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The Spirit of American Government - A Study Of The Constitution: Its Origin, Influence And - Relation To Democracy
by J. Allen Smith
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The Spirit of American Government

A STUDY OF THE CONSTITUTION: ITS ORIGIN, INFLUENCE AND RELATION TO DEMOCRACY

BY

J. ALLEN SMITH, LL.B., PH.D.

PROFESSOR OF POLITICAL SCIENCE UNIVERSITY OF WASHINGTON



The Chautauqua Press CHAUTAUQUA, NEW YORK MCMXI

COPYRIGHT, 1907, BY THE MACMILLAN COMPANY

Set up and electrotyped. Printed April, 1907. Reprinted March, 1911.

Norwood Press: Berwick & Smith Co., Norwood, Mass., U.S.A.



PREFACE

It is the purpose of this volume to trace the influence of our constitutional system upon the political conditions which exist in this country to-day. This phase of our political problems has not received adequate recognition at the hands of writers on American politics. Very often indeed it has been entirely ignored, although in the short period which has elapsed since our Constitution was framed and adopted, the Western world has passed through a political as well as an industrial revolution.

In the eighteenth century the majority was outside of the pale of political rights. Government as a matter of course was the expression of the will of a minority. Even in the United States, where hereditary rule was overthrown by the Revolution, an effective and recognized minority control still survived through the property qualifications for the suffrage and for office-holding, which excluded a large proportion of the people from participation in political affairs. Under such conditions there could be but little of what is now known as democracy. Moreover, slavery continued to exist upon a large scale for nearly three-quarters of a century after the Constitution was adopted, and was finally abolished only within the memory of many now living.

It could hardly be expected that a political system set up for a community containing a large slave population and in which the suffrage was restricted, even among the free whites, should in any large measure embody the aims and ideas of present day democracy. In fact the American Constitution did not recognize the now more or less generally accepted principle of majority rule even as applying to the qualified voters. Moreover, it was not until several decades after the Constitution was adopted that the removal of property qualifications for voting allowed the people generally to have a voice in political affairs.

The extension of the suffrage was a concession to the growing belief in democracy, but it failed to give the masses an effective control over the general government, owing to the checks in the Constitution on majority rule. It had one important consequence, however, which should not be overlooked. Possession of the suffrage by the people generally led the undiscriminating to think that it made the opinion of the majority a controlling factor in national politics.

Our political writers have for the most part passed lightly over the undemocratic features of the Constitution and left the uncritical reader with the impression that universal suffrage under our system of government ensures the rule of the majority. It is this conservative approval of the Constitution under the guise of sympathy with majority rule, which has perhaps more than any thing else misled the people as to the real spirit and purpose of that instrument. It was by constantly representing it as the indispensable means of attaining the ends of democracy, that it came to be so generally regarded as the source of all that is democratic in our system of government. It is to call attention to the spirit of the Constitution, its inherent opposition to democracy, the obstacles which it has placed in the way of majority rule, that this volume has been written.

The general recognition of the true character of the Constitution is necessary before we can fully understand the nature and origin of our political evils. It would also do much to strengthen and advance the cause of popular government by bringing us to a realization of the fact that the so-called evils of democracy are very largely the natural results of those constitutional checks on popular rule which we have inherited from the political system of the eighteenth century.

The author acknowledges his indebtedness to his colleague, Professor William Savery, and to Professor Edward A. Ross of the University of Wisconsin, for many pertinent criticisms and suggestions which he has borne in mind while revising the manuscript of this work for publication. He is also under obligation to Mr. Edward McMahon for suggestions and for some illustrative material which he has made use of in this volume.

J. ALLEN SMITH.

Seattle, Washington, January, 1907.



CONTENTS

CHAPTER I

THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY

PAGE Struggle between the many and the few 3 The Great Charter 4 Development of a bicameral parliament 6 Limited and irresponsible government 8 Class influence as seen in statute and common law 10

CHAPTER II

THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD

Conditions favoring growth of democratic ideas 12 The Declaration of Independence 13 Numerical strength and character of the conservatives 14 Democracy in the early state constitutions 16 Supremacy of the legislature 20 The Articles of Confederation 22

CHAPTER III

THE CONSTITUTION A REACTIONARY DOCUMENT

Causes of political reaction 27 The Constitution a product of eighteenth-century thought 28 The framers' fear of democracy 29 Effort to limit the power of the majority 35

CHAPTER IV

THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION

Amendment of democratic and undemocratic constitutions 40 Reasons for making amendment difficult 41 Patrick Henry's objection to the amendment feature of the Constitution 44 The amendments to the Constitution 52 Amendment of the Articles of Confederation 57 Amendment of the early state constitutions 58 Amendment in other countries 62

CHAPTER V

THE FEDERAL JUDICIARY

Relation of the judicial to the other checks 65 The constitutional status of judges in England 67 The American was not a copy of the English judicial system 68 Hamilton's defense of the Federal judiciary 73 His desire to limit the power of the people 82 Relation of the judicial to the executive veto 85 Revival of the judicial veto in the state governments 87 The judicial veto was not mentioned in the Constitution 90 The Federalist appointments to the Supreme Bench 94 Significance of the veto power of the Supreme Court 97 A monarchical survival 103 Political and judicial powers 107 Power to veto laws not judicial 108 Character of the laws vetoed by the Supreme Court 111 Decline of the belief in judicial infallibility 113 Government by injunction 116 The judicial veto in relation to treaties 119 The disadvantages of a deferred veto 123

CHAPTER VI

THE CHECKS AND BALANCES OF THE CONSTITUTION

A cure for the evils of democracy 125 Evolutionary classification of governments 128 Substitutes for king and aristocracy 130 Relation of the theory of checks and balances to laissez faire and anarchism 131 Purpose of indirect election 134 Subordination of the House of Representatives 137 Impeachment made difficult 142 Significance of the President's oath of office 146 The House of Representatives in relation to the budget 148 Lack of adequate provision for publicity 150 Attitude of the framers toward criticism of public officials 152 Federal versus national government 160 Relation of the general to the state governments not clearly defined 162 Effort to lay the foundation of a national government 164 Origin and development of the doctrine of nullification 168 Calhoun's theory of the Constitution 174 The judiciary act of 1789 182

CHAPTER VII

UNDEMOCRATIC DEVELOPMENT

The influence of checks upon the development of our political institutions 186 The House of Representatives an irresponsible body during the second regular session 189 Congress has power to remedy the evil 191 The committee system a check on the majority 193 The speaker's power to thwart legislation 199 The system encourages log-rolling 200

CHAPTER VIII

THE PARTY SYSTEM

Conservative opposition to party government in the eighteenth century 203 The effort of the framers to guard against the possibility of responsible party government 205 Difference between the English and the American party system 208 Influence of the Constitution upon the party system not generally recognized 210 The evils of our party system attributed by conservative writers to majority rule 212 Character of our party platforms 218 True party government impossible under our constitutional system 226

CHAPTER IX

CHANGES IN THE STATE CONSTITUTIONS AFTER 1787

Development of the judicial veto 230 Limitation of the power to impeach 231 Extension of the term of office of governor and members of the legislature 232 Amendment of the constitution made more difficult 235 Influence of democracy upon the state constitutions 239 Division of authority in the state government 243 Lack of effective responsibility 245

CHAPTER X

MUNICIPAL GOVERNMENT

Municipal government at the time of the Revolution 249 Changes in municipal government after the adoption of the Constitution 250 The municipality a creature of the state legislature 252 Hostility of the courts to municipal self-government 254 The attitude of the courts made state interference necessary 255 Abuses of legislative interference 256 Constitutional provisions limiting the power of the legislature to interfere 261 Effort to establish municipal self-government 265 Limitation of the power of the majority in constitutions granting municipal self-government 266 The object of home rule provisions largely defeated by judicial interpretation 268 Limitation of the taxing and borrowing power of home rule cities 272 Origin of the constitutional limitations of municipal indebtedness 273 Fear of municipal democracy 277 Municipal ownership as a means of taxing the propertyless class 280 Why our state governments have not been favorable to municipal democracy 285 Limitation of the power of the majority the main cause of municipal corruption 288

