Part 6 (1/2)

It may be contended that the Const.i.tution makes it his duty to enforce all laws without regard to his own views of their wisdom or expediency.

This contention, however, does not appear to be borne out by the purpose of the Const.i.tution itself. It was not the intention of the framers of that instrument to make the President a mere administrative agent of Congress, but rather to set him over against that body and make him in a large measure the judge of his own authority. If it be claimed that it is his duty to enforce all laws that have been regularly enacted, it must at the same time be conceded that the Const.i.tution permits their non-enforcement, since it has given neither to Congress nor to the people any effective power to remove him for neglect of duty. Moreover, his oath of office does not expressly bind him to enforce the laws of Congress, but merely to ”execute the office of President ... and preserve, protect, and defend the Const.i.tution of the United States.”[120]

This omission can not be satisfactorily explained as a mere oversight.

The Ma.s.sachusetts const.i.tution of 1780, from which the fathers copied the qualified veto power, required the governor to take an oath in which he obligated himself to perform the duties of his office ”agreeably to the rules and regulations of the const.i.tution and the laws of the commonwealth.” There was no precedent in any then existing state const.i.tution for expressly binding the executive in his oath of office to defend the Const.i.tution without mentioning his duty to enforce the laws. It is a reasonable inference that the framers of the Const.i.tution intended to impress the President with the belief that his obligation to defend the Const.i.tution was more binding upon him than his duty to enforce the laws enacted by Congress.

In the foregoing discussion it has been shown that political authority was unequally divided between the various branches of the government; to the extent that this was the case the framers of the Const.i.tution did not adhere consistently to the theory of checks. But in this, as in other instances where they departed from precedents which they professed to be following, they were actuated by a desire to minimize the direct influence of the people. If the Const.i.tution had been framed in complete accord with the doctrine of checks and balances, the lower house of Congress as the direct representative of the people would have been given a veto on the entire policy of the government. But this, as we have seen, was not done. The more important powers were placed under the exclusive control of the other branches of the government over which it was believed public opinion would have but little influence. This deprived the people of the unlimited negative to which they were ent.i.tled even according to the theory of checks. Richard Henry Lee did not greatly exaggerate then when he said: ”The only check to be found in favor of the democratic principle, in this system, is the House of Representatives, which, I believe, may justly be called a mere shred or rag of representation.”[121] Nor was Mason entirely mistaken when he referred to the House of Representatives as ”the shadow only” and not ”the substance of representation.”[122]

It may be thought, even though the Const.i.tution does not give the House of Representatives a direct negative on all the important acts of the government, that it does so indirectly through its control over the purse. An examination of the system with reference to this question, however, reveals the fact that the control of the House over taxation and expenditure is narrowly limited. A revenue law is subject to no const.i.tutional limitation, and when once enacted remains in force until repealed by subsequent legislation. a.s.suming that a revenue system has been established which is sufficient for the needs of the government, the House can exercise no further control over income. It can not repeal it, or modify it in any way without the consent of the President and Senate.

Turning now to the matter of expenditure, we find that the Const.i.tution allows permanent provision to be made for the needs of the government, with the single exception of the army, for the support of which no funds can be appropriated for a longer period than two years. The policy of permanent appropriations has not yet been applied to the full extent permitted by the Const.i.tution, but it has been carried much further than a consistent adherence to the doctrine of popular control over the budget would warrant. The practice could easily be extended until every want of the government except the expenses of the army, even including the maintenance of the navy, had been provided for by permanent appropriations. And it may be added that with the increasing desire for stability which comes with the development of vast business interests, the tendency is strongly in that direction.

Let us suppose that some political party, for the time being in control of the law-making power of the government, should extend the practice of making permanent appropriations to the extreme limit allowed by the Const.i.tution. This would relieve the administration of all financial dependence upon public sentiment except in the management of the army.

And if, as the framers of the Const.i.tution contemplated, the President and the Senate should represent the minority, the administration might for years pursue a policy to which public opinion had come to be strongly opposed. For with the system once adopted its repeal could not be effected without the concurrence of all branches of the law-making authority. The President and Congress could, in antic.i.p.ation of an adverse majority in the House, guard against the withdrawal of financial support from their policy by simply making permanent provision for their needs. Our present system would permit this to be done even after the party in power had been overwhelmingly defeated at the polls, since the second session of the old congress does not begin until after the members of the new House of Representatives have been elected.[123]

This would tie the hands of any adverse popular majority in a succeeding congress and effectually deprive it of even a veto on the income and expenditure of the government, until such time as it should also gain control of the Presidency and the Senate. But this last could never have happened if the practical working of the Const.i.tution had been what its framers intended. Whatever control, then, the majority may now exercise over taxation and public expenditure has thus been acquired less through any const.i.tutional provisions intended to secure it, than in spite of those which seemingly made it impossible.

