustees or other officers OF THE
when necessary. The county remains the chief unit, but its FAR WEST-
authorities cannot conveniently carry out all the work that needs to be
done, hence a division into districts is made for individual 'functions.
These districts are commonly known as "quasi-municipal corporations"
to distinguish them from regular municipalities such as cities, towns,
and townships. But they have power to tax, power to borrow, and most
of the other powers which municipal corporations possess. In some cases
they overlap one another and create serious confusion in tax rates.
One can sometimes find, therefore, a strange welter of local areas
within the bounds of a single state. Illinois, for cxar/iple,» has 102 counties,
1,138 incorporated places, 1,436 towns and townships, THE RARE
12,129 school districts, and, in addition, no fewer than 824 MOSAIC OF
road districts, sanitary districts, improvement districts, and LOCAL AREAS-
districts of other varieties. Thus, there are more than 15,000 separate
governmental units in this one state. Give them, on an average, only
twelve or fifteen officials apiece (Cook County alone has over 2,600), and
818 THE GOVERNMENT OF THE UNITED STATES
you have a quarter of a million officers of local government — one for
every ten adults in the population of the state.1 In Los Angeles County,
California, there are more than eighteen hundred governmental units for
which taxes are levied.
Local democracy is the foundation of national democracy. But the
democracy of a government, whether national or local, is not to be
judged by the number of officials whom the people elect or
GOVERNMENT the number of governmental units in which the people do
AND the electing. Too many officials, too frequent elections, too
much parceling of powers and functions — they all tend to
subvert democracy by placing authority in the hands of an invisible
monarch known as the local "boss," who lords it over them all. Popular
control of local government, in thousands of rural communities through-
out the United States, has become a mirage. It is devoid of reality. The
state legislatures, in many instances, have burdened these counties, towns,
townships, villages, and districts, with a tangle of officials, boards, and
functionaries, far beyond any conceivable need; they have cluttered up
the states with such a labyrinth of political subdivisions that not even an
expert knows just who governs him. Official responsibility to the people
has in this way been seriously impaired and sometimes reduced to the
vanishing point. The way to improve local democracy is to have a simpler
structure of local government with fewer elective officers, with larger
authority, and with a more direct responsibility for its exercise.
REFERENCES
GENERAL. Useful books on American local government in general are John
A. Fairlie, Local Government in Counties, Towns and Villages (2nd edition, New
York, 1914), H. G James, Local Government in the United States (New York, 1921),
T. B. Manny, Rural Municipalities (New York, 1930), Roger H. Wells, American
Local Government (New York, 1939), and Lane W. Lancaster, Government in Rural
America (New York, 1937).
COUNTIES. On the county the most comprehensive work is John A. Fairlie
and C. M. Kneier, County Government and Administration (New York, 1930) with
an excellent bibliography, but mention should also be made of Arthur W. Bro-
mage, American County Government (New York, 1933), Kirk H. Porter, County and
Township Government in 'the United States (New York, 1922), Wylie Kilpatrick,
Problems in Contemporary County Government (Charlottesville, Va., 1930), the same
author's County Management (Charlottesville, Va., 1929), and F. W. Hoffer,
Counties in Transition (Charlottesville, Va. 1929). Some good material on metro-
politan counties is included in Paul Studenski, The Government of Metropolitan
Areas in the United States (New York, 1930), and in Edward B. Schmit, County
1 For figures relating to the other states, see William Anderson, The Units of Government in
the United States , Public Administration Service (Chicago, 1942).
RURAL GOVERNMENT 819
Consolidation (Lincoln, Neb., 1934). The National Municipal League's Commit-
tee on County Government has issued a report on " Principles of a Model County
Government" which was printed as a Supplement to the National Municipal
Review, XXII, No. 9 (September, 1933). "A Bibliography of County Govern-
ment" may also be found in the National Municipal Review, XXI, pp. 521-524
(August, 1932), and an "Annotated List of References" in the New York
Municipal Reference Library Notes, XVIII, pp. 17-39 (January 27~February 10,
1932). State supervision of local affairs is explained in S. E. Leland (editor),
State-Local Fiscal Relations (Chicago, 1941), and Dale Pontius, State Supervision of
Local Government (Washington, 1942).
TOWNS, TOWNSHIPS, AND VILLAGES. E. D. Sanderson, The Rural Community
(Boston, 1932), John F. Sly, Town Government in Massachusetts: 1620-1930 (Cam-
bridge, Mass., 1930), C. L. Fry, American Villagers (New York, 1926), John
Gould, New England Town Meeting (Brattleboro, Vt., 1940), the volume on
Rural Government issued as the Proceedings of the Fourteenth American Country Life
Conference (Chicago, 1932), and the "Recommendations on Township Govern-
ment" printed as a Supplement to the National Municipal Review, XXIII, No. 2
(February, 1934).
CHAPTER XLIX
THE AMERICAN PHILOSOPHY OF GOVERNMENT
Nothing appears more surprising, to those who consider human affairs with a philo-
sophical eye, than the ease with which the many are governed by the few. ' — David
Hume.
The study of American government must be primarily concerned
with facts; because the true character of a government is determined by
its practices rather than by its philosophy) Accordingly,
tkis book has devoted most of its pages to the task of setting
GOME THE forth the actualities of the American political system. £As
FACTS OF *n evcrv other scientific exploration,* the study of govern-
ment should begin by laying hold of the visible phenomena.
With these in hand it should proceed to the uncovering of facts which
are not so plainly in sight. An acquaintance with the realities should
thus precede, rather than follow, any discussion of the philosophy on
which American government is assumed to be based. The design can
begetter understood after a careful inspection of the structure.
fyct the design of a government, in other words, the philosophy un-
derlying «:t, is by no means unimportant. It exerts a continuous and
considerable influence upon the workings of the political
PHILOSOPHY mechanism. And political theories, or points of view, have
unquestionably had a large part in directing the evolu-
tion of American government. ' They have been in the back of men's
minds during every discussion of governmental organization and
methods. The American citizen has a philosophy of government, and
it gives a very definite cast to his political thought, although its prin-
ciples are not always clear in his own mind.) To the extent that the
citizen gets hold of them, however, they become mental stereotypes and
influence his attitude on all questions of public policy. These principles,
when taken together, formulate a creed to which the citizen gives a
more or less consistent allegiance, in spite of his realization that some
of its contents no longer fit the times or the circumstances.
In other words, the thought of the people is heavily colored by a
820
THE AMERICAN PHILOSOPHY OF GOVERNMENT 821
political fundamentalism. Certain formulas of free government are
accepted as gospel by the great majority of Americans FUNDAMEN.
without much regard to their rationality.,* If you have TALISM IN
doubts on this score, just propose some new governmental POLITICS-
device such as the establishment of an intelligence test for voters. In the
great majority of instances, your proposal will not be listened to and
discussed on its merits. It will be met with the retort that such a thing
would be un-American, undemocratic, a violation of the principle of
human equality on which the nation was founded. That is to say,
your proposal clashes with something in the set of principles which
make up the political philosophy of the average American. What are
these principles? Sixteen of them will be enumerated, but this does not
exhaust the entire list. -
First among the various fundamentals of the American political
philosophy is a settled belief in the superiority of the republican form
of government. On this point there is virtual unanimity
among the American people^ In European republics one PRINCIPLES
can often find a group of people persistently urging a IN THE
change to a monarchical form of government.') In France, AMERICAN
J PHILOSOPHY
for example, there was a vociferous royalist faction through- OF GOVERN-
out the entire republican period from 1871 to 1940. Mon- MENT:
archical restoration also had its partisans during the period l A RE.
of the Weimar Republic in Germany (1919-1933), in PUBLICAN
republican Austria after the First World War as well as *°fj|* °* xw
1 O(JVfc.K.NMliiN 1.
in Spain during more recent years. From time to time it
appears in other European states where republican institutions are
thought to be well established.- But in the United States, there has
been no royalist faction since the federal Constitution went into effect.
The country has been at all times well united in its allegiance to re-
publican ideals. «
*But what does the average American understand by a republican
form of government? The essentials, as he understands them, are a chief
executive chosen by the people, either directly or through WHAT THB
their representatives, and an elective lawmaking body,! EXPRESSION
Most Americans do not look upon any government? as MEANS-
republican in form unless the people elect and control both branches
of it, executive and legislative. iWhere the legislature is composed of two
branches, moreover, the popular control must extend to both branches.
An hereditary chamber, even though it be secondary to the elective
Branch of the national legislature, is regarded by Americans as un-
republican.
822 THE GOVERNMENT OF THE UNITED STATES
Consequently, the average American mind identifies a republican
form of government with democracy. A monarchy, no matter what its
character or limitations, seems difficult to reconcile with
popular or democratic government in the New World
mentality. Nevertheless, Great Britain, although a mon~
DEMOCRACY. arc}1yj ^as a closer affinity with American republicanism
than with the nominally republican governments which many other
countries maintain^ To overlook that fact is to let ourselves pass into the
bondage of terminology. It is a way of demonstrating how words and
phrases have the power to muddle thought! ^The old-time classification
of governments into monarchies and republics can perform little service
nowadays except to mislead, because everyone knows that a government
may be republican in form without giving the masses of people any
substantial measure of control over it. That has been repeatedly demon-
strated in some of the republics of Central and South America, as well
as in Spain, Portugal, China, Turkey, and other countries which call
themselves republics. On the other hand> a titular monarchy may be
thoroughly republican in all the true essentials of popular participation
in government, as is the case with the various dominions of the British
Commonwealth. The vital distinction is not between republics and
monarchies, but between governments which conform to the democratic
principle and those which do notJ
-Conformance with the democratic principle requires that the popular
will shall be made manifest by the action of all those who arc politically
competent. To put this in simpler form, it means govern-
2. A REPRE~ A
SENTATIVE ment under the "control of the people, ' not the whole
DEMOCRACY. peOple, but of those who ought to have the right to vote.
Democracy is thus, to some extent, a matter of degree and raises the
question of political competence. The United States was regarded as a
democracy even when women were excluded from the electorate.
Americans look upon Switzerland as a democracy although women are
still excluded from voting privileges there. A government is deemed to be
democratic whenever its electoral basis is sufficiently broad to permit at
each election a fair portrayal of the general will. Democracy may be
either representative,* or direct, or it may be a combination of both. The
American national democracy is representative. *It functions wholly
through elective and appointive officials. State and city governments
in the United States are also representative for the most part, but in some
cases they make provision for direct action on the part of the electorate
by means of the initiative, referendum, and recall. To that extent they
are direct, as well as representative democracies.
THE AMERICAN PHILOSOPHY OF GOVERNMENT 823
Government rests upon the consent of the governed. That proposition
embodies an important article in the American political creed. The
consent of the governed is attested by a written constitution
which forms the basis of government. The purpose of a
constitution is threefold: to set up a government, to endow TIONS AS THE
it with powers, and to circumscribe it with limitations. A BASIS OF
r ' GOVERNMENT.
constitution determines what the governed have consented
to let their government do. Hence, both the national and the state con-
stitutions of the United States guarantee the citizen certain fundamental
rights cind endeavor to protect him against the abuse of political power.
It is a consensus of opinion among Americans that such written guaran-
tces^are desirable, and even essential, to prevent the oppression of the
few by the many; in other words, to preclude despotic action in individual
cases under the guise of majority rule. The idea is that the people shall ,
first agree with clue deliberation upon the fundamentals, irrespective of
specific cases, and then require that these shall be strictly observed by all
the governing authorities without exception.
Since a constitution is the supreme law, it follows that legal sovereignty
is synonymous with the power to make and unmake the constitution.
The legal sovereign is that authority which can enforce
its will to the exclusion of all other wills. Offhand it is
frequently said that sovereignty in the United States
"rests with the people." This statement, while broadly accurate, is not
sufficiently informative. Legal sovereignty, in the United States, is not
vested in the hands of the people directly. The people, by majority vote,
cannot change the national Constitution. Changes must be made
through the elective representatives of the people in one of the four
ways which the Constitution prescribes. .
In the parlance of a constitutional lawyer, therefore, it is quite correct
to say that there are no limits on the powers which may be exercised by
a two-thirds majority in both Houses of Congress and a majority in both
chambers of thirty-six state legislatures when they act in concurrence.
But the action of Congress and of the state legislatures in thus amending
the supreme law of the land is expressive of the popular will. These
bodies are simply the agencies through which the will of the people is
promulgated. Sovereignty does not, therefore, reside w^th them; it rests
with the power which stands behind them and provides the momentum.
Popular sovereignty does not cease to be real because it must function
through designated channels. \
• Yet there are limitations upon the sovereignty of the people. The form
and spirit of a government are not entirely matters of human plan and
824 THE GOVERNMENT OF THE UNITED STATES
program, subject to no forces which are beyond the power of the elec-
torate to control. Man's unfettered will is not the sole determinant of
political institutions. There must be laws which govern hu-
TIONS man volition, for all nature is governed by law. .Everything
UPON rr. jn nature inclines to move in seasons, or in undulations, or
in cycles. Day and night, winter and summer, seedtime and harvest,
follow the course of the sun in the heavens; while prosperity and de-
pression, conservatism and radicalism, courage and caution, follow each
other with almost cyclic regularity. Surely there must be forces affecting
and controlling the popular will in a universe which is everywhere else
controlled !
"Before the sea of human opinion, as on the shore of the ocean,"
wrote Sainte-Beuve, "I admire the ebb and flow. Who shall discover its
POLITICAL law?" We speak of the unpredictability of the popular will
DETERMIN- because no one has as yet discovered the laws which mould
ISM' and control its course. Everyone knows, however, that
geographic and cultural conditions have been influential factors in
determining the course of political evolution in the past. Everyone, also
knows, or ought to know, that eras of economic depression have a
profound influence in moulding the character of governments by forcing
them to assume powers which the people would not have permitted
them to acquire in normal times. And having once possessed themselves
of emergency jurisdiction, all governments strive to retain it perma-
nently.
Systems of government, therefore, do not entirely depend for their
success or failure upon the wisdom of either the governors or the
governed. Many factors which are beyond human control operate to
make the' maintenance of popular government easy or difficult. Geo-
graphic isolation is one of them. It has helped nations to keep out of
wars and thereby permitted orderly political development. So the say-
ing that the people freely determine their form of government does not
always square the truth. Sometimes the choice is (in part, at least)
determined for them by circumstances. The people of a country do not
choose, for example, whether they prefer to have a written or an un-
written constitution. If an "unwritten" constitution has not been handed
down to them from the ages, as in England, they have no alternative
but to provide themselves with the other kind. So what we call popular
sovereignty reduces itself in some instances to the determinism of time
and place and circumstance.
Y Americans, as a people, have been traditionally afraid of concentrated
political authority. This explains their steadfast belief in the principle
THE AMERICAN PHILOSOPHY OF GOVERNMENT 825
that power should be split up and divided around. First of all, it is
divided between the nation and the states. The states have rights, and
these rights must be respected by the national government. * 5 DIVISION
, Similarly, the states must leave the national government °F POWER
supreme within its own field. One must not interfere with TH™TrioN
the other. The supposed advantage of this arrangement is AND THE
that it prevents any one government from becoming too STATES-
strong. When the national Constitution was framed, there was a wide-
spread fear that it would become too powerful and ultimately trans-
form the states into mere administrative divisions of the Union. This
fear persisted for many years after 1787. Most of it has now passed
away, although ardent champions of states' rights still sound the tocsin,
from time to time. With virtual unanimity, the people of the United
States remain convinced that power should continue to be divided
between the state and national governments, but they are no longer
afraid of shifting authority from the states to the nation, when the pub-
lic interest seems to demand such transfers.
In other words, the American philosophy of government retains its
allegiance to federalism, but not to any particular brand of federalism.
Every thoughtful American realizes, of course, that to THEGROWING
abolish the State governments and concentrate all govern- CENTRALIZA-
mental responsibility in Washington would involve ex- TION*
cessive centralization. The mechanism would break down of its own
sheer weight. On the other hand, it is equally apparent that the
scattering of too much power among the states is likely to cripple the
national government's endeavor to cope with nation-wide problems in
an effective way. So the old line of demarcation between the two sets of
governmental powers is being gradually moved upward. The country
is drifting in that direction slowly but steadily.' For good or ill we are
relaxing the emphasis on federalism, state sovereignty, states5 rights, and
local self-determination, in favor of nationalism, national policy, and
centralized power.
• It is a widespread, although by no means an unanimous, popular
belief in the United States that power should not only be divided
between the nation and the states, but that within each .
O THE
government one branch should serve as a check upon the PRINCIPLE OF
other. It is in accordance with this principle of counterpoise CHECKS AND
. ^ . A . , j* * BALANCES.
that the American national and state governments are
organized. The executive, legislative, and judicial branches are kept,
to a large degree, separate and independent of each other. The Presi-
dent's veto serves as a check on Congress; the Senate's authority to
826 THE GOVERNMENT OF THE UNITED STATES
confirm appointments and to ratify treaties is intended to serve as a
limitation on the President; while the Supreme Court's right to declare
laws unconstitutional operates as a balance wheel for the elective
branches of the government. The entire structure of American govern-
ment, in fact, is based upon the idea that if a government is given free
rein, it will become oppressive, and that if individual officeholders
and officers are given the opportunity, they will abuse their powers.
They will go forward until they reach their limit, wherever it is. Hence,
power should be an automatic counterpoise to power. Sometimes, per-
haps, this check is too effective, and delays the operations of govern-
ment; but it is a measure of safety, and most Americans believe it a
wise one in spite of its defects. ,
Nevertheless, there are signs that the principle of checks and balances
is beginning to lose its traditional popularity. The past few years have
IS IT seen legislative powers of vast and far-reaching conse-
LOSING qucnce handed over by Congress to the President, with no
GROUND. such nation-wide chorus of popular protest as such action
would have inspired a generation ago. The authority of the governors
has similarly been growing at the expense of the state legislatures. In a
word, the old balance is being disturbed, and the checks are being
weakened. This is because the people seem to have lost, in large
measure, their old-time fear of executive dictatorship. For the moment,
at any rate, they are more interested in leadership than in deliberation,
more concerned about having an efficient government than disturbed
by the danger of not having a safe one. 'The American Republic is
today the only great government which retains the principle of cheeks
and balances., If the steady expansion of executive authority continues,
it may not retain that distinction very long.
* Most despotisms have been created through the placing of rulers
above the law. Laws are known and certain, while the will of a ruler
is uncertain and subject to the vagaries of human nature.
*7 A
ERNMENT OF It cannot be foretold in advance. Therefore, it is a tradi-
LAWS, NOT tion of American government that the laws should not
leave to executive discretion anything more than is
absolutely essential. (CA government of laws, not of men" is the way
John Adams phrased it. Of course it is not possible to have a government
of laws alone — because laws do not promulgate, or interpret, or
enforce themselves. Action on the part of public officials is necessary for
their just application. Action on the part of judicial officers is necessary
in order that the laws may be interpreted and enforced. *
In some European countries, it is the practice to enact the laws in
THE AMERICAN PHILOSOPHY OF GOVERNMENT 827
general terms, leaving the details to be filled by executive orders. Such
methods have hitherto been repugnant to the American philosophy of
government because they bestow upon individual officers too much dis-
cretion, and individual discretion opens the door to uncertainty, favor-
itism, and injustice^) Nevertheless, and in spite of the government-of-laws
tradition, both the national and the state political systems in the United
States have been moving steadily towards a government of men. Laws
are being enacted in broad language, after the European fashion, leading
all details (and sometimes details of supreme consequence) to be supplied
by the issue of executive orders or by the rulings of administrative boards.
Executive and administrative latitude has been widening year by year.
This is inevitable because the more complicated a civilization becomes,
the more essential it is to broaden the range of official discretion.
^Meanwhile, the belief of the American people in a government of laws
has resulted in an outpouring of legislation such as the world has never
seen before. Faith in the remedial efficacy of law is more
deeply rooted in the United States than in any other
country^ There are millions who seem to believe that their
fellow men can be made rich or righteous, industrious or intelligent,
productive or patriotic, by the alchemy of statutes and ordinances. When
the average citizen sees anything amiss, his first impulse is to suggest that
"There ought to be a law — ." Hence, there arc laws and ordinances relat-
ing to almost every detail of American life, from the length of freight
trains to the brevity of bathing suits. But the zeal of the American
democracy for the making of laws has been matched by a rather indiffer-
ent success in enforcing them. The public imagination is slow to realize
that when a law is enacted, the job is only half done, or less, than half
done.
* In Great Britain, the lawmaking body is supreme. It has the last word.
In that country, the legislature is still officially known as "the high court
of parliament." It is both a supreme legislature and a
supreme court, consequently there is nothing superior to an REvffi^CIAL
act of parliament. When a statute has been enacted by
parliament and has received the royal assent — wjiich has now become
a mere formality — no court can declare it unconstitutional. (But in the
United States, the national Constitution is superior to all lawmaking
authority, whether in the nation or the states, and the Supreme Court
has assumed the function of nullifying any law which contravenes it.
This right of the courts to examine into the constitutionality of all laws
is an outstanding feature of American government. It arises from the fact
that both the nation and the states have adopted written constitutions
828 THE GOVERNMENT OF THE UNITED STATES
which contain limitations upon the powers of lawmaking bodies/ Ob-
viously, a written constitution would not be obeyed if there were no
authority to enforce obedience, and the courts are the logical agencies of
legal compulsion. Constitutions without courts to compel their observ-
ance would be mere scraps of paper. Hence, the doctrine of judicial
review has become an essential cornerstone of the American political
system. . '
The objection is frequently raised that this practice of judicial review
gives the courts too much authority. And if it were true that the Supreme
Court could arbitrarily set aside national laws at its own discretion, this
would assuredly constitute a species of judicial despotism. But no court
ever nullifies a law for the mere reason that the judges consider it unwise
or unreasonable. They declare a law invalid only when, in their judg-
ment, it infringes some constitutional provision, and they exercise this
power in accordance with a judicial procedure which is designed to
afford safeguards against arbitrary action. One should remember that
what the courts enforce is the popular will as expressed in the law — the
supreme law. They serve as the umpire between the conflicting claims
of the nation and the states. There is 110 way in which, a federal system of
government can be successfully operated without a judicial umpire, or,
if there is, no one has ever discovered it. There must be some high author-
ity vested with the function of seeing that the rules are observed in the
inevitable competition for power.
Back in the eighteenth century, when the Constitution of the United
States was framed, privileged classes existed in most countries of Conti-
EQUALITY nental Europe. In France before the Great Revolution of
BEFORE THE , 1 789, for example, the nobility and the clergy had all sorts
LAW' of special rights and immunities. Even in England, there
were certain special privileges which members of the peerage enjoyed by
law. The founders of the American political system took measures to
forestall, so far as practicable, any such class discrimination in the
United States. To the extent that the laws can prevent it, no class or
creed or section in the United States has any special privilege. They are
equal before the law.*.
" It is true, of course, that people cannot be made equal in fact. Neither
laws nor constitutions can avail to accomplish this. For it is the order of
nature that human beings shall differ in physical strength, intelligence,
industry, wealth, and general capacity. No ordinance of man, accord-
ingly, can succeed in making all citizens equal, or keep them equal, in
competence and resources. But a constitution can make them^equally
subject to the laws of the land and can place them equally within the
THE AMERICAN PHILOSOPHY OF GOVERNMENT 829
jurisdiction of the courts. That is what Thomas Jefferson probably had in
mind when he wrote of equality as "the denial of every preeminence but
that annexed to legal office, and particularly the denial of a preeminence
by birth." Equality, to the American mind, is a juristic concept, to be
interpreted in connection with the democratic theory of equal justice and
a square deal before the law. It is the declaration of an ideal, not a state
of affairs. It is not something that exists, but something to be labored for.*
Equality, in recent years, has been to some extent confused with
security. Economic inequality, as represented in the public imagination
by capital on the one hand and labor on the other, is being EOUALITY
widely regarded as a mainspring of economic insecurity. AND
Accordingly, there are those who think that the poor can SEGURITY-
be made rich by the simple device of making the rich poor. If that could
be done, the world would have learned the art long ago, for it has tried
the experiment many times. Economic equality, or anything approach-
ing it, cannot be achieved except by the sacrifice of liberty. Political
and legal equality, however, can exist, despite variations in economic
status, provided the latter be not too wide. This proviso is important, for
those who possess the wealth of a nation will rule it in the long run. A
reasonably wide distribution of wealth and property is therefore a hostage
for the protection of political and legal equality.
The dogma of legal equality provides a groundwork for the jury
system. The great majority of Americans regard the jury as an indis-
pensable bulwark of civil liberty, although they appreciate
i o TRIAL
the fact that the system of trial by jury docs not always BY y
operate satisfactorily — and indeed many of them try to
avoid jury service,, Nevertheless, even those who get themselve^ exempted
from such service oppose all proposals to abandon or even restrict jury
trials. Their intuition serves to tell them that the requirement of trial by
jury is the most dependable of all formal safeguards against the abuse of
governmental power.* It gives every person the privilege of proving his
innocence or establishing his civil rights before a group of his fellow
citizens drawn by lot from among his own neighbors. Thus it makes legal
equality real. Oppressive laws may be enacted by; legislatures, but such
laws cannot be enforced unless juries are willing to cooperate, which is
another way of saying that oppressive laws cannot be enforced unless
the people approve their enforcement. A jury is merely a small cross-
section of the electorate and reflects the popular will with a good deal of
fidelity. Hence, lawmakers must always keep in mind the fact that no
statute can be made effective if juries believe its provisions to be un-
reasonable or arbitrary. In a word, the jury system helps to keep law in
830 THE GOVERNMENT OF THE UNITED STATES
tune with public opinion. It provides a link between the judicial hier-
archy and the electorate. >
•The people of the United States have committed themselves to the
principle that adult citizens of both sexes (with certain restrictions as to
residence and literacy) shall be entitled to an equal vote at
SAL suF-VER~ a" elections. This is a relatively recent article in the political
FRAGE AND creed of the American people, but it has come to stay. There
THE SECRET jg nQ likelihood that the country will ever sec a return to
BALLOT. 7
property qualifications or to manhood suffrage.) On the
contrary, it is not improbable that there may be an extension of the
suffrage to persons under twenty-one years of age. In one state (Georgia)
the minimum age for voting is now fixed at eighteen^ Universal suffrage
means that nearly half the total population is eligible to be enrolled as
voters, which makes the American electorate the largest single electorate
in the world^t is so large that only a portion of it really understands most
of the complicated issues which come up for decision at the polls.
-The electorate controls the government through the pressure of public
opinion and by periodically using the ballot. It is an accepted principle
in the United States that a voter shall rmve one vote only and that the
ballot which he uses shall be a secret one.^But it is not yet a generally
accepted rule that the ballot shall be short, simple, and intelligible, as
well as secret. The process of government has been protected against
intimidation but not against electoral helplessness. Proportional repre-
sentation, which made such striking progress in European countries
after the close of the First World War, has as yet gained no considerable
foothold in America. This is partly because political minorities in the
United States do not urgently feel the need of it as a protection, and
partly because the procedure used in counting the ballots under a pro-
portional representation system is somewhat bewildering to the average
citizen. The plan has been tried at municipal elections in a number of
American cities during recent years; but some of these cities have dis-
carded it after a trial. In any case, it is not adapted to use in national or
state elections where only one candidate is usually chosen from each district.
* In some European countries, there is an "established" church, that is,
a church which i§ officially recognized. This established religion sornc-
12 NOES- times receives financial assistance for its churches or its
TABLISHMENT schools out of the public treasury. In a few instances, the
OF RELIGION. connection js so ciose that the higher officials of the church
are appointed (or their appointments are confirmed) by the national
government. This is the case in England. All such interlocking of political
and ecclesiastical organization is regarded by most/ Americans as deiri-
THE AMERICAN PHILOSOPHY OF GOVERNMENT 831
mental to the best interests of church and state__alike. Hence, a separation
of the two has been maintained in the United States since the Revolution.