CHAPTER XI

INDIVIDUAL LIBERTY AND THE CONSTITUTION

The eighteenth-century conception of liberty negative 291 Influence of the Revolution upon the conception of liberty 293 Why present-day conservatives advocate the eighteenth century view of liberty 295 Liberty to the framers meant the limitation of the power of the majority 297 The doctrine of vested rights 299 Survival of the old view of liberty in our legal literature 301

CHAPTER XII

INDIVIDUAL LIBERTY AND THE ECONOMIC SYSTEM

The economic conditions under which the old view of liberty originated 304 Influence of the industrial revolution upon the liberty of the worker 306 The laissez faire policy 308 Protection has been maintained as a class policy 312 The need of protection to labor 316 Limitation of governmental powers in the interest of the capitalist 318 The policy of the Supreme Court a factor in corrupting the state governments 325

CHAPTER XIII

THE INFLUENCE OF DEMOCRACY UPON THE CONSTITUTION

Modification of the system as originally set up 331 The extension of the suffrage 333 Defect in the method of electing the President 333 Three reforms needed in the case of the Senate 338 Possibility of controlling the Supreme Court 341 Power of two-thirds of the states to call a constitutional convention 346 Effort to secure the responsibility of public officials 349 Direct versus representative democracy 351 Reliance of the conservative classes on the courts 355 Election of United States senators by the legislature incompatible with its other functions 357

CHAPTER XIV

EFFECT OF THE TRANSITION FROM MINORITY TO MAJORITY RULE UPON MORALITY

Higher standards of morality 361 The growth of publicity in relation to immorality 363 Decline in the efficacy of old restraints 364 The conflict between two opposing political systems 367 The need of more publicity 372 Corporate control of the organs of public opinion 375 Lack of respect for law 377

CHAPTER XV

DEMOCRACY OF THE FUTURE

The progress of democratic thought 379 Influence of printing upon the growth of democracy 380 The immediate aim of democracy political 383 Relation of scientific and industrial progress to democracy 384 Democracy would make government a science 386 Dependence of man's industrial activities on the social environment 388 Necessity for equality of opportunity ignored by conservative writers 390 The scientific justification of democracy's hostility to privilege 394 Democracy's attitude toward the doctrine of laissez faire 397



THE SPIRIT OF AMERICAN GOVERNMENT



CHAPTER I

THE ENGLISH GOVERNMENT OF THE EIGHTEENTH CENTURY

Constitutional government is not necessarily democratic. Usually it is a compromise in which monarchical and aristocratic features are retained. The proportion in which the old and the new are blended depends, of course, upon the progress the democratic movement has made. Every step toward democracy has been stubbornly opposed by the few, who have yielded to the popular demand, from time to time, only what necessity required. The constitution of the present day is the outcome of this long-continued and incessant struggle. It reflects in its form and character the existing distribution of political power within the state.

If we go back far enough we find government nearly everywhere in the hands of a King and privileged class. In its earlier stages the constitutional struggle was between monarchy and aristocracy, the King seeking to make his authority supreme and the nobility seeking to limit and circumscribe it. Accordingly, government oscillated between monarchy and aristocracy, a strong and ambitious King getting the reins of government largely in his own hands, while the aristocracy encroached upon the power and prerogatives of a weak and incompetent one. Thus democracy played no part in the earlier constitutional struggles. The all-important question was whether the King or the nobility should control the state. Civil wars were waged to decide it, and government gravitated toward monarchy or aristocracy according as the monarchical or aristocratic party prevailed.

Under William the Conqueror and his immediate successors the government of England was practically an absolute monarchy. Only the highest class was consulted in the Great Council and the advice of these the King was not obliged to follow. Later, as a result of the memorable controversy between King John and his feudal barons, the Great Council regained the power which it had lost. Against the King were arrayed the nobility, the church as represented by its official hierarchy, and the freemen of the realm, all together constituting but a small minority of the English people. The Great Charter extorted from the King on this occasion, though frequently referred to as the foundation of English liberty, was in reality a matter of but little immediate importance to the common people. The benefit of its provisions, while not limited to the nobility, extended, however, only to those classes without whose aid and support the tyrannical power of the King could not be successfully opposed. The church, by reason of the great wealth which it controlled and the powerful influence which it exerted in a superstitious age over the minds of the people, was a factor that could not be ignored. The freemen also played an important part in the constitutional struggles, since they carried the sword and formed the rank and file of the fighting class. The important provisions of the Great Charter relate exclusively to the rights of the church, the nobility and the freemen. The serfs, while not included within the benefit of its provisions, were an overwhelming majority of the English people. This conclusion is irresistible in view of the fact that the Domesday Survey shows that about four-fifths of the adult male population in the year 1085 were below the rank of freemen.[1]

The Great Charter was, it is true, an important step in the direction of constitutional government, but it contained no element of democracy. It merely converted the government from one in which monarchy was the predominant feature, to one in which the aristocratic element was equally important. The classes represented in the Great Council became a constitutional check on the power of the King, inasmuch as he could not levy taxes without their consent. The important constitutional position which this charter assigned to the nobility was not maintained, however, without repeated struggles under succeeding Kings; but it laid the foundation for the subsequent development which limited and finally abolished the power of the monarch.

In the course of time the Great Council split up into two separate bodies, the House of Lords, composed of the greater nobility and the higher dignitaries of the church, and the House of Commons, representing all other classes who enjoyed political rights. When the House of Commons thus assumed a definite and permanent form as a separate body, a new check upon the power of the King appeared. The consent of two separate bodies was now necessary before taxes could be imposed. The development of these checks was hastened by the fact that the King found it easier and safer to get the assent of these bodies to measures which involved an exercise of the taxing power, than to attempt the collection of taxes without their support. In this way the right of assenting to all measures of taxation came in time to be recognized as belonging to the two houses of Parliament. But this was a right not easily established. It was claimed and fought for a long time before it finally became a firmly established principle of the English Constitution. Around the question of taxation centered all the earlier constitutional struggles. The power to tax was the one royal prerogative which was first limited. In time Parliament extended its powers and succeeded in making its assent necessary to all governmental acts which vitally affected the welfare of the nation, whether they involved an exercise of the taxing power or not. The law-making power, however, as we understand it now was seldom employed, the idea of social readjustment through general legislation being a recent growth. But as revenues were necessary, the taxing power was the one legislative function that was constantly exercised. It is not strange then that the earlier constitutional development should have turned mainly upon the relation of the various political classes to the exercise of this power.

That English constitutional development resulted in a parliament composed of two houses may be regarded as accidental. Instead of this double check upon the King there might conceivably have been more than two, or there might, as originally was the case, have been only one. Two distinct elements, the secular nobility and the dignitaries of the church, combined to form the House of Lords. The House of Commons was also made up of two distinct constituencies, one urban and the other rural. If each of these classes had deliberated apart and acquired the right to assent to legislation as a separate body, a four-chambered parliament, such as existed in Sweden up to 1866 and still survives in Finland, would have been the result.[2]

The essential fact, everywhere to be observed in the development of constitutional government, is the rise to political power of classes which compete with the King and with each other for the control of the state. The monopoly of political power enjoyed by the King was broken down in England when the nobility compelled the signing of Magna Charta. This change in the English Constitution involved the placing of a check upon the King in the interest of the aristocracy. Later, with the development of the House of Commons as a separate institution, the power of the King was still further limited, this time in the interest of what we may call the commercial and industrial aristocracy.

At this stage of its development the English government contained a system of checks and balances. The King still retained legislative power, but could not use it without the consent of both Lords and Commons. Each branch of the government possessed the means of defending itself, since it had what was in effect an absolute veto on legislation. This is a stage in political evolution through which governments naturally pass. It is a form of political organization intermediate between monarchy and democracy, and results from the effort to check and restrain, without destroying, the power of the King. When this system of checks was fully developed the King, Lords and Commons were three coordinate branches of the English government. As the concurrence of all three was necessary to enact laws, each of these could defeat legislation desired by the other two.

