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- Herausgeber: Krill Press
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
- Veröffentlichungsjahr: 2016
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CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS
Woodrow Wilson
FIREWORK PRESS
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Copyright © 2016 by Woodrow Wilson
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TABLE OF CONTENTS
PREFACE TO FIFTEENTH EDITION.
PREFACE
I. INTRODUCTORY.
II. THE HOUSE OF REPRESENTATIVES.
III. THE HOUSE OF REPRESENTATIVES. REVENUE AND SUPPLY.
IV. THE SENATE.
V. THE EXECUTIVE.
VI. CONCLUSION.
Congressional Government: A Study in American Politics
By
Woodrow Wilson
Congressional Government: A Study in American Politics
Published by Firework Press
New York City, NY
First published circa 1924
Copyright © Firework Press, 2015
All rights reserved
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PREFACE TO FIFTEENTH EDITION.
————
I HAVE been led by the publication of a French translation of this little volume to read it through very carefully, for the first time since its first appearance. The re-reading has convinced me that it ought not to go to another impression without a word or two by way of preface with regard to the changes which our singular system of Congressional government has undergone since these pages were written.
I must ask those who read them now to remember that they were written during the years 1883 and 1884, and that, inasmuch as they describe a living system, like all other living things subject to constant subtle modifications, alike of form and of function, their description of the government of the United States is not as accurate now as I believe it to have been at the time I wrote it.
This is, as might have been expected, more noticeable in matters of detail than in matters of substance. There are now, for example, not three hundred and twenty-five, but three hundred and fifty-seven members in the House of Representatives; and that number will, no doubt, be still further increased by the reapportionment which will follow the census of the present year. The number of committees in both Senate and House is constantly on the increase. It is now usually quite sixty in the House, and in the Senate more than forty. There has been a still further addition to the number of the “spending” committees in the House of Representatives, by the subdivision of the powerful Committee on Appropriations. Though the number of committees in nominal control of the finances of the country is still as large as ever, the tendency is now towards a concentration of all that is vital in the business into the hands of a few of the more prominent, which are most often mentioned in the text. The auditing committees on the several departments, for example, have now for some time exercised little more than a merely nominal oversight over executive expenditures.
Since the text was written, the Tenure of Office Act, which sought to restrict the President’s removal from office, has been repealed; and even before its repeal it was, in fact, inoperative. After the time of President Johnson, against whom it was aimed, the party in power in Congress found little occasion to insist upon its enforcement; its constitutionality was doubtful, and it fell into the background. I did not make sufficient allowance for these facts in writing the one or two sentences of the book which refer to the Act.
Neither did I give sufficient weight, I now believe, to the powers of the Secretary of the Treasury. However minutely bound, guided, restricted by statute, his power has proved at many a critical juncture in our financial history—notably in our recent financial history—of the utmost consequence. Several times since this book was written, the country has been witness to his decisive influence upon the money markets, in the use of his authority with regard to the bond issues of the government and his right to control the disposition of the funds of the Treasury. In these matters, however, he has exercised, not political, but business power. He has helped the markets as a banker would help them. He has altered no policy. He has merely made arrangements which would release money for use and facilitate loan and investment. The country feels safer when an experienced banker, like Mr. Gage, is at the head of the Treasury, than when an experienced politician is in charge of it.
All these, however, are matters of detail. There are matters of substance to speak of also.
It is to be doubted whether I could say quite so confidently now as I said in 1884 that the Senate of the United States faithfully represents the several elements of the nation’s makeup, and furnishes us with a prudent and normally constituted moderating and revising chamber. Certainly vested interests have now got a much more formidable hold upon the Senate than they seemed to have sixteen years ago. Its political character also has undergone a noticeable change. The tendency seems to be to make of the Senate, instead of merely a smaller and more deliberate House of Representatives, a body of successful party managers. Still, these features of its life may be temporary, and may easily be exaggerated. We do not yet know either whether they will persist, or, should they persist, whither they will lead us.