The national Constitution forbids any establishment of religion by action
of Congress, or the passing of any law which limits the free exercise of
religious belief, or which sets up any religious test for the holding of
public office*. The principle of religious toleration is thus embedded in
the supreme law of the land and may not be infringed upon by any action
of the national authorities! Most of the state constitutions contain similar
J7
provisions as a limitation upon the powers of their legislatures. In these
states no religious body may be given special privileges which are denied
to other such bodies, and no public funds may be appropriated for sec-
tarian purposes. •
i*JThere are two general methods of organizing the government of local
communities. One is to make all such governments uniform in plan and
to place them under the control of the central authorities. T0 Tr,^AT
_ •*• 3' -H-H^ALf
This was the arrangement in France during the Third SELF-GOV-
Republic (1870-1940). All communes (that is, all villages, ERNMENT-
towns, and cities, with the exception of Paris) were given the same
general framework of local government and then held under the rigid
supervision of the national authorities. Local government in France thus
resembled a pyramid with local authorities forming the base and the
highest national authority forming the apex.)
The other method of organizing local government is to require no gen-
eral uniformity, but to allow each county, town, or city to endow itself
with whatever form of government it may see fit. Under this plan of
unstandardized local organization, every community is accorded a large
measure of freedom in the administration of its own affairs. This concept
of local self-determination gained its first general acceptance in England
and was brought to America in colonial days. There it quickly gained a
foothold in the Virginia county and the New England town, whence it
spread throughout the entire country. *
I The American philosophy of government still leans strongly toward
this principle. It accepts, in general, the proposition that people should
be allowed to administer their own local affairs in their own way/ The
presumption is against rigid supervision from cibove. But local self-
determination must necessarily be limited by regulations made in the
general interest, for no community lives by itself in these days of closened
contact! Each comes into daily touch with other communities whose
interests may be adversely affected by a misuse of local freedom. Con-
flagrations and epidemics do not stop at town boundaries. Laxity in one
village or town may visit unmerited penalties upon its next-door neigh-
832 THE GOVERNMENT OF THE UNITED STATES
bors. For that reason each community cannot be permitted entire self-
decision in the matter of protecting itself against fire or disease. Local
home rule is a worthy ideal, and the burden of proof continues to be
upon those who advocate a departure from it; but with the interlocking
of urban communities, the obstacles to it are increasing.
I * Although political parties are not mentioned at all in American
Constitutions, and are rarely mentioned in the laws, they ramify deeply
into all the practical aspects of government and profoundly
ERNMENT BY influence the citizen's attitude towards it. Parties originate
POLITICAL in the differences of opinion which necessarily arise concern-
PARTIES. . T • i • 11 i • i« i
ing political questions; but they secure their direction, and
most of their momentum, from economic issues. If all men had the same
worldly interests, it would be difficult to maintain party organizations
as we now have them. The desire to secure, or to preserve, economic
advantages is a strong and continuing impetus to party strength. *^)
£ - Americans as a whole believe in the two-party system, and most of
them hold to the fiction that the two major parties reflect fundamental
differences in the political convictions of the people. This, however, the
major parties have ceased to do. Both of them are now wholly dissociated
from their original professions of political belief. Tod&y they are mottled
composites of opinion based on tradition, inheritance, race, religion,
occupation, or locality ./The English historian, Macaulay, once declared
that the natural division of men lies between those who want to hold
back and those who want to push forward; in other words, that all men
are by nature reactionaries or progressives, conservatives or liberals.
This is probably true,^yet the major political parties have not followed
any such line of cleavage in the United States. tThere are reactionaries
in both of them, and progressives in both. The party label gives no clue
to the wearer's point of view. Hence the assumption that party govern-
ment gives the voter a choice between alternatives is by no means well-
founded in America. In the United States, the political issues do not
create the parties, as in European countries: the parties create the issues,
or seize upon popular ones as a means of getting into power. The
American philosophy of two-party government does not square with the
current actualities. Fdr this reason, there are some who believe that there
should be a realignment of parties, discarding the old traditions and
establishing a new division based upon the natural cleavage between
conservatives and liberals. Logic would dictate such action, no doubt,
but logic does not have a dominating influence in politics. Habit is a
stronger determinant of political action, especially when it has been
continued for several generations./
THE AMERICAN PHILOSOPHY OF GOVERNMENT 633
•The social order which has traditionally existed in most countries of
the world is known as economic individualism, or the capitalistic system,
to distinguish it from the various forms of collectivist organ-
• • • * i • • i • i • i • *
ization, including national socialism and communism. NOMIG
Under an individualistic social order, most of the property INDI-
11 • j- -J i *. r • _i- VIDUALISM.
in a country belongs to individuals, or to groups of indi-
viduals known as corporations; under a collectivist organization of
society, the agencies of production and distribution belong to the com-
munity — they are not owned by individuals or corporations, but by
the whole people. (Under the totalitarian systems of government which
came into being in Italy and Germany between the two World Wars,
private property and private enterprise were retained in form; but both
were placed under so large a measure of governmental restraint that
individual ownership became little more than a fiction. In Soviet Russia,
operating under a communist system, " private" property was taken over
by the state and only " personal" property was allowed to individuals.
According to the Russian differentiation between these two terms, per-
sonal property includes things which an individual acquires through his
own earnings or savings for his own personal use — a home, an auto-
mobile, furnishings, even luxuries — all of which an individual is per-
mitted to own. Private property, on the other hand, is assumed to mean
factories, shops, rented houses, bonds, stocks, and all other property
which can be "used to exploit the labor of others." The distinction
between personal and private property, however, cannot always be kept
sharp and clear. ( ^
^ Individualism and private property have always formed the basis of
the social and economic organization in the United States. The whole
economic structure rests upon it, and our political phi- ^ CONSTI.
losophy has adjusted itself to this arrangement. The national TUTIONAL
Constitution requires that no person shall be deprived of BASIS>
life, liberty, or property without due process of law. This sense of security,
this assurance that what a man earns and saves shall be his own, not to
be arbitrarily taken away from him for the benefit of others less in-
dustrious or thrifty — this guarantee has been the foundation of the
American economic system since the beginning. . ,
• But the right of private property has never been looked upon in
America as an absolute right, a right which a man may use to the
detriment of others. Rights of private ownership are
subordinate to the public interest. The ownership of
property by individuals can be justified only if the owners
regard themselves as trustees for the common well-being. In earlier days
834 THE GOVERNMENT OF THE UNITED STATES
there was a strong presumption against any interference with* private
property or business, and the national tradition still tends that way; but
during more recent years, the old sanctity of private ownership has been
losing a good deal of its grip on the public imagination. The government,
as the representative of the public interest, has been encroaching upon
private property and freedom of contract through the broader exercise
of its taxing and police powers.
The United States has been slowly swinging away from its extreme
attachment to individualism and has been placing various erstwhile
private enterprises under public control, but it has not yet gone nearly
so far as the countries of Continental Europe. Banking and the issue
of securities have been brought under rigid governmental supervision;
the same is true of the railroads, the public utilities, and the insurance
companies. By the congressional legislation of recent years, an attempt
has been made to establish a degree of control over the operations of
agriculture and industry far exceeding anything previously known in the
United States. This attempt bears witness to the gradual weakening of the
old economic philosophy.
Finally, it has been a cardinal principle of the American faith that the
nation should avoid becoming involved in the vicissitudes of Europe by
keeping clear of entangling alliances or even international
1 6. ATTITUDE , ,. r ^ . i i i . i i i
ON INTER- understandings of any sort. On the other hand, it should
NATIONAL stand firm against any interference by European countries
ISOLATON- *n t^ie affairs of the Western Hemisphere. Not even the in-
ISM VERSUS volvement of the United States in the First World War
A WORLD materially weakened the faith of the American people in
this traditional policy. This was demonstrated when the
country refrained from joining the League of Nations and refused to
accept the protocol of the World Court. Towards the end of the 1930*8,
even as war clouds once more gathered ominously on the international
horizon, Congress passed neutrality legislation in the futile hope that,
if a world struggle again occurred, the United States could keep out of it.
* Now that the nation has been given its second lesson, the people of the
United States have come to realize the impossibility of remaining at
peacf while the rest of the world goes to war. The world has
now become too small, dnd the United States too powerful,
for any such hope to be realized. There is every indication,
therefore, that the American philosophy with reference to foreign affairs
will undergo a considerable change. Whatever we might desire the
country's course to be, if circumstances permitted, no thoughtful
American can blink the grim fact that twice within a single genera-
TjHE AMERICAN PHILOSOPHY OF GOVERNMENT 835
tion his country was drawn into a world conflict through no fault of
its own. Having paid so great a penalty on these two occasions, it is not
surprising that the mind of the people with respect to the interest of
America in foreign affairs has undergone a change/
( Every government rests on the faith of its people. The foregoing outline
of a political creed does not exhaust the category of principles in which
the American citizenship believes. There are others which
will readily suggest themselves to anyone who gives the FUSION
matter a little thought. As a philosophy of government in
the twentieth century, it leaves a good deal to be desired; on the other
hand, it will stand comparison with that of any other country AMeasured
by tfie results of its application to the rulership of more than a hundred
and thirty million people, it is by no means to be ranked as a CinderelL.
among confessions of political faith. Yet no nation should commit the
folly of regarding any principle of government as rigid and unchangeable
for all time. Principles, like methods, should be modified as circum-
stances require. Theories should be drawn into articulation with the
facts. For government is a going concern, maintained for the benefit
of the governed, and not as an end in itself.
"Equal and exact justice to all men, of whatever state or persuasion,
religious or political; peace, commerce and honest friendship with all
nations — entangling alliances with none; the support of the
11 i • • i i A. FINAL
state governments in all their rights, as the most competent QUOTATION
administrations for our domestic concerns, and the surest — FULL OF
t , , . . , ,. j • i WISDOM.
bulwarks against anti-republican tendencies; the preserva-
tion of the general government in its whole constitutional vigor, as the
sheet anchor of our peace at home and safety abroad; . . . freedom of
religion; freedom of the press; freedom of person under the protection of
the habeas corpus; and trial by juries impartially selected — these
principles form the bright constellation which has gone before us and
guided our steps." These words of Thomas Jefferson, as uttered in hi?
first inaugural, embody a nugget of prophetic sagacity which Americans
would do well to treasure^ They state a political creed which, for the
greater part and in all its fundamentals, should gtill satisfy those who
seek the noblest and the best in American political life.
REFERENCES
The reader who is interested in the theoretical aspects of American govern-
ment will find illuminating discussions in A. B. Hart, American Ideals Historically
Traced (New York, 1907), A. H. Snow, The American Philosophy of Government
(New York, 1921), F. W. Coker, Democracy, Liberty and Property (New York,
836 THE GOVERNMENT OF THE UNITED STATES.
1942), C. E. Merriam, American Political Ideas (New York, 1920), New Aspects of
Politics (Chicago, 1931), and Political Power (New York, 1934), A. N. Holcombe,
The Foundations of the Modern Commonwealth (New York, 1923), Ralph H. Gabriel,
The Course of American Democratic Thought (New York, 1940), R. G. Gettell, The
History of American Political Thought (New York, 1928), W. S. Carpenter, The
Development of American Political Thought (Princeton, 1930), Edward R. Lewis,
A History of American Political Thought from the Civil War to the World War (New
York, 1937), J. M. Jacobson, The Development of American Political Thought: A
Documentary History (New York, 1932), B. F. Wright, Jr., Source Book of American
Political Theory (New York, 1929), Charner M. Perry (editor), The Philosophy
of American Democracy (Chicago, 1943), G. E. G. Catlin, A Study of the Principles
of Politics (New York, 1930), F. W. Coker, Recent Political Thought (New York,
1934), Henry Jones Ford, Representative Government (New York, 1924), C. J.
Friedrich, Constitutional Government (Boston, 1941), and E. M. Sait, Political
Institutions (New York, 1938).
In addition, there are volumes which deal with recent trends in American
thought on political and related matters. Those interested would do well to
become familiar with some of the following: Franklin D. Roosevelt, Looking
Forward (New York, 1933), Herbert C. Hoover, The Challenge to Liberty (New
York, 1934), Henry A. Wallace, America Must Choose (New York, 1934), J. Allen
Smith, The Growth and Decadence of Constitutional Government (New York, 1930),
J. A. Kinneman and R. G. Browne, America in Transition (New York, 1942),
Roscoe Pound and others, Federalism as a Democratic Process (New Brunswick,
N. J., 1942), Louis M. Hacker, The Triumph of American Capitalism (New York,
1940)1 J- T. Salter (editor), The Pattern of Politics (New York, 1940), Henry
Hazlitt, A New Constitution Now (New York, 1942), W. Y. Elliott, The Need for
Constitutional Reform (New York, 1935), Wendell L. Willkie, One World (New
York, 1943), Walter Lippmann, U. S. Foreign Policy, Shield of the Republic (Boston,
!943)5 C. B. Swisher, American Constitutional Development (Boston, 1943), B. F.
Wright, The Growth of American Constitutional Law (New York, 1942), W. T.
Stace, The Destiny of Western Man (New York, 1942), E. S. Griffith, The Impasse
of Democracy (New York, 1939), Avery Craven, Democracy in American Life (Chi-
cago, 1941), T. V. Smith, The Democratic Tradition in American Life (New York,
1941), F. A. Hayek, The Road to Serfdom (London, 1944), and James Burnham,
The Managerial Revolution (New York, 1941).
APPENDIX
CONSTITUTION OF THE UNITED STATES
WE the people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquillity, provide for the common defense,
proiriote the general welfare, and secure the blessings of liberty to ourselves and
our posterity, do ordain and establish this Constitution for the United States of
America.
ARTICLE I
SECTION i. All legislative powers herein granted shall be vested in a Con-
gress of the United States, which shall consist of a Senate and House of Rep-
resentatives.
SECTION 2. i. The House of Representatives shall be composed of members
chosen every second year by the people of the several States, and the electors
in each State shall have the qualifications requisite for electors of the most
numerous branch of the State legislature.
2 . No person shall be a representative who shall not have attained to the age
of twenty-five years, and been seven years a citizen of the United States, and
who shall not, when elected, be an inhabitant of that State in which he shall
be chosen.
3. Representatives and direct taxes l shall be apportioned among ^the several
States which may be included within this Union, according to their respective
numbers, which shall be determined by adding to the whole number of free
persons, including those bound to service for a term of years, and excluding
Indians not taxed, three fifths of all other persons.2 The actual enumeration
shall be made within three years after the first meeting of the Congress of the
United States, and within every subsequent term of ten years, in such manner
as they shall by law direct. The number of representatives shall not exceed
one for every thirty thousand, but each State shall have, at l^ast one representa-
tive; and until such enumeration shall be made, the State of New Hampshire
shall be entitled to choose three, Massachusetts eight, Rhode Island and
Providence Plantations one, Connecticut five, New York six, New Jersey four,
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina
five, South Carolina five, and Georgia three.
1 See the sixteenth amendment, below, p. 849.
2 Partly superseded by the fourteenth amendment, below , p. 848.
837
838 APPENDIX
4. When vacancies happen in the representation from any State, the ex-
ecutive authority thereof shall issue writs of election to fill such vacancies.
5. The House of Representatives shall choose their speaker and other officers,
and shall have the sole power of impeachment.
SECTION 3 i. The Senate of the United States shall be composed of two
senators from each State, chosen by the legislature thereof, for six years; and
each senator shall have one vote.1
2. Immediately after they shall be assembled in consequence of the first
election, they shall be divided as equally as may be into three classes. The
seats of the senators of the first class shall be vacated at the expiration of the
second year, of the second class at the expiration of the fourth year, and of
the third class at the expiration of the sixth year, so that one third may be
chosen every second year; and if vacancies happen by resignation, or otherwise,
during the recess of the legislature of any State, the executive thereof may
make temporary appointments until the next meeting of the legislature, which
shall then fill such vacancies.2
3. No person shall be a senator who shall not have attained to the age of
thirty years, and been nine years a citizen of the United States, and who shall
not, when elected, be an inhabitant of that State for which he shall be chosen.
4. The Vice President of the United States shall be President of the Senate,
but shall have no vote, unless they be equally divided. *
5. The Senate shall choose their other officers, and also a president pro
tempore, in the absence of the Vice President, or when he shall exercise the office
of President of the United States.
6. The Senate shall have the sole power to try all impeachments. When
sitting for that purpose, they shall be on oath or affirmation. When the Presi-
dent of the United States is tried, the chief justice shall preside- and no person
shall be convicted without the concurrence of two thirds of the members present.
7. Judgment in cases of impeachment shall not extend further than to removal
from office' and disqualification to hold and enjoy any office of honor, trust or
profit under the United States: but the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment and punishment, according
to law.
SECTION 4. i . The times, places, and manner of holding elections for senators
and representatives, shall be prescribed in each State by the legislature thereof;
but the Congress may at any time by law make or alter such regulations, except
as to the places of choosing senators.
2. The Congress shall assemble at least once in every year, and such meeting
shall be on the first Monday in December,3 unless they shall by law appoint a
different day.
SECTION 5. i. Each House shall be the judge of the elections, returns and
qualifications of its own members, and a majority of each shall constitute a
1 See the seventeenth amendment, below, p. 850.
2 Ibid. 3 See the twentieth amendment, below , p. 850.
CONSTITUTION OF THE UNITED STATES 839
quorum to do business; but a smaller number may adjourn from day to day,
and may be authorized to compel the attendance of absent members, in such
manner, and under such penalties as each House may provide.
2. Each House may determine the rules of its proceedings, punish its members
Cor disorderly behavior, and, with the concurrence of two thirds, expel a member.
3. Each House shall keep a journal of its proceedings, and from time to time
publish the same, excepting such parts as may in their judgment require secrecy;
and the yeas and nays of the members of either House on any question shall,
at the desire of one fifth of those present, be entered on the journal.
4. Neither House, during the session of Congress, shall, without the consent
of the other, adjourn for more than three days, nor to any other place than
that in which the two Houses shall be sitting.
SECTION 6. i. The senators and representatives shall receive a compensation
for their services, to be ascertained by law, and paid out of the Treasury of the
United States. They shall in all cases, except treason, felony and breach of the
peace, be privileged from arrest during their attendance at the session of their
respective Houses, and in going to and returning from the same; and for any
speech or debate in either House, they shall not be questioned in any other
place.
2. No senator or representative shall, during the time for which he was
elected, be appointed to any civil office under the authority of the United States,
which shall have been created, or the emoluments whereof shall have been
increased during such time; and no person holding any office under the United
States shall be a member of either House during his continuance in office.
SECTION 7. i. All bills for raising revenue shall originate in the House of
Representatives; but the Senate may propose or concur with amendments
as on other bills.
2. Every bill which shall have passed the House of Representatives and the
Senate, shall, before it become 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 that 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 returned 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.
3. Every order, resolution, or vote to which the concurrence of the Senate
and House of Representatives may be necessary (except on a question of ad-
APPENDIX
j . ,.jnment) shall be presented to the President of the United States; and before
the same shall take effect, shall be approved by him, or being disapproved by
him, shall be repassed by two thirds of the Senate and House of Representatives,
according to the rules and limitations prescribed in the case of a bill.
SECTION 8. i . The Congress shall have power to lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the common defense and
general welfare of the United States; but all duties, imposts and excises shall be
uniform throughout the United States;
2. To borrow money on the credit of the United States;
3. To regulate commerce with foreign nations, and among the several
States, and with the Indian tribes;
4. To establish an uniform rule of naturalization, and uniform laws on the
subject of bankruptcies throughout the United States;
5. To coin money, regulate the value thereof, and of foreign coin, and fix
the standard of weights and measures;
6. To provide for the punishment of counterfeiting the securities and cur-
rent coin of the United States;
7. To establish post offices and post roads;
8. To promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their respective
writings and discoveries; %
9. To constitute tribunals inferior to the Supreme Court;
10. To define and punish piracies and felonies committed on the high seas,
and offenses against the law of nations;
1 1 . To declare war, grant letters of marque and reprisal, and make rules
concerning captures on land and water;
12. To raise and support armies, but no appropriation of money to that
use shall be for a longer term than two years;
13. To provide and maintain a navy;
14. To make rules for the government and regulation of the land and naval
forces;
15. To provide for calling forth the militia to execute the laws of the Union,
suppress insurrections and repel invasions;
1 6. To provide for organizing, arming, and disciplining the militia, and for
governing such part of them as may be employed in the service of the United
States, reserving to the States respectively the appointment of the officers,
and the authority of training the militia according to the discipline prescribed
by Congress;
1 7. To exercise exclusive legislation in all cases whatsoever, over such district
(not exceeding ten miles square) as may, by cession of particular States, and the
acceptance of Congress, become the seat of the government of the United States,
and to exercise like authority over all places purchased by the consent of the
legislature of the State in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful buildings; and
CONSTITUTION OF THE UNITED STATES 841
1 8. To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this Constitu-
tion in the government of the United States, or in any department or officer
thereof.
SECTION 9. i . The migration or importation of such persons as any of the
States now existing shall think proper to admit, shall not be prohibited by the
Congress prior to the year one thousand eight hundred and eight, but a tax
or duty may be imposed on such importation, not exceeding ten dollars for
each person.
2. The privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require it.
3. No bill of attainder or ex post facto law shall be passed.
4. No capitation, or other direct, tax shall be laid, unless in proportion to the
census or enumeration hereinbefore directed to be taken.1
5. No tax or duty shall be laid on articles exported from any State.
6. No preference shall be given by any regulation of commerce or revenue
to the ports of one State over those of another: nor shall vessels bound to, or
from, one State be obliged to enter, clear, or pay duties in another.
7. No money shall be drawn from the treasury, but in consequence of ap-
propriations made by law; and a regular statement and account of the receipts
and expenditures of all public money shall be published from time to time.
8. No title of nobility shall be granted by the United States: and no person
holding any office of profit or trust under them, shall, without the consent of
the Congress, accept of any present, emolument, office, or title, of any kind
whatever, from any king, prince, or foreign State.
SECTION 10. i. No State shall enter into any treaty, alliance, or confedera-
tion; grant letters of marque and reprisal; coin money; emit bills of credit;
make anything but gold and silver coin a tender in payment of debts; pass
any bill of attainder, ex post facto law, or law impairing the obligation of con-
tracts, or grant any title of nobility.
2. No State shall, without the consent of the Congress, lay any imposts or
duties on imports or exports, except what may be absolutely necessary for
executing its inspection laws: and the net produce of all duties and imposts
laid by any State on imports or exports, shall be for the use of the treasury
of the United States; and all such laws shall be subject to the revision and
control of the Congress.
3. No State shall, without the consent of Congress, Jay any duty of tonnage,
keep troops, or ships of war in time of peace, enter into any agreement or
compact with another State, or with a foreign power, or engage in war, unless
actually invaded, or in such imminent danger as will not admit of delay.
1 Sec the sixteenth amendment, below, p. 849.
842 APPENDIX
ARJICLE II
SECTION i. i. The executive power shall be vested in a President of the
United States of America. He shall hold his office during the term of four
years, and, together with the Vice President, chosen for the same term, be
elected, as follows:
2. Each State shall appoint, in such manner as the legislature thereof may
direct, a number of electors, equal to the whole number of senators and rep-
resentatives to which the State may be entitled in the Congress: but no sen-
ator or representative, or person holding an office of trust or profit under the
United States, shall be appointed an elector.
1 The electors shall meet in their respective States, and vote by ballot for
two persons, of whom one at least shall not be an inhabitant of the same State
with themselves. And they shall make a list of all the persons voted for, and of
the number of votes for each; which list they shall sign and certify, and transmit
sealed to the seat of the government of the United States, directed to the presi-
dent of the Senate. The president of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates, and the votes
shall then be counted. The person having the greatest number of votes shall be
the President, if such number be a majority of the whole number of electors
appointed; and if there be more than one who have such majority, and have an
equal number of votes, then the House of Representatives shall immediately
choose by ballot one of them for President; and if no person have a majority,
then from the five highest on the list the said House shall in like manner choose
the President. But in choosing the President, the votes shall be taken by States,
the representation from each State having one vote; a quorum for this purpose
shall consist of a member or members from two thirds of the States, and a ma-
jority of all the States shall be necessary to a choice. In every case, after the
choice of the President, the person having the greatest number of votes of the
electors shail be the Vice President. But if there should remain two or more
who have equal votes, the Senate shall choose from them by ballot the Vice
President.2
3. The Congress may determine the time of choosing the electors, and the
day on which they shall give their votes; which day shall be the same through-
out the United States.
4. No person except a natural born citizen, or a citizen of the United States,
at the time of the adoption of this Constitution, shall be eligible to the office
of President; neither shall any person be eligible to that office who shall not
have attained to the age of thirty-five years, and been fourteen years a resident
within the United States.
5. In case of the removal of the President from office, or of his death, resig-
nation, or inability to Discharge the powers and duties of the said office, the
xThe following paragraph was in force only from 1788 to 1803.
2 Superseded by the twelfth amendment, below, p. 847.
CONSTITUTION OF THE UNITED STATES 843
same shall devolve on the Vice President, and the Congress may by law provide
for the case of removal, death, resignation, or inability, both of the President
and Vice President, declaring what officer shall then act as President, and
such officer shall act accordingly, until the disability be removed, or a President
shall be elected.
6. The President shall, at stated times, receive for his services a compensa-
tion, which shall neither be increased nor diminished during the period for
which he shall have been elected, and he shall not receive within that period
any other emolument from the United States, or any of them.
7. Before he enter on the execution of his office, he shall take the following
oath or affirmation: — "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."
SECTION Q. i. The President shall be commander in chief of the army and
navy of the United States, and of the militia of the several States, when called
into the actual service of the United States; he may require the opinion, in
writing, of the principal officer in each of the executive departments, upon any
subject relating to the duties of their respective offices, and he shall have power
to grant reprieves and pardons for offenses against the United States, except
in cases of impeachment.
2. He shall have power, by and with the advice and consent of the Senate,
to make treaties, provided two thirds of the senators present concur; and he
shall nominate, and by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and consuls, 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:
but the Congress may by law vest the appointment of such inferior officers,
as they think proper, in the President alone, in the courts of law, or in the
heads of departments.
3. The President shall have power to fill up all vacancies that may happen
during the recess of the Senate, by granting commissions which shall expire
at the end of their next session.
SECTION 3. He shall from time to time give to the Congress information of
the state of the Union, and recommend to their consideration such measures
as he shall judge necessary and expedient; he may, on extraordinary occasions,
convene both Houses, or either of them, and in case of disagreement between
them with respect to the time of adjournment, he ma»y adjourn them to such
time as he shall think proper; he shall receive ambassadors and other public
ministers; he shall take care that the laws be faithfully executed, and shall
commission all the officers of the United States.
SECTION 4. The President, Vice President, and all civil officers of the United
States, shall be removed from office on impeachment for, and conviction of,
treason, bribery, or other high crimes and misdemeanors.
844 APPENDIX
ARTICLE III
SECTION 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. The judges, both of the Supreme and inferior
courts, shall hold their offices during good behavior, and shall, at stated times,
receive for their services, a compensation, which shall not be diminished during
their continuance in office.
SECTION 2. i. The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and treaties made,
or which shall be made, under their authority; — to all cases affecting ambas-
sadors, other public ministers and consuls; — to all cases of admiralty and mari-
time jurisdiction; — to controversies to which the United States shall be a party;
— to controversies between two or more States; — between a State and citizens
of another State; l — between citizens of different States; — between citizens of
the same State claiming lands under grants of different States, and between a
State, or the citizens thereof, and foreign States, citizens or subjects.
2. In all cases affecting ambassadors, other public ministers and consuls,
and those in which a State shall be party, the Supreme Court shall have orig-
inal jurisdiction. In all the other cases before mentioned, the Supreme Court
shall have appellate jurisdiction, both as to law and to fact, with such exceptions,
and under such regulations as the Congress shall make. *
3. The trial of all crimes, except in cases of impeachment, shall be by jury;
and such trial shall be held in the State where the said crimes shall have been
committed; but when not committed within any State, the trial shall be at
such place or places as the Congress may by law have directed.
SECTION 3. i. Treason against the United States, shall consist only in levying
war against them, or in adhering to their enemies, giving them aid and comlort.
No person shall be convicted of treason unless on the testimony of two witnesses
to the same overt act, or on confession in open court.
2. The Congress shall have power to declare the punishment of treason, but
no attainder of treason shall work corruption of blood, or forfeiture except
during the life of the person attainted.
