Sidebilder
PDF
ePub

to the spirit of the constitution. Congress would hardly have required them, and, if it had done so, would hardly have commanded public approval, if the slavery question, and later on the civil war and the abolition of slavery, had not brought about a condition of affairs in which legal opinions were, and had to be, pressed into the background by political and moral considerations. Conditions of another kind, as to boundaries, etc., of course cannot be objected to as in any way opposed to the constitutional law. If congress has not provided that the state shall be admitted upon the fulfillment of the conditions imposed by it, this happens as a matter of law by a proclamation of the president. According to the theory of American politicians and publicists, the transformation of the territory into a state has already taken place before its admission; for, they allege, a state must exist in order to have a state admitted. They have never, however, answered, to my knowledge, the question as to what relation prevails if congress, after the passage of an enabling act, and the consequent formation and adoption of a constitution by a constitutional convention, should nevertheless, for some reason, exercise its undoubted right to refuse admission to the state. In my opinion, the failure to regard the admission of a state as the completion of its transformation from a territory involves some serious results. The territorial domain of the United States can be transformed, as a matter of constitutional law, only into states of the Union, and a state can therefore come into existence only when it is one of the states of the United States; that is, a co-ordinate and recognized constituent member of the Union. The change of a territory into a state has no legal effect upon the status of the public lands. Except so far as they are granted expressly to the state by congress for definite purposes (schools), they do not pass into

its possession, but remain property of the Union, and are subject to the same legal provisions as before.

The admitted states have all been formed out of parts of the states of the original Union or from the territorial domains of the Union. Texas is the only exception. It was an independent republic. Its incorporation into the Union met with vigorous opposition, on not only political but constitutional grounds. The way in which this was done by a "joint resolution" of both houses of congress after a treaty of annexation had failed to receive the necessary majority in the senate was a good cause for serious objection. Nevertheless the assertion that an independent nation cannot be directly transformed into a state of the Union seems unfounded, for the power to admit new states is granted wholly without conditions.

[ocr errors]

THE POWERS OF THE PRESIDENT.

$55. POWERS AND DUTIES OF THE PRESIDENT. It has been said that the president of the United States is mightier than the rulers of modern England. This is undoubtedly true. To correctly estimate the powers of the president, one fact must be taken into consideration, which is often wholly overlooked or insufficiently appreciated. He has of course certain very important powers which he exercises in full independence of the other factors of government. But this full independence in the most essential matters is restricted to taking the initiative. His acts require the sanction of the senate in order

1Of those powers of the president already discussed in another connection the right to require written opinions from the heads of departments, the so-called veto, his powers as to convening and adjourning congress and his right and duty to report to congress upon the state of the Union and to make recommendations no further

mention will be made here.

to be perfected. In another set of his powers he is likewise independent of congress to this extent, that it cannot of itself either diminish or increase them. But the opportunity for the exercise of these powers is given the president only by law and the way in which he shall exercise them is defined by law. To a great extent congress can determine how widely or how narrowly it will draw the limits of his independence. It can grant him a fullness of power that under certain circumstances is little inferior to that of a Roman dictator. It can also bring him so sharply under its own control and bind his hands so closely, that his constitutional position as a co-ordinate factor of the government is seriously endangered and the interests of the country are gravely injured by the weakness of the executive power. If congress wishes to abuse its powers, it can easily bring down the president so far as a number of his most important powers of an eminently political character are concerned to the level of the third duty imposed upon him by the constitution,— that of acting merely as the executive organ of the legislative will of congress.1

-

1 It has been boldly asserted that parliamentary government as it is known in Europe was entirely excluded in the United States by the constitutional organization of the federal government. On the contrary the government vests directly in congress to such an extent that in a book just published, which deals incisively with this question, the author says: "I know not how better to describe our government in a single phrase than by calling it a government by the chairmen of the standing committees of congress." (W. Wilson, Congressional Government: a Study in American Politics, Boston, 1885.) This exaggerates, as all statements must exaggerate which seek in one pointed phrase to define great and complicated relations. Not only, however, is there much truth in the assertion, but this truth is so clear, and its pre-eminent significance is so plain, that for some years public attention has been more and more strongly drawn to it. The framers of the constitution did not expect this develop

§ 56. MILITARY POWER. The president is commanderin-chief of the army and navy, and also of the militia, when the latter is called into the actual service of the United States (art. II., sec. 2, § 1).. This is all the constitution has to say as to the military power of the president. This clause in its blunt simplicity is the best illustration of the maxim of American constitutional law already mentioned, that the constitution enumerates but does not define the powers of the federal government. Congress can appoint no other commander-in-chief, and can withdraw from the president not the slightest part of the powers appertaining to the commander-in-chief. This is without doubt, as the constitution confers that office upon him with a categorical "shall be." But what are the powers appertaining to the office proprio jure? The constitution cannot possibly mean that the expression "commander-in-chief" should first be given a concrete meaning by legislation, for the thought underlying ment. It undoubtedly runs directly counter to their intentions. They created a separate executive because their experience led them to reject congressional government on principle. They had recognized the fact that the many-headed legislative power not only could not govern well, but in the long run could not govern at all; and so far as the facts correspond with Wilson's assertion, they have demonstrated this truth anew. He calls his study "Congressional Government;" yet he does not say that congress governs, but that its standing committees or rather their chairmen do; and that, too, not in the sense that they are together actually the government, but that each of them is a particular and isolated part of the government. So far as his assertion is well founded, this "congressional government" is therefore in a great measure a systematic laxity of government, because the organic coherence, the uniform guiding thought and will, and the legal binding of the parts into a comprehensive whole are wanting. Yet, however, matters of constitutional law and of fact may be considered from a political stand-point, this is certain, that in law and in fact America is partly in advance of Europe and partly behind her in parliamentary government.

this provision is manifestly that of ensuring the greatest energy in the application of the military strength of the country by entrusting its direction to one hand. But, as we have seen, all military legislation is entrusted to congress, and the president is simply the commander-in-chief and not at all the lord of peace and war. It is thus very difficult, if not impossible, to draw the line of demarcation with absolute certainty between the authority of congress and that of the president. The general principles of demarcation, however, can be established without difficulty, and their practical application has hitherto led to relatively very few important conflicts. Congress must regulate by law whatever is of general importance and bears a permanent character, but considerations of expediency may demand that even within this, its own domain, it should leave the president free to act at his own discretion, especially in the more technical matters. Of course it is not forbidden to do this. On the other hand, the president alone must determine how the military force shall be employed, and he must make all provisions, temporary and not general in their nature, because, from the nature of things, these must be adapted to special circumstances. Congress - to make this relation clear by some illustrations - provides where forts shall be built and what kind of forts they shall be, how many and what kind of arms are to be provided, and how the men are to be distributed among the different branches of the service; but as to what the strength and composition of the garrisons are to be, how the arms and ammunition are to. be distributed, how and where the army and navy are to be stationed and moved, as to all this, congress can give the president no directions whatever. In war the entire technical direction of affairs is thus incumbent upon the president. Congress has only

« ForrigeFortsett »