The development of this system of checks limited the irresponsible power of the King only on its positive side. The negative power of absolute veto the King still retained. While he could not enact laws without the consent of the other two coordinate branches of the government, he still had the power to prevent legislation. The same was true of the Lords and Commons. As each branch of government had the power to block reform, the system was one which made legislation difficult.

The system of checks and balances must not be confused with democracy; it is opposed to and can not be reconciled with the theory of popular government. While involving a denial of the right of the King or of any class to a free hand in political matters, it at the same time denies the right of the masses to direct the policy of the state This would be the case even if one branch of the government had the broadest possible basis. If the House of Commons had been a truly popular body in the eighteenth century, that fact would not of itself have made the English government as a whole popular in form. While it would have constituted a popular check on the King and the House of Lords, it would have been powerless to express the popular will in legislation.

The House of Commons was not, however, a popular body in the eighteenth century. In theory, of course, as a part of Parliament it represented the whole English people. But this was a mere political fiction, since by reason of the narrowly limited suffrage, a large part of the English people had no voice in parliamentary elections. Probably not one-fifth of the adult male population was entitled to vote for members of Parliament. As the right to vote was an incident of land ownership, the House of Commons was largely representative of the same interests that controlled the House of Lords.

That the House of Commons was not democratic in spirit is clearly seen in the character of parliamentary legislation. The laws enacted during this period were distinctly undemocratic. While the interests of the land-holding aristocracy were carefully guarded, the well-being of the laboring population received scant consideration. The poor laws, the enclosure acts and the corn laws, which had in view the prosperity of the landlord, and the laws against combination, which sought to advance the interests of the capitalist at the expense of the laborer, show the spirit of the English government prior to the parliamentary reform of 1832. The landlord and capitalist classes controlled the government and, as Professor Rogers observes, their aim was to increase rents and profits by grinding the English workman down to the lowest pittance. "I contend," he says, "that from 1563 to 1824, a conspiracy, concocted by the law and carried out by parties interested in its success, was entered into, to cheat the English workman of his wages, to tie him to the soil, to deprive him of hope, and to degrade him into irremediable poverty."[3]

But it is not in statute law alone that this tendency is seen. English common law shows the same bias in favor of the classes which then controlled the state. There is no mistaking the influences which left their impress upon the development of English law at the hands of the courts. The effect of wealth and political privilege is seen here as well as in statutory enactment. Granting all that can justly be said in behalf of the wisdom and reasonableness of the common law, the fact nevertheless remains, that its development by the courts has been influenced by an evident disposition to favor the possessing as against the non-possessing classes. Both the common and the statute law of England reflected in the eighteenth century the political supremacy of the well-to-do minority.



CHAPTER II

THE AMERICAN GOVERNMENT OF THE REVOLUTIONARY PERIOD

The American colonists inherited the common law and the political institutions of the mother country. The British form of government, with its King, Lords and Commons and its checks upon the people, they accepted as a matter of course. In their political thinking they were not consciously more democratic than their kinsmen across the Atlantic. Many of them, it is true, had left England to escape what they regarded as tyranny and oppression. But to the form of the English government as such they had no objection. The evils which they experienced were attributed solely to the selfish spirit in which the government was administered.

The conditions, however, were more favorable for the development of a democratic spirit here than in the mother country. The immigrants to America represented the more active, enterprising and dissatisfied elements of the English people. Moreover, there was no hereditary aristocratic class in the colonies and less inequality in the distribution of wealth. This approach to industrial and social equality prepared the mind for the ideas of political equality which needed only the stimulus of a favorable opportunity to ensure their speedy development.

This opportunity came with the outbreak of the American Revolution which at the outset was merely an organized and armed protest against what the colonies regarded as an arbitrary and unconstitutional exercise of the taxing power. As there was no widespread or general dissatisfaction with the form of the English government, there is scarcely room for doubt that if England had shown a more prudent and conciliatory spirit toward the colonies, the American Revolution would have been averted. No sooner, however, had the controversy with the mother country reached the acute revolutionary stage, than the forces which had been silently and unconsciously working toward democracy, found an opportunity for political expression. The spirit of resistance to what was regarded as unconstitutional taxation rapidly assumed the form of avowed opposition to the English Constitution itself. The people were ready for a larger measure of political democracy than the English Constitution of the eighteenth century permitted. To this new and popular view of government the Declaration of Independence gave expression. It contained an emphatic, formal and solemn disavowal of the political theory embodied in the English Constitution; affirmed that "all men are created equal;" that governments derive "their just powers from the consent of the governed;" and declared the right of the people to alter or to abolish the form of the government "and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." This was a complete and sweeping repudiation of the English political system, which recognized the right of monarchy and aristocracy to thwart the will of the people.

To what extent the Declaration of Independence voiced the general sentiment of the colonies is largely a matter of conjecture. It is probable, however, that its specification of grievances and its vigorous arraignment of the colonial policy of the English government appealed to many who had little sympathy with its express and implied advocacy of democracy. It is doubtless true that many were carried along with the revolutionary movement who by temperament and education were strongly attached to English political traditions. It is safe to conclude that a large proportion of those who desired to see American independence established did not believe in thoroughgoing political democracy.

Besides those who desired independence without being in sympathy with the political views expressed in the Declaration of Independence, there were many others who were opposed to the whole Revolutionary movement. The numerical strength of the Tories can not be accurately estimated; but it is certain that a large proportion, probably not less than one-third of the total population of the colonies, did not approve of the war.[4]

"In the first place, there was, prior to 1776, the official class; that is, the men holding various positions in the civil and military and naval services of the government, their immediate families, and their social connections. All such persons may be described as inclining to the Loyalist view in consequence of official bias.

"Next were certain colonial politicians who, it may be admitted, took a rather selfish and an unprincipled view of the whole dispute, and who, counting on the probable, if not inevitable, success of the British arms in such a conflict, adopted the Loyalist side, not for conscience' sake, but for profit's sake, and in the expectation of being rewarded for their fidelity by offices and titles, and especially by the confiscated estates of the rebels after the rebels themselves should have been defeated, and their leaders hanged or sent into exile.

"As composing still another class of Tories, may be mentioned probably a vast majority of those who stood for the commercial interests, for the capital and tangible property of the country, and who, with the instincts natural to persons who have something considerable to lose, disapproved of all measures for pushing the dispute to the point of disorder, riot and civil war.

"Still another class of Loyalists was made up of people of professional training and occupation—clergymen, physicians, lawyers, teachers—a clear majority of whom seem to have been set against the ultimate measures of the Revolution.

"Finally, and in general, it may be said that a majority of those who, of whatever occupation, of whatever grade of culture or of wealth, would now be described as conservative people, were Loyalists during the American Revolution."[5]

These classes prior to the Revolution had largely shaped and molded public opinion; but their opposition to the movement which they were powerless to prevent, destroyed their influence, for the time being, in American politics. The place which they had hitherto held in public esteem was filled by a new class of leaders more in sympathy with the newly born spirit of liberalism. This gave to the revolutionary movement a distinctly democratic character.

This drift toward democracy is seen in the changes made in the state constitutions after the outbreak of the Revolution. At the close of the colonial period, nearly all the state governments were modeled after the government of Great Britain. Each colony had its legislative body elected by the qualified voters and corresponding in a general way to the House of Commons. In all the colonies except Pennsylvania and Georgia there was also an upper legislative house or council whose consent was necessary before laws could be enacted. The members composing this branch of the legislature were appointed by the governor except in Massachusetts where they were elected by the lower branch of the legislature, subject to a negative by the royal governor, and in Rhode Island and Connecticut where they were chosen by the electorate.

