« ForrigeFortsett »
body legislates, and in the expiring hours of the session we are powerless without that unanimous consent.
"Gentlemen, I have made my protest. I do it in sorrow and in humiliation, but there it is; and in my opinion another body under these methods must change its methods of procedure, or our body, backed up by the people, will compel that change, else this body, close to the people, shall become a mere tender, a mere bender of the pregnant hinges of the knee, to submit to what any one member of another body may demand of this body as a price for legislation."
It can admit of little doubt that in its opposition to the use of the liberum veto by individual senators, the House will enjoy the full sympathy and the hearty support of the American people. Nor can the members of the Senate themselves desire that such a practice should become customary, for, though it would upon occasion give individual senators great power, it would soon completely undermine the credit and authority of the Senate. It is a distinctly feudal principle, by which the desire of one man, however prominent, may defeat the action of the State-a principle similar to that which resulted in the political disasters and ultimate downfall of Poland. In the United States, great interests, struggling for feudal privileges, might be glad to entrench themselves behind the liberum veto of individual senators whom they control. But the more statesmanlike influences in this body oppose such a degradation; and they have not permitted the frequent abuse of this great discretionary power, which has been confined generally to the defeat of minor or local legislation. The danger, however, is present and calls for constant watchfulness on the part of the men whose aim it is to increase the true authority and dignity of the Senate.
37. THE USURPED POWER OF THE SENATE.
Hamilton was of the opinion that the Senate would prove to be weaker than the House because it would not stand in such close relation to the people. In the course of events, however, the opposite has come to be true. Mr. James Bryce ascribes this result to the
circumstance that the Senate stands as a "center of gravity in the government, an authority able to correct and check on the one hand the 'democratic recklessness' of the House, and on the other the 'monarchical ambition' of the President. Placed between the two, it is necessarily the rival and often the opponent of both. The House can accomplish nothing without its concurrence. The President can be checkmated by its resistance." That the Senate has taken advantage of this situation to usurp functions not conferred upon it by the Constitution is the opinion of Mr. A. M. Low: .
Never did human ingenuity devise a more nicely balanced system of government than when the framers of the Constitution allocated to the executive and to the legislature the exercise of powers not to be infringed by the other; but like many things human the intent has been perverted. Every person familiar with the Constitution, the debates in the convention, and the writings of Madison, Hamilton, and Jay in The Federalist, must know that the purpose of the framers of the Constitution was to create a system of government by which the President should become neither the creature nor the controller of the legislature; and by vesting certain exclusive powers in the popular branch and certain other powers in the Senate to provide that the line of demarcation between the two houses should not be overstepped. What they feared and believed they had effectually guarded against was an executive who would become possessed of autocratic powers; what they dreaded no less was a legislature that would reduce the President merely to a puppet-a puppet to dance when Congress pulled the strings. Monarchical Europe and the Roman republics had warned them of the danger to the liberties of the people when the king was the source of all power, or when, in a republic, that power was usurped by a council or other elected body supposed to safeguard the people against the encroachments of the executive.
I have thus briefly sketched what my study of the Constitution has taught me was the intent of its framers, and I now propose to show how this intent has been perverted. But before doing so let me summarize the broad principles of the Constitution. It was contemplated that there should be:
First, an executive untrammeled by the legislature in the exercise of his constitutional rights. Second, a Senate which should supervise the executive so as to prevent the appointment of improper or unfit persons to public office, or the making of treaties detrimental to national interests; and which should have co-ordinate powers with those of the House of Representatives except in legislation affecting "money bills.' Third, a House of Representatives that should have control over the national purse. How far have the American people departed in principle from the scheme of their Fathers?
Perhaps the most important divergence, which is almost the most dangerous to the rights and liberties of the people and to the future of the republic, is the right arrogated by the Senate (which, I regret to say, has been ratified by the Supreme Court) to control the purse, which in its broader sense means not only the right to make appropriations but the higher privilege to impose taxation. The Constitution provides that all bills raising revenue shall originate in the House of Representatives; but the Senate has power to amend these bills. By this power of amendment the Senate has defeated the purpose of the Constitution, which was to retain the taxing power in the hands of the representatives of the people. The tariff, which is the great source of revenue, is no longer the creation of the House. The House passes a tariff bill, which the Senate proceeds to "amend" in accordance with its own views or the special interest represented by particular Senators. Surely when the Senate strikes out of a tariff bill passed by the House everything except the enacting clause, writes in a new bill, and returns it to the House with an ultimatum that the House must either accept the Senate "amendment" or no tariff bill will be passed, it is obvious that that particular bill has originated in the Senate, even though the constitutional form has been observed because its origin can be traced to the House.
When we turn to the consideration of amendments made by the Senate to "money" or, as we now term them, "appropriation" bills, they are so numerous that it is impossible to cata
logue them. As a matter of practice appropriation bills are, almost invariably, initiated by the House; but the Senate regards the House bill not as a finality but as a "project" (to use the word applied by a Senator to describe a treaty sent to the Senate for ratification). In other words, the bill passed by the House is a scheme expressing the views of the House in regard to the disbursement of the public moneys, but of no more binding force than a recommendation made by the head of a department. It is notorious that the Senate almost invariably increases the appropriations made by the House; it is equally notorious that in any contest between the House and the Senate it is the House that, nine times out of ten, has to yield to the Senate.
"Executive usurpation" has been a favorite theme of writers and speakers (especially during the last few years) who, relying upon their rhetoric rather than their facts, have deplored the growing power of the executive and longed for a return to the early days when the President respected the powers vested in the legislature. But, as a matter of fact, if there has been usurpation that of the President is trivial compared to that of the Senate. In the exercise of the two most important functions reposed in the executive-the conduct of foreign relations and the power of appointment-the purpose contemplated by the framers of the Constitution has been so thoroughly perverted by the usurpation of the Senate that the original relation existing between the President and the Senate has been reversed.
In dividing the responsibility for appointments between the President and the Senate-that is, in making the presidential appointment subject to confirmation by the Senate-it was intended to put in the hands of the Senate the power to prevent the President from making an improper appointment; but it was not intended that the Senate should be able to dictate the President's nominees. That possible assumption was scouted as preposterous.
"It will be the office of the President," Hamilton wrote, "to nominate, and with the advice and consent of the Senate,
to appoint. There will, of course (mark the words) be no exertion of choice on the part of the Senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose-they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed; because there might be no positive ground of opposition to him, and they could be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy."
But Hamilton, wise man though he was, could not anticipate a time when "the courtesy of the Senate" would put it in the power of a single Senator to defeat a nomination, nay, even more than that, to coerce a President into nominating a man of whom he did not approve. One has only to recall the contest between Cleveland and the Senate and that between Harrison and the Senate, and to remember that McKinley as well as Roosevelt had to steer a very fine course to avoid shipwreck of their nominations, to become convinced that the Hamiltonian doctrine is archaic, and that that "complacency" to which Hamilton referred instead of being inspired by "the appearances of merit" springs from self-interest.
The relations between the President and the Senate are harmonious so long as the President defers to the Senate and the Senate is willing to pretend deference to the President; but any assertion of independence on the part of the President is bound to lead to a clash. Seeing only the results, but unaware of the causes, certain superficial observers are fond of saying that the President can control the Senate because of the President's power of patronage, thus unconsciously voic