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the men in forty-five States to enable him to appoint intelligently unless he could avail himself of the knowledge of those who represent the several States. The consultation of Senators by the President, therefore, in regard to appointments, is nothing more than carrying out the intent of the Constitution in the manner which practice has shown to be the only convenient one. The influence of the Senate in making appointments is not increased thereby, except so far as the multiplication of officers has made it more necessary for the President to receive local information and depend for it upon the Senators more than was essential in the early days. All that has been done constitutionally is to substitute an informal consultation with individual Senators for the consultation of the Senate as a body, which has been always recognized as a constitutional right in the simple rule already quoted.
In regard to the other branch of the Senate's executive functions, the treaty-making power, the course of development has been much the same-consultation of individual Senators, either directly by the President or through the Secretary of State by means of communication with the Committee on Foreign Relations, having been substituted for the old plan of counseling beforehand with the Senate as a body. The treaty-making power of the Senate is a large subject
but the results of more than a century of development in this direction may be briefly summed up.
The Senate has the right, under the language of the Constitution, to advise beforehand that the negotiation be entered into, or the reverse. This right has been exercised on two or three occasions, but very rarely, and has usually been allowed to fall into abeyance, although circumstances may make its use necessary and desirable at any time. The Presidents have from time to time consulted the Senate prior to negotiation, and this right, although not often exercised, has been made use of at intervals down to the present day. The right of the Senate to amend has been always freely used at all periods of our history, and, of course, will continue to be
exercised, because it is the only method by which the Senate can take part in the negotiations, as the Constitution intended it to do.
This summary of the history of the treaty-making power as exercised by the Senate shows that the Senate has not only not sought to extend its power over treaties unduly, or in doubtful directions, but that it has wisely allowed certain undoubted privileges to fall into abeyance and has contented itself with discussion and amendment when a treaty came before it, and with the informal consultations which it has been the practice of most Presidents to extend to members of the Senate in regard to our foreign relations.
This covers the relations of the Senate with the Executive in regard to its executive functions of confirming nominations and of ratifying treaties. It only remains now to consider the relations of the Senate with the House, and there is only one point in the Constitution where the powers of either house are restrained. That is the clause which gives to the House of Representatives the sole right to originate bills to raise revenue. In all other respects the Senate and the House are upon an absolute legislative equality. This right of the House thus given in the Constitution has, of course, never been questioned, nor has the right of the Senate to make unlimited amendments to bills to raise revenue ever been successfully contested, but the practice has grown up of allowing the House to originate not only bills to raise revenue but also the great appropriation bills which provide for the expenditure of the public money. The Senate has an undoubted right to originate any appropriation bill, large or small, and it frequently passes bills carrying an appropriation for some single and specific object, such as the construction of a light-house or of a public building, but at the same time the Senate has, without serious resistance, conceded to the House the sole right to originate the great appropriation bills, although its own right to originate such measures is the same as that of the lower branch. That this is a wise practice I think few persons will doubt, but it cer
tainly does not show on the part of the Senate a desire to usurp authority.
Thus it appears that both in relation to the Executive and the House of Representatives the Senate has not sought to extend its constitutional powers, but has, on the contrary, refrained from the exercise of some undoubted rights and has allowed others to rest in abeyance. Yet there can be no doubt that it is equally true that the power of the Senate has grown enormously in the one hundred years and more of our history. The influence of the Senate in legislation and in all departments of government is much greater than at the beginning, and far exceeds that of the House, but this is not due to any usurpations on the part of the Senate, as has been shown by the preceding review of the history of its constitutional functions. The increase in the importance, weight, and power of the Senate is due primarily to its inherent strength, and this strength rests upon the manner in which it was endowed by the framers of the Constitution. With equal authority in legislation, with executive functions which involve all appointments to office and all our foreign relations, it was inevitable that as the country and the government grew the power of the Senate should increase more largely than that of any other branch of the government, for the simple reason that its original opportunity for growth was greater. This increase of power in the Senate has undoubtedly been stimulated by the fact that the rigid rules necessary in the lower branch had prevented the House from doing many important things which the Senate, with its easy methods of conducting business, could readily take up. Many matters from which the House excluded itself by its own rules were in this way thrown into the possession of the Senate, which is a sure method of enhancing legislative power. In the same way, although the support of the entire Congress is necessary to a successful administration, no President can get on without the Senate, even if he has the House with him, because it is always within the power of the Senate, if it is so disposed, to hamper the Executive without going into open
opposition, both in administration, through the officers, and in foreign relations, through its treaty-making power. Very naturally, therefore, Presidents are always anxious to be on the best terms with the Senators, who are their constitutional advisers, and for this reason as the Executive power has expanded with the growth of the nation and the extension of the government, the power of the Senate has gone hand in hand with it.
The Senate is to-day the most powerful single chamber in any legislative body in the world, but this power, which is shown daily by the wide attention to all that is said and done. in the Senate of the United States, is not the product of selfish and cunning usurpations on the part of an ambitious body. It is due to the original constitution of the Senate, to the fact that the Senate represents States, to the powers conferred upon it at the outset by the makers of the Constitution, to its permanency of organization, and to the combination of legislative, executive, and judicial functions, which set it apart from all other legislative bodies. Without the assent of the Senate no bill can become law, no office can be filled, no treaty ratified.
1-The Powers of the Senate, Reinsch, P., American Legislatures and Legislative Methods, 86–106.
2-The Senate, Its Working and Influence, Bryce, J., American Commonwealth, I, 111-23.
3-The Senatorial Caucus and Leadership, McConachie, L. G., Congressional Committees, 338-45.
4 The United States Senate, Everett, Wm., Atlantic Monthly, XCVII, 157–66.
5 The Treaty-Making Power of the Senate, Bacon, A. O., North American Review, 502-12.
6-The Overshadowing Senate, Nelson, H. L., Century Magazine, XLIII, 499-509.
7-Election of United States Senators by Popular Vote, Burgess, J. W., Political Science Quarterly, XVII, 650–63. 8-Popular Control of Senatorial Elections, Haynes, G. H., Political Science Quarterly, XX, 577–93.
39. DEFECTS IN THE ELECTORAL SYSTEM.
The method of election of the President and Vice-President caused many exciting debates in the Federal Convention. The plan finally agreed upon was believed to be the nearest approach to perfection to be found in the Constitution. And yet no provision in the Constitution has more utterly failed to accomplish the purpose of its framers. Mr. J. H. Dougherty thus describes the practical working of the electoral system and suggests a possible remedy for its defects:
Whatever the origin of the electoral plan, its failure in purpose is clear. The idea of the elector as an over-lord is not consonant with democratic institutions, and our institutions while not democratic at the outset have become increasingly so. Nominally free in Washington's day, the electors never dreamed of resisting the sentiment that universally acclaimed the father of his country the first President of the new Union. In Adams' time there were one or two electors who asserted their constitutional prerogatives, but the majority obeyed the desires of party leaders, and since that period the search is vain for the theoretical elector of the Constitution. Party spirit has deposed him and made him its tool. That elector would render himself infamous who, accepting the office upon the only possible conditions upon which it would be conferred-which tacitly bind him to obey his party's behests should employ it to defeat the will of those who placed him in it. An accomplished jurist and author, and a student under Joseph Story, writing in the North American Review for January, 1877, made the following striking reflections