The governor was elected by the voters only in Rhode Island and Connecticut; in all the other colonies he was appointed by the proprietaries or the Crown, and, though independent of the people, exercised many important powers. He was commander-in-chief of the armed forces of the colony; appointed the judges and all other civil and military officers; appointed and could suspend the council, which was usually the upper branch of the legislature; he could convene and dissolve the legislature and had besides an unqualified veto on all laws; he also had an unrestricted pardoning power.

The possession of these far-reaching powers gave to the irresponsible executive branch of the colonial government a position of commanding importance. This was not the case, however, in Connecticut and Rhode Island. Although the governor in these two colonies was responsible to the voters, inasmuch as he was elected by them, still he had no veto, and the appointing power was in the hands of the legislature.

The tidal-wave of democracy, which swept over the colonies during the Revolution, largely effaced the monarchical and aristocratic features of the colonial governments. Connecticut and Rhode Island, which already had democratic constitutions, were the only states which did not modify their form of government during this period. All the rest adopted new constitutions which show in a marked degree the influence of the democratic movement. In these new constitutions we see a strong tendency to subordinate the executive branch of the government and confer all important powers on the legislature. In the four New England states and in New York the governor was elected by the qualified voters; in all the rest he was chosen by the legislature. In ten states during this period his term of office was one year; in South Carolina it was two and in New York and Delaware it was three years. In addition to this the six Southern states restricted his re-election. Besides, there was in every state an executive or privy council which the governor was required to consult on all important matters. This was usually appointed by the legislature and constituted an important check on the governor.

The power to veto legislation was abolished in all but two states. In Massachusetts the governor, and in New York the Council of Revision composed of the governor and the chancellor and judges of the Supreme Court, had a qualified veto power. But a two-thirds majority in both houses of the legislature could override the veto of the governor in Massachusetts, or that of the Council of Revision in New York. The pardoning power of the governor was quite generally restricted. In five states he was allowed to exercise it only with the advice or consent of the council.[6] In three states, where the advice or consent of a council was not required, he could, subject to certain restrictions, grant pardons except where "the law shall otherwise direct."[7] The constitution of Georgia in express terms deprived the governor of all right to exercise this power.

The appointing power of the governor was also taken away or restricted. In four of the eleven states adopting new constitutions during this period he was allowed to exercise it jointly with the council.[8] In six states it was given to the legislature, or to the legislature and council.[9] The power of the governor to dissolve the legislature or either branch of it was everywhere abolished.

The supremacy of the legislature under these early state constitutions is seen also in the manner of appointment, the tenure and the powers of the judiciary. In nine states[10] the judges were elected by the state legislature, either with or without the consent of a council. In Maryland, Massachusetts, New Hampshire, and Pennsylvania they were appointed by the governor with the consent of the council. But this really amounted to indirect legislative appointment in Maryland, since both the governor and council in that state were elected annually by the legislature. The legislature also had a voice in the appointment of judges in Pennsylvania, New Hampshire and Massachusetts, since it elected the executive in the first and the council in the others. In nine states, then, the judges were elected directly by the legislature; in one indirectly by the legislature; in the other three the legislature participated in their election through an executive or a council of its own choosing.

In every state the judges could be impeached by the lower branch of the legislature and expelled from office on conviction by the senate or other tribunal, as the constitution prescribed. Moreover, in six states[11] they could be removed according to the English custom by the executive on an address from both branches of the legislature. The term of office of the judges in eight states[12] was during good behavior. In New Jersey and Pennsylvania they were appointed for seven years, and in Rhode Island, Connecticut, and Georgia they were chosen annually.

The legislature under these early state constitutions was hampered neither by the executive nor by the courts. It had all law-making power in its own hands. In no state could the courts thwart its purpose by declaring its acts null and void. Unchecked by either executive or judicial veto its supremacy was undisputed.

From the foregoing synopsis of the state constitutions of this period it is evident that their framers rejected entirely the English theory of checks and balances. The principle of separation of powers as expounded by Montesquieu and Blackstone, found little favor with those who controlled American politics at this time. Instead of trying to construct a state government composed of coordinate branches, each acting as a check upon the others, their aim was to make the legislature supreme. In this respect the early state constitutions anticipated much of the later development of the English government itself.

The checks and balances, and separation of powers, which characterized the government of England and her American colonies in the eighteenth century, resulted from the composite character of the English Constitution—its mixture of monarchy, aristocracy, and democracy. It is not surprising, then, that with the temporary ascendency of the democratic spirit, the system of checks should have been largely discarded.

This democratic tendency is seen also in our first federal constitution, the Articles of Confederation, which was framed under the impulse of the Revolutionary movement. This document is interesting as an expression of the political philosophy of the Revolution; but like the state constitutions of that period, it has had few friendly critics among later political writers. Much emphasis has been put upon its defects, which were many, while but little attention has been given to the political theory which it imperfectly embodied. That it failed to provide a satisfactory general government may be admitted; but this result must not be accepted as conclusive proof that the principles underlying it were altogether false.

The chief feature of the Articles of Confederation was the entire absence of checks and balances. All the powers conferred upon the general government were vested in a single legislative body called the Continental Congress, which was unchecked by a distinct executive or judiciary. In this respect it bore a striking resemblance to the English government of to-day with its omnipotent House of Commons. But, unlike the English government of to-day, its powers were few and narrowly limited. Its failure was due, perhaps, not to the fact that the powers granted to the confederation were vested exclusively in a single legislative body, but to the fact that the powers thus granted were not sufficient for maintaining a strong and effective central government.

The reason for the weakness of the general government under the Articles of Confederation is obvious to the student of American history. It was only gradually, and as necessity compelled cooperation between the colonies, that the sentiment in favor of political union developed. And though some tendencies in this direction are seen more than a century before the American Revolution, the progress toward a permanent union was slow and only the pressure of political necessity finally brought it about.

As early as 1643 Massachusetts, Plymouth, Connecticut and New Haven formed a "perpetual confederation" under the name of the "United Colonies of New England." The motive for this union was mainly offence and defence against the Indian tribes and the Dutch, though provision was also made for the extradition of servants and fugitives from justice. The management of the common interests of these colonies was vested in a board of eight commissioners—two from each colony—and, in transacting the business of the confederacy, the consent of six of the eight commissioners was required. Any matter which could not be thus disposed of was to be referred to the four colonial legislatures. The general government thus provided for could not inter-meddle "with the government of any of the jurisdictions." No provision was made for amending the "Articles of Confederation," and only by the unanimous consent of these colonies could any other colony be admitted to the confederacy. This union lasted for over forty years.[13]

Again in 1754 the pressure of impending war with the French and Indians brought together at Albany a convention of delegates from seven colonies north of the Potomac. A plan of union drafted by Benjamin Franklin was recommended by this convention, but it was not regarded with favor either by the colonies or by the English government. The former regarded it as going too far in the direction of subordinating the separate colonies to a central colonial authority, while for the latter it was too democratic.[14]

The union of all the colonies under the Articles of Confederation was finally brought about through the pressure of military necessity during the Revolution. Nor is it surprising, in view of the history of the American colonies, that they reluctantly yielded up any powers to a central authority. We must bear in mind that the Revolution was in a measure a democratic movement, and that democracy was then found only in local government. The general governments of all countries were at that time monarchical or aristocratic. Tyranny in the eighteenth century was associated in the minds of the people with an undue extension or abuse of the powers exercised by the undemocratic central government. It is not surprising, then, that the Revolutionary federal constitution, the Articles of Confederation, should have failed to provide a general government sufficiently strong to satisfy the needs of the country after the return of peace.

It must not be inferred, however, that the political changes which immediately followed the outbreak of the Revolution were in the nature of sweeping democratic reforms. Much that was thoroughly undemocratic remained intact. The property qualifications for the suffrage were not disturbed by the Revolutionary movement and were finally abolished only after the lapse of nearly half a century. The cruel and barbarous system of imprisonment for debt which the colonies had inherited from England, and which often made the lot of the unfortunate debtor worse than that of the chattel slave, continued in several of the states until long after the Revolution. Marked as was the democratic tendency during the first few years of our independence, it nevertheless left untouched much that the progress of democracy has since abolished.



