VGOVERNMENT UNDER THE CONSTITUTION

Itis by no means wholly to our advantage that our constitutional law is contained in definitive written documents. The fact that it is thus formulated and rendered fixed and definite has seriously misled us, it is to be feared, as to the true function and efficacy of constitutional law. That law is not made more valid by being written, but only more explicit; it is not rendered more sacred, but only more definite and secure. Written constitutions are simply more or less successful generalizations of political experience. Their tone of authority does not at all alter the historical realities and imperative practical conditions of government. They determine forms, utter distinct purposes, set the powers of the State in definite hierarchy; but they do not make the forms they originate workable, or the purposes they utterfeasible. All that must depend upon the men who become governors and upon the people over whom they are set in authority. Laws can have no other life than that which is given them by the men who administer and the men who obey them. Constitutional law affords no exception to the rule. The Constitution of the United States, happily, was framed by exceptional men thoroughly schooled in the realities of government. It consists, accordingly, not of principles newly invented, to be put into operation by means of devices originated for the occasion, but of sound pieces of tested experience. It has served its purpose beneficently, not because it was written, but because it has proved itself accordant in every essential part with tried principles of government—principles tested by the race for whose use it was intended, and therefore already embedded in their lives and practices. Its strength will be found, upon analysis, to lie in its definiteness and in its power to restrain rather than in any unusual excellence of its energetic parts. For the right operation of these it has had to depend, like other constitutions, upon the virtue anddiscretion of the people and their ministers. “The public powers are carefully defined; the mode in which they are to be exercised is fixed; and the amplest securities are taken that none of the more important constitutional arrangements shall be altered without every guarantee of caution and every opportunity for deliberation.... It would seem that, by a wise constitution, democracy may be made nearly as calm as water in a great artificial reservoir.”D

DSir Henry Maine: Popular Government (Am. ed.), pp. 110, 111.

We possess, therefore, not a more suitable constitution than other countries, but a constitution which is perfectly definite and which is preserved by very formidable difficulties of amendment against inconsiderate change. The difference between our own case and that of Great Britain upon which we have most reason to congratulate ourselves is that here public opinion has definitecriteriafor its conservatism; whereas in England it has only shifting and uncertain precedent. In both countries there is the same respect for law. But there is not in Englandthe same certainty as to what the law of the constitution is. We have a fundamental law which is written, and which in its main points is read by all alike in a single accepted sense. There is no more quarrel about its main intent than there is in England about the meaning of Magna Charta. Much of the British constitution, on the contrary, has not the support of even a common statute. It may, in respect of many vital parts of it, be interpreted or understood in half a dozen different ways,and amended by the prevalent understanding. We are not more free than the English; we are only more secure.

The definiteness of our Constitution, nevertheless, apart from its outline of structural arrangements and of the division of functions among the several departments of the government, is negative rather than affirmative. Its very enumeration of the powers of Congress is but a means of indicating very plainly what Congress cannotdo. It is significant that one of the most important and most highly esteemed of the many legal commentaries on our government should be entitled ‘Constitutional Limitations.’ Inexpounding the restrictions imposed by fundamental law upon state and federal action, Judge Cooley is allowed to have laid bare the most essential parts of our constitutional system. It was a prime necessity in so complex a structure that bounds should be set to authority. The ‘may-nots’ and the ‘shall-nots’ of our constitutions, consequently, give them their distinctive form and character. The strength which preserves the system is the strength of self-restraint.

And yet here again it must be understood that mere definiteness of legal provision has no saving efficacy of its own. These distinct lines run between power and power will not of their own virtue maintain themselves. It is not in having such a constitution but in obeying it that our advantage lies. The vitality of such provisions consists wholly in the fact that they receive our acquiescence. They rest upon the legal conscience, upon what Mr. Grote would have called the ‘constitutional morality,’ of our race. They are efficient because we are above all things law-abiding. The prohibitions of the law do not assert themselves as taskmastersset over us by some external power. They are of our own devising. We are self-restrained.

