# Congressional Government/Chapter 1

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CONGRESSIONAL GOVERNMENT:
A STUDY IN AMERICAN POLITICS.
I.
INTRODUCTORY.
The laws reach but a very little way. Constitute government how you please, infinitely 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. Even all the use and potency of the laws depends upon them. Without them your commonwealth is no better than a scheme upon paper; and not a living, active, effective organization.—Burke.
The great fault of political writers is their too close adherence to the forms of the system of state which they happen to be expounding or examining. They stop short at the anatomy of institutions, and do not penetrate to the secret of their functions.—John Morley.
It would seem as if a very wayward fortune had presided over the history of the Constitution of the United States, inasmuch as that great federal charter has been alternately violated by its friends and defended by its enemies. It came hard by its establishment in the first place, prevailing with difficulty over the strenuous forces of dissent which were banded against it. While its adoption was under discussion the voices of criticism were many and authoritative, the voices of opposition loud in tone and ​ominous in volume, and the Federalists finally triumphed only by dint of hard battle against foes, formidable both in numbers and in skill. But the victory was complete,—astonishingly complete. Once established, the new government had only the zeal of its friends to fear. Indeed, after its organization very little more is heard of the party of opposition; they disappear so entirely from politics that one is inclined to think, in looking back at the party history of that time, that they must have been not only conquered but converted as well. There was well-nigh universal acquiescence in the new order of things. Not everybody, indeed, professed himself a Federalist, but everybody conformed to federalist practice. There were jealousies and bickerings, of course, in the new Congress of the Union, but no party lines, and the differences which caused the constant brewing and breaking of storms in Washington’s first cabinet were of personal rather than of political import. Hamilton and Jefferson did not draw apart because the one had been an ardent and the other only a lukewarm friend of the Constitution, so much as because they were so different in natural bent and temper that they would have been like to disagree and come to drawn points wherever or however brought into contact. The one had inherited warm blood and a bold sagacity, while ​in the other a negative philosophy ran suitably through cool veins. They had not been meant for yoke-fellows.
There was less antagonism in Congress, however, than in the cabinet; and in none of the controversies that did arise was there shown any serious disposition to quarrel with the Constitution itself; the contention was as to the obedience to be rendered to its provisions. No one threatened to withhold his allegiance, though there soon began to be some exhibition of a disposition to confine obedience to the letter of the new commandments, and to discountenance all attempts to do what was not plainly written in the tables of the law. It was recognized as no longer fashionable to say aught against the principles of the Constitution; but all men could not be of one mind, and political parties began to take form in antagonistic schools of constitutional construction. There straightway arose two rival sects of political Pharisees, each professing a more perfect conformity and affecting greater “ceremonial cleanliness” than the other. The very men who had resisted with might and main the adoption of the Constitution became, under the new division of parties, its champions, as sticklers for a strict, a rigid, and literal construction.
They were consistent enough in this, because ​it was quite natural that their one-time fear of a strong central government should pass into a dread of the still further expansion of the power of that government, by a too loose construction of its charter; but what I would emphasize here is not the motives or the policy of the conduct of parties in our early national politics, but the fact that opposition to the Constitution as a constitution, and even hostile criticism of its provisions, ceased almost immediately upon its adoption; and not only ceased, but gave place to an undiscriminating and almost blind worship of its principles, and of that delicate dual system of sovereignty, and that complicated scheme of double administration which it established. Admiration of that one-time so much traversed body of law became suddenly all the vogue, and criticism was estopped. From the first, even down to the time immediately preceding the war, the general scheme of the Constitution went unchallenged; nullification itself did not always wear its true garb of independent state sovereignty, but often masqueraded as a constitutional right; and the most violent policies took care to make show of at least formal deference to the worshipful fundamental law. The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The ​conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system.
Now there is, of course, nothing in all this that is inexplicable, or even remarkable; any one can see the reasons for it and the benefits of it without going far out of his way; but the point which it is interesting to note is that we of the present generation are in the first season of free, outspoken, unrestrained constitutional criticism. We are the first Americans to hear our own countrymen ask whether the Constitution is it still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our own institutions as compared with the systems of Europe; the first to think of remodeling the administrative machinery of the federal government, and of forcing new forms of responsibility upon Congress.
The evident explanation of this change of attitude towards the Constitution is that we have been made conscious by the rude shock of the war and by subsequent developments of policy, that there has been a vast alteration in the conditions of government; that the checks and ​balances which once obtained are no longer effective; and that we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession. In short, this model government is no longer conformable with its own original pattern. While we have been shielding it from criticism it has slipped away from us. The noble charter of fundamental law given us by the Convention of 1787 is still our Constitution; but it is now our form of government rather in name than in reality, the form of the Constitution being one of nicely adjusted, ideal balances, whilst the actual form of our present government is simply a scheme of congressional supremacy. National legislation, of course, takes force now as at first from the authority of the Constitution; but it would be easy to reckon by the score acts of Congress which can by no means be squared with that great instrument’s evident theory. We continue to think, indeed, according to long-accepted contstitutional formulæ, and it is still politically unorthodox to depart from old-time phraseology in grave discussions of affairs; but it is plain to those who look about them that most of the commonly received opinions concerning federal constitutional balances and administrative arrangements are many years behind the actual ​practices of the government at Washington, and that we are farther than most of us realize from the times and the policy of the framers of the Constitution. It is a commonplace observation of historians that, in the development of constitutions, names are much more persistent than the functions upon which they were originally bestowed; that institutions constantly undergo essential alterations of character, whilst retaining the names conferred upon them in their first estate; and the history of our own Constitution is but another illustration of this universal principle of institutional change. There has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the government without perceptibly affecting the vocabulary of our constitutional language. Ours is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law; its tap-root at least is the Constitution; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap-centre of a system of government vastly larger than the stock from which it has branched,—a system some of whose forms have only very indistinct and rudimental beginnings in the simple substance ​of the Constitution, and which exercises many functions apparently quite foreign to the primitive properties contained in the fundamental law.
The Constitution itself is not a complete system; it takes none but the first steps in organization. It does little more than lay a foundation of principles. It provides with all possible brevity for the establishment of a government having, in several distinct branches, executive, legislative, and judicial powers. It vests executive power in a single chief magistrate, for whose election and inauguration it makes carefully definite provision, and whose privileges and prerogatives it defines with succinct clearness; it grants specifically enumerated powers of legislation to a representative Congress, outlining the organization of the two houses of that body and definitely providing for the election of its members, whose number it regulates and the conditions of whose choice it names; and it establishes a Supreme Court with ample authority of constitutional interpretation, prescribing the manner in which its judges shall be appointed and the conditions of their official tenure. Here the Constitution's work of organization ends, and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental ​system would snap asunder a constitution which could not adapt itself to the new conditions of an advancing society. If it could not stretch itself to the measure of the times, it must be thrown off and left behind, as a by-gone device; and there can, therefore, be no question that our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect vine.