A more important matter—at any rate, a thing more concrete and visible—is the gradual integration of the organization of the House of Representatives. The power of the Speaker has of late years taken on new phases. He is now, more than ever, expected to guide and control the whole course of business in the House,—if not alone, at any rate through the instrumentality of the small Committee on Rules, of which he is chairman. That committee is expected not only to reformulate and revise from time to time the permanent Rules of the House, but also to look closely to the course of its business from day to day, make its programme, and virtually control its use of its time. The committee consists of five members; but the Speaker and the two other members of the committee who represent the majority in the House determine its action; and its action is allowed to govern the House. It in effect regulates the precedence of measures. Whenever occasion requires, it determines what shall, and what shall not, be undertaken. It is like a steering ministry,—without a ministry’s public responsibility, and without a ministry’s right to speak for both houses. It is a private piece of party machinery within the single chamber for which it acts. The Speaker himself—not as a member of the Committee on Rules, but by the exercise of his right to “recognize” on the floor—undertakes to determine very absolutely what bills individual members shall be allowed to bring to a vote, out of the regular order fixed by the rules or arranged by the Committee on Rules.
This obviously creates, in germ at least, a recognized and sufficiently concentrated leadership within the House. The country is beginning to know that the Speaker and the Committee on Rules must be held responsible in all ordinary seasons for the success or failure of the session, so far as the House is concerned. The congressional caucus has fallen a little into the background. It is not often necessary to call it together, except when the majority is impatient or recalcitrant under the guidance of the Committee on Rules. To this new leadership, however, as to everything else connected with committee government, the taint of privacy attaches. It is not leadership upon the open floor, avowed, defended in public debate, set before the view and criticism of the country. It integrates the House alone, not the Senate; does not unite the two houses in policy; affects only the chamber in which there is the least opportunity for debate, the least chance that responsibility may be properly and effectively lodged and avowed. It has only a very remote and partial resemblance to genuine party leadership.
Much the most important change to be noticed is the result of the war with Spain upon the lodgment and exercise of power within our federal system: the greatly increased power and opportunity for constructive statesmanship given the President, by the plunge into international politics and into the administration of distant dependencies, which has been that war’s most striking and momentous consequence. When foreign affairs play a prominent part in the politics and policy of a nation, its Executive must of necessity be its guide: must utter every initial judgment, take every first step of action, supply the information upon which it is to act, suggest and in large measure control its conduct. The President of the United States is now, as of course, at the front of affairs, as no president, except Lincoln, has been since the first quarter of the nineteenth century, when the foreign relations of the new nation had first to be adjusted. There is no trouble now about getting the President’s speeches printed and read, every word. Upon his choice, his character, his experience hang some of the most weighty issues of the future. The government of dependencies must be largely in his hands. Interesting things may come out of the singular change.
For one thing, new prizes in public service may attract a new order of talent. The nation may get a better civil service, because of the sheer necessity we shall be under of organizing a service capable of carrying the novel burdens we have shouldered.
It may be, too, that the new leadership of the Executive, inasmuch as it is likely to last, will have a very far-reaching effect upon our whole method of government. It may give the heads of the executive departments a new influence upon the action of Congress. It may bring about, as a consequence, an integration which will substitute statesmanship for government by mass meeting. It may put this whole volume hopelessly out of date.
WOODROW WILSON.
PRINCETON UNIVERSITY, 15 August, 1900.
PREFACE
————
THE object of these essays is not to exhaust criticism of the government of the United States, but only to point out the most characteristic practical features of the federal system. Taking Congress as the central and predominant power of the system, their object is to illustrate everything Congressional. Everybody has seen, and critics without number have said, that our form of national government is singular, possessing a character altogether its own; but there is abundant evidence that very few have seen just wherein it differs most essentially from the other governments of the world. There have been and are other federal systems quite similar, and scarcely any legislative or administrative principle of our Constitution was young even when that Constitution was framed. It is our legislative and administrative machinery which makes our government essentially different from all other great governmental systems. The most striking contrast in modern politics is not between presidential and monarchical governments, but between Congressional and Parliamentary governments. Congressional government is Committee government; Parliamentary government is government by a responsible Cabinet Ministry. These are the two principal types which present themselves for the instruction of the modern student of the practical in politics: administration by semi-independent executive agents who obey the dictation of a legislature to which they are not responsible, and administration by executive agents who are the accredited leaders and accountable servants of a legislature virtually supreme in all things. My chief aim in these essays has been, therefore, an adequate illustrative contrast of these two types of government, with a view to making as plain as possible the actual conditions of federal administration. In short, I offer, not a commentary, but an outspoken presentation of such cardinal facts as may be sources of practical suggestion.