CHAPTER III

THE CONSTITUTION A REACTIONARY DOCUMENT

The sweeping changes made in our form of government after the Declaration of Independence were clearly revolutionary in character. The English system of checks and balances was discarded for the more democratic one under which all the important powers of government were vested in the legislature. This new scheme of government was not, however, truly representative of the political thought of the colonies. The conservative classes who in ordinary times are a powerful factor in the politics of every community had, by reason of their Loyalist views, no voice in this political reorganization; and these, as we have seen, not only on account of their wealth and intelligence, but on the basis of their numerical strength as well, were entitled to considerable influence.

With the return of peace these classes which so largely represented the wealth and culture of the colonies, regained in a measure the influence which they had lost. This tended strongly to bring about a conservative reaction. There was besides another large class which supported the Revolutionary movement without being in sympathy with its democratic tendencies. This also used its influence to undo the work of the Revolutionary radicals. Moreover, many of those who had espoused democratic doctrines during the Revolution became conservatives after the war was over.[15] These classes were naturally opposed to the new political doctrines which the Revolutionary movement had incorporated in the American government. The "hard times" and general discontent which followed the war also contributed to the reactionary movement; since many were led to believe that evils which were the natural result of other causes were due to an excess of democracy. Consequently we find the democratic tendency which manifested itself with the outbreak of the Revolution giving place a few years later to the political reaction which found expression in our present Constitution.

"The United States are the offspring of a long-past age. A hundred years, it is true, have scarcely passed since the eighteenth century came to its end, but no hundred years in the history of the world has ever before hurried it along so far over new paths and into unknown fields. The French Revolution and the First Empire were the bridge between two periods that nothing less than the remaking of European society, the recasting of European politics, could have brought so near.

"But back to this eighteenth century must we go to learn the forces, the national ideas, the political theories, under the domination of which the Constitution of the United States was framed and adopted."[16]

It is the general belief, nevertheless, that the Constitution of the United States is the very embodiment of democratic philosophy. The people take it for granted that the framers of that document were imbued with the spirit of political equality and sought to establish a government by the people themselves. Widely as this view is entertained, it is, however, at variance with the facts.

"Scarcely any of these men [the framers of the Constitution] entertained," says Fiske, "what we should now call extreme democratic views. Scarcely any, perhaps, had that intense faith in the ultimate good sense of the people which was the most powerful characteristic of Jefferson."[17]

Democracy—government by the people, or directly responsible to them—was not the object which the framers of the American Constitution had in view, but the very thing which they wished to avoid. In the convention which drafted that instrument it was recognized that democratic ideas had made sufficient progress among the masses to put an insurmountable obstacle in the way of any plan of government which did not confer at least the form of political power upon the people. Accordingly the efforts of the Constitutional Convention were directed to the task of devising a system of government which was just popular enough not to excite general opposition and which at the same time gave to the people as little as possible of the substance of political power.

It is somewhat strange that the American people know so little of the fundamental nature of their system of government. Their acquaintance with it extends only to its outward form and rarely includes a knowledge of the political philosophy upon which it rests. The sources of information upon which the average man relies do not furnish the data for a correct understanding of the Constitution. The ordinary text-books and popular works upon this subject leave the reader with an entirely erroneous impression. Even the writings of our constitutional lawyers deal with the outward form rather than the spirit of our government. The vital question—the extent to which, under our constitutional arrangements, the people were expected to, and as a matter of fact do, control legislation and public policy, is either not referred to, or else discussed in a superficial and unsatisfactory manner. That this feature of our Constitution should receive more attention than it does is evident when we reflect that a government works well in practice in proportion as its underlying philosophy and constitutional forms are comprehended by those who wield political power.

"It has been common," says a late Justice of the United States Supreme Court, "to designate our form of government as a democracy, but in the true sense in which that term is properly used, as defining a government in which all its acts are performed by the people, it is about as far from it as any other of which we are aware."[18]

In the United States at the present time we are trying to make an undemocratic Constitution the vehicle of democratic rule. Our Constitution embodies the political philosophy of the eighteenth century, not that of to-day. It was framed for one purpose while we are trying to use it for another. Is free government, then, being tried here under the conditions most favorable to its success? This question we can answer only when we have considered our Constitution as a means to the attainment of democratic rule.

It is difficult to understand how anyone who has read the proceedings of the Federal Convention can believe that it was the intention of that body to establish a democratic government. The evidence is overwhelming that the men who sat in that convention had no faith in the wisdom or political capacity of the people. Their aim and purpose was not to secure a larger measure of democracy, but to eliminate as far as possible the direct influence of the people on legislation and public policy. That body, it is true, contained many illustrious men who were actuated by a desire to further what they conceived to be the welfare of the country. They represented, however, the wealthy and conservative classes, and had for the most part but little sympathy with the popular theory of government.

"Hardly one among them but had sat in some famous assembly, had signed some famous document, had filled some high place, or had made himself conspicuous for learning, for scholarship, or for signal services rendered in the cause of liberty. One had framed the Albany plan of union; some had been members of the Stamp Act Congress of 1765; some had signed the Declaration of Rights in 1774; the names of others appear at the foot of the Declaration of Independence and at the foot of the Articles of Confederation; two had been presidents of Congress; seven had been, or were then, governors of states; twenty-eight had been members of Congress; one had commanded the armies of the United States; another had been Superintendent of Finance; a third had repeatedly been sent on important missions to England, and had long been Minister to France.

"Nor were the future careers of many of them to be less interesting than their past. Washington and Madison became Presidents of the United States; Elbridge Gerry became Vice-President; Charles Cotesworth Pinckney and Rufus King became candidates for the Presidency, and Jared Ingersoll, Rufus King, and John Langdon candidates for the Vice-Presidency; Hamilton became Secretary of the Treasury; Madison, Secretary of State; Randolph, Attorney-General and Secretary of State, and James McHenry, a Secretary of War; Ellsworth and Rutledge became Chief-Justices; Wilson and John Blair rose to the Supreme bench; Gouverneur Morris, and Ellsworth, and Charles C. Pinckney, and Gerry, and William Davie became Ministers abroad."[19]

The long list of distinguished men who took part in the deliberations of that body is noteworthy, however, for the absence of such names as Samuel Adams, Thomas Jefferson, Thomas Paine, Patrick Henry and other democratic leaders of that time. The Federal Convention assembled in Philadelphia only eleven years after the Declaration of Independence was signed, yet only six of the fifty-six men who signed that document were among its members.[20] Conservatism and thorough distrust of popular government characterized throughout the proceedings of that convention. Democracy, Elbridge Gerry thought, was the worst of all political evils.[21] Edmund Randolph observed that in tracing the political evils of this country to their origin, "every man [in the Convention] had found it in the turbulence and follies of democracy."[22] These views appear to reflect the general opinion of that body. Still they realized that it was not the part of wisdom to give public expression to this contempt for democracy. The doors were closed to the public and the utmost secrecy maintained with regard to the proceedings. Members were not allowed to communicate with any one outside of that body concerning the matters therein discussed, nor were they permitted, except by a vote of the Convention, to copy anything from the journals.[23]

It must be borne in mind that the Convention was called for the purpose of proposing amendments to the Articles of Confederation. The delegates were not authorized to frame a new constitution. Their appointment contemplated changes which were to perfect the Articles of Confederation without destroying the general form of government which they established. The resolution of Congress of February 21, 1787, which authorized the Federal Convention, limited its business to "the sole and express purpose of revising the Articles of Confederation," and the states of New York, Massachusetts, and Connecticut copied this in the instructions to their delegates.[24] The aim of the Convention, however, from the very start was not amendment, but a complete rejection of the system itself, which was regarded as incurably defective.

This view was well expressed by James Wilson in his speech made in favor of the ratification of the Constitution before the Pennsylvania convention.