ARTICLE IV
SECTION i. Full faith and credit shall be given in each State to the public
acts, records, and judicial proceedings of every other State. And the Congress
may by general law? prescribe the manner in which such acts, records and pro-
ceedings shall be proved, and the effect thereof.
SECTION 2. i. The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.
2. A person charged in any State with treason, felony, or other crime, who
shall flee from justice, and be found in another State, shall on demand of the
1 See the eleventh amendment, below, p. 847.
CONSTITUTION OF THE UNITED STATES 845
executive authority of the State from which he fled, be delivered up to be re-
moved to the State having jurisdiction of the crime.
3. No person held to service or labor in one State, under the laws thereof,
escaping into another, shall, in consequence of any law or regulation therein,
be discharged from such service or labor, but shall be delivered up on claim
of the party to whom such service or labor may be due.
SECTION 3. i. New States may be admitted by the Congress into this Union;
but no new State shall be formed or erected within the jurisdiction of any other
State; nor any State be formed by the junction of two or more States, without
the consent of the legislatures of the States concerned as well as of the Congress.
2. The Congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to the
United States; and nothing in this Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular State.
SECTION 4. The United States shall guarantee to every State in this Union
a republican form of government, and shall protect each of them against in-
vasion; and on application of the legislature, or of the executive (when the legis-
lature cannot be convened) against domestic violence.
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose amendments to this Constitution, or, on the application of the
legislatures of two thirds of the several States, shall call a convention for pro-
posing amendments which, in either case, shall be valid to all intents and pur-
poses, as part of this Constitution when ratified by the legislatures of three
fourths 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; Provided
that no amendment which may be made prior to the year one thousand eight
hundred and eight shall in any manner affect the first and fourth clauses in the
ninth section of the first article; and that no State, without its consent, shall be
deprived of its equal suffrage in the Senate.
ARTICLE VI
SECTION i. All debts contracted and engagements entered into, before the
adoption of this Constitution, shall be as valid against the United States under
this Constitution, as under the Confederation.
SECTION 2. This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or which shall be made, un-
der the authority of the United States, shall be the supreme law of the land;
and the Judges in every State shall be bound thereby, anything in the Constitu-
tion or laws of any State to the contrary notwithstanding.
SECTION 3. The senators and representatives before mentioned, and the mem-
bers of the several State legislatures, and all executive and judicial officers, both
of the United States and of the several States, shall be bound by oath or affir-
346 APPENDIX
mation to support this Constitution; but no religious test shall ever be re
quired as a qualification to any office or public trust under the United States.
ARTICLE VII
The ratification of the conventions of nine States shall be sufficient for the
establishment of this Constitution between the States so ratifying the same.
Done in Convention by the unanimous consent of the States present the seven-
teenth day of September in the year of our Lord one thousand seven hundred
and eighty-seven, and of the independence of the United States of America
the twelfth. In witness whereof we have hereunto subscribed our names.
Gcr WASHINGTON —
Presidt. and Deputy from Virginia
Articles in addition to, and amendment of, the Constitution of the United
States of America, proposed by Congress, and ratified by the legislatures
of the several States pursuant to the fifth article of the original Constitution.
ARTICLE I l
Congress shall make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
ARTICLE II
A well regulated militia, being necessary to the security of a free State, the
right of the people to keep and bear arms, shall not be infringed.
ARTICLE III
No soldier shall, in time of peace, be quartered in any house, without the
consent of the owner, nor in time of war, but in a manner to be prescribed by
law.
ARTICLE IV
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or affirma-
tion, and particularly describing the place to be searched, and the persons or
things to be seized.
ARTICLE V
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising
1 The first ten amendments adopted in 1791.
CONSTITUTION OF THE UNITED STATES 847
in the land or naval forces, or in the militia, when in actual service in time of
war or public danger; nor shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use
without just compensation.
ARTICLE VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the accusa-
tion; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the assistance of counsel
for his defense.
ARTICLE VII
In suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise reexamined in any court of the United States, than
according to the rules of the common law.
ARTICLE VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
ARTICLE IX
The enumeration in the Constitution of certain rights shall not be construed
to deny or disparage others retained by the people.
ARTICLE X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved :o the States respectively, or to the
people.
ARTICLE XI1
The judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of any
foreign State.
ARTICLE XII2
The electors shall meet in their respective States, and vote by ballot for
President and Vice President, one of whom, at least, shall not be an inhabitant
1 Adopted in 1 798. 2 Adopted in 1 804.
848 APPENDIX
of the same State with themselves; they shall name in their ballots the person
voted for as President, and in distinct ballots, the person voted for as Vice
President, and they shall make distinct lists of all persons voted for as Presi-
dent and of all persons voted for as Vice President, and of the number of votes
for each, which lists they shall sign and certify, and transmit sealed to the
seat of the government of the United States, directed to the President of the
Senate; — The President of the Senate shall, in the presence of the Senate
and House of Representatives, open all the certificates and the votes shall
then be counted; — The person having the greatest number of votes for Presi-
dent, shall be the President, if such number be a majority of the whole num-
ber of electors appointed; and if no person have such majority, then from the
persons having the highest numbers not exceeding three on the list of those
voted for as President, the House of Representatives shall choose immediately,
by ballot, the President. But in choosing the President, the votes shall be taken
by States, the representation from each State having one vote; a quorum
for this purpose shall consist of a member or members from two thirds of the
States, and a majority of all the States shall be necessary to a choice. And if
the House of Representatives shall not choose a President whenever the right
of choice shall devolve upon them, before the fourth day of March next following,
then the Vice President shall act as President, as in the case of the death or other
constitutional disability of the President. The person having the greatest number
of votes as Vice President shall be the Vice President, if such number be a
majority of the whole number of electors appointed, and if no person have a
majority, then from the two highest numbers on the list, the Senate shall choose
the Vice President; a quorum for the purpose shall consist of two thirds of the
whole number of Senators, and a majority of the whole number shall be neces-
sary to a choice. But no person constitutionally ineligible to the office of Presi-
dent shall be eligible to that of Vice President of the United States.
ARTICLE XIII1
SECTION i. Neither slavery nor involuntary servitude, except as punish-
ment for crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.
SECTION 2. Congress shall have power to enforce this article by appropriate
legislation.
ARTICLE XIV2
SECTION i . All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
1 Adopted in 1865. 2 Adopted in 1868.
CONSTITUTION OF THE UNITED STATES 849
SECTION 2. Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of persons in
each State, excluding Indians not taxed. But when the right to vote at any
election for the choice of electors for President 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 participation in rebellion,
or other crime, the basis of representation therein shall be 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.
SECTION 3. No person shall be a senator or representative in Congress, or
electof of President and Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously taken an
oath, as a member of Congress, or as an officer of the United States, or as a
member of any State legislature, or as an executive or judicial officer of any
State, to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two thirds of each House, remove such
disability.
SECTION 4. The validity of the public debt of the United States, authorized
by law, including debts incurred for payment of pensions and bounties for serv-
ices in suppressing insurrection or rebellion, shall not be questioned. But
neither the United States nor any State shall assume or pay any debt or obli-
gation incurred in aid of insurrection or rebellion against the United States,
or any claim for the loss or emancipation of any slave; but all such debts, ob-
ligations and claims shall be held illegal and void.
SECTION 5. The Congress shall have power to enforce, by appropriate leg-
islation, the provisions of this article.
ARTICLE XV1
SECTION i. The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.
SECTION 2. The Congress shall have power to enforce this article by ap-
propriate legislation.
ARTICLE XVI2
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.
1 Adopted in 1 870.
2 Passed July, 1909; proclaimed February 25, 1913.
850 APPENDIX
ARTICLE XVII1
The Senate of the United States shall be composed of two senators from
each State, elected by the people thereof, for six years; and each senator shall
have one vote. The electors in each State shall have the qualifications requisite
for electors of the most numerous branch of the State legislature.
When vacancies happen in the representation of any State in the Senate,
the executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the execu-
tive thereof to make temporary appointments until the people fill the vacancies
by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term
of any senator chosen before it becomes valid as part of the Constitution^
ARTICLE XVIII2
SECTION i. After one year from the ratification of this article, the manu-
facture, sale, or transportation of intoxicating liquors within, the importation
thereof into, or the exportation thereof from, the United States and all terri-
tory subject to the jurisdiction thereof, for beverage purposes, is hereby pro-
hibited.
SECTION 2. The Congress and the several States $hall have concurrent
power to enforce this article by appropriate legislation.
SECTION 3. This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of the several States,
as provided in the Constitution, within seven years from the date of submission
thereof to the States by the Congress.
ARTICLE XIX3
SECTION i. The right of citizens of the United States to vote shall not be
denied or abridged by the United States, or by any State, on account of sex.
SECTION 2. Congress shall have power, by appropriate legislation, to enforce
the provisions of this article.
ARTICLE XX4
SECTION i. The terms of the President and Vice President shall end at noon
on the 2Oth day of January, and the terms of senators and representatives
at noon on the 3d day of January, of the years in which such terms would
have ended if this article had not been ratified; and the terms of their successors
shall then begin.
1 Passed May, 1912, in lieu of paragraph one, Section 3, Article I, of the Constitution and
so much of paragraph two of the same section as relates to the rilling of vacancies, prockiimed
31, 1913
2 Proclaimed January 29, 1918. Repealed by the twenty-first amendment..
3 Proclaimed August 26, 1920
4 Proclaimed October 15, 1933
CONSTITUTION OF THE UNITED STATES $51
SECTION 2. The Congress shall assemble at least once in every year, and
such meeting shall begin at noon on the 30! day of January, unless they shall
by law appoint a different day.
SECTION 3. If at the time fixed for the beginning of the term of the Presi-
dent, the President-elect shall have died, the Vice President-elect shall be-
come President. If a President shall not have been chosen before the time
fixed for the beginning of his term, or if the President-elect shall have failed
to qualify, then the Vice President-elect shall act as President until a President
shall have qualified, and the Congress may by law provide for the case wherein
neither a President-elect nor a Vice President-elect shall have qualified, declar-
ing who shall then act as President, or the manner in which one who is to
act shall be selected, and such person shall act accordingly until a President
or Vi<;e President shall have qualified.
SECTION 4. The Congress may by law provide for the case of the death of
any of the persons from whom the House of Representatives may choose a
President whenever the right of choice shall have devolved upon them, and
for the case of the death of any of the persons from whom the Senate may
choose a Vice President whenever the right of choice shall have devolved upon
them.
SECTION 5. Sections i and 2 shall take effect on the i5tli day of October
following the ratification of this article.
SECTION 6. This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by the legislatures of three-fourths of
the several States within seven years from the date of its submission.
ARTICLE XXI1
SECTION i. The eighteenth article of amendment to the Constitution of
the United States is hereby repealed.
SECTION 2. The transportation or importation into any state, territory,
or possession of the United States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby prohibited.
SECTION 3. This article shall be inoperative unless it shall have been ratified
as an amendment to the Constitution by conventions in the several states,
as provided in the Constitution, within seven years from the date of the sub-
mission hereof to the States by the Congress.
1 Proclaimed December 5, 1933.
INDEX
Abbott, Edith, Public Assistance, 460.
Abernethy, Thomas P., Western Lands and the
American Revolution, 29 n.
Adair, D. See Hamilton, W. H.
Adams, James T , Revolutionary New England,
1691—1776, 32. See also Beck, James M.
Adams, John, 28, 37, on political parties, 1 16.
Adams, John Quincy, election of, as Presi-
dent, 151.
Adams, R. G , Political Ideas of the American
Revolution, 33.
Adamson Act (1916), 448.
Adkins v. Children's Hospital, 94 n, 447 n.
Administration, national, and the cabinet,
200—212; and the independent and emer-
gency services, 233-251 ; in states, 692-708;
quality of, 744, in cities, 780-798.
Administrative discretion, delegation of, 525-
527-
Administrative law, growth of, 526-527.
Administrative services, in national govern-
ment, 233—251, permanent, 235—243; mis-
cellaneous independent, 243-245; emer-
gency, 245-251
Admiralty law, 552.
Agar, Herbert, The People's Choice, 1 70.
Agricultural Adjustment Act (1933), 70, 247,
349-350; Second act (1938), 465.
Agricultural adjustment administration, 246-
247.
Agricultural Marketing Act (1929), 464
Agriculture, federal department of, 225, 463;
Delation of Congress to, 461-468, market-
ing and production controls of, 463—467;
crop control, 465; other aids to, 467-468.
Aiken, Charles, National Labor Relations
Board Cases, 460.
Air force, department of the, 220, 493.
Air-mail service, 476.
Alaska, purchase, 293, 530; government of,
224, 532-533-
Albany Congress (1754), 22—23.
Alderfer, H. F. See Tanger, Jacob.
Aldermen. See City council.
Alexander, D. S., History and Procedure of the
House of Representatives, 320, 334, 343 n.
Alexander, M. C., The Development of the
Power of the Executive in New Tork, 679 w,
690.
Alexander, N., The Rights of Aliens under the
Federal Constitution, 96.
Alfange, Dean, The Supreme Court and the
National Will, 587.
Allen, James S., The Negro Question in the
United States, 112.
Alsop, Joseph W., Jr., and Kintner, Robert,
Men around the President, 212.
Altman, G. T., Introduction to Federal Tax-
ation, 379.
Ambassadors, appointment of, 191.
Amendments to the Constitution, 75-78, the
first ten, 77, 524, eleventh, 77, 553, twelfth,
77, thirteenth, 78, fourteenth, 78, 521, fif-
teenth, 78, 101-102; sixteenth, 78, 370-
371, seventeenth, 78, 272, eighteenth, 78;
nineteenth, 78, 106; twentieth, 78, 159—
1 60, 316, twenty-first, 78; to state consti-
tutions, 6 1 3- -6 1 4.
American Historical Review, 36.
American Institute of Weights and Measures,
Our Arnei ican System of Weights and Measures,
4B5:
American Law Institute, A Study of the Busi-
ness of the Federal Courts, 566.
American Legislators' Association, State
Government, 662.
American Political Science Review, 12, 232, 347 n.
American Steel v. Speed, 368 n.
American Tobacco Company case, 440.
American Tear Rook, 397.
Ames, H. V., "The Proposed Amendments
to the Constitution of the United States
during the First Century of Its History,"
80; State Documents on Federal Relations, 609.
Anderson, Dewey, California State Govern-
ment, 708; and Davidson, Percy E , Ballots
and the Democratic Class Struggle; a Study in
the Background of Political Education, 145.
Anderson, Nels, a*nd Lindeman, E. C., Urban
Sociology, 758 n.
Anderson, T. J., Jr., Federal and Stale Control
of Banking, 437, 709.
Anderson, W. H., The Philippine Problem,
545-
Anderson, William, American Government, 12;
Fundamentals of American Government, 12;
American City Government, 778; The Units of
Government in the United States, 818 n.
853
854
INDEX
Andrews, Charles M , The Colonial Period of
American History, 32, Colonial Self-Govern-
ment, 1632-1689, 32, The Colonial Back-
ground of the American Revolution, 32.
Andrews, John B , Admimshativc Labor Legis-
lation, 459; Labor Laws in Action, 459, 709.
See also Commons, John R.
Annals of the American Academy of Political and
Social Science, "The Constitution in the
Twentieth Century," 80, on lobbying, 346;
on radio broadcasting, 42 1 , "The Adminis-
tration of Justice," 566; on study of state
constitutions, 621.
Annapolis Convention (1786), 30—31.
Anthony, S. B. See Stan ton, E. C.
Anthony amendment, Susan B., 106 n.
Anti-Federalist party, 115.
Anti-Masonic party, 1 1 8 n.
Anti-third-term tradition, 75, 147.
Appointments, by the President, 190—193;
confirmation by the Senate, 191, 288-290,
recess, 191, 290; by state governors, 682-
683, by mayors, 764.
Apportionment, in House of Representa-
tives, under Method of Major Fractions,
309 n, under Method of Equal Piopor-
tions, 309 n.
Appropriation bills, origin of, in House of
Representatives, 302, early plans of con-
sidering, 385-386, procedure under new
budget system, 387-391, passage thiough
Congress, 388-391, riders in, 389-390; in
states, 718-719 See also Finance.
Archbald, Judge, impeachment of, 300 n.
Aristotle, on principle of division of powers,
34; PolltlCS, 57 72.
Armed forces unification, 489-490.
Army Organization Act of 1920, 492
Army, department of the, 220 22 i , control of
President1 over, 195—196, 507, size of, 490-
491; volunteer, 490, national, 491, war-
time selective conscription, 490-491
Arneson, B. A., Elements of Constitutional Law,
65-
Arnold, Thurman W , 7 he Folklore of Capi-
talism , 459, Ihe Bottlenecks of Bu sinew,
459-
Arsenals, forts, etc., power of Congress over,
495-
Articles of Confederation 25-26, general
provisions of, 25-26; functions of executive
under, 26, ratification of, 26, delegation of
powers under, 348.
Asbury, Herbert, The Gangs of New Totk, an
Informal History of the Underworld, 638
Assessment. See Taxation
Association of Amei ican Law Schools, Com-
mittee of, Selected Essays on Constitutional
Law, 65.
Atkinson, C. R., The Committee on Mules and
the Overthrow of Speaker Cannon, 334; and
Beard, C. A., " The Syndication of the
Speakerslnp," 334.
Attainder, bills of, 517—518.
Attorney general, appointment of, 201 ; head
of the department of justice, 222-223
Auniann, F. R., The Changing American Legal
System, 743
Austin r Tennessee, 403 n.
Australian ballot, use of, in congressional
elec tions, 311.
Babbitt, H E., and Doland, J. J., Water
Supply Engineering, 798.
Babbitt, Irving, Democracy and Leadership, 97.
Bailey, T. A , A Diplomatic History* of the
American People, 515
Bailey v Drcxcl Furniture Co., 447 n.
Baird, F , and Benner, C. L , Ten Tears of
Federal Intermediate Credits, 437.
Baker, Gladys, The County Agent, 473.
Baker, Ray Stannard, Woodrow Wilson. Life
and Letters, 170.
Baldndge, R. L , Record of Bills Vetoed and
Action faken 'I her eon by the Senate and the
House of Representatives, Fifty- first Congress to
Seventy-eighth Congress, Inclusive, 185.
Baldwin, Hanson W , United We Stand: De-
fense of the Western Hemisphere, 502.
Baldwin, S. E, The American Judiciary, 566,
743-
Ball, C. R., Federal, State, and Local Relation-
ships in Agriculture, 473
Ball, Joseph H , Collective Security, 516.
Ballantinc, Arthur A , "The Federal Power
over Interstate Commerce Today," 419
Bancroft, Geoige, History of the Formation of
the Constitution, 33, 52.
Bankhead-Jones Farm Tenant Act (1937), 467.
Banking system, federal, 426-436, history of,
426-436, power of Congress to charter
banks, 426 429, act of 1863, 429, defects
in, 429, federal reserve, 430-433, merits
and shortcomings of, 432, collapse of, 432;
emergency act of 1933, 432, insurance of
deposits under, 433, relation of state banks
to, 433, regulation of, in the several states,
698
Bankruptcy, power of Congress over, 480—
48.
Bainctt, J D., The Operation of the Initiative
and Referendum in Oregon, 673
Barnett, V M., Jr., "Contested Congres-
sional Elections in Recent Years," 312^.
Barrett, J. A., Evolution of the Ordinance of
1787, 29 n.
Barrows, David P., History of the Philippines,
545-
INDEX
855
Barth, Harry A., Financial Control in the States
with Emphasis on Control by the Governor ', 690,
727.
Baruch, Bernard M., American Industry at War,
502.
Basse tt, Edward M., Boning, 798.
Basse tt, John S., Short History oj the United
States, 544.
Bates, Ernest S., The Story of Congress, 1789—
/9jj, 364, The Story of the Supreme Court,
587.
Bates, F. G., and Field, O. P., State Govern-
ment, 609, 661, 708, 743.
Beach, W. G See Walker, Edward E.
Bealc, H. K. (editor), The Diary of Edward
Bales. 212.
Bean, Louis H., Ballot Behavior; A Study of
Presidential Elections, 145, 170.
Beard, Charles A , on judicial supremacy,
6 1 n; American Government and Politics, 12,
66 1 ; An Economic Interpretation of the Con-
stitution of the United States, 37 n, 4972, 52;
'I he Supreme Court and the Constitution, 61 n,
587; 7 he American Party Battle, 133; Public
Policy and the General Welfare, 364; The
Navy Defense or Portent^ 502, The Idea of
National Interest and the Open Door at Home,
516, and Beard, Mary R., The Rise of
American Civilisation, 30 n, 544; and Beard,
William, The American Leviathan, 252, and
Smith, G H E., fhe Future Comes, 252.
See also Atkinson, C. R.
Beard, William, 7 he Regulation of Pipe Lines
as Common Carriers, 420.
Beck, Herbert M., How to Become an Ameri-
can Citizen, 96.
Beck, James M , The Vanishing Rights of the
States, 609; and Adams, J. T., The Constitu-
tion of the United States, 52.
Becker, Carl L , The Eve of the Revolution, 32;
Declaration of Independence, 32; Our Great
Experiment in Democracy, 80.
Beckett, G , The Reciprocal Trade Agreements
Program, 420.
Bcckhart, B. H , The Discount Policy of the
Federal Reserve System, 437. See also Willis,
H. P.
Beer, George L., Origins of the British Colonial
System, 1578—1660, i8n, 32; British Colonial
Policy, 1754-1765, 1 8 n, 32, The Old Colonial
System, 1660-1754, 32.
Belknap, William, impeachment of, 300.
Beman, L. T., The Abolishment of the Electoral
College, 170; (editor), Selected Articles on
States Rights, 609; Election versus Appoint-
ment of Judges, 743.
Bemis, S. F., A Diplomatic History of the United
States, 515, The Latin- American Policy of the
United States, 515.
Bendiner, Robert, The Riddle of the State De-
partment, 231.
Benjamin Commission, Administrative Adjudi-
cation in the State of New York, 756.
Benncr, C. L See Baird, F.
Bennett, W. B., The American Patent System,
486.
Benson, G. S. C , The New Centralization; a
Study of Intergovernmental Relationships in the
United States, 486, 609.
Bent, Silas, Justice Oliver Wendell Holmes, 588.
Berdahl, C. A , "The President's Veto of Pri-
vate Bills," 185; The War Powers of the
Executive of the United States, 199. See also
Mathews, John M.
Berle, A. A., Jr., and Means, G. G., The Mod-
ern Corporation and Private Property, 459.
Bernhcim, Alfred L , and others, Labor and
Government, 459
Best, Harry, Crime and Criminal Law in the
United States, 743.
Betters, Paul V , State- Administered Munici-
pally-Shared Gasoline Taxes, 727, (editor),
Recent Federal-City Relations, 779.
Beveridge, Albert J , Life of John Marshall,
52, 428 n, 577 n, 587.
Beveiidge, Sir William, Social Insurance and
Allied Services, 460.
Bicameral system, adoption of, in Congress,
271-272, in states, 640-642.
Bicknell, Edward, territorial Acquisitions of
the United States, 545
Bidclle, Francis, Mr. Justice Holmes, 588.
Bidwell, Percy A , The Tariff Policy of the
United States' A Study of Recent Experience,
419, 7 he Invisible Tariff, 420.
Bigham, Chve, The Prime Ministers oj Great
Britain, 161 n.
Bill of Rights, in original state constitutions,
27, rights of citizens secured by, 92-93,
560-565, in state constitutions, 93, 617, of
GI's, 497, in relation to wai, 500, limita-
tions on courts and judicial procedure in,
560-565
Bill of Rights Review, 97.
Bills, passage of, by agreement of Senate and
House, 174-175, vetoing, procedure in,
174; in House of Representatives, 337-346;
introduction of^ m House of Represent-
atives, 337-338, of attainder, 517-518; in
state legislatures, 651-656. See also Veto
power.
Billson, W. W., Equity and Its Relation to the
Common Law, 566.
Bimetallism, the conflict over, 423.
Birikley, Wilfred E , American Political Parties,
Their Natural History, 133, 638; The Powers
of the President: Problems of American Demo-
cracy, 185.
856
INDEX
Bird, F. L., and Ryan, F. M., The Recall of
Public Officers: A Story of the Operation of the
Recall in California, 673, 676 n.
Bishop, J. B., Presidential Nominations and Elec-
tions, 1 70; Theodore Roosevelt and His Time,
170.
Bispham, G. T., The Principles of Equity, 566.
Blachly, F. F., and Oatman, M. E., Adminis-
trative Legislation and Adjudication, 199, 252;
Federal Regulatory Action and Control, 199,
252.
Black, H. C., The Relation of 'the Executive Power
to Legislation, 185, 677 n, 691 ; The Construc-
tion and Interpretation of LAWS, 566.
Black, J. D., Agricultural Reform in the United
States, 472; "Agricultural Problems," 473.
See also Nourse, E. G.
Blacks tone, quoted, i ; endorsement of sepa-
ration of powers, 57-58; Commentaries, 57.
Blaisdell, D. C., Government and Agriculture;
the Growth of Federal Farm Aid, 231, 437,
472; Economic Power and Political Pressures,
459-
Blaisdell, T. C., Jr., The Federal Trade Com-
mission, 252, 459.
Blakey, R. G., The State Income Tax, 727; and
Blakey, G. C., The Federal Income Tax, 380.
Blatchford, B. U., American State Debts, 727.
Bloomfield v. Charter Oak Bank, 812 n.
Blount, William, impeachment of, 297, 299.
Blue-sky laws, in states, 698.
Bogen, J. I., and others, Money and Banking,
436.
Bonbright, J. C., Public Utilities and the Na-
tional Power Policies, 420; and Means, Gar-
diner, The Holding Company: Its Public Sig-
nificance and Its Regulation, 420.
Bonds, federal, types of, 395-396; refunding
of, 396-307; state and municipal, power
of Congress in relation to taxation of, 372—
373; refunding, in states and cities, 396,
724-725.
Bone, Hugh A. See Howard, L. Vaughn.
Boothe, V. B., The Political Party as a Social
Process, 133, 638.
Boots, R. S., The Direct Primary in New Jersey ,
638.
Borchard, E. M., Diplomatic Protection of
Citizens Abroad, 96; Declaratory Judgments,
735 n, 743; and Lage, P., Neutrality for the
United States, 516.
Borrowing, powers of Congress in, 392-397;
absence of limitations on, 393; methods of,
federal, 395-396; in states, 724-725; in
cities, 767-768.
Bosses, political, 635-637.
Boudin, Louis B., Government by Judiciary, 588.
Boutwell, W. D., and others, Axmiw Pre-
pares jar Tomorrow^ 502,
Bowers, Claude G., Jefferson and Hamilton,
115n> *33; The Party Battles of the Jackson
Period, 133; The Tragic Era, 133; Bevendge
and the Progressive Era, 133.
Bowman, Dean O., Public Control of Labor Re-
lations, 460.
Boyle, J. E., Farm Relief, 472.
Bradshaw, William L., "Missouri's Proposed
New Constitution," 621.
Brannon, H., The Rights and Privileges Guar-
anteed by the Fourteenth Amendment, 528.
Brant, I., Storm over the Constitution? 587.
Bridenbaugh, C., Cities in the Wilderness: The,
First Century of Urban Life in America, 1625-
1742, 32.
Bridgman, R. L., The Massachusetts Consti-
tutional Convention of 1917, 62 1 .
Brinkmann, Carl, Recent Theories of Citizen-
ship in Its Relation to Government, 96.
Brodie, Bernard, Sea Power in the Machine Age,
502; A Layman's Guide to Naval Strategy, 502.
Brogan, D. W , Government of the People, 1 2,
185; Politics and Law in the United States , 566.
Bromage, Arthur W , State Government and
Administration in the United States, 609; Man-
ager Plan Abandonments, 779, American County
Government, 807 n, 818.
Brooks, R. C., Political Parties and Electoral
Problems, 112, 133, 638.
Browder, Earl, The Peopled Front in America,
133-
Brown, A. D., List of References on Civil Service
and Personnel Administration in the United
States: Federal, State, Local, 269.
Brown, Everett S., "The Restoration of Civil
and Political Rights by Presidential Par-
don," 89 n.
Brown, G. R., The Leadership of Congress, 320,
334, 346.
