of the Federal to the state courts was deferred until after the
Constitution had been ratified by the states. They chose the only
practicable means of accomplishing their purpose. With all branches of
the Federal government under their control, they were able to enact a
law which virtually amended the Constitution. Calhoun argues that in
passing this act Congress exceeded the powers granted to it by the
Constitution. What he fails to recognize, however, is the fact that this
measure, although at variance with the interpretation placed upon the
Constitution by the people generally, was, nevertheless, in entire
harmony with the general purpose of its framers and necessary to carry
that purpose into effect.

The view of the American Constitution herein presented may not be
familiar to the average reader of our political literature. For
notwithstanding the overwhelming proof of the aristocratic origin of our
constitutional arrangements accessible to the unbiassed student, the
notion has been sedulously cultivated that our general government was
based on the theory of majority rule. Unfounded as an analysis of our
political institutions shows this belief to be, it has by dint of
constant repetition come to be widely accepted. It is beyond question
that the Constitution was not so regarded by the people at the beginning
of our national life. How, then, was this change in the attitude of the
public brought about? There has doubtless been more than one influence
that has contributed to this result. The abundant natural resources of
the country and the material prosperity of the people are a factor that
cannot be ignored. To these must in a measure be ascribed the uncritical
attitude of mind, the prevailing indifference to political conditions,
and the almost universal optimism which have characterized the American
people. This lack of general attention to and interest in the more
serious and profound questions of government has been favorable to the
inculcation and acceptance of ideas of the system utterly at variance
with its true character. Still, with all due allowance for these
favoring conditions, it is hard to find a satisfactory explanation of
the process by which the worshipers of democracy came to deify an
undemocratic constitution. The desire of the conservative classes to
preserve and perpetuate the system by presenting it in the guise of
democracy, and their influence upon the political thought of the people
generally must be regarded as the chief factor in bringing about this
extraordinary change in public opinion. Hostile criticism of the
Constitution soon "gave place to an undiscriminating and almost blind
worship of its principles ... and criticism was estopped.... 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."[142]

CHAPTER VII

UNDEMOCRATIC DEVELOPMENT

It has been shown that the main purpose of the Constitution was to limit
the power of the people. The recognition of this fact enables us to
understand much of the subsequent development of our political
institutions--a development for which the generally accepted theory of
our system affords no adequate explanation. The erroneous view of the
Constitution so generally inculcated has thus far misled the public as
to the true source of our political evils. It would indeed be strange if
some of the abuses incident to every form of minority rule had not made
their appearance under the operation of a system such as has been
described. Where the influence of public opinion has been so restricted,
it would be but reasonable to expect that the practical working of the
government would reflect something of the spirit of the Constitution
itself. As a consequence of these limitations originally placed upon the
power of the people, the development of our system has not been wholly
in the direction of democracy. The constitutional authority conferred
upon the minority has exerted a far-reaching influence upon the growth
of our political institutions. The natural effect of subordinating the
democratic element would be to render its influence more feeble as the
system developed. That this has not been a purely imaginary danger may
be easily shown.

The Constitution expressly gave to the qualified voters of the various
states the right to control the House of Representatives. It was because
of this fact, as explained in the preceding chapter, that this body was
subordinated in our scheme of government. Even the most perfect control
over this branch would have given the people no positive control over
the government as a whole. At the most, it conceded to them merely a
negative on a part of the acts and policy of the government. Yet popular
control over this branch of the government has become less and less
effective as our political system has developed.

The Constitution provides that "the times, places, and manner of holding
elections for senators and representatives shall be prescribed in each
state by the legislature thereof; but the Congress may at any time by
law make or alter such regulations, except as to the place of choosing
senators."[143]

It also provides that "Congress shall assemble at least once in every
year, and such meeting shall be on the first Monday in December, unless
they shall by law appoint a different day."

It also requires that the members of the House of Representatives shall
be elected every second year; but as originally adopted it does not
specify when their term of office shall begin.

After the ratification of the Constitution the Congress of the
Confederation on September 13, 1788, designated March 4, 1789, as the
time for commencing proceedings under the new régime. This made the term
of office of President, Senators, and Representatives begin on that
date.

An act of Congress, March 1, 1792, provided that the term of office of
President should "in all cases, commence on the fourth day of March next
succeeding the day on which the votes of the electors shall have been
given."

This date was recognized as the beginning of the President's term of
office by the Twelfth Amendment to the Constitution, which went into
effect in 1804. By implication this amendment makes the term of
representatives begin on the fourth of March of each odd year.

Congress, exercising the power vested in it by the Constitution to
regulate Federal elections, enacted a law bearing date of February 2,
1872, which requires the election of representatives to be held on the
Tuesday next after the first Monday in November of each even year,
beginning with the year 1876. By act of March 3, 1875, this was modified
so as not to apply to any state whose constitution would have to be
amended before the day fixed for electing state officers could be
changed in conformity with this provision.[144]

Congress has no power to change the date on which the term of office of
a representative begins; but it does have authority to change the time
of electing the House of Representatives, and also to determine when its
own sessions shall begin, subject to the constitutional limitation that
it shall meet at least once each year.

Under the law as it now stands the members of a newly elected House of
Representatives do not meet in regular session until thirteen months
after their election. Moreover, the second regular session does not
begin until after the succeeding Congress has been elected.

The evils of this arrangement are thus described by a member of the
House:

"The lower branch of Congress should at the earliest practicable time
enact the principles of the majority of the people as expressed in the
election of each Congress. That is why the Constitution requires the
election of a new Congress every two years. If it were not to reflect
the sentiments of the people then frequent elections would have no
meaning or purpose. Any evasion of that rule is subversive of the
fundamental principle of our government that the majority shall rule.
No other government in the world has its legislative body convene so
long after the expression of the people....

"As an election often changes the political complexion of a Congress,
under the present law, many times we have the injustice of a Congress
that has been repudiated by the people enacting laws for the people
diametrically opposed to the last expression of the people. Such a
condition is an outrage on the rights of the majority....

"Under the present law a representative in Congress who has been turned
down by the people legislates for that people in the second regular
session....

"A man who has been defeated for re-election is not in a fit frame of
mind to legislate for his people. There is a sting in defeat that tends
to engender the feeling of resentment which often finds expression in
the vote of such members against wholesome legislation. That same
feeling often produces such a want of interest in proceedings as to
cause the members to be absent nearly all the second session....

"It is then that some are open to propositions which they would never
think of entertaining if they were to go before the people for
re-election. It is then that the attorneyship of some corporation is
often tendered and a vote is afterward found in the record in favor of
legislation of a general or special character favoring the
corporation."[145]

To appreciate the magnitude of the evils above described, it is
necessary to remember that upon the average only about one-half of the
members of one Congress are elected to the succeeding Congress. This
large number is, therefore, influenced during the second regular session
neither by the hope of re-election nor the fear of defeat. Under these
circumstances it is not surprising that the second regular session
should be notoriously favorable to corporation measures.

That Congress has not attempted to remedy this evil is striking proof of
its indifference to the wishes of the people. Otherwise it would have so
employed the power which it possesses to perfect its organization, as to
ensure the most prompt and complete expression of public opinion in
legislation possible under our constitutional arrangements. Having the
power to change both the time of electing a Congress and the beginning
of its sessions, it could easily remedy the evils described. Both
sessions of a Congress could be held before the succeeding Congress is
elected. This could be accomplished by having Congress convene, as
advocated by the writer of the article above mentioned, for the first
regular session on the Monday following the fourth of March next after
the election, and for the second regular session on the first Monday
after January first of the following year. In this case the second
regular session would doubtless come to an end before the fall election.
Some such adjustment is required to give the people anything like
adequate control over the House of Representatives during the second
regular session.