"The business, we are told, which was entrusted to the late Convention," he said, "was merely to amend the present Articles of Confederation. This observation has been frequently made, and has often brought to my mind a story that is related of Mr. Pope, who, it is well known, was not a little deformed. It was customary with him to use this phrase, 'God mend me!' when any little accident happened. One evening a link-boy was lighting him along, and, coming to a gutter, the boy jumped nimbly over it. Mr Pope called to him to turn, adding, 'God mend me!' The arch rogue, turning to light him, looked at him, and repeated, 'God mend you! He would sooner make half-a-dozen new ones.' This would apply to the present Confederation; for it would be easier to make another than to amend this."[25]

The popular notion that this Convention in framing the Constitution was actuated solely by a desire to impart more vigor and efficiency to the general government is but a part of the truth. The Convention desired to establish not only a strong and vigorous central government, but one which would at the same time possess great stability or freedom from change. This last reason is seldom mentioned in our constitutional literature, yet it had a most important bearing on the work of the Convention. This desired stability the government under the Confederation did not possess, since it was, in the opinion of the members of the Convention, dangerously responsive to public opinion; hence their desire to supplant it with an elaborate system of constitutional checks. The adoption of this system was the triumph of a skillfully directed reactionary movement.

Of course the spirit and intention of the Convention must be gathered not from the statements and arguments addressed to the general public in favor of the ratification of the Constitution, but from what occurred in the Convention itself. The discussions which took place in that body indicate the real motives and purposes of those who framed the Constitution. These were carefully withheld from the people and it was not until long afterward that they were accessible to students of the American Constitution. The preamble began with, "We, the people," but it was the almost unanimous sentiment of the Convention that the less the people had to do with the government the better. Hamilton wanted to give the rich and well born "a distinct, permanent share in the government."[26] Madison thought the government ought "to protect the minority of the opulent against the majority."[27] The prevalence of such views in this Convention reminds one of Adam Smith's statement, made a few years before in his "Wealth of Nations," that "civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all."[28] The solicitude shown by the members of this convention for the interests of the well-to-do certainly tends to justify Adam Smith's observation.

The framers of the Constitution realized, however, that it would not do to carry this system of checks upon the people too far. It was necessary that the government should retain something of the form of democracy, if it was to command the respect and confidence of the people. For this reason Gerry thought that "the people should appoint one branch of the government in order to inspire them with the necessary confidence."[29] Madison also saw that the necessary sympathy between the people and their rulers and officers must be maintained and that "the policy of refining popular appointments by successive filtrations" might be pushed too far.[30] These discussions, which took place behind closed doors and under pledge of secrecy, may be taken as fairly representing what the framers of our Constitution really thought of popular government. Their public utterances, on the other hand, influenced as they necessarily were, by considerations of public policy, are of little value. From all the evidence which we have, the conclusion is irresistible that they sought to establish a form of government which would effectually curb and restrain democracy. They engrafted upon the Constitution just so much of the features of popular government as was, in their opinion, necessary to ensure its adoption.



CHAPTER IV

THE SIGNIFICANCE OF THE AMENDMENT FEATURE OF THE CONSTITUTION

All democratic constitutions are flexible and easy to amend. This follows from the fact that in a government which the people really control, a constitution is merely the means of securing the supremacy of public opinion and not an instrument for thwarting it. Such a constitution can not be regarded as a check upon the people themselves. It is a device for securing to them that necessary control over their agents and representatives, without which popular government exists only in name. A government is democratic just in proportion as it responds to the will of the people; and since one way of defeating the will of the people is to make it difficult to alter the form of government, it necessarily follows that any constitution which is democratic in spirit must yield readily to changes in public opinion.

Monarchical and aristocratic constitutions on the other hand are always extremely conservative. Inasmuch as they express the opinion and guarantee the privileges of a dominant class, they are bulwarks erected against popular change. The privileged classes of any society regard stability as the chief political desideratum. They resist, and if possible prevent, those legal and political readjustments which the general progress of society makes necessary. Their interests are furthered in proportion as the system is one which renders change difficult.

With this distinction in mind let us examine the Constitution of the United States. Was it the intention of the framers of this instrument that it should be merely a check upon the governmental machinery with the view of establishing popular control over it, or was it expected to constitute a check upon the people themselves? That it was not intended that the people should be given direct and complete control over the general policy of the government is clear from the fact that the Constitution was made so difficult to amend; for the right to control the political machinery, implies of necessity the right to make such changes in it from time to time, as are needed to make this control effective. It is evident from the views expressed in the Convention that one object of the Constitution was to secure stability by placing the government beyond the direct influence of public opinion.

Madison, who has been called the "father of the Constitution," thought it "ought to secure the permanent interests of the country against innovation."[31] Hamilton said "all communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people ... [the latter] are turbulent and changing; they seldom judge or determine right." Therefore he advocated a permanent senate which would be able to "check the imprudence of democracy."[32] Gouverneur Morris observed that "the first branch [of the proposed Federal Congress], originating from the people, will ever be subject to precipitancy, changeability, and excess.... This can only be checked by ability and virtue in the second branch ... [which] ought to be composed of men of great and established property—aristocracy; men who, from pride, will support consistency and permanency; and to make them completely independent, they must be chosen for life, or they will be a useless body. Such an aristocratic body will keep down the turbulence of democracy."[33]

This dread of the consequences of popular government was shared to a greater or less extent by nearly all the members of that Convention. Their aim was to find a cure for what they conceived to be the evils of an excess of democracy.

"Complaints," says Madison in The Federalist, "are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."[34]

This criticism of the American government of the Revolutionary period gives us the point of view of the framers of the Constitution. We should remember, however, that the so-called majority rule to which Madison attributed the evils of that time had nothing in common with majority rule as that term is now understood. Under the laws then in force the suffrage was greatly restricted, while the high property qualifications required for office-holding had the effect in many cases of placing the control of legislation in the hands of the wealthier part of the community. But undemocratic as the system was, it was not sufficiently undemocratic to suit the framers of the Constitution. It was no part of their plan to establish a government which the people could control. In fact, popular control was what they were seeking to avoid. One means of accomplishing this was to make amendment difficult, and this accordingly was done. We need not be surprised that no provision was made for its original adoption, or subsequent amendment by direct popular vote.[35]

The fact that the people can not directly propose, or even ratify changes in the fundamental law, is a substantial check upon democracy. But in addition to this, another check was provided in the extraordinary majority necessary to amend the Constitution. That it requires a two-thirds majority of both houses of Congress, or an application from the legislature in two-thirds of the states to merely set the machinery for constitutional amendment in motion, and that it requires for ratification of amendments proposed, the assent of legislatures or conventions in three-fourths of the states, ought to give one some idea of the extreme difficulty of changing our Constitution.

Patrick Henry clearly saw that this lack of adequate provision for amendment was destructive of democracy. In the Virginia convention held to ratify the Constitution he said:

"To encourage us to adopt it, they tell us that there is a plain, easy way of getting amendments. When I come to contemplate this part, I suppose that I am mad, or that my countrymen are so. The way to amendment is, in my conception, shut ..." After quoting Article V (the amendment feature of the Constitution), he continues:

"Hence it appears that three-fourths of the states must ultimately agree to any amendments that may be necessary. Let us consider the consequence of this.... Let us suppose—for the case is supposable, possible and probable—that you happen to deal those powers to unworthy hands; will they relinquish powers already in their possession, or agree to amendments? Two-thirds of Congress, or of the state legislatures, are necessary even to propose amendments. If one-third of these be unworthy men, they may prevent the application for amendments; but what is destructive and mischievous, is, that three-fourths of the state legislatures, or of the state conventions, must concur in the amendments when proposed! In such numerous bodies, there must necessarily be some designing, bad men. To suppose that so large a number as three-fourths of the states will concur, is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous.... For four of the smallest states, that do not collectively contain one-tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. Nay, in these four states, six-tenths of the people may reject these amendments.... A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression, by refusing to accede to amendments.... Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation, when the most contemptible minority can prevent the alteration of the most oppressive government; for it may, in many respects, prove to be such."[36]