Brown, H. G., The Economics of Taxation, 726.
Brown, John, executed for treason, 519.
Brown, Josephine, Public Relief, 460.
Brown, L. G., Immigration, 420.
Brown, Robert C., Cases and Other Materials
on the Law of Taxation, 379.
Brown v. Maryland, 403 n.
Browne, R. G. See Kinneman, J. A.
Brownlow, Louis, and others, "The Execu-
tive Office of the President," 198.
Bruce, A. A., The American Judge, 743.
Bruce, H. R., American Parties and Politics, 133,
638.
Bryan, W. B., History of the National Capital,
546.
Bryan, William J., 423.
Bryce, Lord, on the American Constitution,
66; need for organization of parties, 135-
136; on the presidency, 160; on the Su-
preme Court, 567; estimate of John
INDEX
857
Marshall, 578; T he American Commonwealth ,
7 n, i6oH, 578 77, 777, Hindrances to Good
Citizenship, 97, Modern Democracies, 135 rc,
669 rz.
Buchanan z>. Warley, 522 n.
Buck, A. E , Public Budgeting, 397, 727, The
Budget in Governments of today, 397, 727,
Modernizing Our State Legislatures , 66 1,
Administrative Consolidation in the State Govern-
ments, 708, Budgetary Control, 727, f/ie Re-
organization of State Governments in the United
States, 7^6, Municipal Finance, 798, and
others, Wartime Problems of State and Local
Finance, 726.
Buck, Solon J , f/ie Agrarian Crusade, 133
Budget, federal bureau of the, 219, 242, 386-
387-
Budget system, federal, 385-392; value, 391 —
392, defects of, 392, in states, 719-721;
essentials of, 720, in cities, 797. See also
Appropriation bills
Buchler, A. G , Public Finance, 379, 726
Buchler, E. C , Compulsory Alditary Service,
502, State and Local l"a\ Revision, 726
Buell, R L , and otheis, Problems oj the New
Cuba, 546.
Buflord, C M , The Wagner Act, 460.
Bullard, Arthur, American Diplomacy in the
Modern World, 199
Bullock, C J , Selected Readings in Public Fi-
nance, 379.
Bunker, F. I7., Hawaii and the Philippines,
545-
Bunn, G W , Juri ^diction and Practice of the
Courts of the United States, 566.
Burchfield, Laverne, Student'1 s Guide to At ate-
rials in Political Science, 12
Burdette, Franklin L , Filibustering in the
Senate, 304.
Bui dick, Charles K , Law of the American
Constitution, 65, 364
Burgess, John W., Political Science and Consti-
tutional Law, 64.
Burgess, W. R , The Reserve Banks and the
Money Market, 437.
Burke, Edmund, on forms of government, 79;
quoted, 213, 321 , on the duty of represent-
atives, 313-314.
Burnett, Edmund G., I he Continental Congress,
32.
Burnham, James, The Managerial Revolution,
836.
Burns, Edward M., James Madison, Philoso-
pher of the Constitution, 5 1 .
Burns, Eveline M., Toward Social Security ',
460.
Burr, Aaron, election of, as Vice President,
150; acquitted of treason, 519.
Busbey, L. W., Uncle Joe Cannon, 145, 334.
Butler, C. II , The Treaty Making Power of the
United States, 304, 51 5, A Centurv of the Bar
of the Supreme Court, 588.
Butler, Pierce, in constitutional convention
of 1787, 36
Byron, Lord, quoted, 5.
Cabinet, development of, by usage, 73-74,
and national administration, 200-212;
compared with English cabinet, 200, 203—
204, 230-231, attitude of constitutional
convention towards, 200, offices estab-
lished by President and Congress, 201-202,
qualifications for appointment to, 203-
207, powers and functions of, 207-209,
meetings, 208-209, its relation to the Presi-
dent, 208, to Congress, 229-230.
Cable Act (1922), 88
Cabot, H B/ See Warner, S B.
Caldcr v Bull, 518 n.
Calhoun, John C, on nullification, 351;
State Papers on Nullification, 351 n.
California, bifurcated legislative session in,
64-5
California v Central Pacific R R Co , 477 n.
Callendcr, C N , American Courts: Their
Organization and Procedure, ^366, 743.
Cairo w, J C , "County Manager Govern-
ment in Virginia," 807 n.
Calvert, Thomas H See Meigs, W. M.
Cameron, J , I he Development of Governmental
forest Control in the United Staff r, 473
Campaign funds 141-142.
Campbell, D. A , Workman's Compensation,
709
Campbell, Douglas W. See O'Rourke,
Vernon A
Cannon, Clarence*, Cannon^ s Precedents of the
House oj Representatives of the United States,
34(>
Cardozo, B N , The Nature of the Judicial
Process, 743.
Carmichacl v Southern Goal and Coke Co ,
457"
Caroline Islands, 536.
Carpcntei, Edmund J , America in Hawaii,
545
Carpenter, Nilcs, The Sociology of City Life,
758 n
Carpenter, W. JJ , Judicial Tenure in the United
States, 588, 743, The Development of Ameri-
can Political Thought, 836, and Stafford,
P. T , State and Local Government in the
United Slates, 609, 708.
"Carpet-bagger," 313.
Cair, R. K , The Supreme Court and Judicial
Review, 587
Can oil, D B, The Unicameral Legislature oj
Vermont, 662.
858
INDEX
Carroll, M. R., Labor and Politics, 133.
Carter, J C , Law. Its Origin, Growth and Func-
tion, 566.
Carter, W, G. H , The American Army, 503.
Castle, W. R., Jr., Hawaii, Past and Present,
545-
Cathn, G E. G., A Study of the Principles of
Politics, 836.
Catt, C C., and Shuler, N. R., Woman Suf-
frage and Politics, 1 1 2
Catterall, R C H., Second Bank of the United
Slates, 428 n.
Caucus Club of Boston, 135.
Caucus, congressional, 135, in the Senate,
283; in the House of Representatives, 336-
337, nomination by, in states, 644.
Census, bureau of, 227
Central American republics, relation to the
United States, 536 537
Chafee, Zcchariah, Jr , Free Speech in the United
States, 96, 502, Freedom of Speech, 501 n.
Chamberlain, Joseph P , Legislative Processes;
Nationcl and State, 346, 662, Dowlmg, Noel
T., and Hays, Paul R , fhe Judicial Func-
tion in Federal Administrative Agencies, 252
Chambers, W , Samuel Stabury, a Challenge,
638.
Channing, Edward, on election of Jackson to
presidency, 117, History of the United States,
1 8 n, 26 n, 32, 6 1 n, 117;?
Chapman, J M , Fiscal Functions of the Federal
Reserve Banks, 437
Charities and corrections, administration of,
in states, 702, in cities, 796
Charters, city, methods of gi anting, 759-
76,.
Chase, Salmon P , as secretary of the treas-
ury, 219, 429 n, as chief justice, 580.
Chase, Stuart, \\'fute"s the Money Corning From-*
398, Rich Ltind, Poor Land, 473
Chatters, C H , and Hillhouse, A M., Local
Government Debt Administration, 798.
Cheek, R S , 7 he Pardoning Power of the Gover-
nor of North Carolina, 691.
Chernc, Leo, 7 he Rest of Tour Life, 459.
Cherrington, E H , 7 he Evolution of Prohibition
in the United States, i 33
Cheyney, E G , and Schantz-Hansen, T ,
This Is Our Land, the Story of Conservation in
the United States, 473.^
Cheyney, E. P., Law in History, 15 n; European
Background of American History, 1300-1600,
31-
C. B. & Q R. R v. Illinois, 522 n.
Child labor, under control of department of
labor, 227; attempted regulation of, by
Congress, 447.
Child Labor Tax case (1922), 581.
Children's bureau, 227.
Childs, H. L., Labor and Capital iri National
Politics, 459.
Chirac v. Chirac, 359 n.
Chisholm v Georgia, 78, 552 n, 577 n.
Chiu, C. W , The Speaker of the House of Rep-
resentatives since 1896, 329 n.
Christensen, A. N , and Kirkpatrick, E. M.
(editors), People, Politics and the Politician, 12.
Churchill, Winston, quoted, 382.
Cicero, quoted, 98, 365.
Circuit court of appeals, 582-583.
Cities, growth of, 757, as social units, 757—
758, granting of charters to, 758-762,
mayor-and-council organization in, 762 -
769, commission government in, 769-772;
city manager government in, 772-777;
planning, 786-787
Citizens, rights of, 81-95, who are, 81-83, by
birth, 83-84, by naturalization, 84-90, of
wives and children, 88-89, constitutional
status of Puerto Ricans and Filipinos, 85;
privileges and immunities of, 81-83; cor-
porations as, 89-90, equality of, qo, suffrage
not a constitutional right of, qi , duties of,
94-95, in relation to voting, q8-qq
Citizenship, 8/85 See alw Naturalization
City council, organization, 766-767, func-
tions of, 767-768 ^ financial powcis of, 767;
place of, in American government, 768.
City manager plan of government, 772 777;
origin of, 772, functions and qualifications
of city managers, 773-774, merits, 774.
Civil aeronautics board, 226-227, 412.
Civil service commission, federal, 241-242,
258.
Civil service system, in national government,
253 268, role and method of selection un-
der, 253-254, spoils system, 255 -257, rc-
foim of, 258 259, mechanics of, 259-268,
competitive examination, 259—260, vet-
eran preference, 260-261; tcnuic, 261;
non-political activity, 261—262, merit sys-
tem, 262-263, pay, pensions, and retire-
ment, 263, training for, 265-268, in the
states, 683-684, need for, in counties, 808.
Civil War, increase of national debt during,
393-
Civilian conservation corps, 249—250.
Claire, Guy S. See Magruder, F. A.
Clark, E, (editor), The Internal Debt of the
United States, 397, 727.
Clark, G R , and others, A Short History of
the United States Navy, 502.
Clark, Henry W , History of Alaska, 545.
Clark, Jane P., Thf Deportation of Aliens, 420;
The Rise of a New Federalism Federal-State
Cooperation in the United States, 486, 609, 756.
Clark, Victor S., and others, Porto Rico and
Its Problems, 545.
INDEX
Clark, W. E. See Jenks, J. W.
Clay, Henry, as Speaker of the House of
Representatives, 324.
Clay brook, J. N , Patents, 486; Federal Courts,
566.
Clayton Act (1914), 441, 448.
Cleveland, F. A , American Citizenship as Dis-
tinguished from Alien Status, 96.
Cleveland, Grovcr, election of, as President,
158, use of veto power, 1 78 n; in relation to
Monroe doctrine, 509, intervention of, in
Pullman Strike, 595; Presidential Problems,
i88«, 198.
Cline, D. C , Executive Control over State Ex-
penditures in New Jersey, 690—691.
Coast guard, 494
Cochran, Hamilton, These Are the Virgin
Islands, 546
Code of Federal Regulations, 752
Coe, George A , Educating jor Citizenship, 97.
Coinage and currency in the United States,
422-426.
Coke, Sir Edward, Institutes, 520 n
Cokcr, F. W., Democracy, Liberty and Property,
835, Recent Political Fhought, 836.
Colegrove, Kenneth, The American Senate and
World Peace, 304, 515, International Control
of Aviation, 42 1 .
Coleman, J K , State Administration in South
Carolina, 708.
Coleman v Miller, 76 n.
Collective bargaining, under National Indus-
trial Recovery Act, 448—450.
Collector v Day, 372 n.
Collier, W M , Collier on Bankruptcy, 486.
Collins, C. W , The Fourteenth Amendment and
the States, 528, 609.
Collins, Richard. See Kalnay, Francis.
Colonies, the thirteen, government of, 13-31 ;
political organization of, 15—17; royal su-
premacy in, 17-18, basis of government in,
18—20; legal system of, 21, federation of,
22—23; public opinion in, 23-24.
Comer, J. P., Legislative Functions of National
Administrative Authorities, 199, 231, 364.
Comey, A. C., and others, State and National
Planning, 709
Commager, Henry S., Documents of American
History, 12.
Commerce, federal department of, 226—227;
power of Congress to regulate, under the
Constitution, 399-419, what it is, 400—403;
relation of manufacturing to, 401 , kinds of,
401-402, the tariff as a regulator of, 403-
406, interstate, 402, 408-416, division of
authority over, between federal and state
governments, 409; promotional activities
of, 416-419. See also Interstate commerce.
Commission government, in cities, 769—771;
Galveston plan, 769; spread of, 769; essen-
tial features, 769-770, merits and defects
of, 770-771; future, 771.
Commission on Better Government Person-
nel, Better Government Personnel, 268-269,
7o8.
Committee, national, of a political party,
137-140.
Committee of the whole, in the House of
Representatives, 333-334.
Committee on committees, in the House of
Representatives, 329-330.
Committee on rules, in the House of Repre-
sentatives, 328.
Committee on ways and means, in the
House of Representatives, 330.
Committees, regular, in the House of Repre-
sentatives, 329- 334, chosen by party
caucuses, 329-330, of conference, 303,
333, in state legislatures, 648-650, 655—
656, in political organizations, 625—626.
Common law, history of, 555-557.
Commons, John R , and Andrews, John B.,
Principles of Labor Legislation, 459
Commonwealth Club of California, The
Legislature of California, Its Membership,
Procedure, and Work, 662.
Communist party, 122.
Comptroller-general, 242, 378.
Comstock, Alzada P , Taxation in the Modern
State, 379
Conant, C. A., A History of Modern Banks of
Issue, 437.
Condliffe, J. B., Agenda for a Postwar World,
5'6.
Congress, under confederation, 25-31 ; weak-
ness of, 25-26, lack of revenue, 28, lack of
power to regulate commerce, 29, defects
of, under the confederation, 29—30, under
the Constitution, organization, 270-272,
representation in, 42, 272—274, control of,
by parties, 142-143, relation of President,
148, 171-174, 180-181; special sessions of,
196-197; relation to cabinet, 229-230,
adoption of double chamber system, 270-
271; leadership in, 314-315; powers in
general, 347-364; express and implied,
355-357, mandatory and permissive, 357-
358; exclusive ahd concurrent, 358-359;
prohibited, by the Constitution, 359-360;
classified, 361 , as a lawmaking body, 362-
363, expanding powers of, 363, to tax, 365-
379, to tax state and municipal bonds,
372-374, to borrow, 392-397, to regulate
commerce, 399-419, over immigration
406-407; over currency, 422-426; to char-
ter banks, 426-428, to regulate industry,
labor, and social security, 438-458; agri-
culture and conservation, 461-472; other
360
INDEX
Congress — continued
powers of, 474-485; over post offices, 474-
476, to build post roads, 477; over weights
and measures, 477 478, to grant patents,
478-479, trade-marks, 479, and copy-
ughts, 4.79-480, over naturalization and
bankruptcy, 480-481, over offenses on the
high seas, 481-482, over national capital,
482, 542-543, grants-m-aid by, 483-484, to
raise and support armies, 489-492, to pro-
vide and maintain a navy, 493-494, over
the militia, 492-493, relating to wai, 488-
489; limitations on, 517-528, in respect
to treason, 518-519, 525-526, control over
territories, 529-544, control over procedure
of federal courts, 560—561.
Congressional Directory, 211/2, 250 n, 320.
Congressional Record, 108, 223 n, 229 n, 244,
3l8> 335> 338> 34° *, 344. 345
Connecticut compromise, 43.
Conservation of natural resources, by na-
tional government, 468-472; policy of, 469;
of forests, 469, of public lands, 470, water
power and natural gas, 470, oil and coal,
470-471, river valley development, 471;
reclamation work, 471-472, by states, 703.
Constitution of the United States, its makers,
34-51, framing of, 34, 41-44, ratification,
44-51; influences responsible for adoption
by the states, 48-49, the supreme law of the
land, 53-64, unwritten, makers of, 53-54,
embodiment of popular sovereignty, 54, a
grant of powers, 55, adjustment of author-
ity in, 55, division of powers in, 56-60;
limitations in, 56-58, doctrine of judicial
supremacy in, 60-62, omissions in, 63,
original and derived features of, 64, growth
of, 6fc 80, by law, 68, by judicial inter-
pretatioh, 69-70, by administrative rul-
ings, 71-72; by usage, 72-75, by amend-
ment, 75-79, process of amending, 75-77,
amendments to, 77-78, amendment as a
last resort, 78-79, suffrage under, 99-100,
provision for heads of departments in, 200,
general powers of states under, 348-356,
treason under, 519, right of eminent do-
main under, 523-524; basis of territorial
expansion under, 530-531.
Constitution of the United St des, The, 837-851.
Constitutions, state, original, 27, 61 1 , chang-
ing character of, 66-67, rights and duties
of citizens under, 93-95, limitations of
powers on, 596-598, framing, ratification
and amending of later, 611-621; general
nature and expansion of, 615-616, con-
tents of, 617, interpretation of, 618, su-
premacy of, 6 1 8.
Continental Congress, 24-25, 270; powers
of, 25.
Contract, freedom of, 521; right of, 596-597.
Convention of 1 787, proposals for, 3 1 , organi-
zation and members, 34-41 , place of meet-
ing, 35; types of men in, 35-40; leaders of,
38-39, work of, 41-44, ratification, 44-51.
Conventions, national, 153-157, nominating,
!3O> I5'l~lt)b, constitutional, in states,
611-613, work of, compared with legis-
latuies, 612-613, party in states, 627.
Cooley, T, M , quoted, 517, /realise on Con-
stitutional Limitations, 65, 96, 525 n, 528,
566
Cooley v Board of Port Wardens, 358 n.
Coolidgc, Calvin, 120, inauguration of, as
President, ibo, appoints special commis-
sion on independence of Philippines, 539;
Autobiography, \ 70.
Coombs, W See Kllmgwood, A R.
Cooper, R W , Municipal Police Administra-
tion in 1 exas, 798.
Cooperative banks and production-credit
associations, 434.
Copyrights, power of Congress over, 479-
480
Corporations, power of states to tax, 715
Corwm, Edward S , "The Progress of Consti-
tutional Theory between the Declaration
of Independence and the Philadelphia
Convention,*' 33, Lhe Constitution and What
It Means foday, 65, Constitutional Revolution
Limited, 80, The President Office and Powers,
185, 212, rhf President's Removal Power
under the Constitution, 194^, 198, 304, The
Presidents Control of Foreign Relations, 199,
515; 7 he Constitution and World Organi-
zation, 304, 506 n, 515; The Commerce Power
versus States' Rights, 419, National Supremacy,
515, rhe Doctrine of Judicial Review, 587;
fhe Twilight of the Supreme Court, 587; Court
over Constitution' A Study of Judicial Review
as an Instrument of Popular Government, 587;
John Marshall and the Constitution, 588
Cost of government, in nation, 381-384 See
also Expenditures, Finance, Appropriation
bills
Cotton, J. P. (editor), The Constitutional De-
cisions of John Marshall, 587.
Coughlin, "Bathhouse John," of Chicago,
636
Council of State Governments, The Book of
the States, 607 n, 621, 662
County government, organization and func-
tions, 799-818; legislative control of, 800;
financial duties, 802, administrative func-
tions, 802-803, its officials, 8(34-806, judi-
cial functions, 804-806, need for recon-
struction in, 807-809, in metropolitan
counties, 809, in the South, 817; in the Far
West, 817.
INDEX
861
Court of claims, 584.
Court of customs appeals, 584.
Courtesy, senatorial, 192
Couits .Sw Judiciary, State courts, Supreme
Court
Cousens, Theodore, Politics and Political
Organizations in America, 133
Coxe, Brmton, judicial Power and Uncon-
stitutional Legislation, 587
Ciandall, S B, Treaties, I heir Making and
Enforcement, 304, 515
Crane, R C , Foreign Bondholders and Ameri-
can State Debts, 727
Craven, Avery, Democracy m American Life,
836.
Crawford, A. W , Monetary Management under
the New Deal, 436
Crawford, F. G , State Government, 609, 66 1,
708, 743, The Gasoline Tax in the United
States, 727 See also Moshcr, W E
Crawford, K G , J he Pressure Boys, the In-
side Story of Lobbying in America, 1 45, 346
Croly, Hcibert D , AJarcus Alon^o Hanna, 145,
286.
Croueh, W. W See Key, V O , Jr.
Crumbaker, Calvin, Transportation and Poll-
tics, 420
Cuba, relation to the United States, 51 1 , 527
Culberteon, W. S , Reciprocity, a Rational
Policy for Foreign 'Fnide, 420
Gummings, Homer S , Liberty undn Law and
Administration, 566, and McFarland, C ,
Federal Justice, 231, 566.
Cunningham, W. J , American Railroads
Government Control and Reconstruction Policies,
420.
Currency, of the United States, 422-426,
power of Congress over, 422, gold and sil-
ver as, 423-424, colonial, 422, present
welter of, 424-426
Cushman, R. E., Leading Constitutional De-
cisions, 65; The Independent Regulatory Com-
missions, 251-252 See also Oith, S P.
Customs court, 584
Daggett, Stuart, Principles of Inland Trans-
portation, 420.
Dangcrfield, R J , In Defense of the Senate, 285.
See also Ewing, CAM
Danish West Indies, acquisition of, 530.
Dartmouth College ; Woodward, 521 H,
578 n, 596 n.
David, P T., The Flconomics of Air Mail Trans-
portation, 485 See also Reeves, F. W.
Davidson, Donald, Hie Attack on Leviathan,
Regionalism and Nationalism in the United
Stales, 609.
* Davidson, Percy E See Anderson, Dewey.
Davic, Maurice R., World Immigration, with
Special Reference to the United States, 420,
Problems of City Life, 758 n
Davis, Elmer, and Pru e, Byron, War Infor-
mation and Censorship, 252.
Davis, Forrest, 1 he Atlantic System, 516.
Davis, G 1" , A Navy Second to None, 502.
Davis, Jefferson, Rise and Fall of the Confeder-
ate Government, 352 n.
Davis, J S , On Agricultural Policy, 473. See
also Nourse, E G
Davis, John W , Party Government in the United
States, i 33
Dawes, C G , fhe First Ttar of the Budget in
the United States, 397
Dawson, J P , "The Gold Clause Decision,''
436
Dayton, city manager plan in, 772
Dcaley, J Q , 7 he Growth of American State
Constitutions, 62 1
Debates in the Massachusetts Constitutional Con-
vention, 673
DcBolt, J. T., The Naturalization of Aliens and
I heir Duties as Citizens, 96.
Debs v. United States, 501 n, 595 n.
Debt, national, 392-397, beginnings of, 393-
394, during Civil Wai, 39 ^, present size of,
394-30 r>, refunding, 396-397, state, 723-
726
Dccl.naiMn of Independence, 24.
Declaration of Paris (1856), 488-489
Declarator! of Right*, adopted by Continen-
tal Congress, 555" 556
Defense, federal department of, 201, 206,
220 iT, 489.
Democratic party, its origins, 116-117, his-
tory since 1828, 117-118, 119, 1 2O— 121.
Dcpai tmerits, federal, heads of, 201—209; ap-
pointment and removal, 201-203, respon-
sible to President, 208-^09, woik of, 210-
212, administration by, federal, 213-231,
city heads of, 765-766, administrative
work of, 780-798.
Dcpoi tations, under immigration laws, 407
De Saussure v Gaillard, 734 n.
Dewey, Davis R , Financial History of the
United States, 379, 397, 423 n, 436.
DeWitt, B. P , The Progressive Movement,
'33
DeWitt, D M., the Impeachment and Lnal oj
Andrew Johnson, -304
Dexter, W. F , Herbert Hoover and American
Individualism, 1 70
Diamonon, V D , The Development of Self*
Government m the Philippine Islands, 545
Diary of Gideon Welles, The, 212
Dickcrson, O. M , American Colonial Govern-
ment, 1696-1765, 32
Dickinson, John, in constitutional convention
of 1787, 35, 40, 6 1
862
INDEX
Dickinson, John, The "Building of an Army, 502;
Administrative Justice and the Supremacy of
Law in the United States, 528, 566.
Dickinson, Z. C , Labor Policy and the National
Defence, 460.
Dienner, John A , The United States Patent Sys-
tem, 486
Diffic, B. W. and N W , Porto Rico- A Broken
Pledge, 545.
Dill, Clarence G , How Congress Makes Laws,
304, 346.
Dillon, J. F., quoted, 780; John Marshall,
Life, Character and Judicial Service?, 588.
Dillon v. Gloss, 76 n.
Dimock, M E , Congressional Investigating Com-
mittees, 303 n, 347 n. See also Gaus, J. M ,
and Haincs, C G
Direct legislation, 663-673; definition, 663;
development of, 664-665, initiative, in
operation, 665-667; referendum, 667;
merits and defects, 668-672, relation to the
recall, 672.
Direct primary See Primary.
District attorneys, federal, 583
District courts, federal, 583.
District of Columbia, history and government
of, 482, 542-544, commissioners of, 543;
control of Congress over, 542-543; selec-
tion as site for national capital, 542.
Division of powers, in Constitution, between
nation and states, 55-57, merits and defects
of, in state government, 746-748. See also
Separation of powers.
Divorce decrees, validity of in various states,
under the faith and credit clause, 601.
Dixon, F. H , Railroads and Government, 420.
Dobie, A M , Handbook of Federal Jurisdic-
tion and Procedure, 566
Documents, superintendent of, 244
Dodd, W £., Woodrow Wilson and His Work,
170.
Dodd, W. F., Cases and Materials on Constitu-
tional Law, 65; 1 he Government of the District
of Columbia, 546, State Government, 609, 66 r,
708; The Revision and Amendment of State
Constitutions, 621
Dodds, H W., Procedure in State Legislatures,
662.
Doland, J. J. See Babbitt, H E.
Donnelly, Thomas C , "The Making of the
New Mexico Constitution," 621.
Dougherty, J. H , The Electoral System of the
United States, 1 70
Douglas, Paul H , The Coming of a New Party,
133, 460; Social Security in the United States,
460.
Dow, Edward P , and Hormell, Orrcn C ,
City Manager Government in Portland, Maine,
779-
Dowling, Noel T., Cases on American Consti-
tutional Law, 65. See also Chamberlain,
Joseph P.
Dowrie, G. W , American Monetary and Bank-
ing Policies, 437.
Doyle, W. K., Independent Commissions in the
Federal Government, 252.
Dred Scott v. Sandford, 82 n, 579.
Drummoncl, Henry, quoted, 757.
Due process of law, 519-523, 598-599* 74r~
742.
Duffy, H. S , William Howard Taft, 1 70.
Dulles, F. R , America in the Pacific; a Century
of Expansion, 5 1 6, 545 ; The Road to Teheran,
516.
Dunbar, C. F , and Willis, H. P., The Theory
and History of Banking, 437.
Dunn, F. S , The Protection of Nationals, a Study
in the Application of International Law, 96
Earle, E. M , and others, The Makers of
Modern Strategy, 502.
Eaton, Dorman B , The Civil Service in
Great Britain, 258 n.
Ebcrling, E J , Congressional Investigations,
3°3 n, 347 «•
Eby, Herbert O , The Labor Relations Act in
the Courts, 252, 460.
Ecclesiasticus (Apocrypha), 50 n.
Education, federal office of, 224, 239; super-
vision of, in states, 704, in cities, 794-795.
Edwards v. United States, 1 76 n.
Egerton, H. E , Causes and Character of the
American Revolution, 32.
Election, effect of party organization on, 134-
135, money in, 141-142; of the President,
153-160, of senators, 273—276, of represent-
atives, 311, contested, 312, of state gover-
nors, 675, after a recall, 672, of judges, 736-
738, need for reform in counties, 807—808.
See also Suffrage.
Electors, presidential, 157-159.
Electorate, effect of direct legislation on,
649-650. See also Suffrage.
Eliot, G. F., Jhe Ramparts We Watch, 502.
Ellingwood, A. R , and Coombs, W., The
Government and Railroad Transportation^ 420;
The Government and Labor ^ 459-460.
Elliot, Jonathan, Debates in the Several State
Conventions on the Adoption of the Federal Con-
stitution, 52.
Elliott, Edward, Biographical Story of the Con-
stitution, 51.
Elliott, W. Y., The Need for Constitutional Re-
form, 80, 486, 836.