The present arrangement which makes the House of Representatives largely
an irresponsible body, while not provided for or perhaps even
contemplated by the framers of the Constitution, is nevertheless the
logical outcome of their plan to throttle the power of the majority. But
although in harmony with the general purpose and spirit of the
Constitution, it is a flagrant violation of the basic principle of
popular government.[146]

This tendency may be still more clearly seen in the growth of the
committee system by which the division of power and its consequence,
political irresponsibility, have been carried much farther than the
Constitution contemplated, especially in the organization of the House,
of Representatives. No standing committees were provided for by the
Constitution and few were established by the House during the early
years of its existence. The system once introduced, however, has
gradually developed until the House now has more than fifty-five of
these committees.

Every legislative proposal must under the rules after its second reading
be referred to the committee having jurisdiction over that particular
branch of legislation. Theoretically, any member has a right to
introduce any bill whatever. But as it must be referred to the proper
committee and be reported by it to the House before the latter can
discuss and adopt or reject it, it is evident that the right to initiate
legislation has in effect been taken from the individual members and
vested in the various standing committees. Under this method of
procedure no proposed legislation can be enacted by the House without
the consent of the committee having that particular branch of
legislation in charge. The fact that a measure must be referred to a
committee does not imply that that committee is obliged to report it
back to the House. This the committee will, of course, do if the
proposed bill is one which it wishes to have passed. But if it views the
proposed legislation with disfavor, it may revise it so as to make it
conform to its own wishes, or it may report it so late in the session as
to prevent its consideration by the House, or it may neglect to report
it altogether. This virtually gives a small body of men constituting a
committee a veto on every legislative proposal. The extent to which this
system diminishes the responsibility of the House can not be fully
appreciated without bearing in mind the manner of appointment and
composition of the committees. The Constitution provides that "the House
of Representatives shall choose their speaker and other officers,"[147]
but it makes no mention of the speaker's powers. The right to appoint
the committees is not conferred on the speaker by the Constitution. The
extent and character of the powers exercised by that official are
determined very largely by the rules and usages of the House. This is
the source of his power to appoint the chairman and other members of the
various standing committees.

The speaker is elected at the beginning of each Congress and retains his
office during the life of that body. The same is now true of the
standing committees which he appoints, though previous to 1861 they were
appointed for the session only.

The speaker is, of course, a member of the dominant party in the House,
and is expected to use the powers and prerogatives of his office to
advance in all reasonable ways the interests of the party which he
represents. The selection of committees which he makes is naturally
enough influenced by various considerations of a political and personal
nature. It is largely determined by the influences to which he owes his
elevation to the speakership. In return for the support of influential
members in his own party certain important chairmanships have been
promised in advance. And even where no definite pledges have been made
he must use the appointive power in a manner that will be acceptable to
his party. This does not always prevent him, however, from exercising
enough freedom in making up the committees to insure him a large measure
of control over legislation.

All the chairmanships and a majority of the places on each committee are
given to the members of his own party. As the speaker's right to appoint
does not carry with it the power to remove, he has no control over a
committee after it is appointed. The committees, as a matter of fact,
are in no true sense responsible either to the speaker or to the House
itself, since once appointed they can do as they please. They are in
fact just so many small, independent, irresponsible bodies, each
controlling in its own way and from motives known only to itself the
particular branch of legislation assigned to it. The only semblance of
responsibility attaching to the committee is found in the party
affiliation of the majority of its members with the majority in the
House. But ineffectual and intangible as this is, it is rendered even
more so by the fact that the opposition party is also represented on
each committee. This allows the dominant party to escape
responsibility, since it can claim that its failure to satisfy the
popular demand has been due to the opposition of the minority in the
various committees, which has made concession and compromise necessary.

"The deliberations of committees," as Bryce says, "are usually secret.
Evidence is frequently taken with open doors, but the newspapers do not
report it, unless the matter excite public interest; and even the
decisions arrived at are often noticed in the briefest way. It is out of
order to canvass the proceedings of a committee in the House until they
have been formally reported to it; and the report submitted does not
usually state how the members have voted, or contain more than a very
curt outline of what has passed. No member speaking in the House is
entitled to reveal anything further."[148]

A system better adapted to the purposes of the lobbyist could not be
devised. "It gives facilities for the exercise of underhand and even
corrupt influence. In a small committee the voice of each member is well
worth securing, and may be secured with little danger of a public
scandal. The press can not, even when the doors of committee rooms stand
open, report the proceedings of fifty bodies; the eye of the nation can
not follow and mark what goes on within them; while the subsequent
proceedings in the House are too hurried to permit a ripping up there
of suspicious bargains struck in the purlieus of the Capital, and
fulfilled by votes given in a committee."[149]

A system which puts the power to control legislation in the hands of
these small independent bodies and at the same time shields them so
largely against publicity affords ample opportunity for railway and
other corporate interests to exercise a controlling influence upon
legislation.

This subdivision of the legislative power of the House and its
distribution among many small, irresponsible bodies precludes the
possibility of any effective party control over legislation. And since
the majority in the House can not control its own agents there can be no
effective party responsibility. To ensure responsibility the party in
the majority must act as a unit and be opposed by an active and united
minority. But our committee system disintegrates both the majority and
the minority.

Another practice which has augmented the authority and at the same time
diminished the responsibility of the committees is the hurried manner in
which the House disposes of the various measures that come before it.
The late Senator Hoar has estimated that the entire time which the House
allows for this purpose during the two sessions which make up the life
of a Congress "gives an average of no more than two hours apiece to the
committees of the House to report upon, debate, and dispose of all the
subjects of general legislation committed to their charge. From this
time is taken the time consumed in reading the bill, and in calling the
yeas and nays, which may be ordered by one-fifth of the members present,
and which require forty minutes for a single roll-call."[150]

Moreover, the member "who reports the bill dictates how long the debate
shall last, who shall speak on each side, and whether any and what
amendments shall be offered. Any member fit to be intrusted with the
charge of an important measure would be deemed guilty of an inexcusable
blunder if he surrendered the floor which the usages of the House assign
to his control for an hour, without demanding the previous
question."[151]

Nothing more would seem to be necessary to give the committee control of
the situation. True the House may reject the bill which it submits, but
the committee may easily prevent the House from voting upon a measure
which a majority of that body desires to enact.

As there are many committees and the time which the House can give to
the consideration of their reports is limited, it naturally follows that
each committee is anxious to get all other business out of the way in
order that it may have an opportunity to bring the measures which it
has prepared to the attention of the House. This struggle between the
various committees for an opportunity to report the bills which they
have framed and have them considered by the House explains the
acquiescence of that body in a system that so greatly restricts the
freedom of debate. Very rarely will a committee encounter any formidable
opposition in bringing the discussion of its measures to a close.

The speaker's power of recognition is another check upon the majority in
the House. This power which he freely uses in an arbitrary manner
enables him to prevent the introduction of an obnoxious bill by refusing
to recognize a member who wishes to obtain the floor for that
purpose.[152] Moreover, as chairman of the Committee on Rules he
virtually has the power to determine the order in which the various
measures shall be considered by the House. In this way he can secure an
opportunity for those bills which he wishes the House to pass and ensure
the defeat of those to which he is opposed by giving so many other
matters the preference that they can not be reached before the close of
the second session.