That such a small minority of the people should have the power under our constitutional arrangements to prevent reform, can hardly be reconciled with the general belief that in this country the majority rules. Yet small as was this minority when the Constitution was adopted, it is much smaller now than it was then. In 1900 one forty-fourth of the population distributed so as to constitute a majority in the twelve smallest states could defeat any proposed amendment. As a matter of fact it is impossible to secure amendments to the Constitution, unless the sentiment in favor of change amounts almost to a revolution. Only at critical times in our history have constitutional amendments been adopted. During sixty-one years from 1804 to 1865, and since 1870, no amendments have been made. The fifteen amendments were all adopted, either during the turbulent period of American politics which immediately followed the ratification of the Constitution, or during the reconstruction period after the Civil War. That it is not possible in ordinary times to change the Constitution is evident from the fact that of some twenty-two hundred propositions for amendment only fifteen have been adopted, and these during the periods above mentioned.[37]

"The argument in favor of these artificial majorities," says Professor Burgess, "is that innovation is too strong an impulse in democratic states, and must be regulated; that the organic law should be changed only after patience, experience and deliberation shall have demonstrated the necessity of the change; and that too great fixedness of the law is better than too great fluctuation. This is all true enough; but, on the other hand, it is equally true that development is as much a law of state life as existence. Prohibit the former, and the latter is the existence of the body after the spirit has departed. When, in a democratic political society, the well-matured, long and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority, where the sovereignty of the bare majority is acknowledged. The safeguards against too radical change must not be exaggerated to the point of dethroning the real sovereign."[38]

What Professor Burgess seems to overlook is the fact that the framers of the Constitution deliberately intended to dethrone the numerical majority. The restrictions which they placed upon the exercise of the amending power were not only not inconsistent with the form of government which they established, but as a matter of fact absolutely necessary to ensure its preservation, since without such a limitation of the power to amend, the majority could easily overcome all other checks upon its authority.

This feature of the Constitution, which nominally provides for amendment, but really makes it an impossibility, is perhaps the best proof we could have that the Constitution as framed and adopted represented the views of a minority who intended by this means to perpetuate their influence. But, we are told, this can not be the case since the states were free to accept or reject it. Let us not forget, however, that at no stage of the proceedings was the matter referred directly to the people. Bryce says: "Had the decision been left to what is now called 'the voice of the people,' that is, to the mass of the citizens all over the country, voting at the polls, the voice of the people would probably have pronounced against the Constitution."[39] Moreover, "the Convention met," as he observes, "at the most fortunate moment in American History [for securing the adoption of such a constitution].... Had it been attempted four years earlier or four years later at both of which times the waves of democracy were running high, it must have failed."[40] But even under these favoring conditions it was no easy task to get the states to adopt it. The advocates of the Constitution employed every argument and influence that could contribute to the desired result. They appealed with telling effect to the dread of European aggression. This induced many who had little sympathy with the proposed plan of government, to acquiesce in its adoption, believing that some sort of a strong government was necessary for purposes of defence. It was also boldly charged that money was employed to overcome opposition where other means of persuasion failed.[41]

Our natural inclination is to disbelieve anything that reflects on the political methods employed by the founders of our government. Nevertheless, the widespread belief that the politicians and public men of that time were less corrupt than those of to-day is, as Professor McMaster says, a pure delusion. "A very little study of long-forgotten politics will suffice to show that in filibustering and gerrymandering, in stealing governorships and legislatures, in using force at the polls, in colonizing and in distributing patronage to whom patronage is due, in all the frauds and tricks that go to make up the worst form of practical politics, the men who founded our state and national governments were always our equals, and often our masters."[42] Of one thing we may be reasonably certain—the Constitution as adopted did not represent the political views of a majority of the American people—probably not even a majority of those entitled to vote. Universal suffrage, we must remember, did not then exist, and both property and religious qualifications limited the right to hold public office. This of itself is evidence that those who then controlled politics did not believe in the right of the majority to rule. And when we take account of the further fact that this was a time of political reaction, when the government of the country was largely in the hands of those who despised or feared democracy, we can easily see that the natural effects of a restricted suffrage may have been intensified by those methods of "practical politics" which not infrequently defeat the will of the majority even to-day under universal suffrage. That it was the intention of the framers of the Constitution to bring about, if possible, the adoption of a form of government of which the majority of the people did not approve, is clearly established by the record of their proceedings. Hamilton, referring to the plan of government which he had proposed, said: "I confess that this plan, and that from Virginia [the one submitted by Randolph and of which the Constitution as finally adopted was a modification], are very remote from the idea of the people. Perhaps the Jersey plan is nearest their expectation. But the people are gradually ripening in their opinions of government—they begin to be tired of an excess of democracy...."[43]

"The Federal government was not by intention a democratic government. In plan and structure it had been meant to check the sweep and power of popular majorities. The Senate, it was believed, would be a stronghold of conservatism, if not of aristocracy and wealth. The President, it was expected, would be the choice of representative men acting in the electoral college, and not of the people. The Federal judiciary was looked to, with its virtually permanent membership, to hold the entire structure of national politics in nice balance against all disturbing influences, whether of popular impulse or of official overbearance. Only in the House of Representatives were the people to be accorded an immediate audience and a direct means of making their will effective in affairs. The government had, in fact, been originated and organized upon the initiative and primarily in the interest of the mercantile and wealthy classes. Originally conceived as an effort to accommodate commercial disputes between the States, it had been urged to adoption by a minority, under the concerted and aggressive leadership of able men representing a ruling class. The Federalists not only had on their side the power of convincing argument, but also the pressure of a strong and intelligent class, possessed of unity and informed by a conscious solidarity of material interests."[44]

The Constitution would certainly have been rejected, notwithstanding the influences that were arrayed in favor of its adoption, but for the belief that it would shortly be amended so as to remove some of its more objectionable features. In the large and influential states of Massachusetts, New York, and Virginia it was ratified by very small majorities,[45] though each of these states accompanied its acceptance of the Constitution with various recommendations for amendment. As a result of these suggestions from the states ratifying it, the first Congress in 1789 framed and submitted the first ten amendments. The eleventh amendment was the outgrowth of the Supreme Court decision in the case of Chisholm v. The State of Georgia. In this case the court held, contrary to the interpretation given to the Constitution by Hamilton when defending it in The Federalist,[46] that a private plaintiff could sue a state in the Federal Court. This decision aroused a storm of indignation, and Congress in 1794 proposed the Eleventh Amendment, which counteracted the effect of this decision. The Twelfth Amendment, proposed by Congress in 1803, merely changed the method of electing the President to meet the requirements of the party system which had then come into existence.

These first twelve amendments were all adopted during the infancy of the Constitution, and while it was still regarded as an experiment. But though they had the effect of quieting public opinion and allaying the fears of the people concerning the new form of government, they made no important changes in the Constitution, leaving all its main features as originally adopted. The same may be said of the last three amendments, which were the result of the Civil War. They were proposed and ratified, as Bryce says, "under conditions altogether abnormal, some of the lately conquered states ratifying while actually controlled by the Northern armies, others as the price which they were obliged to pay for the readmission to Congress of their senators and representatives."[47] These amendments were really carried through, not by the free choice of three-fourths of the states, as the Constitution requires, "but under the pressure of a majority which had triumphed in a great war,"[48] and used military and political coercion to accomplish what otherwise could not have been brought about. Nothing could have been farther from the intention of the victorious Northern states at that time than any important change in the form or character of the government which they had waged a gigantic civil war to defend and enforce. Slavery, it is true, was abolished to remove forever the bone of contention between the North and the South. But the Constitution survived the Civil War, unchanged in all its essential features, and more firmly established than ever.