Ellsworth, Oliver, in constitutional conven-
tion of 1 787, 35, 40
Elsbree, H. L., Interstate Transmission of
Electricity, 420.
INDEX
863
Elson, Henry W., Through the Tears with Our
Constitution, 80.
Emergency Banking Act (1933), 432.
Emerson, Ralph W., quoted, 1 1 ; on debating
in House of Commons, 319-320.
Eminent domain, 523-524.
Encyclopaedia of the Social Sciences, 12.
England, control over American colonies,
1 8— 19, cabinet in, compared with Ameri-
can, 203, 230-231; origin of impeachment
procedure in, 295—296, common law in,
555-556-
Epstein, A., Insecurity: A Challenge to America,
460, Old Age Security, 460.
Equity, 557-560.
Erdmfen, Charles R , Jr., The New Jersey
Constitution oj 1776, 62 1 .
Eriksson, E. M , The Supreme Court and the
New Deal, 587, and Rowe, D. N , Ameri-
can Constitutional History, 80.
Ervin, Spencer, Henry Ford vs. Truman //.
Newberry; a Study in American Politics,
Legislation, and Justice, 286
Espionage and Sedition Acts, 500—501.
Ettrude, D. J , Power oj Congress to Nullify
Supreme Court Decisions, 587.
European recovery plan, 515.
Evans, L. B , Leading Cases on American Con-
stitutional Law, 65; (editor), The Writings oj
Washington, 1 15 n.
Evans v. Gore, 371 n.
Ewing, C. A. M , Presidential Elections from
Lincoln to Franklin D Roosevelt, 170; The
Judg s oj the Supreme Court, /7<3</- /9J?/, 588,
and Dangcrfield, R. J , Documentary Source
Book in American Government and Politics,
12.
Executive. See President, Governor, Mayor
Executive agreements, 505-506.
"Executive orders," 197-198
Expansion, territorial, of the United States,
529~532
Ex part e Garland, 188 n
Ex parte Milhgan, 565 n
Ex parte Yarbrough, 297 n
Expenditures, federal, 381-392, increase of,
381-384; during war time, 383-384, effect
of World War I on, 386
Export-import bank of Washington, 435.
Exports, prohibition of tax on, 368.
Ex post facto laws, 518.
Extradition, 602-604.
Fagan, Elmer D., and Macy, C. W , Public
Finance, 379
Fainsod, Merle, and Gordon, L , Government
and the American Economy, 419. See also
Lien, Arnold J
Fairchild, H. P., Immigration, 420.
Fair Labor Standards Act (1938), 227, 354,
450.
Fairlie, John A , Local Government in Counties,
Towns and Villages, 818, and Kneier, C M ,
County Government and Administration, 818.
Fairman, Charles, The Law of Martial Rule,
199, 49972, 502, Mr Justice Miller and the
Supreme Court, 1862-1890, 588.
Farley, James A , Behind the Ballots, 145.
Farm credit administration, 225, 243.
Farm loan bank system, and agricultural
credit, 433-434.
Farrand, Max, Records of the Federal Conven-
tion oj /7#7, 38 n, 51; The Framing of the
Constitution, 51; The Fathers of the Consti-
tution, 51.
Faust, M L , The Custody of State Funds, 727.
Federal communications commission, organi-
zation and powers of, 237-238, 412-413.
"Federal Communications Commission, Gov-
ernment by Commission," 252.
Federal courts, sphere of, 550-555, do not
possess exclusive jurisdiction, 554, consti-
tutional securities for fair trial by, 560-
565, Supreme Court, 567-582, subordi-
nate courts, 582-585, protection for the in-
dependence of, 585-586, relation of state
courts, 728 See also Judiciary, Supreme
Court
Federal deposit insurance corporation, 243,
433
Federal emergency relief administration,
248 249
Federal government, installed, April 30,
1789, 51, detailed powers of, 5$. -56, rela-
tion of states to, 589—609
Federal Highway Act (1916), 477, 483.
Federal housing administration, .249, 435.
Federal land banks, 433-434, organization
of, 434, functions of, 434.
Federal power commission, organization and
functions of, 239-240, 470
Federal Register, iqj n, 527, 752
Federal icservc bank system, 430—433.
Federal reserve board, 430
Federal security agency, functions of, 239.
Federal trade commission, organization and
functions of, 236-237, 441-443.
Federalism, spreatt of, 13-14.
Federalist party, 115-116.
Federalist, The, 30 n, 48, 52, 62 n, 1 14 fl, 124 n,
1 75 H, 288 n, 290 n, 296 n, 298 n, 349 n, 364,
549 «•
Federal mediation and conciliation service,
227.
Feis, Herbert, The Sinews of Peace, 516.
Fcsler, J. W., "Federal Administrative Re-
gions,5' 610; The Independence of State
Regulatory Agencies, 708.
864
INDEX
Few, Robert, in constitutional convention of
i787,35-
Few, William, in constitutional convention
of 1787, 37.
Field, Henry M , The Life of David Dudley
Field, 588.
Field, O P., A Selection of Cases and Authorities
on Constitutional Law, 65, "The Vice-Presi-
dency of the United States," 1 70, Civil Serv-
ice Law, 269; fhe Effect of an Unconsti-
tutional Statute, 528, 587. See also Bates, F. G.
Field v Clark, 525 n
Fifteenth amendment, defects of, 101—102.
Finance, national, place of ticasury depart-
mcnt in, 2 r 7—2 19, power of Congi ess over,
422-426; state, 710-726, municipal, 767,
796—797 See also State finance
Fine, Nathan, Labor and Farmer Parties in the
United States, 1818-1918, 133.
Fmley, J. H , and Sanderson, J F , The
American Executive and Executive Methods, 690.
Fire protection and prevention, in cities,
785-786
Fish, Carl R , The Civil Service and the Patron-
age, 199, 268.
Fisher, S. G , The Struggle for American In-
dependence, 32, I" he Evolution of the Consti-
tution of the United States, 52
Fisher, T R , Industrial Disputes and Federal
Legislation, 460.
Fisk, H E , Our Public Debt, 397
Fiske, John, The Critical Period of American
History, /7<9}-/7#9, 33
Fitc, Emerson D , Government by Cooperation,
609
Fitzgibbon, R. R , Cuba and the United States,
/9oo-/<^5, 546.
Fitzsimons, nThomas, in constitutional con-
vention of 1 787, 35
Flack, H. E , the Adoption of the Fourteenth
Amendment, 528
Fleming, D F , The Treaty Veto of the Ameri-
can Senate, 304, 515, The United States and
the League of Nations, tyiS-igio, 516
Flynn, J E , and Perkins, F. E , Conservation
of the Nation's Resources, 473
Foilctt, M P , rhe Speaker of the House of
Representatives, 324 n, 334
Foltz, E B K , fhe Federal Civil Service as a
Career, 268
Foraker Act of 1900, 534
Forbes, Russell, Governmental Purchasing, 722 n,
J2J, Organization and Administration of a
Governmental Purchasing Office, 722 n.
Forbes, W. C , The Philippine Islands, 545.
Ford, Harvey S , The American Army, 502.
Ford, Henry Jones, T he Rise and Growth of
American Politics, 133, 28472, Representative
Government, 836
Ford, Paul Leicester, Pamphlets on the Consti-
tution of the United States, Published during Its
Discussion by the People, 1787-1 789, 46 n, 52 ;
(editor), Jefferson's Writings, 167 n.
Foreign-born element, in cities, 758.
Foreign commerce, power of Congress to
regulate, 403-406, development of, 418.
Foreign relations of the United States, 503—
515; power of President over, 195, 504—
507; in connection with Senate, 290—292;
in relation to state dcpaitrnent, 215—216,
various stages, 507-508, Monroe Doctrine
in, 509-511; world power, 511-514; post-
war policy, 514-515.
Foster, Roger, Commentaries on the Consti-
tution of the United States, 65, 304
Fourteenth amendment, rights of citizens
under, 83, basis of representation under,
104-105; as security against repudiation of
national debt, 395-396, limitations in, on
the states, 597—598
Franchises, power to grant, in cities, 767-
768.
Frank, A. D , The Development of the Federal
Program of Flood Control on the Alississippt
River, 473
Frankfurter, Feli\, Afr. Justice Holmes and the
Constitution, 80; The Commerce Clause under
Alar shall, 7 aney and Waite, 419, Air. Justice
Holmes and the Supreme Court, 588, and
Green, Nathan, 7 he Labor Injunction, 459;
and Shulman, Harry (editors), Cases and
Other Authorities on Federal Jurisdiction, 566;
and Land is, J M , 7 he Business of the Su-
preme Court, 587.
Franklin, Benjamin, 17, 22, 56, 58, in consti-
tutional convention of i 787, 35, 38, 40, as
postmaster general, 474 n.
Fraud ordeis, 475
Frazier-Lernke Bankruptcy Amendment
Freeman, Edward, History of Federal Govern-
ment from the Foundation of the Achaean
League to the Disruption of the United States,
14 n.
Free silver controversy, 423.
Frcund, Ernst, 7 he Police Power, Public Policy
and Constitutional Rights, 528, Standards of
American Legislation, 566, 662, Legislative
Regulation, 662.
Fricdnch, Carf J , Constitutional Government,
836; arid others, Problems of the American
Public Service, 269.
Fry, C L., American Villagers, 819
Fuller, H B , The Speakers of the House, 31 7 n,
326 n, 334, 335 n.
Gabriel, Ralph H., The Course of American
Democratic Thought, 836.
INDEX
865
Gage, M. J. See Stanton, E. C.
Gallagher, J. S., The Government of Washing-
ton^ 546.
Gallatin, Albert, secretary of the treasury,
219.
Gallup, George, Public Opinion in a Democracy,
'45-
Galveston, commission government in, 769.
Ganoc, W. A., History of 'the United States Army,
502.
Garficld, James A , assassinated by an office-
seeker, 258
Garner, James VV , American Foreign Policies,
5r5-
Gaus, J M , White, L D , and Dimoek, M.
E^ Frontiers of Public Administration, 231,
and Wolcott, L D , Public Administration
and the United States Department oj Agri-
culture, 473.
Gavit, B. C , / he Commerce Clause of the United
States Constitution, 419.
Gee, W., The Social Economics of Agriculture,
473-
Gelhorn, Walter, Federal Administrative Pro-
ceedings, 252, Administrative Law, 566.
General accounting office, fedcial, 378-
379-
Gerry, Elbridgc, 310, in constitutional con-
vention of 17^7, 35, -37, 40.
Gerrymandering, 310 -311.
Gerstenbcrg, Charles W , American Consti-
tutional Law Text and Leading Cases, 65,
Financial Organization and ^Management of
Business, 420.
Gettell, R G , The History of American Po-
litical Thought, 836.
Gettys, LuclJa, 7 he Law of Citizenship in tht
United States, 83 n, 96
Gibbon, Edward, quoted, 200.
GI bill of rights, 497.
Gibbons v Ogden, 400 n, 578 n.
Gibson, Hugh Ste Hoover, Herbert C.
Gibson, W. M, Aliens and the Law: Some
Legal Aspects of the National Treatment of
Aliens in the United State*, 96.
Gilfrey, Henry H , Senate Precedents, 323 n
Gist, N. P , and Halbcrt, L. A., Urban Society,
758 n.
Gitlow v. New York, 62 n.
Glaser, Comstock, Administrative Procedure,
231.
Glassman, Benjamin, A B.C. of the Direct
Primary Law, 638.
Glenn, G., The Army and the Law, 502.
Goldberg, L. P., and Levinson, E., Lawless
Judges, 743
Gold Clause Cases (1935), 424 n
Gold Standard Act of 1900, 423, abandon-
ment of (1933), 423.
Gooch, R. K., Manual of Government in the
United States, 12.
Good now, Frank J , Social Reform and the
Constitution, 528.
Gordon, L See Fainsod, Merle
Gordon, Margaret S , Barriers to World Trade,
41972.
Gorham, Nathaniel, in constitutional con-
vention of i 787, 35.
Gosncll, Harold F , Boss Platt and His New
Tork Machine, 145, 638, Getting Out the
Vote, 112; Machine Politics; Chicago Model ,
145, Grass Root Politics, 145. See also
Merriam, C E.
Gould, John, Mew England town Meeting, 819.
Government, definition of, i; scope of, 1-2;
purposes of studying, 2-10, obstacles to
impaitial study, 6- 7, methods of studying,
10-12, American, background and begin-
nings of, 13 31; American philosophy of,
820-835
Government printing office, 244; Naturali*
Cation, Citizenship and Expatriation, 96;
Citizenship of khe United States, 96
Governor, colonial, 18-19, office of, in orig-
inal state constitutions, 26-27, history of
office, 674-675, election, 675, removal,
676, powers and status, 677 682, financial,
686; military, 686, in relation to nation
and state, 687 688, in relation to budget,
720, supervision of administration, 685, as
stepping stone to presidency, 690.
Graham, E L , and Harris, F. W , Patents,
Tiade-i\farks and Copyrights, 486
Graham, George A , Education for Public
Administration, 708, 756.
Grandfather clause, 102-103.
Grand jury, 561
Grants-in-aid, fcdeial, under Social Security
Act, 456-457, system of, 483-484.
Graves, Frank B , Administration of American
Education, 709.
Graves, W. Brooke, American State Govern-
ment, 609, Uniform State Action, 609, "The
Fourth Edition of the Model State Consti-
tution," 621, "Our State Legislatures,"
661.
Gray, J. C , The Nature and Sources of Law,
566.
Green, F. M., Constitutional Development in
the South Atlantic States, 1776-1860, 621.
Green, W. R., The Theory and Practice of
Modern Taxation, 379, 726.
Green, William, Labor and Democracy, 460.
"Greenbacks," as legal tender, 424-425.
Greene, Evarts B , The Provincial Governor in
the English Colonies of North America, 32;
Provincial America, 1690-1740, 32; Foun-
dations of American Nationality, 32.
866
INDEX
Greenwood, E., Some Facts about Government in
Business, 459
Greer, Sarah, A Bibliography of Civil Service and
Personnel Administration, 269, A Bibliography
of Public Administration, 232, 709, 798
Gregory, T. E , The Gold Standard and Its Fu-
ture, 436.
Grew, J. G., Report from Tokyo, 516.
Griffith, E. G , the Rite and Development of
the Gerrymander, 31071, 320
Griffith, E. S , History of American City Govern-
ment' The Colonial Period, 778, The Impasse
of Democracy, 836.
Griswold, A W , The Far Eastern Policy of
the United States, 5 1 6
Griswold, Thelma I , Bicarneralism in Ohio,
661.
Groves, H. M , Financing Government, 379, A
Tax Policy for the United State?, 380, Federal
Tax Plan for High Employment, 380.
Guam, acquisition of, 530, government of,
536.
Guest, H. W , Public Expenditure, 397.
Guffey Goal Act (1935), 446, 471.
Guggenheim, H F , The United States and
Cuba, 537 n.
Guide to Historical Literature, 32.
Guild, F. H , and Snider, C. F., Legislative
Procedure in Kansas, 662.
Gumn v. United States, 1 02 n
Gulick, G. A. See Seager, H R.
Haas, W. T. (editor), The American Empire, a
Study of the Outlying Territories of the United
States, 545.
Habeas corpus, writ of, 565
Hacker, L. M , American Problems of foday,
252; The Triumph of American Capitalism,
459, 836.
Hadlick, P. E , Criminal Prosecutions under the
Sherman And- frust Act, 459.
Haig, R M , and Shoup, G , The Sales Tax,
727.
Haines, Charles G , The Role of the Supreme
Court in American Government and Politics,
1789—1835, 587, The American Doctrine of
Judicial Supremacy, 587, Dimock, M E,
and others, Essays on the Law and Practice of
Governmental Admmiftrati^, 252, and
Haines, B. M., Principles and Problems of
Government, 756.
Haines, Lynn, Tour Servants in the Senate,
285.
Halbert, L. A. See Gist, N P.
Hall, Arnold B., Popular Government, 673.
Hail, F. P , The Concept of a Business Affected
with a Public Interest, 459
Hall, J. P., Cases on Constitutional Law, 65.
Hallctt, G. H. See Hoag, G. G.
Halloran, M. F., The Romance of the Merit
System, 268
Halscy, E A , Proposed Amendments to the Con-
stitution of the United States Introduced in
Congress Dec 6, 1926- Jan j, 1941, 80
Hamilton, Alexander, at the Annapolis con-
vention, 31 , in constitutional convention of
J787> 35, 37> 3^-39, 40, on campaign of
education, 45, 47-48, on office of President,
ibi , on veto power, 175, as sccrctai y'of the
treasury, 219, on impeachments, 296, on
powers of Constitution, 356, part in fund-
ing national debt, 393, on commerce, 399;
on establishment of tariff, 403, oil estab-
lishment of a mint, 423, establishes first
national bank, 42b, on diplomatic matters,
505, on courts, 547, on need of federal
courts, 549, on government, 674
Hamilton, W II , and Adair, D , J he Power
to Govern, the Constitution rhen and Now, 80.
Hammer v Dagcnhart, 447 n
Hampton v United States, 403 n.
Handy, A , Inheritance and Other Like faxes,
380, 727
Haney, L H , A Congressional History of Rail-
ways to 1850, 1850—1887, 420, Business Organi-
zation and Combination, 459
Hansen, Alvm H * Fiscal Policy and Business
Cycles, 398
Harding, A L , rhe Double faxatwn of Prop-
erly and Income, 380
Harding, S B , rhe Contest over the Ratification
of the Federal Constitution in the State of
Afassat/mseth, 52
Harding, Warren G, 120, appoints special
commission on independence it&ue in
Philippines, 539
Harding, WPG, rl he Formative Period of the
Federal Reserve System, 437
Hardy, C O , 7 ax- Exempt Securities and the
Surtax, 380.
Hare, J I. C., American Constitutional Law,
65
Harlow, Ralph V , Growth of the United States,
544, The History of Legislative Methods in
the Period before 1825, 662.
Harris, Arthur, City Manager Government in
Berkeley, 779
Harris, F W See Graham, E L
Harris, J. P , Registration of Voters in the United
States, 112; Election Administration in the
United States, 1 1 2
Harris, R J , The Judicial Power of the United
States, 566, 588
Harris, S. E , Twenty Tears of Federal Reserve
Policy, 437, Postwar Economic Problems, 473,
Economics of American Defense, 502
Harris, Thomas O., The King fish, Huey P.
Long, Dictator, 638.
INDEX
867
Harrison, Benjamin, This Country of Ours,
i88«, 198.
Harrison, Governor General, on independ-
ence of the Philippines, 539.
Hart, A B , Salmon Portland Chase, 588;
American Ideals Historically traced, 835
Hart, Albert E , and others, Debts and Re-
covery, 398.
Hart, .James, Tenure of Office under the Consti-
tution, 194^, 198, The Ordinance- Making
Powers oj the President of the United States,
J99-
Hasbrouck, P. D., Party Government in the
House oj Representatives, 320, 346.
Haskin, Frederic J , The American Government
Today, 478 n.
Hatch, L C , A History of the Vice Presidency
of the United States, I 70.
Hatch Act (1887), 141, 261-262, 462.
Havcmeycr, L See Van Hisc, C. R.
Haver v Yakci, 292 n.
Hawaii, government of, 84, 533—534, annex-
ation to the United States, 512, 530, status
of citizens in, 533-534, delegates to Con-
gress, 533
Hawke v. Smith, 76 n.
Haworth, P L, The Hayes-Tdden Disputed
Presidential Flection oj 1876, 152 n, 170.
Hay, John, secretary of state, 294.
Hayden, J R , fhe Philippines: A Study in
National Development, 545.
Hayden, Ralston, 'I he Senate and Treaties,
iy8g-i8iy, 304.
Hayek, F A , The Road to Serfdom, 836.
Hayes, Rutherford B , elected President in
1876, 151-152
Haycs-Tilden controversy, 151-152.
Hay lies, F E., Third Party Movements since the
Civil War, 133; Social Politics in the United
States, 133.
Haynes, George H , The Senate of the United
States- Its History and Practices, 192 n, 194 n,
275 n, 285, 303 n, 2 he Election oj Senators,
274/2.
Hays, Paul R. See Chamberlain, Joseph P.
Hazlitt, Henry, A New Constitution Now, 185,
528, 836
Heald v. The District of Columbia, 375 n.
Heer, Clarence, The Post-War Expansion of
State Expenditures, 727,
Hehmeyer, Alexander, Time for a Change' A
Proposal for a Second Constitutional Conven-
tion, 80.
•ielderman, L. C., National and State Banks,
437-
ielms, E. Allen. See Odegard, Peter H.
ielvering v. Davis, 350 n, 457 n.
-lenderson, G. C., The Federal Trade Commis-
sion, 459.
Hendricks, H. G., The Federal Debt, /o/p-
'93°, 397-
Hepburn, A B., A History of Currency in the
United States, 423 n, 436.
Hepburn Act (1906), 235 n.
Hepburn v Griswold, 581 n.
Hermens, F. A , Democracy or Anarchy? 644 n.
Herodotus, quoted, 98.
Herring, E P , Politics of Democracy; American
Parties in Action, 133, Group Representation
before Congress, 144, 346, Presidential
Leadership, the Political Relationships of Con-
gress and the Chief Executive, 185, Public
Administration and the Public Interest, 231;
Federal Commissioners, a Study of 7 heir Careers
and (Qualifications, 252, The Impact of War,
502.
Hicks, John D , The Populist Revolt, 133; "The
Constitutions of the Northwest States,"
621.
Highways, development of, 703.
Hill, J P, The Federal Executive, 185.
Hillhouse, A M , See Chatters, C H.
Hinds, Ashcr C , Parliamentary Precedents of
the House of Representatives of the United States,
323 n, 346
Hmes, Walker D., The Interstate Commerce
Commission, 252.
Hmsdale, B A , The Old Northwest, 29 n.
Hinsdalc, M. L., History of the President's
Cabinet, 212.
Hjelte, G., The Administration of Public Recre-
ation, 798.
Hoag, C. G , and Hallett, G. H., Propor-
tional Representation, 644 n, 773 n.
Hoan, D W., City Government, the Record of
the Milwaukee Experiment , 779.
Hoar, George F , Autobiography of Seventy
Tears, 286
Hoar, Roger S., Constitutional Conventions:
Their Nature, Power?, and Limitations, 621.
Hockett, H. C , fhe Constitutional History of the
United States, 1 776-1826, 52.
Hodge, Clarence L , The Tennessee Valley
Authority; a National Experiment in Region-
alism, 252
Hodges, Henry G , City Management, 798.
Hoffer, F. W., Counties in Transition, 818,
Holcombe, A. N , State Government in the
United States, 27 n, 609, 661, 708, 743; The
Middle Classes in American Politics, 133; The
Political Parties of Today, 133; New Party
Politics, 133, "The States as Agents of the
Nation," 687 n, The Foundations of the
Modern Commonwealth, 836.
Holdsworth, J. T., The First Bank of the United
States, 426 n.
Holloway, M. V., and Smith, C. W., Jr.,
Government and Politics in Alabama, 662.
868
INDEX
Holmes, O. W , The Common Law, 566.
Holt, W S , Treaties Defeated by the Senate,
304, 'I he Federal Farm Loan Bureau, 437,
The Federal Trade Cormnnsion, 459
Holtzoff, A , New Federal Procedure and the
Courts, 566
Home owners' loan corporation, 434.
Home rule, in cities, 597, charters, 760-761,
in counties, 800
Homer, Iliad, 4
Homestead Act (1862), 462.
Hoover, Herbert C , election of, as President
in 1928, 120, vetoed independence meas-
ure for Philippines, 539, fhe Challenge to
Liberty, 96, 486, 528, 836, and Gibson,
Hugh, Problems of a Lasting Peace, 516.
Hoover, J E , Persons in Hiding, 566.
Horlacher, H P , and Phillips, J. C , City-
State Relations, 779
Hormell, Oricn C See Dow, Edward P.
Horwill, H W , Usages of the American Consti-
tution, 80, 185
Hourwich, I. A , Immigration and Labor,
420.
House calendar, 341.
House Manual and Digest, 326 n, 334, 346.
House of Commons, cabinet's strict respon-
sibility to, 230-231 , customs of, compares
with House of Representatives, 345 346.
House of Representatives, ways and means
committee, Debt Limit of the United States,
398
Housel, T W , and Walser, G O , Defending
and Prosecuting Federal Criminal Cases, 566
Houston, D F , Eight Tears with Wilson's
Cabinet, 201 n, 205 n, 212, Critical Study of
Nullification in South Carolina, 351 n.
Houston v Moore, 549 n.
Howard, G. E , Preliminaries of the Revolution,
32.
Howard, M. S., Principles of Public Finance,
379-
Howard, L. Vaughn, and Bone, Hugh A ,
Current American Government, 1 2
Howell, Roger, The Privileges and Immunities
of State Citizenship, 96
Howland, Charles P., Survey of American For-
eign Relations, 407 n.
Hughan, J. W , Amenoin Soflahsrn of the Pres-
ent Day, 133.
Hughes, Charles E , 579, The Supreme Court
of the United States, 587.
Hughes, J. E., The Federal Social Security Tdx,
460.
Hull, Cordell, on reciprocal trade agree-
ments, 405
Humbert, William H , The Pardoning Power
of the President, 1 99.
Hume, David, quoted, 820.
Humphreys, West H., Impeachment of,
299 n
Hunt, Gaillaid, The Department of State of the
United States, Its History and Functions, 2 1 7 n,
231; and Scott, James Brown, Debates in
in the Federal Convention of 1787, 51.
Hunter, M. H., Outlines of Public Finance, 379,
726.
Hust, R A., "Federal Deposit Insurance and
Some of Its Constitutional Aspects," 437
Hutchinson, R G , State- Administered and
Locally-Shared faxes, 726
Hylton v United States, 369 n
Hynmng, C J , State Conservation of Resources,
7°9
Ickes, Harold L., Back to Work The Story of
the P\VA, 252
Immigration, restriction of, 406-407; laws,
how administered, 406-407, law of 1924,
406, contiol of Congress ovei, 406, na-
tional ongms provision, 406-407
Impeachment, power of House in, 299;
origin and procedure, 295-301, power of
Senate ovei, 295-301, grounds for, 297;
penalties, 298-299, of Piesident, 299, in-
stances of, 290^-300, of state govcinors,
676, of state judges, 738 739
Implied poweis, of Congress, under the Con-
stitution, 357.
Incomes, power of Congress to levy taxes on,
370-372, taxation of, in states, 714
Income tax law (1894), 370
Independence J or the Philippine hlands, 545-546
Industry, regulation of, by Congress, 438-
447; distinguished from commerce, 438,
wartime problems of, 446-447, regulation
of, in states, 698 -700
Inheritance taxes, 714
Initiative See Direct legislation
Initiative and Referendum in Colorado, 7 he, 673.
Institute of Government Research, Service
Monographs of the United States, 231, 252;
J he Customs Service, 380, The Bureau of
Internal Revenue, 380, The General Account-
ing Office, 380
Insular Cases (1900), 532.
Insular possessions, of the United States,
Insurance, unemployment, under Social Se-
curity Act, 455^456, regulation of, in states,
701-702; programs of social, in states,
699-700.
Interior, federal department of the, 224-225.
Intermediate credit banks, 434
Interstate commerce, control of states over,
401-402, methods of regulating, 408.
Interstate commerce commission, organiza-
tion, 235-236; functions, 235, 408-409;
INDEX
869
power to regulate rates, serviee and safety,
4/x)— 410
Interstate compacts, 607
Irwin, I. H., The Story of the Women's Party,
I 12
Ise, J , United States Forest Policy , 473; United
States Oil Policy, 473
Isolation policy of the United States, 513--
5'4
•
Jackson, Andrew, effect of election as Presi-
dent on political parties, 1 1 71 18, inaugu-
rates spoils system, 255, 257, use of veto
power, 177? attitude toward national
banks, 428.
Jackson, Robert, The Struggle for Judicial
Sifpremacy, 587.
Jacobson, J M , The Development of American
Political Thought: A Documentary History,
836.
Jacoby, Neil H , Retail Sales Taxation, 727
James, H G , Local Government in the United
States, 8 1 8.
Jameson, J. A., A Treatise nn Constitutional
Conventions, 621.