The chief fact, therefore, of our national history is that from this vigorous tap-root has grown a vast constitutional system,—a system branching and expanding in statutes and judicial decisions, as well as in unwritten precedent; and one of the most striking facts, as it seems to me, in the history of our politics is, that that system has never received complete and competent critical treatment at the hands of any, even the most acute, of our constitutional writers. They view it, as it were, from behind. Their thoughts are dominated, it would seem, by those incomparable papers of the "Federalist,” which, though they were written to influence only the voters of 1788, still, with a strange, persistent longevity of power, shape the constitutional criticism of the present day, obscuring much of that development of constitutional practice which has since taken place. The Constitution in operation is manifestly a ​very different thing from the Constitution of the books. “An observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory.” It is, therefore, the difficult task of one who would now write at once practically and critically of our national government to escape from theories and attach himself to facts, not allowing himself to be confused by a knowledge of what that government was intended to be, or led away into conjectures as to what it may one day become, but striving to catch its present phases and to photograph the delicate organism in all its characteristic parts exactly as it is today; an undertaking all the more arduous and doubtful of issue because it has to be entered upon without guidance from writers of acknowledged authority.
The leading inquiry in the examination of any system of government must, of course, concern primarily the real depositaries and the essential machinery of power. There is always a centre of power: where in this system is that centre? in whose hands is self-sufficient authority lodged, ​and through what agencies does that authority speak and act? The answers one gets to these and kindred questions from authoritative manuals of constitutional exposition are not satisfactory, chiefly because they are contradicted by self-evident facts. It is said that there is no single or central force in our federal scheme; and so there is not in the federal scheme, but only a balance of powers and a nice adjustment of interactive checks, as all the books say. How is it, however, in the practical conduct of the federal government? In that, unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power, is Congress. All niceties of constitutional restriction and even many broad principles of constitutional limitation have been overridden, and a thoroughly organized system of congressional control set up which gives a very rude negative to some theories of balance and some schemes for distributed powers, but which suits well with convenience, and does violence to none of the principles of self-government contained in the Constitution.
This fact, however, though evident enough, is not on the surface. It does not obtrude itself upon the observation of the world. It runs through the undercurrents of government, and takes shape only in the inner channels of ​legislation and administration which are not open to the common view. It can be discerned most readily by comparing the “literary theory” of the Constitution with the actual machinery of legislation, especially at those points where that machinery regulates the relations of Congress with the executive departments, and with the attitude of the houses towards the Supreme Court on those occasions, happily not numerous, when legislature and judiciary have come face to face in direct antagonism. The “literary theory” is distinct enough; every American is familiar with the paper pictures of the Constitution. Most prominent in such pictures are the ideal checks and balances of the federal system, which may be found described, even in the most recent books, in terms substantially the same as those used in 1814 by John Adams in his letter to John Taylor. “Is there,” says Mr. Adams, “a constitution upon record more complicated with balances than ours? In the first place, eighteen states and some territories are balanced against the national government. . . . In the second place, the House of Representatives is balanced against the Senate, the Senate against the House. In the third place, the executive authority is, in some degree, balanced against the legislative. In the fourth place, the judicial power is bal anced against the House, the Senate, the ​executive power, and the state governments. In the fifth place, the Senate is balanced against the President in all appointments to office, and in all treaties. . . . In the sixth place, the people hold in their hands the balance against their own representatives, by biennial . . . elections. In the seventh place, the legislatures of the several states are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of the President. Here is a complicated refinement of balances, which, for anything I recollect, is an invention of our own and peculiar to us.”
All of these balances are reckoned essential in the theory of the Constitution; but none is so quintessential as that between the national and the state governments; it is the pivotal quality of the system, indicating its principal, which is its federal characteristic. The object of this balance of thirty-eight States “and some territories” against the powers of the federal government, as also of several of the other balances enumerated, is not, it should be observed, to prevent the invasion by the national authorities ​of those provinces of legislation by plain expression or implication reserved to the States,—such as the regulation of municipal institutions, the punishment of ordinary crimes, the enactment of laws of inheritance and of contract, the erection and maintenance of the common machinery of education, and the control of other such like matters of social economy and every-day administration,—but to check and trim national policy on national questions, to turn Congress back from paths of dangerous encroachment on middle or doubtful grounds of jurisdiction, to keep sharp, when it was like to become dim, the line of demarcation between state and federal privilege, to readjust the weights of jurisdiction whenever either state or federal scale threatened to kick the beam. There never was any great likelihood that the national government would care to take from the States their plainer prerogatives, but there was always a violent probability that it would here and there steal a march over the borders where territory like its own invited it to appropriation; and it was for a mutual defense of such border-land that the two governments were given the right to call a halt upon one another. It was purposed to guard not against revolution, but against unrestrained exercise of questionable powers.
The extent to which the restraining power of ​the States was relied upon in the days of the Convention, and of the adoption of the Constitution, is strikingly illustrated in several of the best known papers of the “Federalist;” and there is no better means of realizing the difference between the actual and the ideal constitutions than this of placing one's self at the point of view of the public men of 1787-89. They were disgusted with the impotent and pitiable Confederation, which could do nothing but beg and deliberate; they longed to get away from the selfish feuds of “States dissevered, discordant, belligerent,” and their hopes were centred in the establishment of a strong and lasting union, such as could secure that concert and facility of common action in which alone there could be security and amity. They were, however, by no means sure of being able to realize their hopes, contrive how they might to bring the States together into a more perfect confederation. The late colonies had but recently become compactly organized, self-governing States, and were standing somewhat stiffly apart, a group of consequential sovereignties, jealous to maintain their blood-bought prerogatives, and quick to distrust any power set above them, or arrogating to itself the control of their restive wills. It was not to be expected that the sturdy, self-reliant, masterful men who had won ​ence for their native colonies, by passing through the flames of battle, and through the equally fierce fires of bereavement and financial ruin, would readily transfer their affection and allegiance from the new-made States, which were their homes, to the federal government, which was to be a mere artificial creation, and which could be to no man as his home government. As things looked then, it seemed idle to apprehend a too great diminution of state rights: there was every reason, on the contrary, to fear that any union that could be agreed upon would lack both vitality and the ability to hold its ground against the jealous self-assertion of the sovereign commonwealths of its membership. Hamilton but spoke the common belief of all thinking men of the time when he said: “It will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities;” and he seemed to furnish abundant support for the opinion, when he added, that “the proof of this proposition turns upon the greater degree of influence which the state governments, if they administer their affairs uprightly and prudently, will generally possess over the people; a circumstance which, at the same time, teaches us that there is an inherent and intrinsic weakness ​in all federal constitutions, and that too much pains cannot be taken in their organization to give them all the force that is compatible with the principles of liberty.”