Equally significant was the failure of the Convention to make any adequate provision for enforcing publicity. The Const.i.tution says ”a regular statement of the receipts and expenditures of public money shall be published from time to time,” and also that ”each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment required secrecy.”[124] That these provisions were of little practical value is evident from the fact that they contain no definite statement as to when and how often the accounts and journals are to be published. The phrase _from time to time_ was susceptible of almost any interpretation that either house of Congress or the President might wish to give it, and could easily have been so construed as to justify a method of publication which gave the people but little information concerning the present state of public affairs. The framers of the Const.i.tution did not believe that the management of the government was in any proper sense the people's business; yet they realized that the people themselves took a different view of the matter, which made some const.i.tutional guarantee of publicity necessary. It was, however, the form rather than the substance of such a guarantee which the Const.i.tution contained.

Neither house of Congress is required by the Const.i.tution to hold open sittings or publish its speeches and debates.[125] Until 1799 the Senate exercised its const.i.tutional right to transact public business in secret; and during that period preserved no record of its debates. This policy did not win for it the confidence of the people, and until after it was in a measure abandoned, the Senate, notwithstanding the important powers conferred on it by the Const.i.tution, was not a very influential body.

To deny the right of the people to control the government leads naturally to denial of their right to criticise those who shape its policy; since if free and unrestricted discussion and even condemnation of official conduct were allowed, no system of minority rule could long survive. This was well understood in the Federal Convention. The members of that body saw that the const.i.tutional right of public officials to disregard the wishes of the people was incompatible with the right of the latter to drag them before the bar of public opinion. Hence some limitation of the right to criticise public officials was necessary to safeguard and preserve their official independence. This seems to have been the purpose of the Const.i.tution in providing with reference to members of Congress that ”for any speech or debate in either House they shall not be questioned in any other place.”[126]

This provision may be traced to the English Bill of Rights where it was intended as a means of protecting members of Parliament against imprisonment and prosecution for opposing the arbitrary acts of the Crown. It was at first merely an a.s.sertion of the independence of the Lords and Commons as against the King, and a denial of the right of the latter to call them to account for anything said or done in their legislative capacity. But after it had accomplished its original purpose and the tyrannical power of the King had been overthrown, it was found to be serviceable in warding off attacks from another direction. It thus came about that the means devised and employed by Parliament to s.h.i.+eld its members against intimidation and oppression at the hands of the King was later turned against the people; for Parliament in divesting the King of his irresponsible authority was desirous only of establis.h.i.+ng its own supremacy. It jealously guarded its own prerogatives, claimed the right to govern independently, and just as formerly it had resisted the encroachments of royal authority, it now resented the efforts of the people to influence its policy by the publication and criticism of its proceedings.

A standing order pa.s.sed by the House of Commons in 1728 declared ”that it is an indignity to, and a breach of, the privilege of this House for any person to presume to give in written or printed newspapers, any account or minute of the debates or other proceedings; that upon discovery of the authors, printers, or publishers of any such newspaper this House will proceed against the offenders with the utmost severity.”[127]

This was the att.i.tude of Parliament down to 1771, when, after a prolonged and bitter struggle, the House of Commons was finally driven by the force of an overwhelming public sentiment to acquiesce in the publication of its proceedings.

There was, however, a small minority in the House that opposed the policy of prosecuting the representatives of the press. The following extract from the Annual Register for 1771 describes the att.i.tude of this minority.

”Some gentlemen however did not rest their opposition on the points of decorum and prudence, but went so far as to deny the authority of the House in this respect, and said that it was an usurpation a.s.sumed in bad times, in the year 1641; that while their privileges and authority were used in defense of the rights of the people, against the violence of the prerogative, all men willingly joined in supporting them, and even their usurpations were considered as fresh securities to their independence; but now that they saw their own weapons converted to instruments of tyranny and oppression against themselves, they would oppose them with all their might, and, however they may fail in the first efforts, would finally prevail, and a.s.suredly bring things back to their first principles. They also said that the practice of letting the const.i.tuents know the parliamentary proceedings of their representatives was founded upon the truest principles of the Const.i.tution; and that even the publis.h.i.+ng of supposed speeches was not a novel practice, and if precedent was a justification, could be traced to no less an authority than Lord Clarendon.”[128]

”In the early years of the colonial era the right of free speech was not always well guarded. There was frequent legislation, for example, against 'seditious utterances,' a term which might mean almost anything.

In 1639 the Maryland a.s.sembly pa.s.sed an act for 'determining enormous offences,' among which were included 'scandalous or contemptuous words or writings to the dishonor of the lord proprietarie or his lieutenant generall for the time being, or any of the council.' By a North Carolina act of 1715 seditious utterances against the government was made a criminal offence, and in 1724 Joseph Castleton, for malicious language against Governor Burrington and for other contemptuous remarks, was sentenced by the general court to stand in the pillory for two hours and on his knees to beg the governor's pardon. A New Jersey act of 1675 required that persons found guilty of resisting the authority of the governor or councillors 'either in words or actions ... by speaking contemptuously, reproachfully, or maliciously, of any of them,' should be liable to fine, banishment, or corporal punishment at the discretion of the court. In Ma.s.sachusetts even during the eighteenth century the right of free political discussion was denied by the House of Representatives as well as by the royal governor, though often unsuccessfully.”[129]

”The general publication of parliamentary debates dates only from the American Revolution, and even then it was still considered a technical breach of privilege.