That the plan of government originally established has undergone no important modification by constitutional amendment can not be ascribed to the fact that important changes have not been suggested. With the growth of more liberal views concerning government many attempts have been made to remove the constitutional barriers erected by our forefathers to stay the progress of democracy. Among the political reforms contemplated by this numerous class of proposed amendments may be mentioned a shorter term for United States senators and election by popular vote; direct election of the President and the abolition of his veto power; a shorter term for Federal judges and their removal by the President on the joint address of both houses of Congress. The aim of all these proposed amendments has been the same, viz., to make the Constitution accord better with the democratic spirit of the time. It is interesting to observe, however, that with the single exception of the proposed election of United States senators by popular vote, not one of these had the support of either house of Congress, much less the two-thirds majority in both, or a majority in the legislatures of two-thirds of the states, as required to authorize their submission for ratification or rejection. Even this measure, which has passed the House of Representatives several times by an overwhelming vote, has been entirely ignored by the Senate.

No proposal, then, to make any important change in the Constitution has ever obtained the preliminary two-thirds majority, to say nothing of the majority in three-fourths of the states, necessary for its adoption.

That the majority required to propose an amendment is almost prohibitive of change, is shown by the record of popular elections and the journals of representative bodies. From the presidential election year of 1828, the first for which we have a record of the popular vote, down to 1900, the largest majority ever received by any candidate for the Presidency was that of Andrew Jackson in 1828, when he had less than 56 per cent. of the popular vote.[49] Nine elections since Jackson's time resulted in the choice of a President by less than a popular majority. No candidate in any presidential election from 1876 to 1900 inclusive has carried two-thirds of the states.[50]

It is still more difficult for any important reform measure to secure a two-thirds majority in a representative assembly, as the proceedings of Congress and our state legislatures abundantly prove. This is true for the reason that a wealthy minority can exert an influence over such bodies out of all proportion to its numerical strength at the polls. Hence even a bare majority can seldom be obtained for any measure which interferes with or restricts the privileges of organized wealth. A two-thirds majority under such circumstances is practically impossible. And when we remember that any proposed amendment to the Constitution must twice run the gauntlet of representative assemblies, receiving first a two-thirds majority in both houses of Congress and later a majority in both houses of the legislature or in conventions in three-fourths of the states, we readily see that this provision effectually precludes the possibility of any important amendment.

One of the principal objections to the Articles of Confederation—that they lacked a practical amending power—applies, then, with no less force to the Constitution itself. In one respect the Constitution is even more rigid than were the Articles of Confederation, since the Congress of the Confederation was the court of last resort for passing on the constitutionality of its own legislation. This gave to Congress under the Confederation at least a limited power of virtually amending the Articles of Confederation by the ordinary process of law-making—a power possessed by the legislature in all countries where the system of checks and balances is not recognized. Under the Constitution, however, this power to amend the fundamental law can be exercised only to a very limited extent by Congress, since the interpretation of the Constitution by that body for the purposes of law-making is subject to revision at the hands of the Federal Judiciary. The Constitution, then, more effectually prevents changes desired by the majority than did the Articles of Confederation, since the former guards against the possibility of amendment under the guise of ordinary legislation while the latter did not.

Another distinction must be borne in mind. The Articles of Confederation made amendment difficult in order to prevent the general government from encroaching on the rights of the several states. It was not so much a disposition to make change impossible, or even difficult, as, by keeping the general government within established bounds, to leave the several states free to regulate their own affairs and change their institutions from time to time to suit themselves.

This view finds support in the character of the early state constitutions. These were shaped by the same revolutionary movement which produced the Declaration of Independence, and were largely influenced in their practical working by the "self-evident" truths proclaimed in the latter. One of the axioms of political science embodied in the Declaration of Independence was the right of the people to alter or abolish the existing form of government. This principle, however, was expressly recognized in but few of the earlier state constitutions, which, as a rule, contained no provision for future amendment. But such provision was not really necessary, inasmuch as the power of the legislature was limited only by its responsibility to the electorate. A mere majority of the qualified voters might demand and secure the enactment of laws which would virtually amend the constitution. From this time on, however, we see a strong tendency to specify in the constitution itself the manner in which it could be changed; and by the time that the framers of the Federal Constitution met in Philadelphia in 1787 a majority of the state constitutions contained provisions of this kind.

According to the Maryland constitution of 1776 it was necessary that an amendment should "pass the General Assembly, and be published at least three months before a new election" and confirmed by the General Assembly in the first session after such election.[51] The South Carolina constitution of 1778 permitted "a majority of the members of the senate and house of representatives" to adopt amendments after having given ninety days' notice of such intention. The constitution of Delaware, 1776, required that constitutional amendments should be assented to by five-sevenths of the lower house and seven-ninths of the upper. This check on amendment was largely inoperative, however, for the reason above mentioned, viz., that the legislature was supreme, and could enact by majority vote such laws as it saw fit, whether they were in harmony with the constitution or not.

Five other state constitutions made provision for the adoption of amendments by conventions. The Pennsylvania constitution of 1776 provided for the election every seventh year by the freemen of the state of a "Council of Censors" to hold office during one year from the date of their election. This body had the power "to pass public censures, to order impeachments, and to recommend to the legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the constitution." They also had power to call a convention for amending the constitution. "But ... the amendments proposed ... shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject." This provision of the Pennsylvania constitution of 1776 was copied in the Vermont constitution of 1777. The constitution of Georgia, 1777, contained the following: "No alteration shall be made in this constitution without petitions from a majority of the counties, and the petition from each county to be signed by a majority of the voters in each county within this state; at which time the assembly shall order a convention to be called for that purpose, specifying the alterations to be made, according to the petitions preferred to the assembly by the majority of the counties as aforesaid." The Massachusetts constitution of 1780 provided that the question of amendment should be submitted to the qualified voters of the state, and if two-thirds of those voting favored amendment, it was the duty of the legislature to order the election of delegates to meet in convention for that purpose. The New Hampshire constitution of 1784 contained a similar provision.

We see, then, that several of the early state constitutions expressly gave, either directly to a majority of the qualified voters, or to their representatives, the right to amend; and even in Massachusetts, New Hampshire, and Delaware, whose constitutions expressly limited the power of the majority, the limitation was not effective, since the majority could push through under the guise of ordinary legislation, measures which virtually amounted to an exercise of the amending power. Such limitations on the power of the majority did not become effective until a judiciary not directly responsible to the people, acquired the right to declare acts of the legislature null and void.

An examination of these features of the various state constitutions in force in 1787 shows clearly the reactionary character of the Federal Constitution. It repudiated entirely the doctrine then expressly recognized in some of the states and virtually in all, that a majority of the qualified voters could amend the fundamental law. And not only did it go farther than any state constitution in expressly limiting the power of the majority, but it provided what no state constitution had done—the means by which its limitations on the power of the majority could be enforced.

A comparison of this feature of our Constitution with the method of amendment in other countries is interesting and instructive. In England no distinction is made between constitutional amendments and other legislation. And since the Crown has lost the veto power and the House of Commons established its right to override the opposition of the House of Lords, the most radical changes may be made without even the checks which impede ordinary legislation in the United States.

In France amendment of the Constitution is almost as easy as in England, though a distinction is made between this and ordinary legislation. When both the Senate and Chamber of Deputies decide by an absolute majority in each that amendment is necessary, they meet in joint session as a National Assembly for that purpose. An absolute majority of the members composing the National Assembly is required to change the Constitution.

Amendments to the Federal Constitution of Australia may be proposed by an absolute majority of both Houses of Parliament. Not less than two nor more than six months after the proposed amendment has been passed by both houses, it must be submitted to the qualified voters in each state. But if either house by an absolute majority passes a proposed amendment which is rejected by the other house, and passes it again by an absolute majority after an interval of three months, the Governor-General may submit the proposed amendment to the qualified voters. A proposed amendment is adopted if it is approved by a majority of all those voting and also by a majority in a majority of the states.

In Switzerland the question whether the Federal Constitution ought to be amended must be submitted to a popular vote whenever demanded by either house of the Federal Assembly or by fifty thousand voters (about one-fifteenth of the voting population). A proposed amendment is adopted if it receives a majority of all the votes cast and at the same time a majority in a majority of the Cantons, a provision copied, as we have seen, in the Federal Constitution of Australia.

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