This legal conscience manifestly constitutes the only guarantee, for example, of the division of powers between the state and federal governments, that chief arrangement of our constitutional system. The integrity of the powers possessed by the States has from the first depended solely upon the conservatism of the federal courts. State functions have certainly not decayed; but they have been preserved, not by virtue of any forces of self-defence of their own, but because the national government has been vouchsafed the grace of self-restraint. What curtailment their province might suffer has been illustrated in several notable cases in which the Supreme Court of the United States has confirmed to the general government extensive powers of punishing state judicial and executive officers for disobedience to state laws. Although the federal courts have generally held Congress back from aggressions upon the States, they have nevertheless once and again countenanced serious encroachmentsupon state powers; and their occasional laxity of principle on such points is sufficiently significant of the fact that there is nobalancebetween the state and federal governments, but only the safeguard of a customary ‘constitutional morality’ on the part of the federal courts. The actual encroachments upon state rights which those courts have permitted, under the pressure of strong political interests at critical periods, were not, however, needed to prove the potential supremacy of the federal government. They only showed how that potential supremacy would on occasion become actual supremacy. There is no guarantee but that of conscience that justice will be accorded a suitor when his adversary is both court and opposing litigant. So strong is the instinct of those who administer our governments to keep within the sanction of the law, that even when the last three amendments to the Constitution were being forced upon the southern states by means which were revolutionary the outward forms of the Constitution were observed. It was none the less obvious, however, with what sovereign impunity the national governmentmight act in stripping those forms of their genuineness. As there are times of sorrow or of peril which try men’s souls and lay bare the inner secrets of their characters, so there are times of revolution which act as fire in burning away all but the basic elements of constitutions. It is then, too, that dormant powers awake which are not afterward readily lulled to sleep again.

Such was certainly the effect of the civil war upon the Constitution of the Union. The implying of powers, once cautious, is now become bold and confident. In the discussions now going forward with reference to federal regulation of great corporations, and with reference to federal aid to education, there are scores of writers and speakers who tacitly assume the power of the federal government to act in such matters, for one that urges a constitutional objection. Constitutional objections, before the war habitual, have, it would seem, permanently lost their prominence.

The whole energy of origination under our system rests with Congress. It stands at the front of all government among us;it is the single affirmative voice in national policy. First or last, it determines what is to be done. The President, indeed, appoints officers and negotiates treaties, but he does so subject to the ‘yes’ of the Senate. Congress organizes the executive departments, organizes the army, organizes the navy. It audits, approves, and pays expenses. It conceives and directs all comprehensive policy. All else is negation. The President says ‘no’ in his vetoes; the Supreme Court says ‘no’ in its restraining decisions. And it is as much the law of public opinion as the law of the Constitution that restrains the action of Congress.

It is the habit both of English and American writers to speak of the constitution of Great Britain as if it were ‘writ in water,’ because nothing but the will of Parliament stands between it and revolutionary change. But is there nothing back of the will of Parliament? Parliament dare not go faster than the public thought. There are vast barriers of conservative public opinion to be overrun before a ruinous speed in revolutionary change can be attained. In the lastanalysis, our own Constitution has no better safeguard. We have, as I have already pointed out, the salient advantage of knowing just what the standards of our Constitution are. They are formulated in a written code, wherein all men may look and read; whereas many of the designs of the British system are to be sought only in a cloud-land of varying individual readings of affairs. From the constitutional student’s point of view, there are, for instance, as many different Houses of Lords as there are writers upon the historical functions of that upper chamber. But the public opinion of Great Britain is no more a juggler of precedents than is the public opinion of this country. Perhaps the absence of a written constitution makes it even less a fancier of logical refinements. The arrangements of the British constitution have, for all their theoretical instability, a very firm and definite standing in the political habit of Englishmen: and the greatest of those arrangements can be done away with only by the extraordinary force of conscious revolution.

