History of the American Nation by William J. Jackman, Vol. 9 - The Courts and the Constitution

Contents:
Author: William James Jackman

Chapter 2:
Comparison of the American and European Systems

From their colonial experience, coupled with their notions of the British Constitution, the men of 1787 drew three conclusions: First, that the vesting of the executive and the legislative powers in different hands was the normal and natural feature of a free government. Second, that the power of the Executive was dangerous to liberty, and must be kept within well-defined boundaries. Third, that in order to check the head of the State it was necessary not only to define his powers, and appoint him for a limited period, but also to destroy his opportunities of influencing the legislature. They deemed that in this way they had rendered their legislature pure, independent, vigilant, the servant of the people, the foe of arbitrary power. Thus it was believed in 1787 that a due balance had been arrived at, the independence of Congress being secured on the one side and the independence of the President on the other. Each power holding the other in check, the people, jealous of their hardly-won liberties, would be courted by each, and safe from the encroachments of either.

There was of course the risk that controversies as to their respective rights and powers would arise between these two departments. But the creation of a court entitled to place an authoritative interpretation upon the Constitution in which the supreme will of the people was expressed, provided a remedy available in many, if not in all, of such cases, and a security for the faithful observance of the Constitution which England did not, and under her system of an omnipotent Parliament could not, possess.

"They builded better than they knew." They divided the legislature from the executive so completely as to make each not only independent, but weak even in its own proper sphere. Entrenched behind the ramparts of a rigid Constitution, the President has retained rights of which his prototype, the English King, has been gradually stripped. Congress on the other hand was weakened, as compared with the British Parliament, in which one House has become dominant, by its division into two coequal Houses, whose disagreement paralyzes legislative action. And it lost that direct control over the Executive which the presence of ministers in the legislature, and their dependence upon a majority of the popular House, give to the Parliaments of Britain and her colonies. It has diverged widely from the English original which it seemed likely, with only a slight difference, to reproduce.

The British House of Commons has grown to the stature of a supreme executive as well as legislative council, acting not only by its properly legislative power, but through its right to displace ministers by a resolution of want of confidence, and to compel the sovereign to employ such servants as it approves. Congress remains a pure legislature, unable to displace a minister, unable to choose the agents by whom its laws are to be carried out, and having hitherto failed to develop that internal organization which a large assembly needs in order to frame and successfully pursue definite schemes of policy. Nevertheless, so far-reaching is the power of legislation, Congress has encroached, and may encroach still farther, upon the sphere of the Executive. It encroaches not merely with a conscious purpose, but because the law of its beginning has forced it to create in its committees bodies whose expansion necessarily presses on the Executive. It encroaches because it is restless, unwearied, always drawn by the progress of events into new fields of labor.

These observations may suffice to show why the Fathers of the Constitution did not adopt the English parliamentary or Cabinet system. They could not adopt it because they did not know of its existence. They did not know of it because it was still immature, because Englishmen themselves had not understood it, because the recognized authorities did not mention it. But as the idea never presented itself, we cannot say that it was rejected, nor cite the course they took as all expression of their judgment against the system under which England and her colonies have so far prospered.

It is worth while to compare the form which a constitutional struggle takes under the Cabinet system and under that of America.

In England, if the executive ministry displeases the House of Commons, the House passes an adverse vote. The ministry have their choice to resign or to dissolve Parliament. If they resign, a new ministry is appointed from the party which has proved itself strongest in the House of Commons; and cooperation being restored between the legislature and the executive, public business proceeds. If, on the other hand, the ministry dissolve Parliament, a new Parliament is set up which, if favorable to the existing cabinet, keeps them in office; if unfavorable, dismisses them forthwith. Accord is in either case restored. Should the difference arise between the House of Lords and a ministry supported by the House of Commons, and the former persist in rejecting a bill which the Commons send up, a dissolution is the constitutional remedy; and if the newly-elected House of Commons reasserts the view of its predecessor, the Lords, according to the now organized constitutional practice, yield at once. Should they, however, still stand out, there remains the extreme expedient, threatened in 1832, but never yet restored to, of a creation by the sovereign (i.e., the ministry) of new peers sufficient to turn the balance of votes in the Upper House. Practically the ultimate decision always rests with the people, that is to say, with the party which for the moment commands a majority of electoral votes. This method of cutting knots applies to all differences that can arise between executive and legislature. It is a swift and effective method; in this swiftness and effectiveness lie its dangers as well as its merits.