Jameson, J F , The American Revolution Con-
sidered <7f a Social Movement, 15 n, 32 33,
Essays in the Constitutional History of the
United States in Its Formative Period, 1775-
1789* 52
Jamieson, O G. See Walker, Edward E.
Jay, John, first chief justice of the Supreme
Court, 576-577-
Jefferson, Thomas, on separation of powers,
58, quoted, 81, 589, 663, relation of, to
political parties, 116-117, election of, as
President, 151, on powers of Congress,
322, on poweis under Constitution, 356,
on American principles of government,
835, Autobiography, 314 n.
Jenks, J. W, and 'Clark, W. E, The Trust
Problem, 459
Jensen, Christen, The Pardoning Power in the
American States, 688 n, 691
Jensen, J P , Government Firance, 370> Prob-
lems of Public Finance, 726, Property Tax-
ation in the United States, 726
Jensen, Merrill, 1 he Articles oj Confederation, 33
Jcrncgan, M W , The American Colonies,
r49*~'75°* 32-
Johnsen, Julia E (compiler), Federal Price
Control, 252; Colleitwe Bargaining, 449 n;
Old Age Pensions, 460, (editor), The Jury
System, 743.
Johnson, Andrew, and the Tenure of Office
Act, 193, use of veto power, 177-178, im-
peachment of, 300.
Johnson, A. W., The Umcameral Legislature,
66;
Johnson, C. O., Government in the United
States, 12.
Johnson, E. R , Government Regulation of Trans-
portation, 420
Johnston, Eric, America Unlimited, 459.
Joint stock land banks, 434
Jones Act (1916), 538.
Jones, C. L, I he Caribbean \ince 1900, 516,
Statute Law-Making in the United States, 566.
Jones, Eliot, Principles of Railway framporta-
tion, 420, The. Trust Problem in the United
States, 459.
Jones, J. Catron, and Vandenbosch, A , /?<W-
ini>s in Citizenship, 12.
Jones, Joseph H , A Modern Foreign Policy for
the United States, 516.
Jones, Victor, Metropolitan Government > 778 ?»,
779-
Jones v. United States, 531 n
Jordan, E , f henry of Legislation, 662.
Jordan, D F , Investments, 396 n.
Jotham, parable of, 95.
Judges, 95 72.
Judges, federal, appointment and removal ofs
585, in states, 736-739.
Judiciary Act of i 789, 560, 567.
Judiciary, colonial, 21, doctrine of suprem-
acy of, in the Constitution, 60-62, in
England, 60-6 1, necessity for, in govern-
ment, 547^549, sphere of, 550—555, law
and equity administered by, 555-560;
procedure of, 560-565, of Puerto Rico,
535, in states, 728 742 See also Federal
courts, Supreme Court, State courts.
Judson, F N , The Law of Interstate Commerce
and Its Federal Regulation, 419; the Judiciary
and the People, 588, 743.
Juilliard v. Greenman, 425 n.
Jury, grand, 561, trial, 561-563
Justice, federal department of, 222-223
anti-trust activities of, 443
Kalaw, M. M Set Malcolm, G. A.
Kallenbach, J. E , Federal Cooperation with the.
S fates under the Commerce Clause, 419, 609
Kalnay, Francis, and Collins, Richard, J he
New American, 96
Kansas, Sidney, U. S. Immigration, Exclusion
and Deportatiqp, and Citizenship of the United
States, 96, 430*. *
Keezer, D. M , and May, Stacy, The Public
Control of Business, 252
Kelly, Clyde, United States Postal Policy,
485
Kelly v. Washington ex rel. Foss Company,
358 n.
Kemmerer, E. W., The ABC of the Federal
Reserve System, 437; Postal Savings, 485.
Kendall v. United States, 1 67 «.
870
INDEX
Kendrick, M. S., Taxation Issues with Special
Reference to State and Local Problems, 726.
Kent, Frank R , quoted, 134, The Democratic
Party A History, 120;*, 133, The Great
Game of Politics, 144, 638, Political Behav-
ior, 144, 638
Kentucky v Dennison, 604 n
Kerr, C H , The Origin and Development of the
United States Senate, 285.
Kettleborough, Charles, The State Constitu-
tions, 621.
Key, V O , Jr , Politics, Parties, and Pressure
Groups, 145, 638, The Administration of
Federal Grants to the States, 486, 709, and
Crouch, W. W , Operation of the Initiative
and Referendum in California, 673.
Kilbourn v Thompson, 362 n
Kile, O M , The Farm Bureau Movement, 1 44.
Kilpatrick, W , State Supervision of Local Budg-
eting, 727; Problems in Contemporary County
Government, 818, County Management, 818.
King, Clyde L , Public Finance, 379, 726.
King, Judson, fhe American Voter as a Law-
maker, 673.
King, Rufus, in constitutional convention of
1787, 35>4°
Kingsbury, J B , Umcameral legislatures in
Early American States, 640 n.
Kingsley, J D. See Mosher, W E.
Kinneman, J A , America in Transition, 836.
Kintner, Robert. See Alsop, Joseph W., Jr.
Kirby, James, Selected Articles on Criminal
Justice, 743.
Kirk, Grayson L., Philippine Independence,
545-
Kirkpatnck, E M. See Christensen, A. N.
Klemsorge, P L , The Boulder Canyon Project;
History and Economic Aspects, 473.
Kneedler, Gr^ace M , Legislative Councils and
Commissions, 662
Kneier, C. M , City Government in the United
States, 641 n, 778, Illustrative Materials in
Municipal Government and Administration,
798. See also Fairhe, John A
Knox, D. W., A History of the United States
Navy, 502
Knox, Frank, The United States Navy in Na-
tional Defense, 502.
Knox v. Lee, 425 n, 581 n.
Krout, John A. (editor), Expenditures of the
Federal Government, 397.
Kuykendall, Ralph S., History of Hawaii, 545.
Labor, federal department of, 227; relation
of national government to, 447-453
Labor-Management Relations Act (1947),
248, 264, 449-45°, 453-
La Follette, Robert M , Autobiography, 145,
286.
La Follette Seamen's Act (1915), 448.
Lage, P. See Bore hard, E. M.
Laidler, H W , American Socialism: Its Aims
and Practical Program, 133 See also Raushen-
bush, H S.
Lambie, Morris B., Training for the Public
Service, 269
Lampcn, D , Economic and Social Aspects of
Federal Reclamation, 473.
Lancaster, Lane W., Government in . Rural
America, 818
Landis, J M , The Administrative Process,
252 See also Frankfurter, Felix
Lane, Franklin K , The Letters of Franklin K
Lane, 2 1 2
Langeluttig, A , The Department of Justice of
the United States, 231, 566 *
Lansdale, Robert T., and others, The Admin-
istration of Old Age Assistance, 460, 708.
Lansing-Ishn Agi cement (1917), 295 n.
Larabee, L W , Royal Government in America:
A Study of the British Colonial System befor
1783, 1 8 n, 32
Larkin, J. D , rhe President's Control of the
Tariff, 420, Trade Agreement?., a Study in
Democratic Methods, 420.
Laski, Harold J , quoted, 146, The American
Presidency An interpretation, 161 n, 185,
204 n, 212
Lasswcll, H D , Politics- Who Gets What,
When, How, 145.
Latane, J H , and Wainhouse, D. W , A
History of American Foreign Policy, 515.
Latin America, good neighbor policy to-
ward, 510-^1 1.
Laughhn, J L , History of Bimetallism in the
United States, 423 n, 7 he Federa' Reserve Act"
Its Origin and Problems, 437
Lavmc, E. H , "Gimme," or How Politicians
Get Rich, 638
Lavmc, Harold, 7 he Fifth Column in America,
96
Law, martial, 498-499; military, 498, of the
United States, 555-564
Lawrence, David, The Other Side of Govern-
ment, 231, Beyond the New Deal, 252, Nine
Honest Men, 587
Lawrence, J. S., Banking Concentration in the
United States, 437.
Lawrence, William, Henry Cabot Lodge, 145
Lawson, James F , The General Welfare Clause'
A Study of the Power of Congress under the Con-
stitution, 349 n, 364
Lay, T H , The Foreign Service of the United
States, 199, 515.
League of Nations, covenant of the, as an
issue between political parties, 119-120;
refusal of Senate to ratify, 504, 513.
Learned. H. B., The Presidents Cabinet* 212.
INDEX
871
"Leave to print," 318.
Lecky, W. E. H , History of England in the
Eighteenth Century, 31.
Lee, F. P., 'I he Office of Legislative Counsel,
662.
Leek, J H , Legislative Reference Work: A Com-
parative Study , 652 n, 662.
Leet, G., and Paige, R. M, Property Tax
Limitation Laws, 726.
Legal'tender issue, 424-425
Legislation, powers of the President in con-
nection with, 1 86 1 88, delegation of pow-
ers in, 525-527, powers of, instates, limita-
tions on, 646-647, quality of, 657-661.
Legislative council, in states, 6*39
Legislative reference bureaus., in states, 652.
Legislative Reorganization Act (1946), 279,
33'-
Legislatures, colonial, 20, state, organi/ation
of, 639 643, nominations to, 644, election
to, 644, quality of men in, 645, sessions,
645—646, poweis, 646—647, procedure,
647—648, presiding officers, 647-648, com-
mittees, 648 649, problems of, 647-661.
See also Congress
Leisy v Hardm, 403 «.
Leland, S E , 7 he Classified Property Tav in
the • United States, 726, (editor), State-Local
Fiscal Relations, 819.
Lend-Leasc Act (1941), 406, 489.
L' Enfant, Pierre-Charles, work in planning
Washington, 787 n
Lentz, G G , fhe Enforcement of Orders of
State Public Service Commissions, 709
Lcpawsky, A , Home Ride for Metropolitan
Chicago, 779.
Letters of marque and reprisal, 488-489.
Leupp, F. E , "The Cabinet in Congress,"
i85
Levmson, E See Goldberg, L P.
Levy, B H, Our Constitution' Tool or Testa-
ment, 587.
Lewinson, Paul, Race, Class and Party A
History of Negro Suffrage and White Politics
in the South, 1 1 2
Lewis, Edward R , A History of American Polit-
ical Thought from the Civil War to the World
War, 836.
Lewis, Stuart, Readings in Party Principles and
Practical Politics, 133
Libby, O. G , Hie Geographical Distribution
of the Vote ttf the Thirteen States on the Con-
stitution in ij8y~88, 49 n.
Libraries, public administration of, in cities,
.795-
Library of Congress, 243-244, List of Books
on the Government and Administration of the
United Slates, 12, Recent Booh on American
Government and Politics, 12.
Lief, Alfred, Democracy's Norns, 286; (editor),
The Dissenting Opinions of Mr. Justice
Holmes, 580 n, 588.
Lien, Arnold J , Privileges and Immunities of
Citizens of the United States, 83 n, 96, 528;
and Famsod, Merle, The American People
and rheir Government, 12.
Limitations, constitutional, theory of, 62, on
the states, under the Constitution, 351-353;
on the powers of Congress, 517-528.
Lincoln, Abraham, picsiclcntial leadership
of, during Civil War, 182; suspension of
writ of habeas corpus by, 499.
Lindeman, E. C See Anaeison, Nels.
Lippmann, Walter, United States Foreign
Policy Shield of the Republic, 516, 836.
Lipson, Leslie, The American State Governor:
From Figurehead to Leader, 691.
Littler, Robert M C , The Governance of
Hawaii, 545
Lobbying, articles on, in Annah of the Ameri-
can Academy of Political and Social Science, 346.
Local government, history of, in the colonies,
21-22, in New England, 21 , in the South,
21 ; in cities, 757-798, relation to state
government, 810, in counties, 799-818,
and democracy, 818
Locklin, D. P , Railroad Regulation since 1920,
420, Supplement, 420.
Lodge, Henry Cabot, 7 he Senate of the United
States, 285, 302 n.
Loewe v. Lawlor (Danbury Hatteis* case),
448 n.
Logan, Edward B (editor), The American
Political Scene, 145, Lobbying, 662.
Long, Breckinndge, The Genesis of the Consti-
tution of the United States, 52.
Long, Joseph R., Cases on Constitutional Law,
65.
Lottawanna, The, 416 n
Loughran, P. H , Judicial Review of Federal
Executive Action, 587
Louisiana Purchase, 293, 529.
Love, R. A , Federal Financing, 397.
Lovejoy, Allen F , La Follette and the Estab-
lishment of the Direct Primary in Wisconsin,
1890 -1904, 638
Lowell, A Lawrence, The Government of
England, 7 n,*tPublif Opinion and Popular
Government, 1 3 1 n.
Lowell, James Russell, quoted, 54.
Luce, Robert, Legislative Procedure, 304, 334,
662; Congress' An Explanation, 320; Legis-
lative Assemblies, 320, 334, 66 1; Legisla-
tive Principles, 334, 566, 662; Legislative
Problems, 334.
Luther v Borden, 573 n.
Lutz, H. L., Public Finance, 379, 726; The
State Tax Commission, 726.
872
INDEX
Lynch, D. T., Grover Cleveland, 170; "Boss"
Tweed, 638, Criminals and Politicians, 743.
Lyon, Hastings, T he Constitution and the Men
Who Made It, The Stoiy of the Constitutional
Convention, 1787, 51
Lyon, L S , I he National Recovery Adminis-
tration An Analysis and Appraisal, 459, and
others, Government and /Economic Lije, 459
McBdin, H L , The Living Constitution, 80,
185, 580, 587, rhe Law and the Practice of
Municipal Home Rule, 759 n
McCain, W D , rhe United States and the
Republic oj Panama, 546
Me Gal I, Samuel W , rhe Bunne\$ of Congress,
205 n, 31 8 w, 334, fhe Life of Thomas It.
Reed, 334
McCarthy, M B , The \\ idemnq Scope of
American Constitutions, 621.
McCluro, W , State Constitution- Making, 621.
McClure, Wallace M , International Executive
Agreements Democratic Procedure under the
Constitution of the United States, 5067?, 515.
McCombs, William F, Alaking H'oodtoru
Wilson President, 145.
McConachie, L G , Congressional Committees,
334
Me Gown, A C , The Congressional Conference
Committee, 304, 334
McCulloch, A J , Suffrage and Its Problems,
I 12
McCulloch v Maryland, 353 n, 356 n, 372,
427, r)78«
McCune, Wesley, The Farm Bloc, 133
McDiarmid, John, Government Corporations and
Federal Fnndi, 252, 437
McDonald, Thomas F , "Missouri's Ideal
Judicial Selection Law," 7^3
McElroy, Robert, drover Cleveland, i 70
McFarland, C. See Cu minings, Homer S.
McGeary, M N , rhe Development of Congres-
sional Investigative Power, 304, 347 n, 364.
McGehcc, L P , Due Proct\s of Law under the
federal Constitution, 52 I n
McGoldrick, Joseph I) , Fhe Law and Prac-
tice of Municipal Home Rule, K)i 6- 1930,
759 n
McGovncy, D O., Cases on Constitutional Law,
6r. . „•
Me Grain v Daugherty, 347 n, 362 n
M( Granc, R. C , foreign Bondholders and
American State Debts, 396 n
Mcllwam, C H , The American Revolution: A
Constitutional Interpretation, 32
Mclver, R. M , Towards an Abiding Peace,
516
McKay, G L , Early American Currency, 436
McKcnzie, C W., Party Government in the
United States, 1 33
McKinlcy, A. E., The Suffrage Franchise in the
Thirteen /English Colonies, 20/7
McKinlcy, S. B., Democracy and Military
Potver, 502
McLaughlm, Andrew C, The Confederation
and the Constitution, 33, Constitutional His-
tory of the United States, 33, 51, Bo, Found**
turns of American Constitutionalism, 65, Tht
Courts, the Constitution and Parties, 80, 587-
McMillin, L F., Women in the Federal Service,
269
Me Williams, Carey, /// Fares the Land, 47^5,
Factories in the Fitlds, 473
Mabry, W A, 1 he Neqto in North Carol"i&
Politics since Reconstruction, 638
Macaulay, Lord Thomas, quoted, 233; Off
civil sci \ ice in British India, 267. *
MacCoikle, Stuart A, Municipal Adminis*
tmtion, 798
Macdonalci, Austin F., Federal Aid, '77 «,
486, 727, \mcriian Slate Government and
Administration, 009, 661, 708, 743; American.
City Government and Administration, 778, 798.
Mac Dona Id, William, Select Charters and Other
Documents Illustrative oj American Ibstory,
1606 -77/5, 23 //, 32, Si lee t Documents Illustra-
tive of the lint 01 y of the United States, 1776-
i8()i , 2"j w, Documentary Source Book of Ameri-
can History, 76o6"-/oj6, 32, A Ntw Consti-
tution for a New America, 80, 185, The A I en-
ace of Ricnwiy, 450
Machines, in political parties, 632^635
Mac Kay, R A , 1 he Uniejonncd Senate oj
Canada, 286
Mac lay, E S , History of the United States Navy
Jrorn 7775 to i<)(>~\ 502.
MacMahon, Aithur W, and Millett, John
D , Federal Administrators A Bibliograph-
ical Approach to the Probltm oj Depait mental
Management, 231
Macy, C W See Fagan, Elmer D.
Macy, Jesse, Political Parties in the United
States, itijfy iSfjt, 133
Madison, James, at the Annapolis conven-
tion, 31, at the constitutional convention,.
35, 39, 40, 41, on campaign of education,
47-48, on sepaiaticm of powers, 58, on
political parties, 113-1 14, 124, on popular
representation, 305 n, on "gcncial wel-
fare" clause, 349, on national defense,
487, on federal courts, 549, on federal
guarantees to the states, 593-594, Debates
in the Federal Convention, 35 n, Journal,
39 «» 41
Magill, Roswell, The Impact o/ Federal Faxes,
379
Magna Garta, 16, 520^
Magrudcr, F. A., and Clajre, Guy S., Fhf
Constitution, 65.
INDEX
873
Mahan, A. T., Influence of Sea Power upon
History, 1660-178'$, 502.
Mahon, Lord, quoted, 529.
Maine, Basil, Franklin Roosevelt, 170.
Malcolm, G. A , fhe Constitutional Law of the
Philippine Islands, 545, 1'he Commonwealth oj
the Philippines, 545, and Kalaw, M. M ,
Philippine Government, 545.
Mandatory and permissive powers, of Con-
gress, under the Constitution, 357-358.
Manning. J W , Umcameral Legislation in the
States, 662.
Manny, T. B , Rural Municipalities, 818.
Mansfield, Harvey, The Comptroller General,
380.
Mai bury v. Madison, 62 n, 571 n, 574, 578 n.
MaiPmberg, P. P. See O'Brien, James C.
Marianas Islands, 536.
Marine corps, established in 1798, 493-494.
Marriott, J. A. R , Second Chambers, 286
Marshall, John, on implied poweis, 353,
356-357, on the taxing power, 427-428,
in McGulloch v Maryland, 427-428, as
chief justice, 577-578, Lord Bryce's esti-
mate of, 578, Life of, by Albert J. Bever-
idge, 577 n.
Marshall Islands, 536.
Martial law, limitations on, 498-499
Martin, Luther, in constitutional conven-
tion of 1787, 36, 37, 40
Mason, E C, 'J he Veto Power, 17872, 185.
Mason, George, in constitutional conven-
tion of 1787, 40, on inconclusive presiden-
tial elections, 148-140
Massachusetts, joint legislative committees
in, 64.8, constitution of, on executive
powers, 677.
Massachusetts Constitutional Convention,
J he Procedure of Constitutional Conventions,
612 n.
Mathews, John M , J he American Constitu-
tional System, 65, 357 w, 521 n, 528, 563,
American Foreign Relations Conduct and
Policies, 1 09, 515, American State Government,
609, 66 1, 708, 743, 756; and Berdahl, C A ,
Documents and Readings in American Govern-
ment, 12.
Maxey, C. C., The American Problem of Gov-
ernment, 12, Urban Democracy, 778.
Maxson, Charles H , Citizenship, 96.
May, Stacy See Keezcr, D M.
Mayers, Lewis, 7 he Federal Service, 252
Mayor, powers, 762-765, election, qualifi-
cations, and salary, 762-763, financial, 765.
Means, Gardiner See Bonbright, J. C.
Means, G. C. See Bcilc, Jr , A A
Mcigs, W. M , The Growth of the Constitution
in the Federal Convention of 1787, 52, The
Relation of the Judiciary to the Constitution,
80, 587; and Calvert, Thomas H., The" Con-
stitution and the Courts, 65.
Merchant mannc, 417, act (1920), 448
Meriam, Lewis, Principles Governing the Re-
tirement of Public Employees, 269, Public
Service mid Special framing, 269, Public
Personnel Problems, from the Standpoint of (he
Operating Officer , 269.
Merit system, 24.- 242, 262-263.
Merriam, C E , 7 he Written Constitution and
the Unwritten Attitude, 80, Civic Education in
the United States, 97, Chicago A Afore In-
timate View oj Urban Politico, 638, J he Ameri-
can Party System, 133, 638, American Polit-
ical Ideas, 836, New Aspects of Politics, 836,
Political Power, 836, and Gosnell, II F ,
Non-Votina Causes and Alethoih of Control,
112; and Overacker, Louise, Primary Elec-
tions, 638
Merntt, Lcioy C, The United States Govern-
ment as Publisher, 252
Messages, of President, to Congress, 171,
174, influence ol, on public opinion, 172,
on foreign countries, i 73.
Messages and Papers of the Presidents, 229 n,
257 n.
Metcalf, H C See Tead, Ordway.
Metcalf v Mitchell, 372 n.
Middeldyk, R A , History of Puerto Rico from
the Spanish Discovery to the American Occupa-
tion, 54.5.
Midway, government of, 536.
Migratory Bird Treaty Act (1918), 401 n.
Miles v Graham, 371 n.
Military government, 499-500.
Military law, 498
Militia, powei of President over, 492; control
of Congress over, 493, supei vision of states
in relation to, 686.
Mill, John Stuait, quoted, 43$, 692, 744.
Miller, Andrew G , City A I winger Government
in Lori % Beach, 770'
Miller, H H , Principles of /Economic v Applied
to the Philippines, 545
Miller, John P , Unjair Competition, 459
Milhgan, Fred J , "The Proposed Changes
in the Selection and Tenure of Judges in
Ohio,'* 743
Mills, M. C , and Starr, G. W , Readings in
Public Finance and taxation. 379, 726.
Millsaps, J H See Pmkerton, Paul W
Millspaugh, A C , Crime Control by the Na-
tional Government, 566
Milton, George F., The Use of Presidential
Power, ij8<) 1943, 185.
Minimum \\age laws, in states, 700
Minor, Henry A , fhe Story of the Democratic
Patty, 133
Minor v Happersett, 91 n
874
INDEX
Ivlissouri v. Holland, 401 n.
Mixer, K., Porto Rico, 545.
Moley, Raymond, Our Criminal Courts, 743;
Politics and Criminal Prosecution, 743-
Monroe, James, reelection of, as President
in 1820, 117; on post roads, 477.
Monroe Doctrine (1823), origin of, 509; ap-
plication of, 509-510, good neighbor pol-
icy under, 5 1 0—5 1 1 .
Montesquieu, Charles le Secondat, Baron, on
the separation of powers, 57, The Spirit of
Laws, 57 n.
Moore, B. F., The Supreme Court and Uncon-
stitutional Legislation, 528, The History of
Cumulative Voting and Minority Representa-
tion in Illinois, iSjo- /9/9, 66 1.
Moore, C. B , Our American Citizenship, 96.
Moore, H E See Odum, H W.
Moore, John Bassett, Extiadition and Inter-
state Rendition, 609
Moos, Malcolm C , "Judicial Elections and
Partisan Endorsement of Judicial Can-
didates in Minnesota," 743
Moran, T F , American Presidents, 170.
Morganston, C. E., The Appointing and Re-
moval Power of the President of the United States,
198-199.
Morison, S. E., Sources and Documents Illus-
trating the American Revolution, 1764— ij88,
and the Formation of the Federal Constitution,
33-
Mornll Act (1862), 462.
Morris, Gouverneur, in constitutional con- -
vention of 1787, 35, 40, 42
Morru, Robert, 34, in constitutional conven-
tion of 1787, 35, 36
Mort, Paul R. See Studenski, Paul.
Mosher, Frederick C , City Manager Govern-
ment in Rochester, 779
Mosher, W. E , and Kingsley, J D , Public
Personnel Administration, 269, 756, and
Crawford, Fmla G., Public Utility Regula-
tion, 709.
Motor transport, interstate, regulation of,
411-412.
Mott, Rodney L , Due Process of Law, 96,
521 n, 528.
Moulton, H. G , The New Philosophy of Pub-
lic Debt, 398.
Muller, Helen M., County Manager Govern-
ment, 807 n.
Municipal administration, branches of, po-
lice, 783-785; fire protection, 785-786;
public works, 786-791; public health and
sanitation, 791-792; regulation of public
utilities, 792-794, education, 794-795; li-
braries, 795; poor relief and social welfare,
796.
Municipal government, organization, mayor-
and-council, 762-768; commission and citv
manager plans, 769-776, mayor, 763-765.
city council, 766-768, heads of depart-
ments, 765-766; in metropolitan con?
munities, 778.
Municipal ownership, 793-794.
Munro, William B , Makers of the Unwritten
Constitution, 54/2, 80, 486, 578^; The In-
visible Government, 609-610; "The Boss in
Politics," 635 n; fhe Government of American
Cities, 778, Muncipal Administration, 798.
Muntz, Earl E., Urban Sociology, 778.
Murray, William H., Rights of Americans un-
der the Constitution of the Federal Republic, 96.
Musmanno, M. A , Proposed Amendments to
the Constitution, 80.
Myers, Henry L., The United States Stnate;
What Kind of Body* 285.
Myers, W. S., The Republican Party: A History,
120 n, 133.
Myers v. Anderson, 102 n.
Myers v. United States, i83 n, 189 n, 194.
National Bankruptcy Act (1898), 480.
National Civil Service Reform League, pub-
lication of, 269.
National Commission on Law Obseivance
and Enforcement, Report on Prosecution, 743
National defense, powers of Congress over,
487 501, agencies of, 250 251.
National defense mediation board, 448, 4*31
National Industrial Conference Boaid, The
Cost of Government in the United States, 397,
727, Mergen and the Laiv, 459, Public Regu-
lation of Competitive Practices, 459, I he World
War Veterans and the National Ireaswy, 5°2,
State and Local Taxation of Property, 727,
State Income T a\t">, 727, State and Local
Taxation of Business Corporations, 727, Sale*
Taxes General, Selective, and Retail, 727,
The Taxation of Motor Vehicle rransportatwn,
727
National Industrial Recovery Act (1933), 60,
70, 247, 444-447, 449, 525, codes of fair
competition under, 354, 445, unconsti-
tutionality of, 445-446; collective bargain-
ing in, 448.
National labor relations board, 247-248,
449-450.
National military establishment of the United
States, 220, 489.
National Municipal League, Model State Con*
stitution, 621, 752, 756, Model City Charter,
779; "Principles of a Model Count)
Government," 819.
National Municipal Review t 779; "American
Governors," 691, Supplement on "Consti-
tutional Barriers to Improvement in
County Government," Sio n; "A Bibliog-
INDEX
875
raphy of County Government," 819;
Supplement, "Recommendations on Town-
ship Government," 819
National Popular Government League,
publications of, 673.
National recovery administration, 247, 444-
447-
National resources planning board, Na-
tional Resources Development Report for 1943,
Part I, Post-war Plan and Program, 459,
473, Security, Work, and Relief Policies, 460.
National Resources Planning Committee,
State Planning Programs and Accomplishments,
756, Our Cities I heir Role in the National
Economy^ 779' Urban Government, 779-
National Security Act (1947), 489
Nattonal security council, 220, 490.
National war labor board, 248 n, 451-452. -
National youth administration, 250.
Nationality Act (1940), 83, 85.
Natural Gas Act (1938), 470.
Naturalization, citizenship by, 84—90, pro-
ccduie for acquiring, 85-87, by statute or
treaty, 84 85, by judicial process, 86-87;
strictness of laws relating to, 87, power of
Congress over, 480
Naturalization Act (1906), 85.