It is wholesome to observe how much ofour own institutions rests upon the same basis, upon no other foundations than those that are laid in the opinions of the people. It is within the undoubted constitutional power of Congress, for example, to overwhelm the opposition of the Supreme Court upon any question by increasing the number of justices and refusing to confirm any appointments to the new places which do not promise to change the opinion of the court. Once, at least, it was believed that a plan of this sort had been carried deliberately into effect. But we do not think of such a violation of the spirit of the Constitution as possible, simply because we share and contribute to that public opinion which makes such outrages upon constitutional morality impossible by standing ready to curse them. There is a close analogy between this virtual inviolability of the Supreme Court and the integrity hitherto vouchsafed to the English House of Lords. There may be an indefinite creation of peers at any time that a strong ministry chooses to give the sovereign its imperative advice in favor of such a course. It was, doubtless, fear of the final impressionthat would be made upon public opinion by action so extraordinary, as much as the timely yielding of the Lords upon the question at issue, that held the ministry back from such a measure, on one notable occasion. Hitherto that ancient upper chamber has had in this regard the same protection that shields our federal judiciary.

It is not essentially a different case as between Congress and the Executive. Here, too, at the very centre of the Constitution, Congress stands almost supreme, restrained by public opinion rather than by law. What with the covetous admiration of the presidency recently manifested by some alarmed theorists in England, and the renewed prestige lately given that office by the prominence of the question of civil service reform, it is just now particularly difficult to apply political facts to an analysis of the President’s power. But a clear conception of his real position is for that very reason all the more desirable. While he is a dominant figure in politics would seem to be the best time to scrutinize and understand him.

It is clearly misleading to use the ascendant influence of the President in effecting the objects of civil service reform as an illustration of the constitutional size and weight of his office. The principal part in making administration pure, business-like, and efficient must always, under any conceivable system of government, be taken by the executive. It was certainly taken by the executive in England thirty years ago; and that much in opposition to the will of Parliament. The prominence of our President in administrative reform furnishes no sufficient ground for attributing a singularity of executive influence to the government of this country.

In estimating the actual powers of the President it is no doubt best to begin, as almost all writers in England and America now habitually begin, with a comparison between the executives of the two kindred countries. Whilst Mr. Bagehot has done more than any other thinker to clear up the facts of English constitutional practice, he has also, there is reason to believe, done something toward obscuring those facts. Everybody, for instance, hasaccepted as wholly true his description of the ministry of the Crown as merely an executive committee of the House of Commons; and yet that description is only partially true. An English cabinet represents, not the Commons only, but also the Crown. Indeed, it is itself ‘the Crown.’ All executive prerogatives are prerogatives which it is within the discretion of the cabinet itself to make free use of. The fact that it is generally the disposition of ministers to defer to the opinion of Parliament in the use of the prerogative, does not make that use the less a privilege strictly beyond the sphere of direct parliamentary control, to be exercised independently of its sanction, even secretly on occasion, when ministers see their way clear to serving the state thereby. “The ministry of the day,” says a perspicacious expounder of the English system,E“appears in Parliament, on the one hand, as personating the Crown in the legitimate exercise of its recognized prerogatives; and on the other hand, as the mere agent of Parliament itself, in thedischarge of the executive and administrative functions of government cast upon them by law.” Within the province of the prerogative “lie the stirring topics of foreign negotiations, the management of the army and navy, public finance, and, in some important respects, colonial administration.” Very recent English history furnishes abundant and striking evidence of the vitality of the prerogative in these fields in the hands of the gentlemen who “personate the Crown” in Parliament. “No subject has been more eagerly discussed of late,” declares Mr. Amos (page 187), “than that of the province of Parliament in respect of the making of treaties and the declaration of war. No prerogative of the Crown is more undisputed than that of taking the initiative in all negotiations with foreign governments, conducting them throughout, and finally completing them by the signature and ratification of a treaty.... It is a bare fact that during the progress of the British diplomatic movements which terminated in the Treaty of Berlin of 1878, or more properly in the Afghan war of that year,”—including thesecret treaty by which Turkey ceded Cyprus to England, and England assumed the protectorate of Asia Minor,—“Parliament never had an opportunity of expressing its mind on any one of the important and complicated engagements to which the country was being committed, or upon the policy of the war upon the northwest frontier of India. The subjects were, indeed, over and over again discussed in Parliament, but always subsequent to irreparable action having been taken by the government” (page 188). Had Mr. Amos lived to take his narrative of constitutional affairs beyond 1880, he would have had equally significant instances of ministerial initiative to adduce in the cases of Egypt and Burmah.