Read in the light of the present day, such views constitute the most striking of all commentaries upon our constitutional history. Manifestly the powers reserved to the States were expected to serve as a very real and potent check upon the federal government; and yet we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual. The proof of the pudding is the eating thereof, and we can nowadays detect in it none of that strong flavor of state sovereignty which its cooks thought they were giving it. It smacks, rather, of federal omnipotence, which they thought to mix in only in very small and judicious quantities. “From the nature of the case,” as Judge Cooley says, “it was impossible that the powers reserved to the States should constitute a restraint upon the increase of federal power, to the extent that was at first expected. The federal government was necessarily made the final judge of its own authority, and the executor of its own will, and any effectual check to the gradual amplification of its jurisdiction must ​therefore be found in the construction put by those administering it upon the grants of the Constitution, and in their own sense of constitutional obligation. And as the true line of division between federal and state powers has, from the very beginning, been the subject of contention and of honest differences of opinion, it must often happen that to advance and occupy some disputed ground will seem to the party having the power to do so a mere matter of constitutional duty."
During the early years of the new national government there was, doubtless, much potency in state will; and had federal and state powers then come face to face, before Congress and the President had had time to overcome their first awkwardness and timidity, and to discover the safest walks of their authority and the most effectual means of exercising their power, it is probable that state prerogatives would have prevailed. The central government, as every one remembers, did not at first give promise of a very great career. It had inherited some of the contempt which had attached to the weak Congress of the Confederation. Two of the thirteen States held aloof from the Union until they could be assured of its stability and success; many of the other States had come into ​it reluctantly, all with a keen sense of sacrifice, and there could not be said to be any very widespread or undoubting belief in its ultimate survival. The members of the first Congress, too, came together very tardily, and in no very cordial or confident spirit of cooperation; and after they had assembled they were for many months painfully embarrassed, how and upon what subjects to exercise their new and untried functions. The President was denied formal precedence in dignity by the Governor of New York, and must himself have felt inclined to question the consequence of his official station, when he found that amongst the principal questions with which he had to deal were some which concerned no greater things than petty points of etiquette and ceremonial; as, for example, whether one day in the week would be sufficient to receive visits of compliment, “and what would be said if he were sometimes to be seen at quiet tea-parties." But this first weakness of the new government was only a transient phase in its history, and the federal authorities did not invite a direct issue with the States until they had had time to reckon their resources and to learn facility of action. Before Washington left the presidential chair the federal government had been thoroughly organized, and it fast gathered ​strength and confidence as it addressed itself year after year to the adjustment of foreign relations, to the defense of the western frontiers, and to the maintenance of domestic peace. For twenty-five years it had no chance to think of those questions of internal policy which, in later days, were to tempt it to stretch its constitutional jurisdiction. The establishment of the public credit, the revival of commerce, and the encouragement of industry; the conduct, first, of a heated controversy, and finally of an unequal war with England; the avoidance, first, of too much love, and afterwards of too violent hatred of France; these and other like questions of great pith and moment gave it too much to do to leave it time to think of nice points of constitutional theory affecting its relations with the States.
But still, even in those busy times of international controversy, when the lurid light of the French Revolution outshone all others, and when men's minds were full of those ghosts of ’76, which took the shape of British aggressions, and could not be laid by any charm known to diplomacy,—even in those times, busy about other things, there had been premonitions of the unequal contest between state and federal authorities. The purchase of Louisiana had given new form and startling significance to the assertion ​of national sovereignty, the Alien and Sedition Laws had provoked the plain-spoken and emphatic protests of Kentucky and Virginia, and the Embargo had exasperated New England to threats of secession.
Nor were these open assumptions of questionable prerogatives on the part of the national government the most significant or unequivocal indications of an assured increase of federal power. Hamilton, as Secretary of the Treasury, had taken care at the very beginning to set the national policy in ways which would unavoidably lead to an almost indefinite expansion of the sphere of federal legislation. Sensible of its need of guidance in those matters of financial administration which evidently demanded its immediate attention, the first Congress of the Union promptly put itself under the direction of Hamilton. “It is not a little amusing,” says Mr. Lodge, “to note how eagerly Congress, which had been ably and honestly struggling with the revenue, with commerce, and with a thousand details, fettered in all things by the awkwardness inherent in a legislative body, turned for relief to the new secretary.” His advice was asked and taken in almost everything, and his skill as a party leader made easy many of the more difficult paths of the new government. But no ​sooner had the powers of that government begun to be exercised under his guidance than they began to grow. In his famous Report on Manufactures were laid the foundations of that system of protective duties which was destined to hang all the industries of the country upon the skirts of the federal power, and to make every trade and craft in the land sensitive to every wind of party that might blow at Washington; and in his equally celebrated Report in favor of the establishment of a National Bank, there was called into requisition, for the first time, that puissant doctrine of the “implied powers” of the Constitution which has ever since been the chief dynamic principle in our constitutional history. “This great doctrine, embodying the principle of liberal construction, was,” in the language of Mr. Lodge, “the most formidable weapon in the armory of the Constitution; and when Hamilton grasped it he knew, and his opponents felt, that here was something capable of conferring on the federal government powers of almost any extent.” It served first as a sanction for the charter of the United States Bank,—an institution which was the central pillar of Hamilton's wonderful financial administration, and around which afterwards, as then, played so many of the lightnings of party strife. But the ​Bank of the United States, though great, was not the greatest of the creations of that lusty and seductive doctrine. Given out, at length, with the sanction of the federal Supreme Court, and containing, as it did, in its manifest character as a doctrine of legislative prerogative, a very vigorous principle of constitutional growth, it quickly constituted Congress the dominant, nay, the irresistible, power of the federal system, relegating some of the chief balances of the Constitution to an insignificant rôle in the “literary theory” of our institutions.