WOODROW WILSON
JOHNS HOPKINS UNIVERSITY, October 7, 1884.
I. INTRODUCTORY.
THE LAWS REACH BUT A very little way. Constitute government how you please, infinitely the greater part of it must depend upon the exercise of powers, which are left at large to the prudence and uprightness of ministers of state. Even all the use and potency of the laws depends upon them. Without them your commonwealth is no better than a scheme upon paper; and not a living, active, effective organization.—BURKE.
The great fault of political writers is their too close adherence to the forms of the system of state which they happen to be expounding or examining. They stop short at the anatomy of institutions, and do not penetrate to the secret of their functions.—JOHN MORLEY.
IT would seem as if a very wayward fortune had presided over the history of the Constitution of the United States, inasmuch as that great federal charter has been alternately violated by its friends and defended by its enemies. It came hard by its establishment in the first place, prevailing with difficulty over the strenuous forces of dissent which were banded against it. While its adoption was under discussion the voices of criticism were many and authoritative, the voices of opposition loud in tone and ominous in volume, and the Federalists finally triumphed only by dint of hard battle against foes, formidable both in numbers and in skill. But the victory was complete,—astonishingly complete. Once established, the new government had only the zeal of its friends to fear. Indeed, after its organization very little more is heard of the party of opposition; they disappear so entirely from politics that one is inclined to think, in looking back at the party history of that time, that they must have been not only conquered but converted as well. There was well-nigh universal acquiescence in the new order of things. Not everybody, indeed, professed himself a Federalist, but everybody conformed to federalist practice. There were jealousies and bickerings, of course, in the new Congress of the Union, but no party lines, and the differences which caused the constant brewing and breaking of storms in Washington’s first cabinet were of personal rather than of political import. Hamilton and Jefferson did not draw apart because the one had been an ardent and the other only a lukewarm friend of the Constitution, so much as because they were so different in natural bent and temper that they would have been like to disagree and come to drawn points wherever or however brought into contact. The one had inherited warm blood and a bold sagacity, while in the other a negative philosophy ran suitably through cool veins. They had not been meant for yoke-fellows.
There was less antagonism in Congress, however, than in the cabinet; and in none of the controversies that did arise was there shown any serious disposition to quarrel with the Constitution itself; the contention was as to the obedience to be rendered to its provisions. No one threatened to withhold his allegiance, though there soon began to be some exhibition of a disposition to confine obedience to the letter of the new commandments, and to discountenance all attempts to do what was not plainly written in the tables of the law. It was recognized as no longer fashionable to say aught against the principles of the Constitution; but all men could not be of one mind, and political parties began to take form in antagonistic schools of constitutional construction. There straightway arose two rival sects of political Pharisees, each professing a more perfect conformity and affecting greater “ceremonial cleanliness” than the other. The very men who had resisted with might and main the adoption of the Constitution became, under the new division of parties, its champions, as sticklers for a strict, a rigid, and literal construction.
They were consistent enough in this, because it was quite natural that their one-time fear of a strong central government should pass into a dread of the still further expansion of the power of that government, by a too loose construction of its charter; but what I would emphasize here is not the motives or the policy of the conduct of parties in our early national politics, but the fact that opposition to the Constitution as a constitution, and even hostile criticism of its provisions, ceased almost immediately upon its adoption; and not only ceased, but gave place to an undiscriminating and almost blind worship of its principles, and of that delicate dual system of sovereignty, and that complicated scheme of double administration which it established. Admiration of that one-time so much traversed body of law became suddenly all the vogue, and criticism was estopped. From the first, even down to the time immediately preceding the war, the general scheme of the Constitution went unchallenged; nullification itself did not always wear its true garb of independent state sovereignty, but often masqueraded as a constitutional right; and the most violent policies took care to make show of at least formal deference to the worshipful fundamental law. The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system.
Now there is, of course, nothing in all this that is inexplicable, or even remarkable; any one can see the reasons for it and the benefits of it without going far out of his way; but the point which it is interesting to note is that we of the present generation are in the first season of free, outspoken, unrestrained constitutional criticism. We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our own institutions as compared with the systems of Europe; the first to think of remodeling the administrative machinery of the federal government, and of forcing new forms of responsibility upon Congress.