EMr. Sheldon Amos: Fifty Years of the English Constitution, page 338.

The unfortunate campaign in the Soudan was the direct outcome of the purchase of the Suez Canal shares by the British government in 1875. The result of that purchase was that “England became pledged in a wholly new and peculiar way to the support of the existing Turkish and Egyptian dominion in Egypt; that large English political interestswere rendered subservient to the decisions of local tribunals in a foreign country; and that English diplomatic and political action in Egypt, and indeed in Europe, was trammelled, or at least indirectly influenced, by a narrow commercial interest which could not but weigh, however slightly, upon the apparent purity and simplicity of the motives of the English government.” And yet the binding engagements which involved all this were entered into “despite the absence of all assistance from, or consent of, Parliament.”FSuch exercises of the prerogatives of the Crown receive additional weight from “the almost recognized right of evolving an army of almost any size from the Indian seed-plot, of using reserve forces without communication to Parliament in advance, and of obtaining large votes of credit for prospective military operations of an indefinite character, the nature of which Parliament is allowed only dimly to surmise” (page 392). The latest evidence of the “almost recognized” character of such rights was the war preparationsmade by England against Russia in 1885. If to such powers of committing the country irrevocably to far-reaching foreign policies, of inviting or precipitating war, and of using Indian troops without embarrassment from the trammels of the Mutiny Act, there be added the great discretionary functions involved in the administration of colonial affairs, some measure may be obtained of the power wielded by ministers, not as the mere agents of Parliament, but as personating the Crown. Such is in England the independence of action possible to the executive.

FAmos, page 384.

As compared with this, the power of the President is insignificant. Of course, as everybody says, he is more powerful than the sovereign of Great Britain. If relative personal power were the principle of etiquette, Mr. Cleveland would certainly not have to lift his hat to the Queen, because the Queen is not the English executive. The prerogatives of the Crown are still much greater than the prerogatives of the presidency; they are exercised, however, not by the wearer of the crown, but by the ministry of the Crown.

As Sir Henry Maine rightly says, the framers of our Constitution, consciously or unconsciously, made the President’s office like the King’s office under the English constitution of their time,—the constitution, namely, of George III., who chose his advisers with or without the assent of Parliament. They took care, however, to pare down the model where it seemed out of measure with the exercise of the people’s liberty. They allowed the President to choose his ministers freely, as George then seemed to have established his right to do; but they made the confirmation of the Senate a necessary condition to his appointments. They vested in him the right of negotiating treaties with foreign governments; but he was not to sign and ratify treaties until he had obtained the sanction of the Senate. That oversight of executive action which Parliament had not yet had the spirit or the inclination to exert, and which it had forfeited its independence by not exerting, was forever secured to our federal upper chamber by the fundamental law. The conditions of mutual confidence and co-operation between executiveand legislature now existing in England had not then been developed, and consequently could not be reproduced in this country. The posture and disposition of mutual wariness which were found existing there were made constitutional here by express written provision. In short, the transitional relations of the Crown and Parliament of that day were crystallized in our Constitution, such guarantees of executive good faith and legislative participation in the weightier determinations of government as were lacking in the model being sedulously added in the copy.

The really subordinate position of the presidency is hidden from view partly by that dignity which is imparted to the office by its conspicuous place at the front of a great government, and its security and definiteness of tenure; partly by the independence apparently secured to it by its erection into an entirely distinct and separate ‘branch’ of the government; and partly by those circumstances of our history which have thrust our Presidents forward, during one or two notable periods, as real originators of policy and leaders inaffairs. The President has never been powerful, however, except at such times as he has had Congress at his back. While the new government was a-making—and principally because it was a-making—Washington and his secretaries were looked to by Congress for guidance; and during the presidencies of several of Washington’s immediate successors the continued prominence of questions of foreign policy and of financial management kept the officers of the government in a position of semi-leadership. Jackson was masterful with or without right. He entered upon his presidency as he entered upon his campaign in Florida, without asking too curiously for constitutional warrant for what he was to undertake. In the settlement of the southern question Congress went for a time on all-fours with the President. He was powerful because Congress was acquiescent.