The power thus exercised by the speaker, coupled with that of the
committees, imposes an effectual restraint not only on the individual
members, but on the majority as well. A large majority of the bills
introduced are vetoed by the committees or "killed" by simply not
reporting them back to the House. There is no way in which the House can
override the veto of a committee or that of the speaker, since even when
the rules are suspended no measure can be considered that has not been
previously reported by a committee, while the speaker can enforce his
veto through his power of recognition. Both the committees and the
speaker have what is for all practical purposes an absolute veto on
legislation.

A motion to suspend the rules and pass any bill that has been reported
to the House may be made on the first and third Mondays of each month or
during the last six days of each session. "In this way, if two-thirds of
the body agree, a bill is by a single vote, without discussion and
without change, passed through all the necessary stages, and made law so
far as the consent of the House can accomplish it. And in this mode
hundreds of measures of vital importance receive, near the close of
exhausting sessions, without being debated, amended, printed, or
understood, the constitutional assent of the representatives of the
American people."[153]

This system which so effectually restricts the power of the majority in
the House affords no safeguard against local or class legislation. By
making it difficult for any bill however worthy of consideration to
receive a hearing on its own merits, it naturally leads to the practice
known as log-rolling. The advocates of a particular measure may find
that it can not be passed unless they agree to support various other
measures of which they disapprove. It thus happens that many of the
bills passed by the House are the result of this bargaining between the
supporters of various measures. Certain members in order to secure the
passage of a bill in which they are especially interested will support
and vote for other bills which they would prefer to vote against. In
this way many bills secure a favorable vote in the House when a majority
of that body are really opposed to their enactment. It is entirely
within the bounds of possibility that no important measure desired by
the people at large and which would be supported by a majority of the
House, can be passed, since any powerful private interest opposed to
such legislation may be able to have the measure in question quietly
killed in committee or otherwise prevented from coming to a final vote
in the House. But while legislation in the interest of the people
generally may be defeated through the silent but effective opposition of
powerful private interests, many other measures which ought to be
defeated are allowed to pass. A system which makes it possible to defeat
the will of the majority in the House by preventing on the one hand the
enactment of laws which that majority favors, and by permitting on the
other hand the enactment of laws to which it is opposed, certainly does
not allow public opinion to exercise an effective control over the
proceedings of the House.

As a foreign critic observes, "the House has ceased to be a debating
assembly: it is only an instrument for hasty voting on the proposals
which fifty small committees have prepared behind closed doors.... At
the present time it is very much farther from representing the people
than if, instead of going as far as universal suffrage, it had kept to
an infinitely narrower franchise, but had preserved at the same time the
freedom, fullness, and majesty of its debates."[154]

CHAPTER VIII

THE PARTY SYSTEM

The political party is a voluntary association which seeks to enlist a
majority of voters under its banner and thereby gain control of the
government. As the means employed by the majority to make its will
effective, it is irreconcilably opposed to all restraints upon its
authority. Party government in this sense is the outcome of the efforts
of the masses to establish their complete and untrammeled control of the
state.

This is the reason why conservative statesmen of the eighteenth century
regarded the tendency towards party government as the greatest political
evil of the time. Far-sighted men saw clearly that its purpose was
revolutionary; that if accomplished, monarchy and aristocracy would be
shorn of all power; that the checks upon the masses would be swept away
and the popular element made supreme. This would lead inevitably to the
overthrow of the entire system of special privilege which centuries of
class rule had carefully built up and protected.

When our Constitution was framed responsible party government had not
been established in England. In theory the Constitution of Great
Britain recognized three coordinate powers, the King, the Lords, and the
Commons. But as a matter of fact the government of England was
predominantly aristocratic. The landed interests exerted a controlling
influence even in the House of Commons. The rapidly growing importance
of capital had not yet seriously impaired the constitutional authority
of the landlord class. Land had been until recently the only important
form of wealth; and the right to a voice in the management of the
government was still an incident of land ownership. Men as such were not
entitled to representation. The property-owning classes made the laws
and administered them, officered the army and navy, and controlled the
policy of the government in every direction.

"According to a table prepared about 1815, the House of Commons
contained 471 members who owed their seats to the goodwill and pleasure
of 144 Peers and 123 Commoners, 16 government nominees, and only 171
members elected by popular suffrages."[155]

As the real power behind the government was the aristocracy of wealth,
the English system, though nominally one of checks and balances, closely
resembled in its practical working an unlimited aristocracy.

The framers of our Constitution, as shown in previous chapters, took the
English government for their model and sought to establish the supremacy
of the well-to-do classes. Like the English conservatives of that time
they deplored the existence of political parties and consequently made
no provision for them in the system which they established. Indeed,
their chief purpose was to prevent the very thing which the responsible
political party aimed to establish, viz., majority rule.

"Among the numerous advantages promised by a well-constructed union,"
wrote Madison in defense of the Constitution, "none deserves to be more
accurately developed than its tendency to break and control the violence
of faction....

"By a faction, I understand a number of citizens, whether amounting to a
majority or minority of the whole, who are united and actuated by some
common impulse of passion, or of interest, adverse to the rights of
other citizens, or to the permanent and aggregate interests of the
community....

" ... But the most common and durable source of factions has been the
various and unequal distribution of property. Those who hold and those
who are without property have ever formed distinct interests in society.
Those who are creditors, and those who are debtors, fall under a like
discrimination. A landed interest, a manufacturing interest, a
mercantile interest, a moneyed interest, with many lesser interests,
grow up of necessity in civilized nations, and divide them into
different classes actuated by different sentiments and views....

"If a faction consists of less than a majority, relief is supplied by
the republican principle, which enables the majority to defeat its
sinister views by a regular vote. It may clog the administration, it may
convulse the society; but it will be unable to execute and mask its
violence under the forms of the Constitution. When a majority is
included in a faction, the form of popular government, on the other
hand, enables it to sacrifice to its ruling passion or interest both the
public good and the rights of other citizens. To secure the public good
and private rights against the danger of such a faction, and at the same
time to preserve the spirit and the form of popular government, is then
the great object to which our inquiries are directed."[156]

The very existence of political parties would endanger the system which
they set up, since in their efforts to strengthen and perpetuate their
rule they would inevitably advocate extensions of the suffrage, and thus
in the end competition between parties for popular support would be
destructive of all those property qualifications for voting and holding
office which had up to that time excluded the propertyless classes from
any participation in public affairs. Hence Washington though a staunch
Federalist himself saw nothing inconsistent in trying to blend the
extremes of political opinion by giving both Hamilton and Jefferson a
place in his Cabinet.

In England the party by the Reform bill of 1832 accomplished its
purpose, broke through the barriers erected against it, divested the
Crown of all real authority, subordinated the House of Lords, and
established the undisputed rule of the majority in the House of Commons.
This accomplished, it was inevitable that the rivalry between political
parties should result in extensions of the suffrage until the House
should come to represent, as it does in practice to-day, the sentiment
of the English people.

The framers of the American Constitution, however, succeeded in erecting
barriers which democracy has found it more difficult to overcome. For
more than a century the constitutional bulwarks which they raised
against the rule of the numerical majority have obstructed and retarded
the progress of the democratic movement. The force of public sentiment
soon compelled, it is true, the adoption of the Twelfth Amendment, which
in effect recognized the existence of political parties and made
provision for the party candidate for President and Vice-President. At
most, however, it merely allowed the party to name the executive
without giving it any effective control over him after he was elected,
since in other respects the general plan of the Constitution remained
unchanged.

