Congressional Government

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.

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."1 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."2

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."3

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."4

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."5 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."6 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."7 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,8 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.9

But this is only the doctrinal side of the case, simply its statement with an "if" and a "but." Its practical issue illustrates still more forcibly the altered and declining status of the States in the constitutional system. One very practical issue has been to bring the power of the federal government home to every man's door, as, no less than his own state government, his immediate over-lord. Of course every new province into which Congress has been allured by the principle of implied powers has required for its administration a greater or less enlargement of the national civil service, which now, through its hundred thousand officers, carries into every community of the land a sense of federal power, as the power of powers, and fixes the federal authority, as it were, in the very habits of society. That is not a foreign but a familiar and domestic government whose officer is your next-door neighbor, whose representatives you deal with every day at the post-office and the custom-house, whose courts sit in your own State, and send their own marshals into your own county to arrest your own fellow-townsman, or to call you yourself by writ to their witness-stands. And who can help respecting officials whom he knows to be backed by the authority and even, by the power of the whole nation, in the performance of the duties in which he sees them every day engaged? Who does not feel that the marshal represents a greater power than the sheriff does, and that it is more dangerous to molest a mail-carrier than to knock down a policeman? This personal contact of every citizen with the federal government,—a contact which makes him feel himself a citizen of a greater state than that which controls his every-day contracts and probates his father's will,—more than offsets his sense of dependent loyalty to local authorities by creating a sensible bond of allegiance to what presents itself unmistakably as the greater and more sovereign power.

In most things this bond of allegiance does not bind him oppressively nor chafe him distressingly; but in some things it is drawn rather painfully tight. Whilst federal postmasters are valued and federal judges unhesitatingly obeyed, and whilst very few people realize the weight of customs-duties, and as few, perhaps, begrudge license taxes on whiskey and tobacco, everybody eyes rather uneasily the federal supervisors at the polls. This is preëminently a country of frequent elections, and few States care to increase the frequency by separating elections of state from elections of national functionaries. The federal supervisor, consequently, who oversees the balloting for congressmen, practically superintends the election of state officers also; for state officers and congressmen are usually voted for at one and the same time and place, by ballots bearing in common an entire "party ticket;" and any authoritative scrutiny of these ballots after they have been cast, or any peremptory power of challenging those who offer to cast them, must operate as an interference with state no less than with federal elections. The authority of Congress to regulate the manner of choosing federal representatives pinches when it is made thus to include also the supervision of those state elections which are, by no implied power even, within the sphere of federal prerogative. The supervisor represents the very ugliest side of federal supremacy; he belongs to the least liked branch of the civil service; but his existence speaks very clearly as to the present balance of powers, and his rather hateful privileges must, under the present system of mixed elections, result in impairing the self-respect of state officers of election by bringing home to them a vivid sense of subordination to the powers at Washington.

A very different and much larger side of federal predominance is to be seen in the history of the policy of internal improvements. I need not expound that policy here. It has been often enough mooted and long enough understood to need no explanation. Its practice is plain and its persistence unquestionable. But its bearings upon the status and the policies of the States are not always clearly seen or often distinctly pointed out. Its chief results, of course, have been that expansion of national functions which was necessarily involved in the application of national funds by national employees to the clearing of inland water-courses and the improvement of harbors, and the establishment of the very questionable precedent of expending in favored localities moneys raised by taxation which bears with equal incidence upon the people of all sections of the country; but these chief results by no means constitute the sum of its influence. Hardly less significant and real, for instance, are its moral effects in rendering state administrations less self-reliant and efficient, less prudent and thrifty, by accustoming them to accepting subsidies for internal improvements from the federal coffers; to depending upon the national revenues, rather than upon their own energy and enterprise, for means of developing those resources which it should be the special province of state administration to make available and profitable. There can, I suppose, be little doubt that it is due to the moral influences of this policy that the States are now turning to the common government for aid in such things as education. Expecting to be helped, they will not help themselves. Certain it is that there is more than one State which, though abundantly able to pay for an educational system of the greatest efficiency, fails to do so, and contents itself with imperfect temporary makeshifts because there are immense surpluses every year in the national treasury which, rumor and unauthorized promises say, may be distributed amongst the States in aid of education. If the federal government were more careful to keep apart from every strictly local scheme of improvement, this culpable and demoralizing state policy could scarcely live. States would cease to wish, because they would cease to hope, to be stipendiaries of the government of the Union, and would address themselves with diligence to their proper duties, with much benefit both to themselves and to the federal system. This is not saying that the policy of internal improvements was either avoidable, unconstitutional, or unwise, but only that it has been carried too far; and that, whether carried too far or not, it must in any case have been what it is now seen to be, a big weight in the federal scale of the balance.