Navy, department of the, 221 ; power of Con-
gress to provide and maintain, 493-494
Naylor, E E , The Federal Budget System in
Operation, 385 7?, 397
Near v. Minnesota, 62 //
Nebraska, adopts one-house legislatuie, 619,
643
Neely v Henkel, 573 n.
Negro, suffrage, 101-105, discrimination
against, under the fifth and fourteenth
amendments, 597-598.
Neutrality Acts (1935 and 1939), 405, 489.
Nevms, Allan, Vhe American States during and
after the Revolution, /775~/7#9, 33," Grover
Cleveland, a Study in Courage, 1 45, I 70.
Newbcny v United States, 274 n.
Newcomer, Mabel, Separation of State and
Local Revenues in the United States, 726.
New England, local government in, 21; con-
federation of 1643, 22; town government
in, 811-815 See also Colonies.
New Jersey plan, 42.
New York, constitutional convention, speech
of Elihu Root on "Invisible Government"
at, 749 n
New York Municipal Reference Library Notes,
"Annotated List of References," 819.
New York State Constitutional Convention,
Constitutions of the States and the United
States, 622.
New York State, requirement of literacy tests
for voting in, 105, 107.
Nichols, E. R. (editor), Congress or the Supreme
Court: Which Shall Rule America? 587.
Nichols, Philip, The Law of Eminent Domain,
528.
Nixon v. Condon, 1 04 n.
Nixon v. Herndon, 103 n.
NLRB v. Jones and Laughlin Steel Corpora-
tion, 354 n.
Noel, F. R , A History of the Bankruptcy Clause
in the Constitution of the United States, 486.
Nolting, Onn F See Ridley, Clarence E.
Nomination, procedure and development,
135-136, by caucus, 135; in conventions,
135-136, of presidential electors, 153-160;
of candidates for the presidency, 161-165;
of congressmen, 311, in states, by caucus,
644, for state legislatures, 644.
Norris v. Alabama, 561 n.
Norris-La Guardia Act (1932), 448.
Northern Securities Co. v. United States,
440 n.
Northwest Ordinance, The, 29.
Northwest Territory, acquisition of, 529.
Nourse, E. G., Davis, J S., and Black, J. D ,
Three Tears of the Agricultural Adjustment
Administration, 473-
Nowlin, W F , The Negro in American Politics
since 1868, 112.
Nullification and secession, 351-352.
Oatman, M. E. Srr Blachly, F. F.
Oberholtzcr, E. P., The Referendum in America,
673-
O'Brien, James C , and Marcmberg, P. P.,
Tour Federal Civil Service, 260 n, 269.
Odegard, Peter H , The American Public Mind,
144, Pressure Politics, 346, 662, and Helms,
E. Allen, American Politics: A Study in
Political Dynamics, 145.
Odcll, Talbot, War Powers of the President;
War Powers of the American Presidency De-
rived from the Constitution and Statutes and
Their Historical Background, 1 99.
Odum, H. W., and Moore, H. E., American
Regionalism, 6oc>
Office of price administration, 446.
Offutt, Milton, The Protection of Citizens Abroad
by the Armed Forces of the United States, 96.
Ogburn, W. F., and others, Social Change and
the New Deal ,**252. •
Ogg, F A., and Ray, P. O., Introduction to
American Government, 12, 66 1, Essentials of
American Government, 12, 66 1.
Ohio Oil Co. v Indiana, 522 n.
Olcott, C. S , Life of William McKmley, 1 70.
Old-age pensions, 454-455.
Oleomargarine case, 581.
Oliver, Frederick S.^ Politic* end Politicians*
876
INDEX
Olson, R L , The Colorado River Compact, 610.
O'Malley v Woodrough, 371 n
Oneal, J , American Communism., 133
"Open market committee," under federal
reserve banking system, ^.30
Open door policy in China, of the United
States, 512.
Opinions of the Attormy Gtneial, 72 n, 222
Ordinances, power oi c ity council to enact,
767
Orlield, L B , 7 he Amending of the Federal Con-
stitution^ 80, Criminal Appeals in America,
743
O'Rourke, Vernon A , and Campbell, Doug-
las 'W , Constitution- A faking in a Democracy,
621.
Orth, S P, "Presidential Leadt rship," 185,
The Boss and the At attune, 638, and Cush-
man, R E , American National Government,
12, 65, 1 20 n, 419
Osborn, A & , The A find of the Juror, 743
Osgood, H L , fhe American Colonies in the
Seventeenth Century, 32, Atmncan Colonies in
the Fiohfetnth Century, 32
Ostrotjorski, M , quoted, 623, Democracy and
the Organisation of Political Parties, 132—133.
Overackci , Louise, Money in Elections, 145,
638, The Presidential Primary, I54//, 170.
See also Mcrnani, C. E.
Ovid, quoted, 335
Pacific Islands, Timtory of, 536
Paclelfoul, No. man J , I he Panama Canal in
Pt <H c 'i'< I 1 J ar, 546
Pag< , F W , Alakwt* the Tariff in the United
States, -JK)
Paige, R M bee Lect, G
Panama Canal Zone, 22 1, 530, 536.
Panama Refining Co v Ryan, 470 n.
Parcel-post systt in, 476
Pardons, power of gi anting, by President,
195, by state governors, 688.
Parishes See County
Parrmgton,- V L, Alain Cw rents in American
Thought, 32.
Parties, political, machinery and work of,
73-74; nature and puipose, 113-132;
inevitable in free government, 113-114;
beginnings of, 115 116, in constitutional
convention, 115, effect of1' Civil War on
strength of, ir8, recent developments,
119-121, psychology of, 126, not recog-
nized in Constitution, 126-127, the party
system, 128 132, third parties, causes of,
132; two-party system, advantages of, 132;
functions of, 128 132, national, organiza-
tion and methods of, 134-144, definition,
134; varied elements of, 122-126, need for
organization, i 34-135, early forms of, 135;
conventions, 136; relation to systei/i of
government, 128-131, campaign methods,
139-144, finance, 141-142, influence in the
Senate, 282 283, in states, uniform, 620,
autonomy of, 623, relation to national
parties, 623-625, organization and meth-
ods, 625-032, machines, bosses and rings,
632 £37, patronage, 633-634, relation to
better state government, 754. 755
Passenger Cases, 406 n '
Pasvolsky, Leo, Current Aionetary Issues, 436
Patents, in depaitment of commerce, 226,
power of Congress over, 478-479
Paterson, William, in constitutional conven-
tion of 1787, 35, 40, 42
Patrnan, Wright, The Robinson-Potman Act,
441 n
Paul, Randolph E , Selected Studies in Federal
fa\ation, 379
Paul v Virginia, 401 n, 581 «.
Pearson, F A See Warren, C. F.
Peel, Sir Robeit, establishes police in Eng-
land, 783.
Pendleton Act (1883), 258
Penn, William, proposal for a union of the
colonies (1696), 22
Pcnnock, J R , Administration and ike Rule of
Law, 252, 566"*
Pennsylvania R R. Co v Knight, 402 n.
Pepper, G W , In the Senate, 285
Pepys, Samuel, quoted, 381
Pergler, Charles, Judicial Interpretation of In-
ternational Law in the United States, 555 n
Pei kins, Dextei, Hands Off, A History of the
Monroe DM trine, 515 516.
Perkins, F E See Flynn, J E.
Perkins, O E, and Whrtaker, J R, Our
National Resources and 1 heir Conservationy
473
Perkins, Rollm M , Elements of Police Science,
798.
Pciry, Charner M. (editor), I he Philosophy
of American Democracy, 836
Persons, W. M , Government Experimentation in
Business, 459.
Peterson, Samuel, Democracy and Governmentr
673
Petition of Right (1628), 520.
PfiiTner, John M., Public Administration, 708,
Municipal Administration, 798
Phelps, E M., Selected Articles on Immigration,
420
Philadelphia gas ring, 637.
Philippine Independence Act of 1934, 513,
539-541.
Philippine Islands, status of citizens in, 85,
acquisition of, 293, 530, 537, former gov-
ernment of, 537~538, new Commonwealth
°f» 539~54°> Republic of, established and
INDEX
877
recognized by the United States, 541 , eco-
nomic and military relations with United
States, 541.
Phillips, C A., Bank Credit, 437.
Phillips, J C See Horlacher, H P
Phillips, Robert, American Government and Its
Problems, 12
Philosophy of government, American prin-
ciples of, 820-835
Picketing, John, impeachment of, 299 n.
Pierson, C. W , Our Changing Constitution,
486.
Pinckncy plan, 42 n
Pmckneys, the two, of South Carolina, in
constitutional convention of 1 787, 35
Pmk^rton, Paul W , and Millsaps, J H , In-
hentance and Estate faxes, 727.
Pipkin, C W , Social legislation in the South,
709
Pivotal states, influence of, in presidential
elections, 162 103
Plantation Affairs, Committee for, i8n.
Platt, Thomas C , Autobiography, 286
Plehn, C C , Introduction to Public Finance,
379, 726
Plunkitt of Tammany Hall, quoted, 256-257,
<>34
Pohtt% administration of, in cities, 783-785,
American and European compared, 784.
Police courts, 785
Police power, in relation to clue process, 522.
Political patronage, 74, in states, 633- 63 \.
See also Spoils system
Pollard, ] P , Air Justice Cardoso — American
Lawyei , 588
Pollock, Sir Frederick, The Expansion of the
Common Laiv, 566
Pollock, J K , Ji , Voting Behavior, a Case
Study, 112, Absentee Voting and Registration,
112, Party Campaign Funds, 144., 638, "The
Initiative and Referendum in Michigan,"
673
Pollock v Farmers' Loan and Tiust Co,
Pomeroy, J N , An Introduction to the Consti-
tutional Law oj the United States, 474 n.
Pontius, Dale, State Supervision of Local Gov-
ernment, 819.
Poor relief See Chaiitics.
Pope, quoted, 171.
Popper, D. II , Latin American Policy of the
Roosevelt Admmistiatwn, 516.
Population, drift of, to cities, 799.
Populist paity, 461.
Porter, Kirk H , History of Suffrage in the United
States, 20 w, ill, National Party Platforms,
144; State Administration, 708, County and
Township Government in the United States,
818.
Post, Charles G , "The Supreme Court and
Political Questions," 588
Post-bellum amendments, 78
Post office, federal ck pai tment of, 223-224.
Post roads, power of Congress ovei, 474, 477
Postal power ol Congress, 474 477
Postal savings system, 436, 476
Postmaster general, appointment of, 201 ;
head of post oflu e department, 223-224
Pound, Aithut, Detiott Dynamic City, 779.
Pound, Roseoc, Administrative Laiv Its Giowth,
Procedure and Significance, 528, Organisation
of the Courts, 566, 1 he Spirit of the Common
Law, 566, "The Place of Judge Stoiy in
the Making of American Law," 588, and
others, Federalism as a Democratic Process,
836.
Powell, A L , National I a\atwn of State In-
stiinnentalittes^ 380
Powell, Ficcl VV , Conttol of federal E\pendi-
turcs, 397
Powell v. Alabama, 561 n
Pi alt, Fletcher, Sta /Wvr and Today's War,
502, Short History uf the At my and \<n>y, 502
Picscott, Aithur T (eclitoi), Drafting the
l^edetal Constitution^ 51
Presidency, history of, i 46-167, succession to,
167 -169
President, foreshadowed, under Ai ticks of
Confederation, 26, ck t tiori of, 72 -73, i 46-
167, term uf, 147 -i j.8, ( hanges in methods
ol electing, 148 151, in 1824, 151, office
of, 146 i6c), need for single exec utive, 146,
methods of choosing, i 4.8 153, in event of
tic vote, 140, by electors, i 57 i 58, popular
votcfoi, i 58, counting of votes, 159, choice
of great men foi , 1 60 1 61 , eai Iv careers of,
162, factors determining' choice of, 162—
163, types of candidates (or, rt> }- 16 i, selec-
tion of candidates foi , 1 6 \, salary, 1 66- 1 67 ;
constitutional immunities of, 167, succes-
sion to office, 168, constitutional qualifica-
tions of, 169, iclations to Congress, 171-
185, messages, 171-1 7 j., their influence on
legislation, 171-172, veto povser, 174-180,
political powers, 181-184, peisonahty of,
182-184, control of, by Congn ss, 180 i8r ,
as a party leader, 181 -185, somce of au-
thority under, the .Constitution, 186-187,
powcis and duties of, 186 ic>8, executive,
186—189, in connection with legislation,
186-187; judicial, 187-188, classification
of, 188-189, implied executive poweis of,
189-190, of appointment, 190-193, of re-
moval, 193-195, pardons, 195, relating to
diplomacy and defense, 195—196, i elating
to Congress, 196 -197, in relation to execu-
tive orders, 197- 198, military, 196, in ic-
lation to state alTairs, 195, relation to cab-
878
INDEX
President — continued
inet, 200-207; treaty-making power, 290-
295; power of, in relation to independent
administrative agencies, 234; influence on
appropriations, 385—387; relating to tariff,
404-405; over railroads in war time, 409;
war powers, 488-501 ; in foreign relations,
504-507.
Presidential Succession Acts, 68, 168.
President's Committee on Administrative
Management, Administrative Management in
the Government of the United States, 232, Re-
port of the Committee with studies of Administra-
tive Management in the Federal Government,
232.
President's Research Committee, Recent
Social Trends in the United States, 420.
Primary, presidential, 166, direct, 628-630.
Pnngle, H. F , The Life and Times of William
Howard Taft, 1 70, 204 n.
Pritchett, C. Herman, The Tennessee Valley
Authority; a Study in Public Administration,
252, 473-
Privileges and immunities, of citizens, 81-82;
of members of Congress, 283-284.
Privy Council, right of appeal to, 21.
Proceedings of the Fourteenth American Country
Life Conference: Rural Government, 819.
Production and marketing administration.
225, 465.
Progressive party, 1 19, 625.
Prohibition party, 121.
Property, classification of, for taxation, 711-
7i8
Proportional representation, in cities, system
<*, 772, 773^
Public buildings, in cities, location of, 790-
79"-
Public health and sanitation, administration
of, in states, 696-697, in cities, 791-792.
Public opinion, 23, 781-782.
Public property, supervision of, in the states,
7°3
Public safety. See Police, Fire protection and
prevention.
Public utilities, regulation of, in states, 697;
in cities, 792-793; municipal ownership of,
793 -794-.
Public utility holding * companies, develop-
ment of, 414—416, their merits and defects,
414-415, Act of 1935, 415.
Public works administration, federal, 248—
249; housing division of, 249; housing
authority of, 249.
Public works, in cities, 786-787; in counties,
802-803.
Puerto Rico, status of citizens in, 85, 534;
military government in, 500; acquisition
of, 530, 534; government of, 534-535.
Puffer, C. E., Air Transportation, 420.
Puleston, W. D., Armed Forces in the Pacify
502.
Pullman Strike of 1894, 594.
Qualifications for voting. See Suffrage.
Queen, S. A , and Thomas, L. F., The City:
A Study of Urbamsm in the United States,
778
Queeny, Edgar M , The Spirit of Enterprise,
459
Qureshi, A I , Agricultural Credit, 437.
Radin, Max, "Popular Legislation in Califor-
nia," 673
Radio broadcasting, regulation of, 237^238,
412-413
Railroads, power of the President over, in
war time, 409, federal operation of, 409-
410.
Raleigh, Sir Walter, quoted, 13
Randolph, Edmund, in constitutional con-
vention of 1787, 35, 40, 41-42
Rankin, E R , rl he Sales lav, 727.
Rankin, Robert S , Readings in American
Government, 12
Rathbun v Umtetl States, 188/2, 194/1
Ratner, Sidney, American Taxation, It\ His-
tory a? a Social Force in Democracy, 379
Raushenbush, H S , and Laidlcr, H. W ,
Power Conhol, 420
Ray, P O , An Introduction to Political Parties
and Practical Politics, 112, 133, 138/2, 638.
See also Ogg, F A.
Raymond, W. L , State and Municipal Bonds,
727.
Read, Conyers (editor), The Constitution Re-
.onsidered, 80.
Recall, in general, 672-673; of state govern-
ors, 676, of state judges, 739
Reciprocal trade agi cements, 405.
Reconstruction finance coiporation, organi-
zation and functions, 246, 435
Redficld, William C , With Congress and Cabi-
net, 212.
Reed, A. Z , The Territorial Basis of State
Government, 641 n.
Reed, Thomas B., in reference to quorum of
the House, 317, power of recognition in
House, 335 n.
Reed, T. H., Municipal Government in the
United States, 778, Municipal Management,
798; (editor) Legislatures and Legislative Prob-
lems, 66 1.
Reeves, F. W., and David, P. T., Personnel
Administration in the Federal Government, 269.
Referendum. See Direct legislation.
Regional governments, need of, in the United
States, 608.
INDEX
879
Remick, H. C., The Powers of Congress in
Respect to Membership and Elections, 334, 364.
Removals from office, by the President, 193-
195; of state governors, 676, of state offi-
cials, 685; of state judges, 739; by mayors,
764-765.
Reorganization of state government, 744-
756, of county government, 807—808.
Report of the Commission on the Administration of
Just fee in New York State , 743.
Report of the Joint Preparatory Committee on
Philippine Affairs, 546.
Representation, basis of, in Congress, 272-
273, in House of Representatives, 306; dis-
trict system of, 309-3 1 o.
Representatives, House of, power over trea-
ties, 293, originates money bills, 301—302;
organization, 305 320, "popular branch"
of government, 305-306, original concep-
tion of, 306, growth in size, 307-308; ap-
portionment of members, 308-309, present
size of, 309, qualifications for membership,
312 313, compared with English tradi-
tions, 313-314, logical functions of a
leprcsentative, 313, terms of representa-
tives, 31 1-316, sessions, 315-316; serial
numbers of, 316 n, debates, 316-319, rou-
tine, business of, 319, at work, 321—334;
rules, 322-323, speaker, 323-329, com-
mittees, 329-334, procedure, 335—346;
customs of, compared with House of Com-
mons, 345- 34°-
Republican paity, 116, 119, 121.
Residence requirements, of candidates for
Congress, 73
Restraint of trade, 439-441.
Revenue bills, relation of Senate to, 301-
302
Reynolds, G G , The Distribution of Power to
Regulate Interstate Carriers between the Nation
and the State*, 420
Reynolds, M 'I , Inter departmental Committees
in the National Administration, 231.
Ribble, F D G , State and National Power
over Commerce, 419.
Rice, -Stuart A , Fanners and Workers in Ameri-
can Politics, 133.
Rich, Bennett M , The Presidents and Civil Dis-
order, 199.
Richberg, Donald R., Government and Business,
Tomorrow* a Public Relations Program, 459.
Riddick, Floyd M , Congressional Procedure,
336 n, 346.
Ridley, Clarence E., and Nolting, Orin F.
(editors), Municipal Yearbook, 779; and
Simon, H. A., Measuring Municipal Activ-
ities, 798.
Riordon, William L., Plunkitt of Tammany
Hall, 257 n, 634 n, 638.
Rippy, J. F., Latin America in World Politics,
5i6.
Ritter, Halsted L., impeachment of, 300 n.
Roberts, G B , The Functions of an English
Second Chamber, 286
Robertson, W. S., Hispanic- American Relations
with the United States, 516.
Robinson, Edgar S , The Presidential Vote,
1896-1932, 1 70, The Presidential Vote, 1936,
170.
Robinson, E. E., Evolution of American Political
Parties, 133.
Robinson, E S , Law and the Lawyers, 743.
Robinson, George C , "The Veto Record of
Franklin D. Roosevelt," 1 78 n.
Robinson, W A , Thomas B. Reed, Parliamen-
tarian, 334.
Robinson-Patman Act (1936), 441.
Rocca, H. M., Nominating Methods with Special
Reference to the Direct Primary, 638.
Rodell, Fred, Democracy and the Third Term,
170.
Rogers, Lindsay, "The Power of the Presi-
dent to Sign Bills after Congress has Ad-
journed," 176 n, 185, "Presidential Dicta-
torship in the United States," 185, The
American Senate, 285, 304, The Postal Power
of Congress, 475 n, 485; Crisis Government,
486
Rogers, Will, on the Senate, 285.
Rohlfing, C. C , National Regulation of Aero-
nautics, 420, and others, Business and Govern-
ment, 419
Rohr, Charles J , The Governor of Maryland:
A Constitutional Study, 679 n, 691.
Rolfe, M A , Our National Parks, 473.
Romulo, Carlos P , / Saw the Fall of the Philip-
pines, 545
Roosevelt, Franklin D . 59, 6ft, 75, election
of, as President, 120, 147, ladio appeals to
public opinion, 172, leadership of, during
World War II, 183, special session of Con-
gress called by, 316, 432, on National Re-
covery Act, 445, 448, On Our 'Way, 185,
Looking Forward, 836.
Roosevelt, Nicholas, The Philippines, 545.
Roosevelt, Theodore, quoted, 503, reference
to James Madison, 39 n; prosecution of
trusts, 440-4^.1 ; conservation policy of,
469; on Santo*Dorriingo, 506, 510, foreign
policy of, 512, Autobiography, 145, 170,
i88w, 46972; The New Nationalism, 348 n.
Roosevelt, Theodore, Jr , Average Americans,
92 n; Colonial Policies of the United States, 516,
545-
Root, Elihu, on state administration, 749,
speech at New York constitutional con-
vention, 749; Addresses on Government and
Citizenship, 97.
880
INDEX
Roper, D. C., The United States Post Office, 231,
485
Rose, J S , Jurisdiction and Proa dine of the
Fedeial Courts , 566
Rosen, S McKee, Political Process, 145
Roscnfarb, Joseph, I he National Labor Policy
and //on.' // \\'^rks, 252, 460
Rostcn, L C, I he Washington Co-respondents,
'85
Rottschaefer, Henry, Handbook of American
Constitutional Law, 65
Rousse, F A, Bitameralism vs. Unuametalism,
601-602
Rowc, D N See Eriksson, E M
Ro\vc, L S , fhf United States and Porto Rico,
545
Rubmo'.v, I M , /"//«» Quest Jor Security, 460
Rural counties, government of, 799-818.
Rural Elec tniication Act (1936), 467.
Russell, E B , I he Review of Amtncan Colonial
Lt^is'>ttinn by the Kin» in Council, 20 n, 32
Rutledgc, John, in constitutional convention
of 1787, 35
R>an, S' M £e Bud, F L
Saarmen, Elliel, The City Its Growth, Its De-
cay, Its but we, 7/8 779
Sainte-Bt uve, quoted, 824
Salt, E. M , Amu n mi Par tit s and Elections, 112,
133, 038, Politic d Institutions, 836
Sales taxes, 713
Salmon, Liny M, ''History of the Appoint-
ing Pow< i of the Pit sident," 199
Salier J F, Boss Knit, 635 n, 638, (editor),
The Annrtcan Politician, 145, 038, fhe Pat-
tern oj Politics, 038, 836
Sanioan Islands, acquisition and government
°f> ry*°> 5'3b
Samontc, V f , 77/f Ammc,in System oj Colo-
nml Administration, 545
Sanclci-., J B, F,vi>lution of l'\tculive Depart-
ments of the Continental Congress, 1774-1 ?$<)>
2(3 //.
Sanderson, E D., 7 he Rural Community,
819.
Sanderson,} F .SVrFinky, J II
Santa Clara Co. v. Southern Paeifie Co ,
598 n
Sayie, F B , 7 he Protection of American Ex-
port 7rade, 420, I he l\'ay Forward 1 he
American frade Agreements Program, 420.
Schaffter, Dorothy, The Bicameral System in
Practice, 64.1 n.
Schantx-Hanscn, T. See Cheyney, E G.
Schattsehn^idcr, E E , Party Government, 133;
Politics, Pressure?, and t tie I anjf, 145.
Schcchtcr Poultry Corporation v. United
States, 70 n, 3^1-355, 401, 525 n.
Schenek v. United Stat< s, r.oi n
Schiller, A. A., Military Law and Defense Legis*
lation, 502.
Schlesingcr, A. M., The New Deal in Action,
*933-iy39> 459-
Schmeckebicr, L. F , New Federal Organizations,
252, 437, Government Publications and '1 heir
Use, 252, Congressional Apportionment, 320,
"The Federal Radio Commission," 421,
'The District of Columbia. Its Government avd
Administration, 546, and Willoughby, W. F
The Government and Administration oj the Dis-
trict of Columbia Suggestions Jor Change, 546
Schmit, Edward B , County Consolidation, 818-
819
Sc holey v. Rew, 370 n
Schouler, James, Ideals of the Republic, 96.
Schulz, G J , Election of the President of the
United States by the House of Representatives,
170, Crtatwn of the Senate, 285
Schuylci , R L , 1 he Constitution of the United
States, an Historical Sun<ty of Il\ Formation,
52
Seott, F. R., The Untied States and the Bntnh
Commomvealth, 516.
Scott, J A , 1 he Law of Interstate Rendition,
609
Seott, James Brown, Sovereign States and Suits,
587, f/ie Judicial Settlement of Controversies
between States of the American Union, 587. See
also Hunt, Gail lard.
Scroggs, W. O See Shepardson, W. A.
Seager, II R , and Gnhck, C. A, Trust and
Corporation Problem f, 420
Sears, L M , History of American Foreign Rela-
tions, 515
Secession and nullification, 351-352.
Secklcr- Hudson, C , Statelesuiess, with Special
Reference to the United States, 96
Securities and exchange commission, 238-
239
Selective Service and Training Act, 490-491.
Schgman, E. R A., Essays in laxatwn, 379,
Shifting and Incidence of I aKatwn, 379, 1 hi
Economics of Farm Relief, 437, 473
Seiko, D. T., The Federal Finance System, 231,
379, 397, The Administration of Federal
Finances, 397.
Senate, confirmation of presidential ap-
pointments, 191-192, organization and
procedure, 270—285; original conception
of, 273, 287, qualifications for election to,
274-275; vacancies in, 276, equality of rep-
resentation in, 276, sessions, 277; pioced-
ure, 278-282, committees, 279-280; de-
bates, 281-282, caucus in, 283; place in
American history, 284, future of, 289, leg-
islative functions, 287, 301 -304; special
functions, 287-304, confirmation of ap-
pointments, 287-290, in connection with
INDEX
881
treaties, 290-295; powers, 295-302; to try
impeachments, 295-301; in relation to
money bills, 301-302, legislative powers
coordinate with House, 302, on investiga-
tions, 302-303, appropriation bills in, 302.
Senatorial courtesy, 192.
Senators, election of, by state legislatures, 78,
methods of choosing, 273-277; direct
popular election of, 274-275, privileges
and hnmumtics of, 283-284.
Senning, John P , "Nebraska's First Uni-
cameral Legislative Session," 644 n; 'The
One-House Legislature , 662.
Separation of powers, in original state con-
stitutions, 27, in Constitution, 56-59;
Montesquieu's views on, 57, Blackstone's
endorsement of, 57-58; in states, 619—620
Seit, Jose" L , Can Our Cities Survive? 779.
Service Alonographs of the V ruled States. See In-
stitute of Government Research
Servicemen's Readjustment Act (1944), 497.
Shakespeare, William, quoted, 53
Sharfman, I L , 7 he Interstate Commerce Com-
mission, 252, 419.
Shattuck, L. A , Jr , Municipal Indebtedness,
798.
Shaw, C. K , "Supci vision of the Field Serv-
ice<5 in the United States Revenue Admin-
istration," 380.
Shays Rebellion, 1786, 30.
Shelton, T W , The Spirit of the Courts, 743.
Shepardson, W A , I he Interests of the United
States as a World Power, 516, and Scroggs,
W O. (editors*), I he United States in World
Affairs, an Account of American Foreign Re-
lations, 516.
Sherman Anti-Tiust Act of 1890, 189-190,
439-441, merits and defects of, 441.
Sherman, John, as secretary of the treasury,
219, Recollections of Forty fears, 286.
Sherman, Roger, in constitutional conven-
tion of i 787, 35, 40.
Shipping board, 417.
Shoemaker, W. D , Trade- \farks, 479 n
Short, L. M., The Development of National
Administrative Organization in the United
Stales, 212.
Short, O. C , The Merit System, 269.
Shot well, James T , War as an Instrument of
National Policy, 502 , On the Rim of the Abyss,
516, The Great Decision, 516.