Its effect upon the status of the States in the federal system was several-fold. In the first place, it clearly put the constitutions of the States at a great disadvantage, inasmuch as there was in them no like principle of growth. Their stationary sovereignty could by no means keep pace with the nimble progress of federal influence in the new spheres thus opened up to it. The doctrine of implied powers was evidently both facile and irresistible. It concerned the political discretion of the national legislative power, and could, therefore, elude all obstacles of judicial interference; for the Supreme Court very early declared itself without authority to question the legislature's privilege of ​determining the nature and extent of its own powers in the choice of means for giving effect to its constitutional prerogatives, and it has long stood as an accepted canon of judicial action, that judges should be very slow to oppose their opinions to the legislative will in cases in which it is not made demonstrably clear that there has been a plain violation of some unquestionable constitutional principle, or some explicit constitutional provision. Of encroachments upon state as well as of encroachments upon federal powers, the federal authorities are, however, in most cases the only, and in all cases the final, judges. The States are absolutely debarred even from any effective defense of their plain prerogatives, because not they, but the national authorities, are commissioned to determine with decisive and unchallenged authoritativeness what state powers shall be recognized in each case of contest or of conflict. In short, one of the privileges which the States have resigned into the hands of the federal government is the all-inclusive privilege of determining what they themselves can do. Federal courts can annul state action, but state courts cannot arrest the growth of congressional power.
​But this is only the doctrinal side of the case, simply its statement with an “if” and a “but.” Its practical issue illustrates still more forcibly the altered and declining status of the States in the constitutional system. One very practical issue has been to bring the power of the federal government home to every man's door, as, no less than his own state government, his immediate over-lord. Of course every new province into which Congress has been allured by the principle of implied powers has required for its administration a greater or less enlargement of the national civil service, which now, through its hundred thousand officers, carries into every community of the land a sense of federal power, ​as the power of powers, and fixes the federal authority, as it were, in the very habits of society. That is not a foreign but a familiar and domestic government whose officer is your next-door neighbor, whose representatives you deal with every day at the post-office and the custom- house, whose courts sit in your own State, and send their own marshals into your own county to arrest your own fellow-townsman, or to call you yourself by writ to their witness-stands. And who can help respecting officials whom he knows to be backed by the authority and even by the power of the whole nation, in the performance of the duties in which he sees them every day engaged? Who does not feel that the marshal represents a greater power than the sheriff does, and that it is more dangerous to molest a mail-carrier than to knock down a policeman? This personal contact of every citizen with the federal government,—a contact which makes him feel himself a citizen of a greater state than that which controls his everyday contracts and probates his father's will,—more than offsets his sense of dependent loyalty to local authorities by creating a sensible bond of allegiance to what presents itself unmistakably as the greater and more sovereign power.
In most things this bond of allegiance does not bind him oppressively nor chafe him ​distressingly; but in some things it is drawn rather painfully tight. Whilst federal postmasters are valued and federal judges unhesitatingly obeyed, and whilst very few people realize the weight of customs-duties, and as few, perhaps, begrudge license taxes on whiskey and tobacco, everybody eyes rather uneasily the federal supervisors at the polls. This is preëminently a country of frequent elections, and few States care to increase the frequency by separating elections of state from elections of national functionaries. The federal supervisor, consequently, who oversees the balloting for congressmen, practically superintends the election of state officers also; for state officers and congressmen are usually voted for at one and the same time and place, by ballots bearing in common an entire “party ticket;” and any authoritative scrutiny of these ballots after they have been cast, or any peremptory power of challenging those who offer to cast them, must operate as an interference with state no less than with federal elections. The authority of Congress to regulate the manner of choosing federal representatives pinches when it is made thus to include also the supervision of those state elections which are, by no implied power even, within the sphere of federal prerogative. The supervisor represents the very ugliest side of federal supremacy; he belongs to the ​least liked branch of the civil service; but his existence speaks very clearly as to the present balance of powers, and his rather hateful privileges must, under the present system of mixed elections, result in impairing the self-respect of state officers of election by bringing home to them a vivid sense of subordination to the powers at Washington.
A very different and much larger side of federal predominance is to be seen in the history of the policy of internal improvements. I need not expound that policy here. It has been often enough mooted and long enough understood to need no explanation. Its practice is plain and its persistence unquestionable. But its bearings upon the status and the policies of the States are not always clearly seen or often distinctly pointed out. Its chief results, of course, have been that expansion of national functions which was necessarily involved in the application of national funds by national employees to the clearing of inland water-courses and the improvement of harbors, and the establishment of the very questionable precedent of expending in favored localities moneys raised by taxation which bears with equal incidence upon the people of all sections of the country; but these chief results by no means constitute the sum of its influence. Hardly less significant and real, for instance, are ​its moral effects in rendering state administrations less self-reliant and efficient, less prudent and thrifty, by accustoming them to accepting subsidies for internal improvements from the federal coffers; to depending upon the national revenues, rather than upon their own energy and enterprise, for means of developing those resources which it should be the special province of state administration to make available and profitable. There can, I suppose, be little doubt that it is due to the moral influences of this policy that the States are now turning to the common government for aid in such things as education. Expecting to be helped, they will not help themselves. Certain it is that there is more than one State which, though abundantly able to pay for an educational system of the greatest efficiency, fails to do so, and contents itself with imperfect temporary makeshifts because there are immense surpluses every year in the national treasury which, rumor and unauthorized promises say, may be distributed amongst the States in aid of education. If the federal government were more careful to keep apart from every strictly local scheme of improvement, this culpable and demoralizing state policy could scarcely live. States would cease to wish, because they would cease to hope, to be stipendiaries of the government of the Union, and would ​address themselves with diligence to their proper duties, with much benefit both to themselves and to the federal system. This is not saying that the policy of internal improvements was either avoidable, unconstitutional, or unwise, but only that it has been carried too far; and that, whether carried too far or not, it must in any case have been what it is now seen to be, a big weight in the federal scale of the balance.
Still other powers of the federal government, which have so grown beyond their first proportions as to have marred very seriously the symmetry of the “literary theory” of our federal system, have strengthened under the shadow of the jurisdiction of Congress over commerce and the maintenance of the postal service. For instance, the Supreme Court of the United States has declared that the powers granted to Congress by the Constitution to regulate commerce and to establish post-offices and post-roads “keep pace with the progress of the country and adapt themselves to new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamer, from the coach and the steamer to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They are intended ​for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right but the duty of Congress to see to it that the intercourse between the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation.” This emphatic decision was intended to sustain the right of a telegraph company chartered by one State to run its line along all post-roads in other States, without the consent of those States, and even against their will; but it is manifest that many other corporate companies might, under the sanction of this broad opinion, claim similar privileges in despite of state resistance, and that such decisions go far towards making state powers of incorporation of little worth as compared with federal powers of control.