Still other powers of the federal government, which have so grown beyond their first proportions as to have marred very seriously the symmetry of the "literary theory" of our federal system, have strengthened under the shadow of the jurisdiction of Congress over commerce and the maintenance of the postal service. For instance, the Supreme Court of the United States has declared that the powers granted to Congress by the Constitution to regulate commerce and to establish post-offices and post-roads "keep pace with the progress of the country and adapt themselves to new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing vessel to the steamer, from the coach and the steamer to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They are intended for the government of the business to which they relate, at all times and under all circumstances. As they were intrusted to the general government for the good of the nation, it is not only the right but the duty of Congress to see to it that the intercourse between the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by state legislation."10 This emphatic decision was intended to sustain the right of a telegraph company chartered by one State to run its line along all post-roads in other States, without the consent of those States, and even against their will; but it is manifest that many other corporate companies might, under the sanction of this broad opinion, claim similar privileges in despite of state resistance, and that such decisions go far towards making state powers of incorporation of little worth as compared with federal powers of control.

Keeping pace, too, with this growth of federal activity, there has been from the first a steady and unmistakable growth of nationality of sentiment. It was, of course, the weight of war which finally and decisively disarranged the balance between state and federal powers; and it is obvious that many of the most striking manifestations of the tendency towards centralization have made themselves seen since the war. But the history of the war is only a record of the triumph of the principle of national sovereignty. The war was inevitable, because that principle grew apace; and the war ended as it did, because that principle had become predominant. Accepted at first simply because it was imperatively necessary, the union of form and of law had become a union of sentiment, and was destined to be a union of institutions. That sense of national unity and community of destiny which Hamilton had sought to foster, but which was feeble in his day of long distances and tardy inter-communication, when the nation's pulse was as slow as the stage-coach and the postman, had become strong enough to rule the continent when Webster died. The war between the States was the supreme and final struggle between those forces of disintegration which still remained in the blood of the body politic and those other forces of health, of union and amalgamation, which had been gradually building up that body in vigor and strength as the system passed from youth to maturity, and as its constitution hardened and ripened with advancing age.

The history of that trenchant policy of "reconstruction," which followed close upon the termination of the war, as at once its logical result and significant commentary, contains a vivid picture of the altered balances of the constitutional system which is a sort of exaggerated miniature, falling very little short of being a caricature, of previous constitutional tendencies and federal policies. The tide of federal aggression probably reached its highest shore in the legislation which put it into the power of the federal courts to punish a state judge for refusing, in the exercise of his official discretion, to impanel negroes in the juries of his court,11 and in those statutes which gave the federal courts jurisdiction over offenses against state laws by state officers.12 But that tide has often run very high, and, however fluctuating at times, has long been well-nigh irresistible by any dykes of constitutional state privilege; so that Judge Cooley can say without fear of contradiction that "The effectual checks upon the encroachments of federal upon state power must be looked for, not in state power of resistance, but in the choice of representatives, senators, and presidents holding just constitutional views, and in a federal supreme court with competent power to restrain all departments and all officers within the limits of their just authority, so far as their acts may become the subject of judicial cognizance."13

Indeed it is quite evident that if federal power be not altogether irresponsible, it is the federal judiciary which is the only effectual balance-wheel of the whole system. The federal judges hold in their hands the fate of state powers, and theirs is the only authority that can draw effective rein on the career of Congress. If their power, then, be not efficient, the time must seem sadly out of joint to those who hold to the "literary theory" of our Constitution. By the word of the Supreme Court must all legislation stand or fall, so long as law is respected. But, as I have already pointed out, there is at least one large province of jurisdiction upon which, though invited, and possibly privileged to appropriate it, the Supreme Court has, nevertheless, refused to enter, and by refusing to enter which it has given over all attempt to guard one of the principal, easiest, and most obvious roads to federal supremacy. It has declared itself without authority to interfere with the political discretion of either Congress or the President, and has declined all effort to constrain these its coördinate departments to the performance of any, even the most constitutionally imperative act.14 "When, indeed, the President exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents or instruments of his unlawful action to strict accountability."15 But such punishment, inflicted not directly upon the chief offender but vicariously upon his agents, can come only after all the harm has been done. The courts cannot forestall the President and prevent the doing of mischief. They have no power of initiative; they must wait until the law has been broken and voluntary litigants have made up their pleadings; must wait nowadays many months, often many years, until those pleadings are reached in the regular course of clearing a crowded docket.

Besides, in ordinary times it is not from the executive that the most dangerous encroachments are to be apprehended. The legislature is the aggressive spirit. It is the motive power of the government, and unless the judiciary can check it, the courts are of comparatively little worth as balance-wheels in the system. It is the subtile, stealthy, almost imperceptible encroachments of policy, of political action, which constitute the precedents upon which additional prerogatives are generally reared; and yet these are the very encroachments with which it is hardest for the courts to deal, and concerning which, accordingly, the federal courts have declared themselves unauthorized to hold any opinions. They have naught to say upon questions of policy. Congress must itself judge what measures may legitimately be used to supplement or make effectual its acknowledged jurisdiction, what are the laws "necessary and proper for carrying into execution" its own peculiar powers, "and all other powers vested by" the "Constitution in the government of the United States, or in any department or officer thereof." The courts are very quick and keen-eyed, too, to discern prerogatives of political discretion in legislative acts, and exceedingly slow to undertake to discriminate between what is and what is not a violation of the spirit of the Constitution. Congress must wantonly go very far outside of the plain and unquestionable meaning of the Constitution, must bump its head directly against all right and precedent, must kick against the very pricks of all well-established rulings and interpretations, before the Supreme Court will offer it any distinct rebuke.