But such cases prove rather the usefulness than the strength of the presidency. Congress has, at several very grave crises in national affairs, been seasonably supplied with an energetic leader or agent in the person of the President. At othertimes, when Congress was in earnest in pushing views not shared by the President, our executives have either been overwhelmed, as Johnson was, or have had to decline upon much humbler services. Their negotiations with foreign governments are as likely to be disapproved as approved; their budgets are cut down like a younger son’s portion; their appointments are censured and their administrations criticised without chance for a counter-hearing. They create nothing. Their veto is neither revisory nor corrective. It is merely obstructive. It is, as I have said, a simple blunt negation, oftentimes necessarily spoken without discrimination against a good bill because of a single bad clause in it. In such a contest between origination and negation origination must always win, or government must stand still.

In England the veto of the Crown has not passed out of use, as is commonly said. It has simply changed its form. It does not exist as an imperative, obstructive ‘No,’ uttered by the sovereign. It has passed over into the privilege of the ministers to throw their party weight,reinforced by their power to dissolve Parliament, against measures of which they disapprove. It is a much-tempered instrument, but for that reason all the more flexible and useful. The old, blunt, antagonistic veto is no longer needed. It is needed here, however, to preserve the presidency from the insignificance of merely administrative functions. Since executive and legislature cannot come into relations of mutual confidence and co-operation, the former must be put in a position to maintain a creditable competition for consideration and dignity.

A clear-headed, methodical, unimaginative President like Mr. Cleveland unaffectedly recognizes the fact that all creating, originating power rests with Congress, and that he can do no more than direct the details of such projects as he finds commended by its legislation. The suggestions of his message he acknowledges to be merely suggestions, which must depend upon public opinion for their weight. If Congress does not regard them, it must reckon with the people, not with him. It is his duty to tell Congress what he thinks concerning thepending questions of the day; it is not his duty to assume any responsibility for the effect produced on Congressmen.

The English have transformed their Crown into a Ministry, and in doing so have recognized both the supremacy of Parliament and the rôle of leadership in legislation properly belonging to a responsible executive. The result has been that they have kept a strong executive without abating either the power or the independence of the representative chamber in respect of its legislative function. We, on the contrary, have left our executive separate, as the Constitution made it; chiefly, it is to be suspected, because the explicit and confident gifts of function contained in that positive instrument have blinded us by their very positiveness to the real subordination of the executive resulting from such a separation. We have supposed that our President was great because his powers were specific, and that our Congress was not supreme because it could not lay its hands directly upon his office and turn him out. In fact, neither the dignity and power of the executive nor the importance of Congress is servedby the arrangement. Being held off from authoritative suggestion in legislation, the President becomes, under ordinary circumstances, merely a ministerial officer; whilst Congress, on its part, deprived of such leadership, becomes a legislative mass meeting instead of a responsible co-operating member of a well-organized government. Being under the spell of the Constitution, we have been unable to see the facts which written documents can neither establish nor change.

Singularly enough, there is sharp opposition to the introduction into Congress of any such leadership on the part of the executive as the Ministers of the Crown enjoy in Parliament, on the ground of the increase of power which would accrue as a result to the legislature. It is said that such a change would, by centring party and personal responsibility in Congress, give too great a prominence to legislation; would make Congress the object of too excited an interest on the part of the people. Legislation in Parliament, instead of being piecemeal, tessellated work, such as is madeup in Congress of the various fragments contributed by the standing committees, is, under each ministry, a continuous, consistent, coherent whole; and, instead of bearing the sanction of both national parties, is the peculiar policy of only one of them. It is thought that, if such coherence of plan, definiteness and continuity of aim, and sanction of party were to be given the work of Congress, the resulting concentration of popular interest and opinion would carry Congress over all the barriers of the Constitution to an undisputed throne of illimitable power. In short, the potential supremacy of Congress is thought to be kept within bounds, not by the constitutional power of the executive and the judiciary, its co-ordinate branches, but by the intrinsic dulness and confusion of its own proceedings. It cannot make itself interesting enough to be great.