The political party, it is true, has come to play an important role
under our constitutional system; but its power and influence are of a
negative rather than a positive character. It professes, of course, to
stand for the principle of majority rule, but in practice it has become
an additional and one of the most potent checks on the majority.

To understand the peculiar features of the American party system one
must bear in mind the constitutional arrangements under which it has
developed. The party is simply a voluntary political association through
which the people seek to formulate the policy of the government, select
the officials who are to carry it out in the actual administration of
public affairs, and hold them to strict accountability for so doing.
Under any government which makes full provision for the political party,
as in the English system of to-day, the party has not only the power to
elect but the power to remove those who are entrusted with the execution
of its policies. Having this complete control of the government, it can
not escape responsibility for failure to carry out the promises by which
it secured a majority at the polls. This is the essential difference
between the English system on the one hand and the party under the
American constitutional system on the other. The one well knows that if
it carries the election it will be expected to make its promises good.
The other makes certain promises with the knowledge that after the
election is over it will probably have no power to carry them out.

It is this lack of power to shape the entire policy of the government
which, more than anything else, has given form and character to the
party system of the United States. To the extent that the Constitution
has deprived the majority of the power to mold the policy of the
government through voluntary political associations, it has defeated the
main purpose for which the party should exist.

The fact that under the American form of government the party can not be
held accountable for failure to carry out its ante-election pledges has
had the natural and inevitable result. When, as in England, the party
which carries the election obtains complete and undisputed control of
the government, the sense of responsibility is ever present in those who
direct it. If in the event of its success it is certain to be called
upon to carry out its promises, it can not afford for the sake of
obtaining votes to make promises which it has no intention of keeping.
But when the party, even though successful at the polls may lack the
power to enforce its policy, it can not be controlled by a sense of
direct responsibility to the people. Promises may be recklessly and
extravagantly made merely for the sake of getting votes. The party
platform from the point of view of the party managers ceases to be a
serious declaration of political principles. It comes to be regarded as
a means of winning elections rather than a statement of what the party
is obligated to accomplish.

The influence thus exerted by the Constitution upon our party system,
though generally overlooked by students and critics of American
politics, has had profound and far-reaching results. That the conduct of
individuals is determined largely by the conditions under which they
live is as well established as any axiom of political science. This must
be borne in mind if we would fully understand the prevailing apathy--the
seeming indifference to corruption and ring rule which has so long
characterized a large class of intelligent and well-meaning American
citizens. To ascribe the evils of our party system to their lack of
interest in public questions and their selfish disregard of civic
duties, is to ignore an important phase of the problem--the influence of
the system itself. In the long run an active general interest can be
maintained only in those institutions from which the people derive some
real or fancied benefit. This benefit in the case of the political party
can come about only through the control which it enables those who
compose it to exercise over the government. And where, as under the
American system, control of the party does not ensure control of the
government, the chief motive for an alert and unflagging interest in
political questions is lacking. If the majority can not make an
effective use of the party system for the attainment of political ends,
they can not be expected to maintain an active interest in party
affairs.

But although our constitutional arrangements are such as to deprive the
people of effective control over the party, it has offices at its
disposal and sufficient power to grant or revoke legislative favors to
make control of its organization a matter of supreme importance to
office seekers and various corporate interests. Thus while the system
discourages an unselfish and public-spirited interest in party politics,
it does appeal directly to those interests which wish to use the party
for purely selfish ends. Hence the ascendency of the professional
politician who, claiming to represent the masses, really owes his
preferment to those who subsidize the party machine.

The misrepresentative character of the American political party seems to
be generally recognized by those who have investigated the subject. It
is only when we look for an explanation of this fact that there is much
difference of opinion. The chief difficulty encountered by those who
have given attention to this problem has been the point of view from
which they have approached it. The unwarranted assumption almost
universally made that the principle of majority rule is fundamental in
our scheme of government has been a serious obstacle to any adequate
investigation of the question. Blind to the most patent defects of the
Constitution, they have ignored entirely its influence upon the
development and character of the political party. Taking it for granted
that our general scheme of government was especially designed to
facilitate the rule of the majority, they have found it difficult to
account for the failure of the majority to control the party machine.
Why is it that under a system which recognizes the right and makes it
the duty of the majority to control the policy of the government, that
control has in practice passed into the hands of a small minority who
exercise it often in utter disregard of and even in direct opposition to
the wishes and interests of the majority? On the assumption that we have
a Constitution favorable in the highest degree to democracy, how are we
to explain the absence of popular control over the party itself?
Ignoring the obstacles which the Constitution has placed in the way of
majority rule, American political writers have almost invariably sought
to lay the blame for corruption and machine methods upon the people.
They would have us believe that if such evils are more pronounced here
than elsewhere it is because in this country the masses control the
government.

If the assumption thus made concerning the nature of our political
system were true, we would be forced to accept one of two conclusions:
either that popular government inevitably results in the despotism of a
corrupt and selfish oligarchy, or if such is not a necessary
consequence, then at any rate the standard of citizenship in this
country intellectually and morally is not high enough to make democracy
practicable. That the ignorance, selfishness and incapacity of the
people are the real source of the evils mentioned is diligently
inculcated by all those who wish to discredit the theory of popular
government. No one knows better than the machine politician and his
allies in the great corporate industries of the country how little
control the people generally do or can exercise over the party under our
present political arrangements. To disclose this fact to the people
generally, however, might arouse a popular movement of such magnitude as
to sweep away the constitutional checks which are the source of their
power. But as this is the very thing which they wish to prevent, the
democratic character of the Constitution must be taken for granted; for
by so doing the people are made to assume the entire responsibility for
the evils which result from the practical operation of the system. And
since the alleged democratic character of our political arrangements is,
it is maintained, the real source of the evils complained of, the only
effective remedy would be the restriction of the power of the people.
This might take the form of additional constitutional checks which would
thereby diminish the influence of a general election upon the policy of
the government without disturbing the present basis of the suffrage; or
it might be accomplished by excluding from the suffrage those classes
deemed to be least fit to exercise that right. Either method would still
further diminish the influence of the majority, and instead of providing
a remedy for the evils of our system, would only intensify them, since
it would augment the power of the minority which is, as we have seen,
the main source from which they proceed.

A government which limits the power of the majority might promote the
general interests of society more effectually than one controlled by the
majority, if the checks were in the hands of a class of superior wisdom
and virtue. But in practice such a government, instead of being better
than those for whom it exists, is almost invariably worse. The complex
and confusing system of checks, with the consequent diffusion of power
and absence of direct and definite responsibility, is much better
adapted to the purposes of a self-seeking, corrupt minority than to the
ends of good government. The evils of such a system which are mainly
those of minority domination must be carefully distinguished from those
which result from majority control. The critics of American political
institutions have as a rule ignored the former or constitutional aspect
of our political evils, and have held majority rule accountable for much
that our system of checks has made the majority powerless to prevent.
The evils of our party system, having their roots in the lack of popular
control over the party machine, are thus largely a consequence of the
checks on the power of the majority contained in the Constitution
itself. In other words, they are the outcome, not of too much, but of
too little democracy.

The advocates of political reform have directed their attention mainly
to the party machine. They have assumed that control of the party
organization by the people would give them control of the government. If
this view were correct, the evils which exist could be attributed only
to the ignorance, want of public spirit and lack of capacity for
effective political co-operation on the part of the people. But as a
matter of fact this method of dealing with the problem is open to the
objection that it mistakes the effect for the cause. It should be
clearly seen that a system of constitutional checks, which hedges about
the power of the majority on every side, is incompatible with majority
rule; and that even if the majority controlled the party organization,
it could control the policy of the government only by breaking down and
sweeping away the barriers which the Constitution has erected against
it. It follows that all attempts to establish the majority in power by
merely reforming the party must be futile.