Keeping pace, too, with this growth of federal activity, there has been from the first a steady and unmistakable growth of nationality of sentiment. It was, of course, the weight of war which finally and decisively disarranged the balance between state and federal powers; and it is obvious that many of the most striking manifestations of the tendency towards centralization ​have made themselves seen since the war. But the history of the war is only a record of the triumph of the principle of national sovereignty. The war was inevitable, because that principle grew apace; and the war ended as it did, because that principle had become predominant. Accepted at first simply because it was imperatively necessary, the union of form and of law had become a union of sentiment, and was destined to be a union of institutions. That sense of national unity and community of destiny which Hamilton had sought to foster, but which was feeble in his day of long distances and tardy inter-communication, when the nation's pulse was as slow as the stage-coach and the postman, had become strong enough to rule the continent when Webster died. The war between the States was the supreme and final struggle between those forces of disintegration which still remained in the blood of the body politic and those other forces of health, of union and amalgamation, which had been gradually building up that body in vigor and strength as the system passed from youth to maturity, and as its constitution hardened and ripened with advancing age.
The history of that trenchant policy of “reconstruction,” which followed close upon the termination of the war, as at once its logical result and significant commentary, contains a vivid ​picture of the altered balances of the constitutional system which is a sort of exaggerated miniature, falling very little short of being a caricature, of previous constitutional tendencies and federal policies. The tide of federal aggression probably reached its highest shore in the legislation which put it into the power of the federal courts to punish a state judge for refusing, in the exercise of his official discretion, to impanel negroes in the juries of his court, and in those statutes which gave the federal courts jurisdiction over offenses against state laws by state officers. But that tide has often run very high, and, however fluctuating at times, has long been well-nigh irresistible by any dykes of constitutional state privilege; so that Judge Cooley can say without fear of contradiction that "The effectual checks upon the encroachments of federal upon state power must be looked for, ​not in state power of resistance, but in the choice of representatives, senators, and presidents holding just constitutional views, and in a federal supreme court with competent power to restrain all departments and all officers within the limits of their just authority, so far as their acts may become the subject of judicial cognizance.”
Indeed it is quite evident that if federal power be not altogether irresponsible, it is the federal judiciary which is the only effectual balance-wheel of the whole system. The federal judges hold in their hands the fate of state powers, and theirs is the only authority that can draw effective rein on the career of Congress. If their power, then, be not efficient, the time must seem sadly out of joint to those who hold to the “literary theory” of our Constitution. By the word of the Supreme Court must all legislation stand or fall, so long as law is respected. But, as I have already pointed out, there is at least one large province of jurisdiction upon which, though invited, and possibly privileged to appropriate it, the Supreme Court has, nevertheless, refused to enter, and by refusing to enter which it has given over all attempt to guard one of the principal, easiest, and most obvious roads to federal supremacy. It has declared itself without authority to interfere with the political ​discretion of either Congress or the President, and has declined all effort to constrain these its coordinate departments to the performance of any, even the most constitutionally imperative act. “When, indeed, the President exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents or instruments of his unlawful action to strict accountability.” But such punishment, inflicted not directly upon the chief offender but vicariously upon his agents, can come only after all the harm has been done. The courts cannot forestall the President and prevent the doing of mischief. They have no power of initiative; they must wait until the law has been broken and voluntary litigants have made up their pleadings; must wait nowadays many months, often many years, until those pleadings are reached in the regular course of clearing a crowded docket.
Besides, in ordinary times it is not from the executive that the most dangerous encroachments ​are to be apprehended. The legislature is the aggressive spirit. It is the motive power of the government, and unless the judiciary can check it, the courts are of comparatively little worth as balance-wheels in the system. It is the subtile, stealthy, almost imperceptible encroachments of policy, of political action, which constitute the precedents upon which additional prerogatives are generally reared; and yet these are the very encroachments with which it is hardest for the courts to deal, and concerning which, accordingly, the federal courts have declared themselves unauthorized to hold any opinions. They have naught to say upon questions of policy. Congress must itself judge what measures may legitimately be used to supplement or make effectual its acknowledged jurisdiction, what are the laws “necessary and proper for carrying into execution” its own peculiar powers, “and all other powers vested by” the “Constitution in the government of the United States, or in any department or officer thereof.” The courts are very quick and keen-eyed, too, to discern prerogatives of political discretion in legislative acts, and exceedingly slow to undertake to discriminate between what is and what is not a violation of the spirit of the Constitution. Congress must wantonly go very far outside of the plain and unquestionable meaning of the ​constitution, must bump its head directly against all right and precedent, must kick against the very pricks of all well-established rulings and interpretations, before the Supreme Court will offer it any distinct rebuke.
Then, too, the Supreme Court itself, however upright and irreproachable its members, has generally had and will undoubtedly continue to have a distinct political complexion, taken from the color of the times during which its majority was chosen. The bench over which John Marshall presided was, as everybody knows, staunchly and avowedly federalist in its views; but during the ten years which followed 1835 federalist justices were rapidly displaced by Democrats, and the views of the Court changed accordingly. Indeed it may truthfully be said that, taking our political history “by and large,” the constitutional interpretations of the Supreme Court have changed, slowly but none the less surely, with the altered relations of power between the national parties. The Federalists were backed by a federalist judiciary; the period of democratic supremacy witnessed the triumph of democratic principles in the courts; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrines. It has been only during comparatively short periods of transition, when public opinion was ​passing over from one political creed to another, that the decisions of the federal judiciary have been distinctly opposed to the principles of the ruling political party.
But, besides and above all this, the national courts are for the most part in the power of Congress. Even the Supreme Court is not beyond its control; for it is the legislative privilege to increase, whenever the legislative will so pleases, the number of the judges upon the supreme bench,—to “dilute the Constitution,” as Webster once put it, “by creating a court which shall construe away its provisions;” and this on one memorable occasion it did choose to do. In December, 1869, the Supreme Court decided against the constitutionality of Congress's pet Legal Tender Acts; and in the following March a vacancy on the bench opportunely occurring, and a new justiceship having been created to meet the emergency, the Senate gave the President to understand that no nominee unfavorable to the debated acts would be confirmed, two justices of the predominant party's way of thinking were appointed, the hostile majority of the court was outvoted, and the obnoxious decision reversed.
The creation of additional justiceships is not, ​however, the only means by which Congress can coerce and control the Supreme Court. It may forestall an adverse decision by summarily depriving the court of jurisdiction over the case in which such a decision was threatened, and that even while the case is pending; for only a very small part of the jurisdiction of even the Supreme Court is derived directly from the Constitution. Most of it is founded upon the Judiciary Act of 1789, which, being a mere act of Congress, may be repealed at any time that Congress chooses to repeal it. Upon this Judiciary Act, too, depend not only the powers but also the very existence of the inferior courts of the United States, the Circuit and District Courts; and their possible fate, in case of a conflict with Congress, is significantly foreshadowed in that Act of 1802 by which a democratic Congress swept away, root and branch, the system of circuit courts which had been created in the previous year, but which was hateful to the newly-successful Democrats because it had been officered with Federalists in the last hours of John Adams's administration.