But this is a two-edged argument, which one must needs handle with great caution. It is evidently calculated to destroy every argument constructed on the assumption that it is written laws which are effective to the salvation of our constitutionalarrangements; for it is itself constructed on the opposite assumption, that it is the state of popular interest in the nation which balances the forces of the government. It would, too, serve with equal efficacy against any scheme whatever for reforming the present methods of legislation in Congress, with which almost everybody is dissatisfied. Any reform which should tend to give to national legislation that uniform, open, intelligent, and responsible character which it now lacks, would also create that popular interest in the proceedings of Congress which, it is said, would unhinge the Constitution. Democracy is so delicate a form of government that it must break down if given too great facility or efficacy of operation. No one body of men must be suffered to utter the voice of the people, lest that voice become, through it, directly supreme.

The fact of the overtopping power of Congress, however, remains. The houses create all governmental policy, with that wide latitude of ‘political discretion’ in the choice of means which the Supreme Court unstintingly accords them. Congresshas often come into conflict with the Supreme Court by attempting to extend the province of the federal government as against the States; but it has seldom, I believe, been brought effectually to book for any alleged exercise of powers as against its directly competing branch, the executive. Having by constitutional grant the last word as to foreign relations, the control of the finances, and even the oversight of executive appointments, Congress exercises what powers of direction and management it pleases, as fulfilling, not as straining, the Constitution. Government lives in the origination, not in the defeat, of measures of government. The President obstructs by means of his ‘No;’ the houses govern by means of their ‘Yes.’ He has killed some policies that are dead; they have given birth to all policies that are alive.

But the measures born in Congress have no common lineage. They have not even a traceable kinship. They are fathered by a score or two of unrelated standing committees: and Congress stands godfather to them all, without discrimination. Congress, in effect, parcels out its great powersamongst groups of its members, and so confuses its plans and obscures all responsibility. It is a leading complaint of Sir Henry Maine’s against the system in England, which is just under his nose, that it confers the preliminary shaping and the initiation of all legislation upon the cabinet, a body which deliberates and resolves in strict secrecy,—and so reminds him, remotely enough, of the Spartan Ephors and the Venetian Council of Ten. He commends, by contrast, that constitution (our own, which he sees at a great distance) which reserves to the legislature itself the origination and drafting of its measures. It is hard for us, who have this commended constitution under our noses, to perceive wherein we have the advantage. British legislation is for the most part originated and shaped by a single committee, acting in secret, whose proposals, when produced, are eagerly debated and freely judged by the sovereign legislative body. Our legislation is framed and initiated by a great many committees, deliberating in secret, whose proposals are seldom debated and only perfunctorily judged by the sovereign legislative body. It isimpossible to mistake the position and privileges of the Brutish cabinet, so great and conspicuous and much discussed are they. They simplify the whole British system for men’s comprehension by merely standing at the centre of it. But our own system is simple only in appearance. It is easy to see that our legislature and executive are separate, and that the legislature matures its own measures by means of committees of its own members. But it may readily escape superficial observation that our legislature, instead of being served, is ruled by its committees; that those committees prepare their measures in private; that their number renders their privacy a secure secrecy, by making them too many to be watched, and individually too insignificant to be worth watching; that their division of prerogatives results in a loss, through diffusion, of all actual responsibility; and that their co-ordination leads to such a competition among them for the attention of their respective houses that legislation is rushed, when it is not paralyzed.

It is thus that, whilst all real power is in the hands of Congress, that power isoften thrown out of gear and its exercise brought almost to a standstill. The competition of the committees is the clog. Their reports stand in the way of each other, and so the complaint is warranted that Congress can get nothing done. Interests which press for attention in the nation are reported upon by the appropriate committee, perhaps, but the report gets pushed to the wall. Or they are not reported upon. They are brought to the notice of Congress, but they go to a committee which is unfavorable. The progress of legislation depends both upon the fortunes of competing reports and upon the opinions held by particular committees.