Under any political system which recognizes the right of the majority to
rule, responsibility of the government to the people is the end and aim
of all that the party stands for. Party platforms and popular elections
are not ends in themselves, but only means by which the people seek to
make the government responsive to public opinion. Any arrangement of
constitutional checks, then, which defeats popular control, strikes down
what is most vital and fundamental in party government. And since the
party under our system can not enforce public opinion, it is but natural
that the people should lose interest in party affairs. This furnishes an
explanation of much that is peculiar to the American party system. It
accounts for that seeming indifference and inactivity on the part of the
people generally, which have allowed a small selfish minority to seize
the party machinery and use it for private ends.

The party, though claiming to represent the people, is not in reality a
popular organ. Its chief object has come to be the perpetuation of
minority control, which makes possible the protection and advancement of
those powerful private interests to whose co-operation and support the
party boss is indebted for his continuance in power.[157] To accomplish
these ends it is necessary to give the party an internal organization
adapted to its real, though not avowed, purpose. The people must not be
allowed to use the party as a means of giving clear and definite
expression to public opinion concerning the questions wherein the
interests of the general public are opposed to the various private
interests which support the party machine. For a strong popular
sentiment well organized and unequivocally expressed could not be
lightly disregarded, even though without constitutional authority to
enforce its decrees. To ensure successful minority rule that minority
must control those agencies to which the people in all free countries
are accustomed to look for an authoritative expression of the public
will. The party machine can not serve the purpose of those interests
which give it financial support and at the same time allow the people to
nominate its candidates and formulate its political creed. Nevertheless,
the semblance of popular control must be preserved. The outward
appearance of the party organization, the external forms which catch the
popular eye, must not reveal too clearly the secret methods and
cunningly devised arrangements by which an effective minority control is
maintained over the nomination of candidates and the framing of party
platforms. The test of fitness for office is not fidelity to the rank
and file of the people who vote the party ticket, but subserviency to
those interests which dominate the party machine. The choice of
candidates is largely made in the secret councils of the ruling minority
and the party conventions under color of making a popular choice of
candidates merely ratify the minority choice already made. Popular
elections under such a system do not necessarily mean that the people
have any real power of selecting public officials. They merely have the
privilege of voting for one or the other of two lists of candidates
neither of which may be in any true sense representative of the people
or their interests.

But in nothing is the lack of popular control over the party more
clearly seen than in the party platforms. These are supposed to provide
a medium for the expression of public opinion upon the important
questions with which the government has to deal. Under a political
system which recognized the right of the majority to rule, a party
platform would be constructed with a view to ascertaining the sense of
that majority. Does the platform of the American political party serve
this purpose? Does it seek to crystallize and secure a definite
expression of public opinion at the polls, or is it so constructed as to
prevent it? This question can best be answered by an examination of our
party platforms.

The Constitution, as we have seen, was a reaction against and a
repudiation of the theory of government expressed in the Declaration of
Independence, although this fact was persistently denied by those who
framed it and urged its adoption. The high regard in which popular
government was held by the masses did not permit any open and avowed
attempt to discredit it. The democracy of the people, however, was a
matter of faith rather than knowledge, a mere belief in the right of the
masses to rule rather than an intelligent appreciation of the political
agencies and constitutional forms through which the ends of popular
government were to be attained. Unless this is borne in mind, it is
impossible to understand how the Constitution, which was regarded at
first with distrust, soon came to be reverenced by the people generally
as the very embodiment of democratic doctrines. In order to bring about
this change in the attitude of the people, the Constitution was
represented by those who sought to advance it in popular esteem as the
embodiment of those principles of popular government to which the
Declaration of Independence gave expression. The diligence with which
this view of the Constitution was inculcated by those who were in a
position to aid in molding public opinion soon secured for it universal
acceptance. Even the political parties which professed to stand for
majority rule and which should therefore have sought to enlighten the
people have not only not exposed but actually aided in perpetuating
this delusion.

In the Democratic platform of 1840 we find the following:

"Resolved, That the liberal principles embodied by Jefferson in the
Declaration of Independence, and sanctioned in the Constitution, which
makes ours a land of liberty and the asylum of the oppressed of every
nation, have ever been cardinal principles in the Democratic faith."
This was reaffirmed in the Democratic platforms of 1844, 1848, 1852, and
1856.

Finding its advocacy of the Declaration of Independence somewhat
embarrassing in view of its attitude on the slavery question, the
Democratic party omitted from its platform all reference to that
document until 1884, when it ventured to reaffirm its faith in the
liberal principles which it embodied. Again, in its platform of 1900, it
referred to the Declaration of Independence as "the spirit of our
government" and the Constitution as its "form and letter."

In the Republican platform of 1856 we read "That the maintenance of the
principles promulgated in the Declaration of Independence and embodied
in the Federal Constitution is essential to the preservation of our
republican institutions." This was repeated in the Republican platform
of 1860, and the principles of the Declaration of Independence alleged
to be embodied in the Constitution were specified, viz., "That all men
are created equal; that they are endowed by their Creator with certain
inalienable rights; that among these are life, liberty, and the pursuit
of happiness; that to secure these rights governments are instituted
among men, deriving their just powers from the consent of the governed."
The authority of the Declaration of Independence was recognized by the
Republican party in its platform of 1868, and again in its platform of
1876.[158]

Both parties have during recent years expressed their disapproval of
monopolies and trusts, though neither when in power has shown any
disposition to enact radical anti-monopoly legislation.

The Democratic party which favored "honest money" in 1880 and 1884 and
demanded the repeal of the Sherman Act in 1892 stood for free coinage of
silver at 16 to 1 in 1896 and 1900. The Republican party which advocated
international bimetallism in 1884, condemned the Democratic party in
1888 for trying to demonetize silver and endorsed bimetallism in 1892,
favored "sound money" and international bimetallism in 1896 and renewed
its "allegiance to the principle of the gold standard" in 1900.

The Republican platform of 1860 branded "the recent reopening of the
African slave trade, under the cover of our national flag, aided by
perversions of judicial power, as a crime against humanity." The
Democratic party in its platform of 1896 expressed its disapproval of
the Income Tax decision of the United States Supreme Court and in both
1896 and 1900 condemned "government by injunction." With these
exceptions neither party has ever expressed its disapproval of any
exercise of authority by the Federal judiciary.

Neither of the great parties has ever taken a stand in favor of an
income tax, government ownership of the railroads or the telegraph, or,
if we except the declaration in favor of direct election of United
States senators in the Democratic platforms of 1900 and 1904, advocated
any important change in our system of government.