This balance of judiciary against legislature and executive would seem, therefore, to be another of those ideal balances which are to be found in the books rather than in the rough ​realities of actual practice; for manifestly the power of the courts is safe only during seasons of political peace, when parties are not aroused to passion or tempted by the command of irresistible majorities.
As for some of the other constitutional balances enumerated in that passage of the letter to John Taylor which I have taken as a text, their present inefficacy is quite too plain to need proof. The constituencies may have been balanced against their representatives in Mr. Adams's day, for that was not a day of primaries and of strict caucus discipline. The legislatures of the States, too, may have been able to exercise some appreciable influence upon the action of the Senate, if those were days when policy was the predominant consideration which determined elections to the Senate, and the legislative choice was not always a matter of astute management, of mere personal weight, or party expediency; and the presidential electors undoubtedly did have at one time some freedom of choice in naming the chief magistrate, but before the third presidential election some of them were pledged, before Adams wrote this letter the majority of them were wont to obey the dictates of a congressional caucus, and for the last fifty years they have simply registered the will of party conventions.
​It is noteworthy that Mr. Adams, possibly because he had himself been President, describes the executive as constituting only “in some degree” a check upon Congress, though he puts no such limitation upon the other balances of the system. Independently of experience, however, it might reasonably have been expected that the prerogatives of the President would have been one of the most effectual restraints upon the power of Congress. He was constituted one of the three great coördinate branches of the government; his functions were made of the highest dignity; his privileges many and substantial—so great, indeed, that it has pleased the fancy of some writers to parade them as exceeding those of the British crown; and there can be little doubt that, had the presidential chair always been filled by men of commanding character, of acknowledged ability, and of thorough political training, it would have continued to be a seat of the highest authority and consideration, the true centre of the federal structure, the real throne of administration, and the frequent source of policies. Washington and his Cabinet commanded the ear of Congress, and gave shape to its deliberations; Adams, though often crossed and thwarted, gave character to the government; and Jefferson, as President no less than as Secretary of State, was the real ​leader of his party. But the prestige of the presidential office has declined with the character of the Presidents. And the character of the Presidents has declined as the perfection of selfish party tactics has advanced.
It was inevitable that it should be so. After independence of choice on the part of the presidential electors had given place to the choice of presidential candidates by party conventions, it became absolutely necessary, in the eyes of politicans, and more and more necessary as time went on, to make expediency and availability the only rules of selection. As each party, when in convention assembled, spoke only those opinions which seemed to have received the sanction of the general voice, carefully suppressing in its “platform” all unpopular political tenets, and scrupulously omitting mention of every doctrine that might be looked upon as characteristic and as part of a peculiar and original programme, so, when the presidential candidate came to be chosen, it was recognized as imperatively necessary that he should have as short a political record as possible, and that he should wear a clean and irreproachable insignificance. “Gentlemen,” said a distinguished American public man, “I would make an excellent President, but a very poor candidate.” A decisive career which gives a man a well-understood place in public ​estimation constitutes a positive disability for the presidency; because candidacy must precede election, and the shoals of candidacy can be passed only by a light boat which carries little freight and can be turned readily about to suit the intricacies of the passage.
I am disposed to think, however, that the decline in the character of the Presidents is not the cause, but only the accompanying manifestation, of the declining prestige of the presidential office. That high office has fallen from its first estate of dignity because its power has waned; and its power has waned because the power of Congress has become predominant. The early Presidents were, as I have said, men of such a stamp that they would under any circumstances have made their influence felt; but their opportunities were exceptional. What with quarreling and fighting with England, buying Louisiana and Florida, building dykes to keep out the flood of the French Revolution, and extricating the country from ceaseless broils with the South American Republics, the government was, as has been pointed out, constantly busy, during the first quarter century of its existence, with the adjustment of foreign relations; and with foreign relations, of course, the Presidents had everything to do, since theirs was the office of negotiation.
​Moreover, as regards home policy also those times were not like ours. Congress was somewhat awkward in exercising its untried powers, and its machinery was new, and without that fine adjustment which has since made it perfect of its kind. Not having as yet learned the art of governing itself to the best advantage, and being without that facility of legislation which it afterwards acquired, the Legislature was glad to get guidance and suggestions of policy from the Executive.
But this state of things did not last long. Congress was very quick and apt in learning what it could do and in getting into thoroughly good trim to do it. It very early divided itself into standing committees which it equipped with very comprehensive and thorough-going privileges of legislative initiative and control, and set itself through these to administer the government. Congress is (to adopt Mr. Bagehot's description of Parliament) “nothing less than a big meeting of more or less idle people. In proportion as you give it power it will inquire into everything, settle everything, meddle in everything. In an ordinary despotism the powers of the despot are limited by his bodily capacity, and by the calls of pleasure; he is but one man; there are but twelve hours in his day, and he is not disposed to employ more than a small part ​in dull business: he keeps the rest for the court, or the harem, or for society.” But Congress “is a despot who has unlimited time,—who has unlimited vanity,—who has, or believes he has, unlimited comprehension,—whose pleasure is in action, whose life is work.” Accordingly it has entered more and more into the details of administration, until it has virtually taken into its own hands all the substantial powers of government. It does not domineer over the President himself, but it makes the Secretaries its humble servants. Not that it would hesitate, upon occasion, to deal directly with the chief magistrate himself; but it has few calls to do so, because our latter-day Presidents live by proxy; they are the executive in theory, but the Secretaries are the executive in fact. At the very first session of Congress steps were taken towards parceling out executive work amongst several departments, according to a then sufficiently thorough division of labor; and if the President of that day was not able to direct administrative details, of course the President of to-day is infinitely less able to do so, and must content himself with such general supervision as he may find time to exercise. He is in all every-day concerns shielded by the responsibility of his subordinates.
It cannot be said that this change has raised ​the cabinet in dignity or power; it has only altered their relations to the scheme of government. The members of the President's cabinet have always been prominent in administration; and certainly the early cabinets were no less strong in political influence than are the cabinets of our own day; but they were then only the President's advisers, whereas they are now rather the President's colleagues. The President is now scarcely the executive; he is the head of the administration; he appoints the executive. Of course this is not a legal principle; it is only a fact. In legal theory the President can control every operation of every department of the executive branch of the government; but in fact it is not practicable for him to do so, and a limitation of fact is as potent as a prohibition of law.