The evident explanation of this change of attitude towards the Constitution is that we have been made conscious by the rude shock of the war and by subsequent developments of policy, that there has been a vast alteration in the conditions of government; that the checks and balances which once obtained are no longer effective; and that we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession. In short, this model government is no longer conformable with its own original pattern. While we have been shielding it from criticism it has slipped away from us. The noble charter of fundamental law given us by the Convention of 1787 is still our Constitution; but it is now our form of government rather in name than in reality, the form of the Constitution being one of nicely adjusted, ideal balances, whilst the actual form of our present government is simply a scheme of congressional supremacy. National legislation, of course, takes force now as at first from the authority of the Constitution; but it would be easy to reckon by the score acts of Congress which can by no means be squared with that great instrument’s evident theory. We continue to think, indeed, according to long-accepted constitutional formulae, and it is still politically unorthodox to depart from old-time phraseology in grave discussions of affairs; but it is plain to those who look about them that most of the commonly received opinions concerning federal constitutional balances and administrative arrangements are many years behind the actual practices of the government at Washington, and that we are farther than most of us realize from the times and the policy of the framers of the Constitution. It is a commonplace observation of historians that, in the development of constitutions, names are much more persistent than the functions upon which they were originally bestowed; that institutions constantly undergo essential alterations of character, whilst retaining the names conferred upon them in their first estate; and the history of our own Constitution is but another illustration of this universal principle of institutional change. There has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the government without perceptibly affecting the vocabulary of our constitutional language. Ours is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law; its tap-root at least is the Constitution; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap-centre of a system of government vastly larger than the stock from which it has branched,—a system some of whose forms have only very indistinct and rudimental beginnings in the simple substance of the Constitution, and which exercises many functions apparently quite foreign to the primitive properties contained in the fundamental law.
The Constitution itself is not a complete system; it takes none but the first steps in organization. It does little more than lay a foundation of principles. It provides with all possible brevity for the establishment of a government having, in several distinct branches, executive, legislative, and judicial powers. It vests executive power in a single chief magistrate, for whose election and inauguration it makes carefully definite provision, and whose privileges and prerogatives it defines with succinct clearness; it grants specifically enumerated powers of legislation to a representative Congress, outlining the organization of the two houses of that body and definitely providing for the election of its members, whose number it regulates and the conditions of whose choice it names; and it establishes a Supreme Court with ample authority of constitutional interpretation, prescribing the manner in which its judges shall be appointed and the conditions of their official tenure. Here the Constitution’s work of organization ends, and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental system would snap asunder a constitution which could not adapt itself to the new conditions of an advancing society. If it could not stretch itself to the measure of the times, it must be thrown off and left behind, as a by-gone device; and there can, therefore, be no question that our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect vine.
The chief fact, therefore, of our national history is that from this vigorous tap-root has grown a vast constitutional system,—a system branching and expanding in statutes and judicial decisions, as well as in unwritten precedent; and one of the most striking facts, as it seems to me, in the history of our politics is, that that system has never received complete and competent critical treatment at the hands of any, even the most acute, of our constitutional writers. They view it, as it were, from behind. Their thoughts are dominated, it would seem, by those incomparable papers of the “Federalist,” which, though they were written to influence only the voters of 1788, still, with a strange, persistent longevity of power, shape the constitutional criticism of the present day, obscuring much of that development of constitutional practice which has since taken place. The Constitution in operation is manifestly a very different thing from the Constitution of the books. “An observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory.” It is, therefore, the difficult task of one who would now write at once practically and critically of our national government to escape from theories and attach himself to facts, not allowing himself to be confused by a knowledge of what that government was intended to be, or led away into conjectures as to what it may one day become, but striving to catch its present phases and to photograph the delicate organism in all its characteristic parts exactly as it is to-day; an undertaking all the more arduous and doubtful of issue because it has to be entered upon without guidance from writers of acknowledged authority.