Let us now inquire how far the results of a general election can be
regarded as an expression of public opinion upon the questions raised in
the party platforms. Does a popular majority for a party mean that the
majority approve of the policies for which that party professes to
stand? It is generally assumed by the unthinking that this is the case.
But such a conclusion by no means follows. If there were but one
question at issue between the parties and every vote was for principle,
not for particular candidates, the policy of the successful party would
have the approval of the majority. But when the party defines its
position on a number of issues this is no longer true. Take, for
instance, the Democratic and Republican platforms of 1900, the former
containing twenty-five and the latter twenty-nine separate articles in
its party creed. Does a majority vote for a party indicate that the
majority approve of the entire platform of that party? No thoughtful
person would maintain for a moment that all who support a party approve
of its entire platform. In the case of the Republican party in 1900, one
large class of its supporters who believed the money question to be
paramount and who feared the consequences of free coinage of silver
voted the Republican ticket, though opposed to the attitude of that
party on expansion and also on protection. The ardent protectionist may
have given the party his support on the strength of its tariff plank
alone. He may even have been opposed to the party's position on the
silver question and on expansion. Another class who may have disapproved
of both gold monometallism and protection, but who regarded expansion as
the all-important question, supported the Republican party because of
its attitude in this matter. It is certain that some who voted the
Republican ticket did not approve its expansion policy; some did not
approve of its extreme protectionist policy; and some did not approve of
its attitude on the money question. Every man who voted the Republican
ticket is assumed to have endorsed the entire policy of the party,
though, as a matter of fact, the party may have secured his vote by
reason of its position on the one question which he deemed to be of
supreme importance. It is, to say the least, extremely probable that
every intelligent man who supported the party disapproved of its
attitude on one or more questions. Each plank in the platform was put
there for the purpose of catching votes. Some gave their vote for one
reason, some for another and some for still other reasons. And when, as
in our present day party platforms, many separate and distinct bids are
made for votes, it is not only possible but highly probable that no
single plank in that party's creed was approved by all who voted the
party ticket. If the various issues could be segregated and each voted
upon separately, it is conceivable that not one of them would command a
majority of the entire vote; and yet, by lumping them all together and
skilfully pushing to the front and emphasizing each article of its creed
before the class or in the region where it would find most support, the
party may secure a popular majority for its platform as a whole. Both
parties in their platforms of 1900 stood for the admission as states of
Arizona, New Mexico, and Oklahoma; both declared in favor of legislation
against monopolies and trusts; both favored liberal pensions, the
construction of an Isthmian canal, irrigation of arid lands, reduction
of war taxes and protection of American workmen against cheap foreign
labor. Yet it does not by any means follow that a majority of the people
voting really endorsed even these planks which were common to both
platforms.

Moreover the party does not always state its position in a clear and
unequivocal manner. The Democratic platform while opposing Republican
expansion did so with some important reservation. While denouncing the
recent expansion policy of the Republican party it made a bid for the
support of those who believed in a moderate and conservative expansion
policy. The same is true of its attitude on protection. It did not
condemn the principle of protection, but merely the abuse of the system
through which monopolies and trusts had been fostered. The vague and
ambiguous manner in which the party defines its attitude, together with
the highly composite character of its platform, largely defeats the end
for which it should be framed. As a means of arriving at a definite and
authoritative expression of public opinion concerning the political
questions of the day it is far from satisfactory. It is conceivable that
a party may under this system carry an election and yet not a single
principle for which it professes to stand would, if separately
submitted, command the approval of a majority of the voters.

The threefold purpose for which the party exists--(1) popular choice of
candidates, (2) a clear and definite expression of public opinion
concerning the questions with which the government must deal, and (3)
the responsibility of the government to the popular majority are all
largely defeated under the American system. The last named end of the
party is defeated by the Constitution itself, and this, as hereinbefore
shown, has operated to defeat the others as well.

We thus see that true party government is impossible under a
constitutional system which has as its chief end the limitation of the
power of the majority. Where the party which has carried the election is
powerless to enforce its policy, as is generally the case in this
country, there can be no responsible party government. The only branch
of our governmental system which responds readily to changes in public
opinion is the House of Representatives. But this is and was designed to
be a subordinate body, having a voice in shaping only a part of the
policy of the government, and even in this limited field being unable to
act except with the concurrence of the President, Senate and Supreme
Court. A change in public sentiment is not likely under these
circumstances to be followed by a corresponding change in the policy of
the state. Even when such change in sentiment is insistent and
long-continued, it may be unable to overcome the resistance of the more
conservative influences in the Constitution. The most superficial
examination of our political history is sufficient to show that the
practical working of our Constitution has in large measure defeated the
end of party government. Calhoun's contention that the party had
succeeded in breaking down the elaborate system of constitutional checks
on the numerical majority is not borne out by the facts.

Eleven general elections since the adoption of the Constitution have
resulted in a House of Representatives which had no political support in
any other branch of the government. During eighty-four years of our
history under the Constitution the party in the majority in the House
has not had a majority in all the other branches of the general
government, and consequently has not had the power to enforce its
policy. From 1874 to 1896--a period of twenty-two years--there were but
two years (the 51st Congress) during which the same party had a majority
in all branches of the government. But even during this brief period it
failed to control the treaty-making power since it lacked the two-thirds
majority in the Senate which the Constitution requires. In fact, there
has been no time since 1874 when any party had sufficient majority in
the Senate to give it an active control over the treaty-making power.

The more important and fundamental changes in public policy which
involve an exercise of the amending power are still more securely
placed beyond the reach of party control. Not only the power to ratify
amendments, but even the power to propose them, is effectually withheld
from the party, since it can scarcely ever command the required
two-thirds majority in both houses of Congress or a majority in both
branches of the legislature in two-thirds of the states.

Under our constitutional system a political party may have a nominal
majority in all branches of the government and yet lack the power to
enforce its policy. That branch of the government over which the party
has most control through frequent elections--viz., the House of
Representatives--is the one which has least authority, while those which
have most influence in shaping the policy of the government are less
directly subject to the penalties of party disapproval, as in the case
of the President and Senate, or entirely exempt from any effective party
control as in the case of the Supreme Court. The division of authority
under our Constitution makes it possible for either house of Congress to
give the appearance of support to a measure which public opinion demands
and at the same time really accomplish its defeat by simply not
providing the means essential to its enforcement. The opportunity thus
afforded for the exercise of a covert but effective veto on important
legislation is a fruitful source of corruption. The extreme diffusion
of power and responsibility is such as to make any effective party
control and responsibility impossible. This would be the case even if
the party were truly representative of public opinion. But when we
consider that the party is organized on a plan which in some measure at
least defeats both the popular choice of candidates and the expression
of public opinion in party platforms, it is readily seen that the slight
degree of party control permitted under our system is in no true sense a
popular control.

CHAPTER IX

CHANGES IN THE STATE CONSTITUTIONS AFTER 1787

The effects of the conservative reaction were not confined to the
general government. The movement to limit the power of the popular
majority was felt in the domain of state as well as national politics.
Even before the Constitutional Convention assembled the political
reaction was modifying some of the state constitutions. This is seen
especially in the tendency to enlarge the powers of the judiciary which
was the only branch of the state government in which life tenure
survived. This tendency received powerful encouragement and support in
the adoption of the Federal Constitution which secured to the judiciary
of the general government an absolute veto on both federal and state
legislation. For as the state courts were not slow in following the
precedent set by the Federal courts, what had been before the adoption
of the Constitution a mere tendency soon became the practice in all the
states. This in reality accomplished a revolution in the actual working
of the state governments without any corresponding change in their
outward form. It effected a redistribution of political powers which
greatly diminished the influence of the popularly elected and more
responsible branches of the state government and gave a controlling
influence to that branch over which the people had least control.

Not only was the state judiciary allowed to assume the veto power, but
their independence of public opinion was more effectually safeguarded by
depriving a mere majority of the legislature of the power to remove
them. The provision of the Federal Constitution requiring a two-thirds
majority in the legislative body for removal by impeachment or otherwise
was quite generally copied. Without some such safeguard the party in
control of the legislature could prevent the exercise of the judicial
veto by removing from office any judges who dared to oppose its policy.