But, though the heads of the executive departments are thus no longer simply the counselors of the President, having become in a very real sense members of the executive, their guiding power in the conduct of affairs, instead of advancing, has steadily diminished; because while they were being made integral parts of the machinery of administration, Congress was extending its own sphere of activity, was getting into the habit of investigating and managing every thing. The executive was losing and Congress ​gaining weight; and the station to which cabinets finally attained was a station of diminished and diminishing power. There is no distincter tendency in congressional history than the tendency to subject even the details of administration to the constant supervision, and all policy to the watchful intervention, of the Standing Committees.
I am inclined to think, therefore, that the enlarged powers of Congress are the fruits rather of an immensely increased efficiency of organization, and of the redoubled activity consequent upon the facility of action secured by such organization, than of any definite and persistent scheme of conscious usurpation. It is safe to say that Congress always had the desire to have a hand in every affair of federal government; but it was only by degrees that it found means and opportunity to gratify that desire, and its activity, extending its bounds wherever perfected processes of congressional work offered favoring prospects, has been enlarged so naturally and so silently that it has almost always seemed of normal extent, and has never, except perhaps during one or two brief periods of extraordinary political disturbance, appeared to reach much beyond its acknowledged constitutional sphere.
It is only in the exercise of those functions of public and formal consultation and coöperation ​with the President which are the peculiar offices of the Senate, that the power of Congress has made itself offensive to popular conceptions of constitutional propriety, because it is only in the exercise of such functions that Congress is compelled to be overt and demonstrative in its claims of over-lordship. The House of Representatives has made very few noisy demonstrations of its usurped right of ascendency; not because it was diffident or unambitious, but because it could maintain and extend its prerogatives quite as satisfactorily without noise; whereas the aggressive policy of the Senate has, in the acts of its “executive sessions,” necessarily been overt, in spite of the closing of the doors, because when acting as the President's council in the ratification of treaties and in appointments to office its competition for power has been more formally and directly a contest with the executive than were those really more significant legislative acts by which, in conjunction with the House, it has habitually forced the heads of the executive departments to observe the will of Congress at every important turn of policy. Hence it is that to the superficial view it appears that only the Senate has been outrageous in its encroachments upon executive privilege. It is not often easy to see the true constitutional bearing of strictly legislative action; but it is patent even to the ​least observant that in the matter of appointments to office, for instance, senators have often outrun their legal right to give or withhold their assent to appointments, by insisting upon being first consulted concerning nominations as well, and have thus made their constitutional assent to appointments dependent upon an unconstitutional control of nominations.
This particular usurpation has been put upon a very solid basis of law by that Tenure-of-Office Act, which took away from President Johnson, in an hour of party heat and passion, that independent power of removal from office with which the Constitution had invested him, but which he had used in a way that exasperated a Senate not of his own way of thinking. But though this teasing power of the Senate's in the matter of the federal patronage is repugnant enough to the original theory of the Constitution, it is likely to be quite nullified by that policy of civil-service reform which has gained so firm, and mayhap so lasting, a footing in our national legislation; and in no event would the control of the patronage by the Senate have unbalanced the federal system more seriously than it may some day be unbalanced by an irresponsible exertion of that body's semi-executive powers in regard to the foreign policy of the government. More than one passage in the history of our foreign ​tions illustrates the danger. During the single congressional session of 1868-9, for example, the treaty-marring power of the Senate was exerted in a way that made the comparative weakness of the executive very conspicuous, and was ominous of very serious results. It showed the executive in the right, but feeble and irresolute; the Senate masterful, though in the wrong. Denmark had been asked to part with the island of St. Thomas to the United States, and had at first refused all terms, not only because she cared little for the price, but also and principally because such a sale as that proposed was opposed to the established policy of the powers of Western Europe, in whose favor Denmark wished to stand; but finally, by stress of persistent and importunate negotiation, she had been induced to yield; a treaty had been signed and sent to the Senate; the people of St. Thomas had signified their consent to the cession by a formal vote; and the island had been actually transferred to an authorized agent of our government, upon the faith, on the part of the Danish ministers, that our representatives would not have trifled with them by entering upon an important business transaction which they were not assured of their ability to conclude. But the Senate let the treaty lie neglected in its committee-room; the limit of time agreed upon for confirmation ​passed; the Danish government, at last bent upon escaping the ridiculous humiliation that would follow a failure of the business at that stage, extended the time and even sent over one of its most eminent ministers of state to urge the negotiation by all dignified means; but the Senate cared nothing for Danish feelings and could afford, it thought, to despise President Grant and Mr. Fish, and at the next session rejected the treaty, and left the Danes to repossess themselves of the island, which we had concluded not to buy after all.
It was during this same session of 1868-9 that the Senate teased the executive by throwing every possible obstacle in the way of the confirmation of the much more important treaty with Great Britain relative to the Alabama claims, nearly marring for good and all one of the most satisfactory successes of our recent foreign policy; but it is not necessary to dwell at length upon these well-known incidents of our later history, inasmuch as these are only two of innumerable instances which make it safe to say that from whatever point we view the relations of the executive and the legislature, it is evident that the power of the latter has steadily increased at ​the expense of the prerogatives of the former, and that the degree in which the one of these great branches of government is balanced against the other is a very insignificant degree indeed. For in the exercise of his power of veto, which is of course, beyond all comparison, his most formidable prerogative, the President acts not as the executive but as a third branch of the legislature. As Oliver Ellsworth said, at the first session of the Senate, the President is, as regards the passage of bills, but a part of Congress; and he can be an efficient, imperative member of the legislative system only in quiet times, when parties are pretty evenly balanced, and there are no indomitable majorities to tread obnoxious vetoes under foot.
Even this rapid outline sketch of the two pictures, of the theory and of the actual practices of the Constitution, has been sufficient, therefore, to show the most marked points of difference between the two, and to justify that careful study of congressional government, as the real government of the Union, which I am about to undertake. The balances of the Constitution are for the most part only ideal. For all practical purposes the national government is supreme over the state governments, and Congress predominant over its so-called coördinate branches. Whereas Congress at first ​overshadowed neither President nor federal judiciary, it now on occasion rules both with easy mastery and with a high hand; and whereas each State once guarded its sovereign prerogatives with jealous pride, and able men not a few preferred political advancement under the governments of the great commonwealths to office under the new federal Constitution, seats in state legislatures are now no longer coveted except as possible approaches to seats in Congress; and even governors of States seek election to the national Senate as a promotion, a reward for the humbler services they have rendered their local governments.