Shoup, Carl, Federal Finances in the Coming
Decade, 380; and others, Studies in Current
7 ax Problems, 380; Facing the Tax Problem,
380. See also Haig, R. M.
Shulcr, G , Party Control in Politics and Govern-
ment, 133.
Shulcr, N. R. See Catt, C. C.
Shulman, Harry. See Frankfurtei, Felix.
Shultz, W. J., American Public Finance, 379,
726; The Taxation of Inheritances, 727.
Sikes, E. R., State and Federal Corrupt Practices
Legislation, 145, 638
Silver, coinage of, in nineteenth century, 423;
Silver Purchase Act (1934), 424.
Silvcrherz, J. D., The Assessment of Real Prop-
erty in the United States, 727.
Simon, H. A. See Ridley, Clarence E.
Simon, Leon G , Inheritance Taxation, 727.
Simpson, Alexander, Jr , A Treatise on Federal
Impeachments, 304.
Slaughterhouse Cases, 91 n, 598 n.
Sly, John F , 7 own Government in Massachu-
setts, 1620- i()3o, 8 1 1 n, 819
Small, N J , Some Presidential Interpretations of
the Presidency } 198
Smillie, W G , Public Health Administration in
the United States, 709
Smith, Alfred E , The Citizen and His Govern-
ment, 636 n.
Smith, Bruce, Police Systems in the United States,
798.
Smith, C. B , and Wilson, M C , The Agri-
cultural Extension System of the United States,
473
Smith, C W , Jr See Holloway, M V.
Smith, D H , The Bureau of Naturalization, 96;
"The United States Civil Service Com-
mission," 268, The General Accounting Office,
380
Smith, E C , and Zurcher, A J. (editors), A
Dictionary of American Politics, 1 2
Smith, E E., The Philosophy of a Politician, 638.
Smith, G H E See Beard, Charles A.
Smith, H A , The American Supreme Court as an
International Tribunal, 587-588.
Smith, J Allen, The Gwivth and Decadence of
Constitutional Government } 836. f
Smith, R H , Justice and the Poor, 743
Smith, Ralph W., Weights and Measures Ad"
ministration, 485.
Smith, T C , Life and Letters of James Abram
Garfield, I 70.
Smith, T. V , The Democratic Tradition in
Amencan Life, 836.
Smith, W. H , History of the Cabinet of the
United States, 212.
Smith v Allwright, 104 n, 599 n.
Smith-Connally'Act (1943), 452.
Smith-Hughes Act (1917), 483
Smith-Lever Act (1914), 462, 483.
Smithsonian Institution, 244-245.
Smyth, A. H. (editor), Writings of Benjamin
Franklin, 23 n
Snider, C. F. See Guild, F. H.
Snow, A H , American Philosophy of Govern-
ment, 96, 835.
Social insurance, in states, 701.
882
INDEX
Social Security Act (1935), 21 8, 454,457, 527,
amendments to (1939), 455-456, admin-
istration of, 454-458, old-age pensions
under, 454-455 > unemployment insurance,
456
Socialist party, history of, 121-122
Soil Conservation and Domestic Allotment
Act (1936), 465.
Soule, George, The Future of Liberty, 96
South Carolina, nullification and secession in,
35 l -352
South Carolina v United States, 372 n,
Sovereignty, of the states, under the Con-
stitution, 348, in the national and state
governments, 54, 589-590
Spain, treaty with (1898), 537.
Sparks, E. S , History and Theory of Agricul-
tural Credit in the United States, 437.
Spaulding, O L , 7 he United States Army in
War and Peace •, 502
Speaker, of House of Representatives, origin,
323; compared with House of Commons,
323-324; powers, 325-329, development
in America, 324, choice of, 325, methods
of addressing, 335- 337.
Speech, freedom of, in war time, 500-501.
Spencer, Herbert, quoted, 305, 61 1
Spencer, Richard, The United States Patent
Law System, 486
Spencer, W. H , Collective Bargaining under
Section ja of the National Industrial Recovery
Act, 499 n
Spero, H , Reconstruction Penance Corporation's
Loans to Railroads, 1932-1 937 •> 437
Spicer, G. W , The Constitutional Status and
Government of Alaska, 545
Spiegel, H. W., The Economics of Total War,
502.
Splawn, W. M. W., The Consolidation of Rail-
roads, 420.
Spoils system, in national government, 255-
257-
Sprague, O. M. W , History of the National-
Bank Currency, 437
Springer v United States, 370 n.
Sprout, Harold and Margaret, The Rise of
American Naval Power, 1776-1918, 502; To-
ward a New Order of Sea Power, 502
Spykman, N. J , America's Strategy in World
Politics, 502, 516
Stace, W. T., The Destiny of Western Man, 836.
Stafford, Paul T , Government and the Needy;
a Study of Public Assistance in New Jersey,
708. See also Carpenter, W. S.
Standard Oil Company case, 440.
Stanhope, Lord, History of England, 31.
Stanton, E. C., Anthony, S. B., and Gage,
M J. (editors), History of Woman Suffrage*
112.
Stanwood, Edward, A History of the Presidency,
117^, 133, 170, American Tariff Contro-
versies tn the Nineteenth Century, 419.
Stare decisis, doctrine of, 580-581.
Starr, G W. See Mills, M C.
State administration, departments, 694—707;
increase of officials in, 692-693, public
health, 696; public utilities, 697, banking
and insurance, 698; industrial affairs,
698-700, social and industrial security,
701-702, charities and correction, 702,
public property, 703; highways, 703-704,
education, 704; assessment and taxation,
704, regulation of professions, 705, military
affairs, 705, miscellaneous, 706; outstand-
ing features of, 706 707; lack of efficiency
in, 707-708, need for consolidation in,
751-752
State courts, 728-743, history of, 728-729;
organization, 729-732, supremacy of, 732 -
733; interpretation of laws by, 734-735,
judges of, 736-739; procedure and its re-
form, 739-740, power, limitations on, 741 —
742
State, federal department of, 215—217; secre-
tary, appointment of, 216, in relation to
foreign aflairs^ 215-216, in connection
with treaties, 291 , Documentary History<of the
Constitution, 51.
State finance, scope of, 710, revenues, 710—
718; expenditures, 718-722, appropriation
bills, 718-719; budget systems in, 719-721 ;
debt, 723-726, bonds, 725.
State Government, 727
Statehood for Hawaii, 545
States, early constitutions of, 26-27; powers
of, under the Constitution, 54-55, 348—
356, citizens of, 89-90, suffrage in, 305-
306; representation in Congress, 306-310;
sovereignty of, under the Constitution,
348, 351-352; right to secede, 351-352;
powers prohibited to, 359-360, taxation of
instrumentalities of, by Congress, 372; of
national banks, 427-429; debts of, repudia-
tion, 393-394; interstate and foreign com-
merce, 401-402; suability of, 552-553;
common law of, 555-556, place of, in the
nation, 589-609; delegation of powers to
the nation, 589-590; legal equality of, 591 —
592; terms of admission to the Union,
under the Constitution, 591-593, federal
guarantees to, 593-595; prohibitions on,
595-599; obligations of, under the Consti-
tution, 600—604; changing relations of,
with federal government, 605—609; con-
stitutions of, 611-621, uniformity of gov-
ernment in, 619-620; parties, 623-637;
legislatures, 639—661, governors, 674-690;
officers, removal of, 685; administration.
INDEX
883
692-70^; finance, 710-726; couits, 728-
743 ; reorganization of government in, 744—
756; areas of local government in, 810.
Statesmen's Tear Book, 397.
Statutory law, 556-557.
Stearnes v Minnesota, 592 n.
Stedman, Beirnc, Patents, 486.
Steering committee, in the Senate, 280.
Stcffcns, Lincoln, Autobiography^ 638
Stem, Charles W , 7 he Third-Term Tradition'
Its Rise and Collapse in American Politics,
itfn.
Stein, Emanuel, and others, Our War Econ-
omy, 459, 502, Labor and the New Deal, 460;
'935 Supplement, 460
Sterner, Bernard C , Lije oj Roger Brooke
Taney, 588.
Stephenson, G. M , A History of American Im-
migration, 1820- 1924, 420.
Stephenson, G. T , Race Distinctions in Ameri-
can Law, 112, 528.
Stephenson, N. W., Nelson W. Aldnch, 145,
286.
Stevens, C. E , Sources of the Constitution oj the
United States, 52.
Stevenson, Marietta, Public Welfare Admin-
istration, 709.
Steward Machine Company v. Davis, 350 n,
457 n
Stewart, F M., The National Civil Service Re-
form League, Its History, Activity, and Prob-
lems, 268
Stewart, Maxwell S , Social Security, 460
Stewart, P. W , and Tucker, R. S , The Na-
tional Debt and Government Credit, 398.
Stimson, F. J , Die American Constitution ar It
Protects Private Rights, 96, 528
Stock exchanges, regulation of, 238- 239.
Stoddard, Lothiop,"A/<7j7<?r of Manhattan, 638
Stone, D. C , The Management of Municipal
Public Works, 798.
Stone, Harlan F., Law and Its Administration,
743
Stone, Harold A., and others, City Manager
Government in the United States, 779.
Storey, Moorficld, The Reform of Legal Pro-
cedure, 743.
Story, Joseph, Commentaries on the Constitu-
tion of the United States, 64, 298 n, 580 n
Strayer, P. J , Taxation of Small Incomes, 380
Streets, administration of, in cities, 787-789,
paving, 789.
Studenski, Paul, Chapters in Public Finance,
379, The Government of Metropolitan Area?
in the United States, 778 n, 779, 818, (editor),
Taxation and Public Policy ', 379, Public Bor-
rowing^ 397, 727, and Mort, Paul R , Cen-
tralized v. Decentralized Government in Rela-
tion to Democracy, 610.
Suffrage, manhood, 99-101; Negro, 101-105,
restrictions on, 100— 101, literacy test for,
107-108, qualifications for, 109, woman
suffrage, 105-106, at congressional elec-
tions, 306; uniform, 306-307; extension of,
306-307, in Hawaii, 534, Puerto Rico, 534,
Philippines, 539-540, absence of, in the
District of Columbia, 544
Sullivan, Lawrence, The Dead Hand of Bu-
reaucracy, 231
Summers, H B , Umcameralism in Practice-
I he Nebraska Legislative System, 662.
Sumner, Helen L , Equal Suffrage, 112.
Sumner, William Graham, quoted, 422.
Sunshine Anthracite Coal Co. v. Adkins,
446 72.
Supreme Court, provision for, in Constitu-
tion, 60; its power to declare laws uncon-
stitutional, 60— 61, 66-67, interpretation of
the Constitution by, 69-7 1 , decisions, as to
child labor, 447, under the Sherman Act,
439-440, in the Schechter case, 354-355;
in Agricultural Adjustment Act, 464; as to
control over territories, 530—531; its rela-
tion to other federal courts, 567-587; its
workings, 567-570, history, 569—582;
power of judicial review, 570-576, person-
nel and philosophy, 576-582, interference
with courts decisions of state, 732-733.
Supreme Court Reports, 568.
Swisher, Carl B , American Constitutional Devel-
opment, 80, 528, 836, "Civil Liberties in
War-Time," 502, Roger B. Taney, 588.
Tacitus, quoted, 186.
Taft, Charles P , City Management, the Cincin-
nati K\periment, 779
Taft, William H , cabinet of, 204; Four
Aspects of Civic Duty, 97, Our Chief Magis-
trate and His Powers, 175 n, 188 n, 198.
Taft-Hartley Act (1947), 248, 264, 449-450,
453-
Taney, Roger B., as chief justice, 82, 579.
Tanker, Jacob, and Alderfer, H F , Pennsyl-
vania Government, State and Local, 708.
Tansill, C. C , Documents Illustrative of the
Formation of the Union of the American States,
52, The Purchase of the Danish West Indies,
546
Tariff, as an issue in elections, 118-119, com-
mission, 240-- |i, 404-405; the, 403-406,
beginnings of, 403-404, Civil War period,
405, flexible clause in, 405-406, reciprocal
trade provisions of, 405, quota system,
405.
Taussig, F. W., Tariff History oj the United
States, 419
Taylor, H., Due Process of Law and the Equal
Protection oj the Laws, 528.
884
INDEX
Taxation, power of, in the colonies, 20; under
the Constitution, by Congress, 365-379;
spread of, 375-376, future of, 377; need
for public education in, 377-378; super-
vision of, in states, 704-705, powers of, in
cities, 796-797.
Taxes, definition, 365; power to levy, impor-
tance of, 365, essentials of, 365-366, classi-
fication, 366, limitations on levy by Con-
gress, 367-370; uniform under Constitu-
tion, 367; direct, 369-370, on incomes,
370-372; income tax law, of Civil War
period, 370; and representation, 374;
double, 374, war taxes, 376, sales and ex-
cise, 376-377; collection of, 378, accounts
and audits, 378-379; classification of prop-
erty for, 711-713, assessment of property
for, 712, on sales, 713; on income and in-
heritance, 714; on corporations, 715, spe-
cial excise, 715; severance, 715, unemploy-
ment insurance, 715; miscellaneous, 715-
7i6
Tax Research Foundation, Tax Systems of
the World, 380, 727.
Tead, Ordway, and Metcalf, H C , Labor
Relations under the Recovery Act, 460.
Temperley, H W. V , Senates and Upper Cham-
bers, 286.
Temporary National Economic Committee,
Final Report and Recommendations, 459.
Tennessee Valley authority, 471
Tenny, J L , All about Naturalization, 96.
Tennyson, Lord Alfred, quoted, 81.
Tenure of Office Act (1867), 193.
Territories, government of, 529-544, consti-
tutional status of, 530-53 1 .
Texas v. White, 591 n.
Thach, C. C , The Creation of the Presidency,
Thayer, J. B*, Cases on Constitutional Law, 61 n;
The Origin and Scope of the American Doc-
trine of Constitutional Law, 587.
Thayer, W. R., The Life and Letters of John
Hay, 294 n.
Thomas, D. Y., One Hundred Tears of the
Monroe Doctrine, 1833—1923, 515.
Thomas, L. F. See Queen, S. A.
Thomas, Shipley, History of the A.E.F., 502.
Thompson, J. G , Urbanization, 641 n, 758 n.
Thompson, Walter, Federal Centralisation, 364,
486.
Thorndike, E. L., Tour City, 779.
Thornton, Willis, The Third Term Issue, 170.
Thorpe, F. N , Federal and State Constitutions,
Colonial Charters and Other Organic Laws, 32.
Three-mile limit, power of Congress outside
of, 481.
Tiedeman, C. G., The Unwritten Constitution
of the United States, 80.
Tilson, John Q., Parliamentary La^o and Pro-
cedure, 346.
Tippetts, C S., State Banks and the Federal Re-
serve System, 437.
Titus, C. H., Voting Behavior in the United
States, 112.
Tocqueville, quoted, 799.
Tolley, H R , The Farmer Citizen at War, 473.
Towns, government of, in New England,
810-815, relation to state government,
810-811; town meetings, 812-813', select-
men and officials, 814-815, in Middle
West, 8 1 6.
Trade-marks, power of Congress over, 479
Transportation Act of 1920, 409-410; of 1940,
410.
Treason, 518-519.
Treasury, federal department of the, 217-
219.
Treaties, power over, of President, 291—292,
of Senate, 292, of House of Represent-
atives, 293, and secret diplomacy, 294.
Trcnam, John J , "Commerce Power since
the Scherhter Case," 419
Trenholmc, Louise L, fhe Ratification of the
Federal Constitution in Noith Carolina, 52.
Trial by jury, constitutional securities for,
561 -563
Trimble, B. R., thief Justice Waite, Defender
of the Public Interest, 588.
Truman, D. B , Administrative Decentraliza-
tion, 756.
Truman Doctrine, 515.
Trusts, control of, by Congress, 438-441.
Tucker, John R., Constitution of the United
States, 65.
Tucker, R. S. See Stewart, P. W.
Tuller, W. K , Treatise on the Taxing Powers
with Particular Application to the State Income
Tax, 727.
Tumulty, Joseph P , Woodrow Wilson as I
Know Him, 205 n.
Tweed Ring, 637.
Twelfth amendment, 151. (\
Twentieth amendment, 159-160, 316. ^
Twice in jeopardy, 564. ^JLL
Twining v. New Jersey, 520 «. /\\.'
/
Uhler, Armin, The Review of Administrative
Acts, 566.
Umbreit, K. B , Our Ehven Chief Justices: A
History of the Supreme Court in Terms of Their
Personalities, 588
Underwood, Oscar W., Drifting Sands of Party
Politics, 286.
Union calendar, 341.
United Nations organization, 514-515.
United States Bureau of the Census, Financial
Statistics of States, 727.
INDEX
United States civil service commission, 258;
Annual Report, 263 n
United States employment service, 451.
United Slates Government Manual, 211 n, 2 1 7 n,
232, 250, 415*1.
United States Reports, 568 n
United States Senate, Manual oj, 286, 299 n, 304,
346.
United States tariff commission, organiza-
tion aryi functions of, 240-241 , The Tariff'
A Bibliography ', 420
United States v Belrnont, 506 n
United States v Butler, 348 n, 464 n.
United States v Classic, 71 n-> 274 n.
United States v Darby Lumber Company,
354 n, 45 * «-
United ^States v. E C Knight Co, 401 n,
440 n
United States v Macintosh, 86 n
United States v Rosika Schwimmcr, 86 n
United States v Shauver, 401 n
United States v Smith, 289 n
United States v. Southeastern Underwriters
Association, 401 n, 581 n
Upson, L D , fhe Practice of Municipal Admin-
istration, 798
Upton, Major-General Emory, The Military
Policy oj the United States, 501
t
Vandcnbosch, A Set Jones, J Catron.
Van Hise, C R , and Havcmeyer, L., Con-
servation of Natural Resources, 473-
Van Sant, E. R, The Floating Debt of the
Federal Government, 1919-1936, 398
Van Vleck, W. C , fhe Administrative Control
of Aliens, 420.
Vaughan, F L , Economics of Our Patent Sys-
tem, 486
Veazie Bank v Fenno, 370 72.
Veterans' administration, 245
Veterans, World Wars I and II, bonus prob-
lems of, 497, GI bill of rights for, 497-498.
Veto powei, of President, I 74-180, frequency
of use, 177-178, merits and defects of, 178,
limitations on, 179 180, in states, 678-681 ,
pocket veto, of state governors, 679; of
mayors, 764.
Vice- President, reason for the office, 167-168;
election of, 148-149, succession to presi-
dency, r 68, duties of, 169, constitutional
qualifications of, 169-170, as presiding
officer of Senate, 169, 278,
Villard, H. H , Deficit Spending and the Na-
tional Income, 398.
Villaid, O G , Our Military Chaos, 502.
Virgin Islands, government of, 535-536. *
Virginia plan, 41-42.
Vollmcr, A., The Police and Modern Society ',
798.
von Mises, Ludwig, Omnipotent Government,
231.
Voters' lists, compiling, no-in. See also
Suffrage
Voting See Suffrage.
WAC's, in army of the United States in
Second World War, 491.
Wagner, W. H , A Legislative History of the
Motor Carrier Act of 1935, 420
Wagncr-Connery Labor Relations Act
0935). 247-248, 446, 449-450.
Wain house, D. W. See Latan£, J H.
Waite, J B , Criminal Law in Action, 743.
Wake, government of, 537.
Walker, Edward E., Beach, W. G., and
Jamieson, O. G , Government of the United
States, 12.
Walker, Harvey, Lawmakmg in the United
States, 346, 612 n, 621, 647 n, 662.
Wallace, H A, New Fiontitrs, 459, 473,
America Must Choose, 473, 836, Whose
Constitution? 587
Wallace, Schuylcr C , Federal Departmental-
ization, 231, the New Deal in Action, 437,
State Administrative Supervision over Cities in
the United States, 779.
Wallace, W. K , Our Obsolete Constitution,
Bo
Walhs, J H., The Politician, His Habits,
Outcries, and Protective Coloring, 145,
638.
Walser, G O See Housel, T. Wr.
Waltz, W E , fhe Nationality of Married
Women, 96.
Wan lass, W L , The United States Department
of Agriculture, 231
War powers, of Congress, 487-501 , exercised
by Picsidcnt, 488, of state governors, 686-
687.
Warburg, James P , Foreign Policy Begins at
Home, 516
Warburg, P. M , The Federal Reserve System,
252, 437
Ward, Artemus, quoted, 639.
Ware v Hylton, 62 n *
Warner, S. B , and Cabot, H B , Judges and
Law Reform, 743
Warren, Charles, T he Making of the Constitu-
tion, 37 n, 51, Congress, the Constitution and
the Supreme Coutt, 8o» 587, Congress as Santa
Clans or National Donations and the General
Welfare Clause of the Constitution, 364, 397,
486, Bankruptcy in the United States, 486; The
Supreme Court in United States History, 587;
The Supreme Court and the Sovereign States^
^ 587-
Warren, G. F , and Pearson, F. A., The Agri-
cultural Situation, 472.
886
INDEX
Warren, W., and others, Financing the War,
380.
Washington, City of. See District of Colum-
bia.
Washington, George, quoted, 30, 461 ; in
constitutional convention of 1787, 35, 37,
38; attitude toward party spirit, 114-115;
on Constitution as basis of political system,
347; Farewell Address, 113; Writings of, ed-
ited by L. B. Evans, i r 5 n.
Washington Naval Limitation Agreement
(1921-1922), 494.
Water supply, in cities, 792.
Watkins, Myron W., and others, Public Reg-
ulation of Competitive Practices in Business En-
terprises, 459.
Watson, D. H., History of American Coinage,
436'
Watson, James E., As I Knew Them, 285-286.
Webb, Sidney and Beatrice, quoted, 253.
Webb, W. L., Champ Clark, 334
Webb-Pomerene Export Trade Act (1918),
442.
Weber, G A., Organized Efforts for the Improve-
ment of Methods of Administration in the
United States, 708, 756, "The Patent Of-
fice," 486.
Webster, Daniel, 39; definition of "due proc-
ess of law," 520; on justice, 728.
Weeks Act of 191 1, 483.
Weights and measures, power of Congress to
regulate, 477-478
Weissman, R. L., The New Federal Reserve Sys-
tem, 437.
Welles, Sumner, The Time for Decision, 516.
Wells, Roger H., American Local Government,
818.
Werne, Benjamin (editor), Business and the
Robinson- Patman Law, 441 n.
West Coast Hotel Co. v. Parrish, 700 n.
West, H. L , Federal Power Its Growth and
Necessity, 80, 364, 486, 609.
West, W. R , American Government, 1 2 ; The
Federal Government of the United States, 12.
Westerfield, Ray B , Our Silver Debacle, 436.
Weyforth, W. O., The Federal Reserve Board,
437-
Wheeler-Lea Act (1938), 441.
Whig party, 1 1 7-1 18.
Whipple, Leon, The Story f Civil Liberty in
the United States, 96.
Whitaker, J. R. See Perkins, O. E.
White, Horace, Money and Banking, 436.
White, Howard, Executive Influence in Deter-
mining Military Policy in the United States ,
199, 502. ^
White, L. D., Introduction to the Study of Public
Administration, 231, 267 n, 708, 756; Trends
in Public Administration, 231, 691, 708: The
Civil Service in the Modern State, 269; Govern
ment Career Service, 269. See also Gaus, J. IVf
White, R. C., Administering Unemploymerx
Compensation, 709.
White, T., Puerto Rico and Its People, 545.
White, William Allen, Politics: The Citizen i
Business, 97, Masks in a Pageant, 145.
Whiting, William, War Powers under the Con"
stitution of the United State , 502.
Wilcox, C., and others, Amenca\ Recover?
Program, 252.
Wilcox, D. F., Government by All the People, 673.
Williams, B. H., American Diplomacy, 515;
The Economic Foreign Policy of the Unite*
States, 516.
Williams, Juanita K , Grants-m-Aid under the
Public Works Administration, 727.
Williams v. Mississippi, 102 n
Willis, H. P., The Theory and Practice of Centra.
Banking, 437; The Federal Reserve System.
437, and Beckhart, B. II , Foreign Bankm^
Systems, 437. See also Dunbar, C F.
Willkie, Wendell, nomination of, as Presi-
dent, in 1940, 164, One World, 516, 836.
Willoughby, W F , Principles of Public Admin
ishation, 231, 7°8, Principles of Legislative
Organization and Administration, 320, 334,
662, The* Financial Condition and Operations
of the National Government, lysi-ig^o, 37<C'
394 n; The Legal Status and Functions of tn*.
General Accounting Office, 380, fhe National
Budget System, 397, The Problem of a Nationa*
Budget, 397, "Budget," 397; Territories anu
Dependencies of the United States, 545, Pnn*
ciples of Judicial Administration, 565, 743.
See also Schmeckebicr, L F.
Willoughby, W. W., Constitutional Law of th*
United States, 64, 348 n, 364, 419.
Wilmerding, L , Government by Merit, 269.
Wilson, Fred T., Our Constitution and Its A fak-
ers, 51.
Wilson, G. L., and others, Public Utility In-
dustries, 420.
Wilson, James, quoted, 18, in constitutional
convention of 1787, 35, 40; on popular
representation, 305 n.
Wilson, M C See Smith, C. B.
Wilson, Woodrow, 69, 73; messages to Con-
gress, 75; election of, as President in 1912,
1 19; legislative activity of, 183-184; leader-
ship of, during World War I, 182; cabinet
of, 204-205; veto of Budget and Account-
ing Act, 386, in relation to war powers,
488; on League of Nations covenant, 512-
513; on state legislatures, 643, 660; on
finance, 710; Constitutional Government in
the United States, 1 65 n, 1 83 n, 1 85, 1 88 n,
571 n; Congressional Government, 185, 320;
The President of the United States, iq8.
INDEX
837
Winslow, C. I., State* Legislative Committees,
648 n, 662; "The Referendum in Mary-
land," 673.
Wiprud, A. C., The Federal Farm Loan System
in Operation, 437.
Wise, J. S., A Treatise on American Citizenship,
96.
Wise, R. L., Blue Sky Legislation, 709
Witte, E. E., The Government in Labor Dispute?,
459-
Wittke, Orl (editor), Essays in History and
Political Theory, 33.
Wolcott, L. D. See Gaus, J. M.
Wolff Packing Co. v. Court of Industrial Re-
lations, 699 n.
Woll, Matthew, Labor, Industry and Govern-
ment, 459.
Wooddyf C. H., The Growth of the Federal
Government, 1915-1932, 231, 486, 609, The
Case of Frank L Smith' A Study in Repre-
sentative Government, 286, The Direct Primary
in Chicago, 638
Woodruff, C. R (editor), City Government by
Commission, 779.
Wool Products Labeling Act (1941), 442.
Worcester, Dean C , The Philippines, Past and
Present, 545
Wordsworth, William, quoted, 287.
Workmen's compensation laws, their admin-
istration, in states, 690-700.
Works program and works progress admin-
istration, fedeial, 249.
World Almanac, 397.
World Court, 482 n.
World Wars I and II, military and naval
expansion and installations during, 494-
496, military governments set up in Europe
after, 500; isolation policy, 513—514.
Wright, B. F., Jr., "The Early History of
Written Constitutions in America," 33;
Source Book of American Political Theory, 33,
836, The Growth of American Constitutional
Law, 80, 836, The Contract Clause of the
Constitution, 528.
Wright, Ivan, Bank Credit and Agriculture,
437-
Wright, Milton, Inventions and Patents, 486.
Wright, Quincy, The Control of American
Foreign Relations, 199, 515.
Wright v. Vinton Branch Mountain Trust
Bank, 481 n.
Wriston, H. M., Executive Agents in American.
Foreign Relations, 515.
Yick Wo v. Hopkins, 600 n.
Young, George, The Freedom of I he Seas, 502.
Young, James T , The New American Govern-
ment arid Its Work, 12, 66 1.
Young, Roland, This Is Congress, 346.
Zellcr, B., Pressure Politics in Mew York, 144.
Zink, Harold, Government and Politics in t/ie
United States, 12, City Bosses in the United
States, 145, 635 n, 638, Government of Cities
in the United States, 778
Zurcher, A. J. See Smith, E. C.
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