The leading inquiry in the examination of any system of government must, of course, concern primarily the real depositaries and the essential machinery of power. There is always a centre of power: where in this system is that centre? in whose hands is self-sufficient authority lodged, and through what agencies does that authority speak and act? The answers one gets to these and kindred questions from authoritative manuals of constitutional exposition are not satisfactory, chiefly because they are contradicted by self-evident facts. It is said that there is no single or central force in our federal scheme; and so there is not in the federal scheme, but only a balance of powers and a nice adjustment of interactive checks, as all the books say. How is it, however, in the practical conduct of the federal government? In that, unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power, is Congress. All niceties of constitutional restriction and even many broad principles of constitutional limitation have been overridden, and a thoroughly organized system of congressional control set up which gives a very rude negative to some theories of balance and some schemes for distributed powers, but which suits well with convenience, and does violence to none of the principles of self-government contained in the Constitution.
This fact, however, though evident enough, is not on the surface. It does not obtrude itself upon the observation of the world. It runs through the undercurrents of government, and takes shape only in the inner channels of legislation and administration which are not open to the common view. It can be discerned most readily by comparing the “literary theory” of the Constitution with the actual machinery of legislation, especially at those points where that machinery regulates the relations of Congress with the executive departments, and with the attitude of the houses towards the Supreme Court on those occasions, happily not numerous, when legislature and judiciary have come face to face in direct antagonism. The “literary theory” is distinct enough; every American is familiar with the paper pictures of the Constitution. Most prominent in such pictures are the ideal checks and balances of the federal system, which may be found described, even in the most recent books, in terms substantially the same as those used in 1814 by John Adams in his letter to John Taylor. “Is there,” says Mr. Adams, “a constitution upon record more complicated with balances than ours? In the first place, eighteen states and some territories are balanced against the national government.... In the second place, the House of Representatives is balanced against the Senate, the Senate against the House. In the third place, the executive authority is, in some degree, balanced against the legislative. In the fourth place, the judicial power is balanced against the House, the Senate, the executive power, and the state governments. In the fifth place, the Senate is balanced against the President in all appointments to office, and in all treaties.... In the sixth place, the people hold in their hands the balance against their own representatives, by biennial ... elections. In the seventh place, the legislatures of the several states are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of the President. Here is a complicated refinement of balances, which, for anything I recollect, is an invention of our own and peculiar to us.”
All of these balances are reckoned essential in the theory of the Constitution; but none is so quintessential as that between the national and the state governments; it is the pivotal quality of the system, indicating its principal, which is its federal characteristic. The object of this balance of thirty-eight States “and some territories” against the powers of the federal government, as also of several of the other balances enumerated, is not, it should be observed, to prevent the invasion by the national authorities of those provinces of legislation by plain expression or implication reserved to the States,—such as the regulation of municipal institutions, the punishment of ordinary crimes, the enactment of laws of inheritance and of contract, the erection and maintenance of the common machinery of education, and the control of other such like matters of social economy and every-day administration,—but to check and trim national policy on national questions, to turn Congress back from paths of dangerous encroachment on middle or doubtful grounds of jurisdiction, to keep sharp, when it was like to become dim, the line of demarcation between state and federal privilege, to readjust the weights of jurisdiction whenever either state or federal scale threatened to kick the beam. There never was any great likelihood that the national government would care to take from the States their plainer prerogatives, but there was always a violent probability that it would here and there steal a march over the borders where territory like its own invited it to appropriation; and it was for a mutual defense of such border-land that the two governments were given the right to call a halt upon one another. It was purposed to guard not against revolution, but against unrestrained exercise of questionable powers.