New York and South Carolina were the only states adopting constitutions
during the Revolutionary period, which included provisions limiting the
power of the majority to impeach public officials. The New York
constitution of 1777 required a two-thirds majority in the lower house,
and the South Carolina constitution of 1778 a two-thirds majority in
both houses. Pennsylvania copied the impeachment provisions of the
Federal Constitution in her constitution of 1790; Delaware went even
farther, and in her constitution of 1792, required a two-thirds majority
in both houses; Georgia followed the example of the Federal
Constitution in 1798; Virginia, in 1830; North Carolina, in 1835;
Vermont, in 1836; New Jersey, in 1844; and Maryland, in 1851.

With the progress of this movement to restore the system of checks in
the state constitutions the governor regained his independence of the
legislature and also many of the rights and prerogatives of which the
Revolution had deprived him. He was made coordinate with the
legislature, set over against it and generally clothed with the
qualified veto power, which made him for all practical purposes the
third house of that body. Georgia increased the governor's term of
office to two years and gave him the qualified veto power in 1798.
Pennsylvania made his term of office three years and gave him the veto
power in 1790. New Hampshire conferred the veto power on him in 1792 and
New York in 1821.

This tendency to make the public official less directly dependent upon
the people or their immediate representatives is clearly seen in other
important changes made in the state constitutions during this period.
Popular control over the legislature was diminished by lengthening the
terms of the members of both houses and by providing that the upper
house should be elected for a longer term than the lower. Georgia
established an upper house in 1789 and made the term of office of its
members three years. In 1790 Pennsylvania also added a senate whose
members were to be elected for four years, and South Carolina increased
the term of its senators from one to four years. Delaware extended the
term from one to two years for members of the lower house and from three
to four years for members of the upper house and made the legislative
sessions biennial instead of annual in 1831. North Carolina increased
the term of members of both houses from one to two years and adopted
biennial sessions in 1835. Maryland in 1837 extended the term of
senators from five to six years, and in 1846 established biennial
sessions of the legislature. The responsibility of the legislature was
still further diminished by the gradual adoption of the plan of partial
renewal of the senate, which was incorporated in the Revolutionary
constitutions of Delaware, New York and Virginia and later copied in the
Federal Constitution. This ensured the conservative and steadying
influence exerted by a body of hold-over members in the upper house.

With the exception of five states in which the members of one branch of
the legislature were elected for terms varying from two to five years,
the Revolutionary state constitutions provided for the annual election
of the entire legislature. This plan made both houses conform to the
latest expression of public opinion by the majority of the qualified
voters at the polls. And since neither the executive nor the courts
possessed the veto power, the system ensured prompt compliance on the
part of the law-making body with the demands of the people as expressed
in the results of the legislative election.

The influence of public opinion on the state governments was greatly
weakened by the constitutional changes above mentioned. The lower branch
of the legislature, inasmuch as all its members were simultaneously
elected, might be regarded as representative of recent, if not present,
public opinion, though effective popular control of that body was made
more difficult by lengthening the term of office, since this diminished
the frequency with which the voters could express in an authoritative
manner their disapproval of the official record of its members. Under
the plan adopted present public opinion as formulated in the results of
the last election was not recognized as entitled to control the state
senate.

These changes in the state constitutions by which the executive and
judicial branches of the government acquired the veto power amounted in
practice to the creation of a four-chambered legislature. By thus
increasing the number of bodies which it was necessary for the people to
control in order to secure the legislation which they desired, their
power to influence the policy of the state government was thereby
diminished. And when we reflect that not only was legislative authority
more widely distributed, but each branch of the state government
exercising it was also made less directly dependent on the qualified
voters, we can see that these constitutional provisions were in the
nature of checks on the numerical majority.

A consideration of the changes made in the method of amending the state
constitutions leads to the same conclusion. During the Revolutionary
period, as we have seen, the tendency was strongly toward making the
fundamental law the expression of the will of the numerical majority.
Difficulties in the way of change were reduced to a minimum. But under
the influence of the political reaction which followed, and which
produced the Constitution of the United States, the state governments
were so organized as to make it more difficult for the majority to
exercise the amending power. Georgia in 1789 changed the method of
amending the state constitution by requiring a two-thirds majority in a
constitutional convention, and made another change in 1798 by which a
two-thirds majority in each house of the legislature and a three-fourths
majority in each house of the succeeding legislature was required for
the adoption of an amendment to the constitution. South Carolina in 1790
adopted a provision guarding against mere majority amendment by making
the approval of a two-thirds majority in both branches of two
successive legislatures necessary for any changes in the constitution.
Connecticut in 1818 restricted the power of amending by requiring a
majority in the house of representatives, a two-thirds majority in both
houses of the next legislature, and final approval by a majority of the
electors. New York in 1821 adopted a plan which required that an
amendment should receive a majority in each branch of the legislature, a
two-thirds majority in each branch of the succeeding legislature, and be
approved by a majority of the voters. North Carolina in 1835 made a
three-fifths majority in each house of the legislature and a two-thirds
majority of each house of the following legislature necessary for
changes in the constitution.

The judicial veto served the purpose of preventing majority amendment
under the guise of ordinary legislation, while a safeguard against
constitutional changes favored by a mere majority was thus provided in
the extraordinary majority required in both houses of the legislature to
propose or adopt amendments. This, as has been shown in the case of the
Federal Constitution, is a formidable check on the majority. In view of
this restriction upon the proposing of amendments the provision for
ratification by a popular majority, which owing to the progress of the
later democratic movement has now been generally adopted, is no real
concession to the principle of majority rule.

Assuming that a two-thirds majority in the legislature is required to
propose an amendment, and that the principle of representation is so
applied that each party is represented in the legislature in proportion
to its popular vote, it would scarcely ever be possible for any party to
propose an amendment to the state constitution, since it can not be
expected under any ordinary conditions to control two-thirds of the
popular vote. But inasmuch as the successful party often secures under
our system much more than its proportional share of representation in
the legislature, it is by no means unusual for a party to have a
two-thirds majority in both houses of a state legislature. This would
appear to give the numerical majority under such conditions the power to
propose and adopt amendments. Such would be the case if the party were
really responsible to those who supported it at the polls. But this
would assume the existence of a purely state party, organized with
reference to state issues only, and carrying the election as the
advocate of a definite state policy. Moreover, it would presuppose all
those means, political and constitutional, by which the majority in the
legislature would be accountable to the popular majority in the state.
This is rendered impossible, however, as has been shown, by our system
of government.

The above-mentioned changes in the constitutions of the older states may
be attributed in large measure to the reaction against democracy which
brought about the adoption of the Federal Constitution. They may be
regarded as an expression of that distrust and fear of democracy which
filled the minds of those who framed and set up our Federal government.
It is not contended, however, that they are now so regarded by the
masses of the people. The work of deifying the Federal Constitution was
soon accomplished. And when the people had come to venerate it as the
most perfect embodiment of the doctrine of popular sovereignty that the
intelligence of man could devise, it was but natural that they should
acquiesce in the proposal to make the state governments conform more
closely to the general plan of that instrument. In view of the
widespread sentiment which amounted to a blind and unthinking worship of
the Constitution, it is not surprising that the political institutions
of the general government should have been largely copied by the states.
The only surprising thing in this connection is the fact that they did
not follow the Federal model more closely, since every feature of it was
the object of the most extravagant eulogy. Here we see, however, an
inconsistency between profession and practice. The people who tolerated
no criticism of the Federal Constitution showed nevertheless a distrust
of some of its more conservative features. Much as the indirect election
of President and United States senators was favored by the framers of
our Federal Constitution, there has been no tendency to apply that
principle in the selection of the corresponding state officials.