The same system of committee government prevails in our state legislatures, and has led to some notable results, which have recently been pointed out in a pamphlet entitledAmerican Constitutions, contributed to the Johns Hopkins series of Studies in History and Political Science by Mr. Horace Davis. In the state legislatures, as in Congress, the origination and control of legislation by standing committees has led to haphazard, incoherent,irresponsible law-making, and to a universal difficulty about getting anything done. The result has been that state legislatures have been falling into disrepute in all quarters. They are despised and mistrusted, and many States have revised their constitutions in order to curtail legislative powers and limit the number and length of legislative sessions. There is in some States an apparent inclination to allow legislators barely time enough to provide moneys for the maintenance of the governments. In some instances necessary powers have been transferred from the legislatures to the courts; in others to the governors. The intent of all such changes is manifest. It is thought safer to entrust power to a law court, performing definite functions under clear laws and in accordance with strict judicial standards, or to a single conspicuous magistrate, who can be watched and cannot escape responsibility for his official acts, than to entrust it to a numerous body which burrows toward its ends in committee-rooms, getting its light through lobbies; and which has a thousand devices for juggling away responsibility,as well as scores of antagonisms wherewith to paralyze itself.

Like fear and distrust have often been felt and expressed of late years concerning Congress, for like reasons. But so far no attempt has been made to restrict either the powers or the time of Congress. Amendments to the Constitution are difficult almost to the point of impossibility, and the few definite schemes nowadays put forward for a revision of the Constitution involve extensions rather than limitations of the powers of Congress. The fact is that, though often quite as exasperating to sober public opinion as any state legislature, Congress is neither so much distrusted nor so deserving of distrust. Its high place and vast sphere in the government of the nation cause its members to be more carefully chosen, and its proceedings to be more closely watched, and frequently controlled by criticism. The whole country has its eyes on Congress, and Congress is aware of the fact. It has both the will and the incentive to be judicious and patriotic. Newspaper editors have constantly to be saying to their readers, ‘Look whatour state legislators are doing;’ they seldom have to urge, ‘Look what Congress is doing.’ It cannot, indeed, be watched easily, or to much advantage. It requires a distinct effort to watch it. It has no dramatic contests of party leaders to attract notice. Its methods are so much after the fashion of the game of hide-and-seek that the eye of the ordinary man is quite baffled in trying to understand or follow them, if he try only at leisure moments. But, at the same time, the interests handled by Congress are so vast that at least the newspapers and the business men, if no others, must watch its legislation as best they may. However hard it may be to observe, it is too influential in great affairs to make it safe for the country to give over trying to observe it.

But though Congress may always be watched, and so in a measure controlled, despite its clandestine and confusing methods, those methods must tend to increase the distrust with which Congress is widely regarded; and distrust cannot but enervate, belittle, and corrupt this will-centre of the Constitution. The question is not merely, How shall themethods of Congress be clarified and its ways made purposeful and responsible? There is this greater question at stake: How shall the essential arrangements of the Constitution be preserved? Congress is the purposing, designing, aggressive power of the national government. Disturbing and demoralizing influences in the organism, if there be any, come out from its restless energies. Damaging encroachments upon ground forbidden to the federal government generally originate in measures of its planning. So long as it continues to be governed by unrelated standing committees, and to take its resolves in accordance with no clear plan, no single, definite purpose, so long as what it does continues to be neither evident nor interesting, so long must all its exertions of power be invidious; so long must its competition with the executive or the judiciary seem merely jealous and always underhand: so long must it remain virtually impossible to control it through public opinion. As well ask the stranger in the gallery of the New York Stock Exchange to judge of the proceedings on the floor. As well ask aman who has not time to read all the newspapers in the Union to judge of passing sentiment in all parts of the country. Congress in its composition is the country in miniature. It realizes Hobbes’s definition of liberty as political power divided into small fragments. The standing committees typify the individuals of the nation. Congress is better fitted for counsel than the voters simply because its members are less than four hundred instead of more than ten millions.