In America a dispute between the President and Congress may arise over an executive act or over a bill. If over an executive act, an appointment or a treaty, one branch of Congress, the Senate, can check the President, that is, can prevent him from doing what he wishes, but cannot make him do what they wish. If over a bill which the President has returned to Congress unsigned, the two Houses can, by a two-thirds majority, pass it over his veto, and so end the quarrel; though the carrying out of the bill in its details must be left to him and his ministers, whose dislike of it may render them unwilling and therefore unsuitable agents. Should there not be a two-thirds majority, the bill drops; and however important the question may be, however essential to the country some prompt dealing with it, either in the sense desired by the majority of Congress or in that preferred by the President, nothing can be done till the current term of Congress expires. The matter is then remitted to the people. If the President has still two more years in office, the people may signify their approval of his policy by electing a House in political agreement with him, or disapprove it by reelecting a hostile House. If the election of a new President coincides with that of the new House, the people have a second means provided of expressing their judgment. They may choose not only a House of the same or an opposite complexion to the last, but a President of the same or an opposite complexion. Anyhow, they can now establish accord between one House of Congress and the Executive. The Senate, however, may still remain opposed to the President, and may not be brought into harmony with him until a sufficient time has elapsed for the majority in it to be changed by the choice of new senators by the State legislatures. This is a slower method than that of Great Britain. It may fail in a crisis needing immediate action; but it escapes the danger of a hurried and perhaps irrevocable decision.

There exists between England and the United States a difference which is full of interest. In England the legislative branch has become supreme, and it is considered by Englishmen a merit in their system that the practical executive of the country is directly responsible to the House of Commons. In the United States, however, not only in the national government, but in every one of the States, the exactly opposite theory is proceeded upon—that the executive should be wholly independent of the legislative branch. Americans understand that this scheme involves a loss of power and efficiency, but they believe that it makes greatly for safety in a popular government. They expect the Executive and the legislature to work together as well as they can, and public opinion does usually compel a degree of cooperation and efficiency which perhaps could not be expected theoretically. It is an interesting commentary on the tendencies of democratic government, that in America reliance is coming to be placed more and more, in the nation, in the State, and in the city, upon the veto of the Executive as a protection to the community against the legislative branch. Weak Executives frequently do harm, but a strong Executive has rarely abused popular confidence. On the other hand, instances where the Executive, by the use of his veto power, has arrested mischiefs due to the action of the legislature, are by no means rare. This circumstance leads some Americans to believe that the day is not far distant when in England some sort of veto power, or other constitutional safeguard, must be interposed to protect the people against their Parliament.

When one party possesses a large majority in Congress it can overpower the President, taking from him all but a few strictly reserved functions, such as those of pardoning, of making promotions in the army and navy, and of negotiating (not of concluding treaties, for these require the assent of the Senate) with foreign states. Where parties are pretty equally divided, i.e., when the majority is one way in the Senate, the other way in the House, or when there is only a small majority against the President in both Houses, the President is in so far free that new fetters cannot be laid upon him; but he must move under those which previous legislation has imposed, and can take no step for which new legislation is needed.

It is another and a remarkable consequence of the absence of cabinet government in America, that there is also no party government in the European sense. Party government in France, Italy, and England means, that one set of men, united, or professing to be united, by holding one set of opinions, have obtained control of the whole machinery of government, and are working it in conformity with those opinions. Their majority in the country is represented by a majority in the legislature, and to this majority the ministry of necessity belongs. The ministry is the supreme committee of the party, and controls all the foreign as well as domestic affairs of the nation, because the majority is deemed to be the nation. It is otherwise in America. Men do, no doubt, talk of one party as being "in power," meaning thereby the party to which the then President belongs. But they do so because that party enjoys the spoils of office, in which to so many politicians the value of power consists. They do so also because in the early days the party which prevailed in the legislative usually prevailed also in the executive department, and because the presidential election was, and still is, the main struggle which proclaimed the predominance of one or other party.

But the Americans, when they speak of the administration party as the party in power, have, in borrowing an English phrase, applied it to utterly different facts. Their "party in power" need have no power beyond that of securing places for its adherents. It may be in a minority in one House of Congress, in which event it accomplishes nothing, but can at most merely arrest adverse legislation, or in a small minority in both Houses of Congress, in which event it must submit to see many things done which it dislikes. And if its enemies control the Senate, even its executive arm is paralyzed. Though party feeling has generally been stronger in America than in England, and even now covers a larger proportion of the voters, and enforces a stricter discipline, party government is distinctly weaker.

We are now in a position to sum up the practical results of the system which purports to separate Congress from the Executive, instead of uniting them as they are united under a cabinet government. These results are five:

The President and his ministers have no initiative in Congress, little influence over Congress, except what they can exert upon individual members, through the bestowal of patronage.

Congress has, together with unlimited powers of inquiry, imperfect powers of control over the administrative departments.

The nation does not always know how or where to fix responsibility for misfeasance or neglect. The person and bodies concerned in making and executing the laws are so related to one another that each can generally shift the burden of blame on some one else, and no one acts under the full sense of direct accountability.

There is a loss of force by friction—i.e., part of the energy, force, and time of the men and bodies that make up the government is dissipated in struggles with one another. This belongs to all free governments, because all free governments rely upon checks. But the more checks, the more friction.

There is a risk that executive vigor and promptitude may be found wanting at critical moments.

We may include these defects in one general expression. There is in the American Government, considered as a whole, a want of unity. Its branches are unconnected; their efforts are not directed to one aim, do not produce one harmonious result.