The extent to which the restraining power of the States was relied upon in the days of the Convention, and of the adoption of the Constitution, is strikingly illustrated in several of the best known papers of the “Federalist;” and there is no better means of realizing the difference between the actual and the ideal constitutions than this of placing one’s self at the point of view of the public men of 1787-89. They were disgusted with the impotent and pitiable Confederation, which could do nothing but beg and deliberate; they longed to get away from the selfish feuds of “States dissevered, discordant, belligerent,” and their hopes were centred in the establishment of a strong and lasting union, such as could secure that concert and facility of common action in which alone there could be security and amity. They were, however, by no means sure of being able to realize their hopes, contrive how they might to bring the States together into a more perfect confederation. The late colonies had but recently become compactly organized, self-governing States, and were standing somewhat stiffly apart, a group of consequential sovereignties, jealous to maintain their blood-bought prerogatives, and quick to distrust any power set above them, or arrogating to itself the control of their restive wills. It was not to be expected that the sturdy, self-reliant, masterful men who had won independence for their native colonies, by passing through the flames of battle, and through the equally fierce fires of bereavement and financial ruin, would readily transfer their affection and allegiance from the new-made States, which were their homes, to the federal government, which was to be a mere artificial creation, and which could be to no man as his home government. As things looked then, it seemed idle to apprehend a too great diminution of state rights: there was every reason, on the contrary, to fear that any union that could be agreed upon would lack both vitality and the ability to hold its ground against the jealous self-assertion of the sovereign commonwealths of its membership. Hamilton but spoke the common belief of all thinking men of the time when he said: “It will always be far more easy for the state governments to encroach upon the national authorities than for the national government to encroach upon the state authorities;” and he seemed to furnish abundant support for the opinion, when he added, that “the proof of this proposition turns upon the greater degree of influence which the state governments, if they administer their affairs uprightly and prudently, will generally possess over the people; a circumstance which, at the same time, teaches us that there is an inherent and intrinsic weakness in all federal constitutions, and that too much pains cannot be taken in their organization to give them all the force that is compatible with the principles of liberty.”
Read in the light of the present day, such views constitute the most striking of all commentaries upon our constitutional history. Manifestly the powers reserved to the States were expected to serve as a very real and potent check upon the federal government; and yet we can see plainly enough now that this balance of state against national authorities has proved, of all constitutional checks, the least effectual. The proof of the pudding is the eating thereof, and we can nowadays detect in it none of that strong flavor of state sovereignty which its cooks thought they were giving it. It smacks, rather, of federal omnipotence, which they thought to mix in only in very small and judicious quantities. “From the nature of the case,” as Judge Cooley says, “it was impossible that the powers reserved to the States should constitute a restraint upon the increase of federal power, to the extent that was at first expected. The federal government was necessarily made the final judge of its own authority, and the executor of its own will, and any effectual check to the gradual amplification of its jurisdiction must therefore be found in the construction put by those administering it upon the grants of the Constitution, and in their own sense of constitutional obligation. And as the true line of division between federal and state powers has, from the very beginning, been the subject of contention and of honest differences of opinion, it must often happen that to advance and occupy some disputed ground will seem to the party having the power to do so a mere matter of constitutional duty.”
During the early years of the new national government there was, doubtless, much potency in state will; and had federal and state powers then come face to face, before Congress and the President had had time to overcome their first awkwardness and timidity, and to discover the safest walks of their authority and the most effectual means of exercising their power, it is probable that state prerogatives would have prevailed. The central government, as every one remembers, did not at first give promise of a very great career. It had inherited some of the contempt which had attached to the weak Congress of the Confederation. Two of the thirteen States held aloof from the Union until they could be assured of its stability and success; many of the other States had come into it reluctantly, all with a keen sense of sacrifice, and there could not be said to be any very wide-spread or undoubting belief in its ultimate survival. The members of the first Congress, too, came together very tardily, and in no very cordial or confident spirit of coöperation; and after they had assembled they were for many months painfully embarrassed, how and upon what subjects to exercise their new and untried functions. The President was denied formal precedence in dignity by the Governor of New York, and must himself have felt inclined to question the consequence of his official station, when he found that amongst the principal questions with which he had to deal were some which concerned no greater things than petty points of etiquette and ceremonial; as, for example, whether one day in the week would be sufficient to receive visits of compliment, “and what would be said if he were sometimes to be seen at quiet tea-parties.” But this first weakness of the new government was only a transient phase in its history, and the federal authorities did not invite a direct issue with the States until they had had time to reckon their resources and to learn facility of action. Before Washington left the presidential chair the federal government had been thoroughly organized, and it fast gathered strength and confidence as it addressed itself year after year to the adjustment of foreign relations, to the defense of the western frontiers, and to the maintenance of domestic peace. For twenty-five years it had no chance to think of those questions of internal policy which, in later days, were to tempt it to stretch its constitutional jurisdiction. The establishment of the public credit, the revival of commerce, and the encouragement of industry; the conduct, first, of a heated controversy, and finally of an unequal war with England; the avoidance, first, of too much love, and afterwards of too violent hatred of France; these and other like questions of great pith and moment gave it too much to do to leave it time to think of nice points of constitutional theory affecting its relations with the States.