”The American colonies followed the practice of the parent country. Even the laws were not at first published for general circulation, and it seemed to be thought desirable by the magistrates to keep the people in ignorance of the precise boundary between that which was lawful and that which was prohibited, as more likely to avoid all doubtful actions....

”The public bodies of the united nation did not at once invite publicity to their deliberations. The Const.i.tutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a time followed this example, and the first open debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body. The House of Representatives sat with open doors from the first, tolerating the presence of reporters,--over whose admission, however, the Speaker a.s.sumed control,--and refusing in 1796 the pittance of two thousand dollars for full publication of its debates.

”It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin.”[130]

Both the original purpose of this parliamentary privilege and its subsequent abuse not only in England but also in the Colonies, were facts well known by those who framed the Const.i.tution. There was no King here, from whose arbitrary acts Congress would need to be protected, but there was a power which the framers of the Const.i.tution regarded as no less tyrannical and fully as much to be feared--the power of the people as represented by the numerical majority. How to guard against this new species of tyranny was the problem that confronted them. The majority was just as impatient of restraint, just as eager to brush aside all opposition as king or aristocracy had ever been in the past. Taking this view of the matter, it was but natural that they should seek to protect Congress against the people as Parliament had formerly been protected against the Crown. For exactly the same reason as we have seen, they made the judges independent of the people as they had been made independent of the King in England. In no other way was it possible to limit the power of the majority.

That this provision concerning freedom of speech and debate in the legislative body was not regarded as especially important during the Revolutionary period is shown by its absence from most of the early state const.i.tutions. When the Federal Const.i.tution was framed only three of the original states[131] had adopted const.i.tutions containing such a provision. There was, as a matter of fact, no real need for it in the state const.i.tutions of that time. The controlling influence exerted by the legislature in the state government, and the dependence of the courts upon that body, precluded the possibility of any abuse of their powers in this direction.

The Articles of Confederation contained the provision that ”Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress.”[132] This was designed to protect members of Congress against prosecution in the state courts. Here, as in the English Bill of Rights and in the state const.i.tutions containing a similar provision, reference is made in express terms to prosecution in the courts. The framers of the Const.i.tution, however, left out all reference to the courts. If, as const.i.tutional writers have generally a.s.sumed, the framers of the Const.i.tution intended by this provision to protect members of Congress against prosecution in the courts, it is difficult to understand why they should have omitted what had been the main feature and purpose of this provision, not only in the original Bill of Rights, but also in the state const.i.tutions copying it and in the Articles of Confederation. If what they had in mind was the danger of prosecution in the state or Federal courts, why should they have changed completely the wording of this provision by omitting all reference to the very danger which they wished to guard against?

The checks thus far described were intended as a subst.i.tute for king and aristocracy; but to make the Const.i.tution acceptable to the people, additional checks were required which the English government did not contain. The division of authority in the latter was solely between different cla.s.ses or orders, each of which was supposed to represent interests co-extensive with the realm. But while the power of each cla.s.s was thus limited, their joint and combined action was subject to no const.i.tutional check or limitation whatever. Any policy upon which they agreed could be enforced in any part of the realm, since the Const.i.tution, recognizing no local interests, gave no political subdivision a negative on the acts of the whole. The government of England, then, was purely _national_ as opposed to _federal_, that is to say the general government was supreme in all respects and the local government merely its creature.

This was the type of government for which Hamilton contended and which a majority of the delegates in the Federal Convention really favored. But the difficulty of securing the adoption of a Const.i.tution framed on this plan made it impracticable. To merge the separate states in a general government possessing unlimited authority would place all local interests at the mercy of what the people regarded as virtually a foreign power. Practical considerations, then, required that the Const.i.tution should in appearance at least conform to the _federal_ rather than to the _national_ type. Accordingly the powers of government were divided into two cla.s.ses, one embracing only those of an admittedly general character, which were enumerated and delegated to the general government, while the rest were left in the possession of the states. In form and appearance the general government and the governments of the various states were coordinate and supplementary, each being supreme and sovereign within its respective sphere. By this arrangement any appearance of subordination on the part of the state governments was carefully avoided; and since the state retained sovereign authority within the sphere a.s.signed to it by the Const.i.tution, the protection of local interests was thereby guaranteed. This understanding of the Const.i.tution seems to have been encouraged by those who desired its adoption and was undoubtedly the only interpretation which would have found favor with the people generally. Moreover, it was a perfectly natural and logical development of the theory of checks. If the President, Senate, House of Representatives and the Supreme Court were coordinate branches of the general government, and each therefore a check on the authority of the others, a like division of authority between the general government as a whole on the one hand, and the states on the other, must of necessity imply a defensive power in the state to prevent encroachment on the authority reserved to it. And since the government was _federal_ and not _national_, and since the state government was coordinate with and not subordinate to the general government, the conclusion was inevitable that the former was a check on the latter in exactly the same way that each branch of the general government was a check on the others.