A President can do little, for he does not lead either Congress or the nation. Congress cannot guide or stimulate the President, nor replace him by a man fitter for the emergency. The Cabinet neither receives a policy from Congress nor gives one to it. Each power in the State goes its own way, or wastes precious moments in discussing which way it shall go, and that which comes to pass seems to be a result not of the action of the legal organs of the State, but of some larger force which at one time uses their discord as its means, at another neglects them altogether. This at least is the impression which the history of the great problem and greatest struggle that America has seen, the struggle of the slave-holders against the Free Soil and Union Party, culminating in the War of the Rebellion, makes upon one who looking back on its events sees them all as parts of one drama. The carefully devised machinery of the Constitution did little to solve that problem or avert that struggle. The nation asserted itself at last, but not till this machinery had failed to furnish a peaceful means of trying the real strength of the parties, so as to give the victory to one or to settle a compromise between them.

This want of unity is painfully felt in a crisis. When a sudden crisis comes upon a free State, the Executive needs two things, a large command of money and powers in excess of those allowed at ordinary times. Under the European system the duty of meeting such a crisis is felt to devolve as much on the Representative Chamber as on the ministers who are its agents. The Chamber is therefore at once appealed to for supplies, and for such legislation as the occasion demands. When these have been given, the ministry moves on with the weight of the people behind it; and as it is accustomed to work at all times with the Chamber, and the Chamber with it, the piston plays smoothly and quickly in the cylinder. In America the President has at ordinary times little to do with Congress, while Congress is unaccustomed to deal with executive questions. Its machinery, and especially the absence of ministerial leaders and consequent want of organization, unfit it for promptly confronting practical troubles. It is apt to be sparing of supplies, and of that confidence which doubles the value of supplies. Jealousies of the Executive, which are proper in quiet times and natural toward those with whom Congress has little direct intercourse, may now be perilous, yet how is Congress to trust persons not members of its own body nor directly amenable to its control? When dangers thicken the only device may be the Roman one of a temporary dictatorship. Something like this happened in the War of Secession, for the powers then conferred upon President Lincoln, or exercised without congressional censure by him, were almost as much in excess of those enjoyed under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul. Fortunately the habits of legality, which lie deep in the American as they did in the Roman people, reasserted themselves after the war was over, as they were wont to do at Rome in her earlier and better days. When the squall had passed the ship righted, and she has pursued her subsequent course on as even a keel as before.

The defects of the tools are the glory of the workman. The more completely self-acting is the machine, the smaller is the intelligence needed to work it; the more liable it is to derangement, so much greater must be the skill and care applied by one who tends it. The English Constitution, which we admire as a masterpiece of delicate equipoises and complicated mechanism, would anywhere but in England be full of difficulties and dangers. It stands and prospers in virtue of the traditions that still live among English statesmen and the reverence that has ruled English citizens. It works by a body of understandings which no writer can formulate, and of habits which centuries have been needed to instill. So, the American people have a practical aptitude for politics, a clearness of vision and capacity for self-control never equaled by any other nation. In 1861 they brushed aside their darling legalities, allowed the Executive to exert novel powers, passed lightly laws whose constitutionality remains doubtful, raised an enormous army, and contracted a prodigious debt. Romans could not have been more energetic in their sense of civic duty, nor more trustful to their magistrates. When the emergency had passed away the torrent which had overspread the plain fell back at once into its safe and well-worn channel. The reign of legality returned; and only four years after the power of the Executive had reached its highest point in the hands of President Lincoln, it was reduced to its lowest point in those of President Johnson. Such a people can work any Constitution. The danger for them is that this reliance on their skill and their star may make them heedless of the faults of their political machinery, slow to devise improvements which are best applied in quiet times.

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Chicago: William James Jackman, "Chapter 2: Comparison of the American and European Systems," History of the American Nation by William J. Jackman, Vol. 9 - The Courts and the Constitution in William J. Jackman, Jacob H. Patton, and Rossiter Johnson. History of the American Nation, 9 Vols. (Chicago: K. Gaynor, 1911), Pp.2855-2860 Original Sources, accessed April 19, 2018, http://www.originalsources.com/Document.aspx?DocID=CKFUE39ZVHJG8TZ.

MLA: Jackman, William James. "Chapter 2: Comparison of the American and European Systems." History of the American Nation by William J. Jackman, Vol. 9 - The Courts and the Constitution, in William J. Jackman, Jacob H. Patton, and Rossiter Johnson. History of the American Nation, 9 Vols. (Chicago: K. Gaynor, 1911), Pp.2855-2860, Original Sources. 19 Apr. 2018. www.originalsources.com/Document.aspx?DocID=CKFUE39ZVHJG8TZ.

Harvard: Jackman, WJ, 'Chapter 2: Comparison of the American and European Systems' in History of the American Nation by William J. Jackman, Vol. 9 - The Courts and the Constitution. cited in , William J. Jackman, Jacob H. Patton, and Rossiter Johnson. History of the American Nation, 9 Vols. (Chicago: K. Gaynor, 1911), Pp.2855-2860. Original Sources, retrieved 19 April 2018, from http://www.originalsources.com/Document.aspx?DocID=CKFUE39ZVHJG8TZ.