But still, even in those busy times of international controversy, when the lurid light of the French Revolution outshone all others, and when men’s minds were full of those ghosts of ‘76, which took the shape of British aggressions, and could not be laid by any charm known to diplomacy,—even in those times, busy about other things, there had been premonitions of the unequal contest between state and federal authorities. The purchase of Louisiana had given new form and startling significance to the assertion of national sovereignty, the Alien and Sedition Laws had provoked the plain-spoken and emphatic protests of Kentucky and Virginia, and the Embargo had exasperated New England to threats of secession.
Nor were these open assumptions of questionable prerogatives on the part of the national government the most significant or unequivocal indications of an assured increase of federal power. Hamilton, as Secretary of the Treasury, had taken care at the very beginning to set the national policy in ways which would unavoidably lead to an almost indefinite expansion of the sphere of federal legislation. Sensible of its need of guidance in those matters of financial administration which evidently demanded its immediate attention, the first Congress of the Union promptly put itself under the direction of Hamilton. “It is not a little amusing,” says Mr. Lodge, “to note how eagerly Congress, which had been ably and honestly struggling with the revenue, with commerce, and with a thousand details, fettered in all things by the awkwardness inherent in a legislative body, turned for relief to the new secretary.” His advice was asked and taken in almost everything, and his skill as a party leader made easy many of the more difficult paths of the new government. But no sooner had the powers of that government begun to be exercised under his guidance than they began to grow. In his famous Report on Manufactures were laid the foundations of that system of protective duties which was destined to hang all the industries of the country upon the skirts of the federal power, and to make every trade and craft in the land sensitive to every wind of party that might blow at Washington; and in his equally celebrated Report in favor of the establishment of a National Bank, there was called into requisition, for the first time, that puissant doctrine of the “implied powers” of the Constitution which has ever since been the chief dynamic principle in our constitutional history. “This great doctrine, embodying the principle of liberal construction, was,” in the language of Mr. Lodge, “the most formidable weapon in the armory of the Constitution; and when Hamilton grasped it he knew, and his opponents felt, that here was something capable of conferring on the federal government powers of almost any extent.” It served first as a sanction for the charter of the United States Bank,—an institution which was the central pillar of Hamilton’s wonderful financial administration, and around which afterwards, as then, played so many of the lightnings of party strife. But the Bank of the United States, though great, was not the greatest of the creations of that lusty and seductive doctrine. Given out, at length, with the sanction of the federal Supreme Court, and containing, as it did, in its manifest character as a doctrine of legislative prerogative, a very vigorous principle of constitutional growth, it quickly constituted Congress the dominant, nay, the irresistible, power of the federal system, relegating some of the chief balances of the Constitution to an insignificant rôle in the “literary theory” of our institutions.
Its effect upon the status of the States in the federal system was several-fold. In the first place, it clearly put the constitutions of the States at a great disadvantage, inasmuch as there was in them no like principle of growth. Their stationary sovereignty could by no means keep pace with the nimble progress of federal influence in the new spheres thus opened up to it. The doctrine of implied powers was evidently both facile and irresistible. It concerned the political discretion of the national legislative power, and could, therefore, elude all obstacles of judicial interference; for the Supreme Court very early declared itself without authority to question the legislature’s privilege of determining the nature and extent of its own powers in the choice of means for giving effect to its constitutional prerogatives, and it has long stood as an accepted canon of judicial action, that judges should be very slow to oppose their opinions to the legislative will in cases in which it is not made demonstrably clear that there has been a plain violation of some unquestionable constitutional principle, or some explicit constitutional provision. Of encroachments upon state as well as of encroachments upon federal powers, the federal authorities are, however, in most cases the only, and in all cases the final, judges. The States are absolutely debarred even from any effective defense of their plain prerogatives, because not they, but the national authorities, are commissioned to determine with decisive and unchallenged authoritativeness what state powers shall be recognized in each case of contest or of conflict. In short, one of the privileges which the States have resigned into the hands of the federal government is the all-inclusive privilege of determining what they themselves can do. Federal courts can annul state action, but state courts cannot arrest the growth of congressional power.