It has been impossible to carry out the programme of the Constitution; and, without careful reform, the national legislature will even more dangerously approach the perilous model of a mass meeting. There are several ways in which Congress can be so integrated as to impart to its proceedings system and party responsibility. That may be done by entrusting the preparation and initiation of legislation to a single committee in each house, composed of the leading men of the majority in that house. Such a change would not necessarily affect the present precedents as to the relations between the executive and the legislature. Theymight still stand stiffly apart. Congress would be integrated and invigorated, however, though the whole system of the government would not be. To integrate that, some common meeting-ground of public consultation must be provided for the executive and the houses. That can be accomplished only by the admission to Congress, in whatever capacity,—whether simply to answer proper questions and to engage in debate, or with the full privileges of membership,—of official representatives of the executive who understand the administration and are interested and able to defend it. Let the tenure of ministers have what disconnection from legislative responsibility may seem necessary to the preservation of the equality of House and Senate, and the separation of administration from legislation; light would at least be thrown upon administration; it would be given the same advantages of public suggestion and unhampered self-defence that Congress, its competitor, has; and Congress would be constrained to apply system and party responsibility to its proceedings.

The establishment in the United Statesof what is known as ‘ministerial responsibility’ would unquestionably involve some important changes in our constitutional system. I am strongly of the opinion that such changes would not be too great a price to pay for the advantages secured us by such a government. Ministerial responsibility supplies the only conditions which have yet proved efficacious, in the political experience of the world, for vesting recognized leadership in men chosen for their abilities by a natural selection of debate in a sovereign assembly of whose contests the whole country is witness. Such survival of the ablest in debate seems the only process available for selecting leaders under a popular government. The mere fact that such a contest proceeds with such a result is the strongest possible incentive to men of first-rate powers to enter legislative service; and popular governments, more than any other governments, need leaders so placed that, by direct contact with both the legislative and the executive departments of the government, they shall see the problems of government at first hand; and so trained that they shallat the same time be, not mere administrators, but also men of tact and eloquence, fitted to persuade masses of men and to draw about themselves a loyal following.

If we borrowed ministerial responsibility from England, we should, too, unquestionably enjoy an infinite advantage over the English in the use of it. We should sacrifice by its adoption none of that great benefit and security which our federal system derives from a clear enumeration of powers and an inflexible difficulty of amendment. If anything would be definite under cabinet government, responsibility would be definite; and, unless I am totally mistaken in my estimate of the legal conscience of the people of this country,—which seems to me to be the heart of our whole system,—definite responsibility will establish rather than shake those arrangements of our Constitution which are really our own, and to which our national pride properly attaches, namely, the distinct division of powers between the state and federal governments, the slow and solemn formalities of constitutional change, and theinterpretative functions of the federal courts. If we are really attached to these principles, the concentration of responsibility in government will doubly insure their preservation. If we are not, they are in danger of destruction in any case.

But we cannot have ministerial responsibility in its fulness under the Constitution as it stands. The most that we can have is distinct legislative responsibility, with or without any connection of co-operation or of mutual confidence between the executive and Congress. To have so much would be an immense gain. Changes made to this end would leave the federal system still an unwieldy mechanism of counteracting forces, still without unity or flexibility; but we should at least have made the very great advance of fastening upon Congress an even more positive form of accountability than now rests upon the President and the courts. Questions of vast importance and infinite delicacy have constantly to be dealt with by Congress; and there is an evident tendency to widen the range of those questions. The grave social and economic problems now thrusting themselves forward, as the result of thetremendous growth and concentration of our population, and the consequent sharp competition for the means of livelihood, indicate that our system is already aging, and that any clumsiness, looseness, or irresponsibility in governmental action must prove a source of grave and increasing peril. There are already commercial heats and political distempers in our body politic which warn of an early necessity for carefully prescribed physic. Under such circumstances, some measure of legislative reform is clearly indispensable. We cannot afford to put up any longer with such legislation as we may happen upon. We must look and plan ahead. We must have legislation which has been definitely forecast in party programmes and explicitly sanctioned by the public voice. Instead of the present arrangements for compromise, piecemeal legislation, we must have coherent plans from recognized party leaders, and means for holding those leaders to a faithful execution of their plans in clear-cut Acts of Congress.

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