What makes it the more important to understand the present mechanism of national government, and to study the methods of congressional rule in a light unclouded by theory, is that there is plain evidence that the expansion of federal power is to continue, and that there exists, consequently, an evident necessity that it should be known just what to do and how to do it, when the time comes for public opinion to take control of the forces which are changing the character of our Constitution. There are voices in the air which cannot be misunderstood. The times seem to favor a centralization of governmental functions such as could not have suggested itself as a possibility to the framers of ​the Constitution. Since they gave their work to the world the whole face of that world has changed. The Constitution was adopted when it was six days' hard traveling from New York to Boston; when to cross East River was to venture a perilous voyage; when men were thankful for weekly mails; when the extent of the country's commerce was reckoned not in millions but in thousands of dollars; when the country knew few cities, and had but begun manufactures; when Indians were pressing upon near frontiers; when there were no telegraph lines, and no monster corporations. Unquestionably, the pressing problems of the present moment regard the regulation of our vast systems of commerce and manufacture, the control of giant corporations, the restraint of monopolies, the perfection of fiscal arrangements, the facilitating of economic exchanges, and many other like national concerns, amongst which may possibly be numbered the question of marriage and divorce; and the greatest of these problems do not fall within even the enlarged sphere of the federal government; some of them can be embraced within its jurisdiction by no possible stretch of construction, and the majority of them only by wresting the Constitution to strange and as yet unimagined uses. Still there is a distinct movement in favor of national control of all ​questions of policy which manifestly demand uniformity of treatment and power of administration such as cannot be realized by the separate, unconcerted action of the States; and it seems probable to many that, whether by constitutional amendment, or by still further flights of construction, yet broader territory will at no very distant day be assigned to the federal government. It becomes a matter of the utmost importance, therefore, both for those who would arrest this tendency, and for those who, because they look upon it with allowance if not with positive favor, would let it run its course, to examine critically the government upon which this new weight of responsibility and power seems likely to be cast, in order that its capacity both for the work it now does and for that which it may be called upon to do may be definitely estimated.
Judge Cooley, in his admirable work on “The Principles of American Constitutional Law,” after quoting Mr. Adams's enumeration of the checks and balances of the federal system, adds this comment upon Mr. Adams's concluding statement that that system is an invention of our own. “The invention, nevertheless, was suggested by the British Constitution, in which a system almost equally elaborate was then in force. In its outward forms that system still ​remains; but there has been for more than a century a gradual change in the direction of a concentration of legislative and executive power in the popular house of Parliament, so that the government now is sometimes said, with no great departure from the fact, to be a government by the House of Commons.” But Judge Cooley does not seem to see, or, if he sees, does not emphasize the fact, that our own system has been hardly less subject to “a gradual change in the direction of a concentration” of all the substantial powers of government in the hands of Congress; so that it is now, though a wide departure from the form of things, “no great departure from the fact” to describe ours as a government by the Standing Committees of Congress. This fact is, however, deducible from very many passages of Judge Cooley's own writings; for he is by no means insensible of that expansion of the powers of the federal government and that crystallization of its methods which have practically made obsolete the early constitutional theories, and even the modified theory which he himself seems to hold.
He has tested the nice adjustment of the theoretical balances by the actual facts, and has carefully set forth the results; but he has nowhere brought those results together into a single comprehensive view which might serve as a ​clear and satisfactory delineation of the Constitution of to-day; nor has he, or any other writer of capacity, examined minutely and at length that internal organization of Congress which determines its methods of legislation, which shapes its means of governing the executive departments, which contains in it the whole mechanism whereby the policy of the country is in all points directed, and which is therefore an essential branch of constitutional study. As the House of Commons is the central object of examination in every study of the English Constitution, so should Congress be in every study of our own. Any one who is unfamiliar with what Congress actually does and how it does it, with all its duties and all its occupations, with all its devices of management and resources of power, is very far from a knowledge of the constitutional system under which we live; and to every one who knows these things that knowledge is very near.
* ↑ These are Mr. Bagehot's words with reference to the British constitutional system. See his English Constitution (last American edition), p. 69.
* ↑ Works, vol. vi., p. 467: “Letter to Jno. Taylor.” The words and sentences omitted in the quotation contain Mr. Adams's opinions as to the value of the several balances, some of which he thinks of doubtful utility, and others of which he, without hesitation, pronounces altogether pernicious.
* ↑ Federalist, No. 17.
* ↑ Cooley's Principles of Const. Law, p. 143.
* ↑ McMaster, Hist. of the People of the U. S., vol. i., p. 564.
* ↑ Lodge's Alexander Hamilton (Am. Statesmen Series), p. 85.
* ↑ Lodge's Alexander Hamilton, p. 105.
* ↑ Its final and most masterly exposition, by C. J. Marshall, may be seen in McCulloch v. Maryland, 4 Wheaton, 316.
* ↑ The following passage from William Maclay's Sketches of Debate in the First Senate of the United States (pp. 292-3) illustrates how clearly the results of this were forecast by sagacious men from the first: “The system laid down by these gentlemen (the Federalists) was as follows, or rather the development of the designs of a certain party: The general power to carry the Constitution into effect by a constructive interpretation would extend to every case that Congress may deem necessary or expedient. . . . The laws of the United States will be held paramount to all” state “laws, claims, and even constitutions. The supreme power is with the general government to decide in this, as in everything else, for the States have neglected to secure any umpire or mode of decision in case of difference between them. Nor is there any point in the Constitution for them to rally under. They may give an opinion, but the opinions of the general government must prevail. . . . Any direct and open act would be termed usurpation. But whether the gradual influence and encroachments of the general government may not gradually swallow up the state governments, is another matter.”
* ↑ Pensacola Tel. Co. v. West. Union, 96 U.S. 1, 9. (Quoted by Judge Cooley in his Principles of Constitutional Law.)
* ↑ 18 Stat., part 3, 336. See Ex parte Virginia, 100 U. S. 339.
* ↑ Sect. 5515 Rev. Stats. See Ex parte Siebold, 100 U. S. 371. Equally extensive of federal powers is that “legal tender” decision (Juilliard v. Greenman) of March, 1884, which argues the existence of a right to issue an irredeemable paper currency from the Constitution's grant of other rights characteristic of sovereignty, and from the possession of a similar right by other governments. But this involves no restriction of state powers; and perhaps there ought to be offset against it that other decision (several cases, October, 1883), which denies constitutional sanction to the Civil Rights Act.
* ↑ Principles of Constitutional Law, pp. 143, 144.
* ↑ Marbury v. Madison, 1 Cranch, 137.
* ↑ Cooley's Principles, p. 157.
* ↑ For an incisive account of the whole affair, see an article entitled “The Session,” No. Am. Review, vol. cxi., pp. 48, 49.
* ↑ 7 Wall. 506.
* ↑ For a brilliant account of the senatorial history of these two treaties, see the article entitled "The Session," No. Am. Rev., vol. cviii. (1869), p. 626 et seq.