In all the states framing new constitutions during the Revolutionary
period, except Massachusetts, New Hampshire, and New York, the governor
was elected by the legislature. Pennsylvania abandoned indirect election
and adopted election by the qualified voters in 1790; Delaware, in 1792;
Georgia, in 1824; North Carolina, in 1835; Maryland, in 1837; New
Jersey, in 1844; Virginia, in 1850; and South Carolina, in 1865. South
Carolina and Maryland are the only states which have ever had indirect
election of the upper house. Both adopted it in 1776, the constitution
of South Carolina providing that the members of the lower house should
elect the members of the upper house, and the constitution of Maryland
requiring that members of the upper house should be chosen by an
electoral college. This was abandoned for direct election in South
Carolina in 1778 and in Maryland in 1837.

The conservative reaction was soon followed by a new movement toward
democracy. This no doubt largely explains the failure of the people to
reproduce in their state constitutions all those features which they
professed to admire in the Federal Constitution. Not only did they not
copy all the new features of that document, but they even discarded some
of the then existing provisions of the state constitutions which had
been copied in the Federal Constitution. The principle of indirect
election which was everywhere recognized in the choice of the state
judiciary during the Revolutionary period was gradually abandoned for
the more democratic method of direct popular choice which has now become
the rule. The life tenure of judges which formerly existed in most of
the states has almost entirely disappeared. In all but four states the
judges are now chosen for terms varying from two to twenty-one
years--the average length of the term being eight or ten years. The
combination of direct popular choice with a fixed term of office has had
the effect of making the state judiciary much more amenable to public
opinion than the corresponding branch of the Federal government. By
reason of the relatively long term for which the judges of the state
supreme court are elected, however, and the plan of gradual renewal
which prevents present public opinion from ever gaining the ascendency
in that body, it is still the least responsible and most conservative
branch of the state government.

We see, then, two motives exerting an influence in the remolding of the
state constitutions, one being the desire to copy the Federal
Constitution and the other the belief that the state government should
reflect the will of the people. That the attainment of one of these ends
would inevitably defeat the other was not generally recognized. The
conviction which had become thoroughly rooted in the popular mind that
the system of checks and balances was the highest expression of
democratic organization ensured the embodiment of the general features
of that system in the constitutions of the various states. The
constitutional changes having this end in view largely destroyed the
responsibility of the state governments to the people and thus prevented
the very thing they were designed to accomplish. But however much this
system was in reality opposed to the principle of direct popular
control, it was adopted by the people with the idea of making the
government more readily reflect their will. They were not conscious of
any inconsistency in holding tenaciously to the doctrine of checks and
balances and at the same time seeking to give the people more control
over the state governments. The latter purpose is clearly seen in the
constitutional changes relating to the tenure and manner of election of
the judiciary and in the adoption of universal suffrage. Summing up the
effects of these changes in the state constitutions, we may say that the
suffrage was placed upon a democratic basis, the state judiciary was
organized on a less irresponsible plan and the appearance of political
responsibility secured by applying the principle of direct election to
every branch of the state government. The longer term of office
established for the legislative and executive branches of the state
government, however, together with the increase in the authority of the
judiciary and the adoption of the system of checks and balances has upon
the whole had the effect of making the state government less responsive
to the electorate.

As seen in preceding chapters, the framers of the Federal Constitution
made use of the scheme of checks and balances for the purpose of
limiting the power of the people. There is little evidence that they
favored diffusion of authority except in so far as that authority rested
upon a popular basis. Hence they carried the plan much farther in
curtailing the power of the House of Representatives than a logical
application of the doctrine would have justified, while at the same time
giving more authority and power of independent action to the other
branches of the general government than was consistent with their
avowed, if not real, purpose.

They gave to the executive and judicial branches of the general
government power to control the administration of Federal laws. The
enforcement of all laws and regulations of the general government, in
so far as the President and Senate might desire to enforce them, was
guaranteed through the power to appoint and remove those who were
entrusted with their execution, while the right of appeal from a state
to the Federal courts precluded the possibility of enforcing a state law
deemed to exceed the proper limits of state authority.

In the state governments on the other hand we find a high degree of
administrative decentralization. The governor, unlike the President, was
not given any adequate power to control those entrusted with the
execution of state laws. A multitude of directly elected local officials
are the agents of the state for this purpose. And since they reflect the
sentiment of the various local interests to which they owe their
election, it may and often does happen that a law to which those
interests are opposed is rendered practically inoperative through the
efforts of those local officials who are sworn to enforce it. The
practical working of this system often gives to a local community an
administrative veto on such general laws of the state as may be opposed
to local sentiment. By this means the general executive authority of the
state is weakened and its responsibility correspondingly diminished.

In still another respect the policy of dividing authority and parcelling
it out between separate and distinct organs of government has been
carried much farther in the state than in the Federal Constitution.
Unlike the Federal government in which executive power is centralized in
the President, the state constitutions have created a number of separate
officials, boards and commissions, some directly elected and some
appointed, independent of each other and irresponsible except in so far
as a fixed term of office implies responsibility. This means that
instead of one executive the state has many. Only one of them--the
governor--has, it is true, a veto on the enactment of laws; but this, as
we have seen, is really a legislative and not an executive power. Each
of these has what may be termed an administrative veto; that is, the
power to negative the laws which they are expected to administer by
simply not enforcing them. The impossibility of securing an honest and
faithful administration of the laws where the responsibility for their
enforcement is divided between a number of separate and practically
independent officials, is clearly shown in the experience of the various
states. The evils of this system are illustrated in the state laws
enacted for the purpose of controlling the railway business. Provision
is usually made for their enforcement through a railway commission
either directly elected or appointed by the governor. That direct
election by the people for a fixed term, thereby securing independence
during that term, fails to guarantee the enforcement of such laws is
strikingly shown in the experience of California, where this body has
been continually under the domination of the railway interests.[159]

Under a system which thus minutely subdivides and distributes the
administrative function, any effective control over the execution of
state laws is made impossible. The governor, who is nominally the head
of the executive agencies of the state, is not in reality responsible,
since he has no adequate power to compel the enforcement of laws
directly entrusted to other independent state officials. Any interest or
combination of interests that may wish to prevent the enforcement of
certain laws may be able to accomplish their end by merely controlling
the one official or board whose duty it is to enforce the law in
question. Their task would be a much more difficult one, if it were
necessary to control for that purpose the entire executive arm of the
state. The opportunity for the corrupt use of money and influence is
thus vastly increased, since the people, though they might watch and
judge fairly well the conduct of one state executive, can not exercise
any effective censorship over a large number of such officials.

This irresponsibility which arises out of a wide diffusion of power is
not confined to the executive branch of the state government. The
legislature in the course of our political development has taken on the
same elaborate committee organization which characterizes, as we have
seen, our Federal Congress. The same sinister influences working through
similar agencies oppose needed legislation. But although the good bills
are frequently killed or mutilated in the secrecy of the committee room,
the skilful use of money or other corrupt influence often secures the
enactment of laws opposed to the interests of the people. Moreover, the
practice known as log-rolling by which the representatives of various
local interests combine and force through measures which secure to each
of certain localities some advantage at the expense of the state at
large are so common as to excite no surprise.

The relation existing between the executive and legislative branches
under our system is another source of irresponsibility, since it does
not follow simply because a law has been placed upon the statute books
of a state that it can be enforced. An act may be passed in response to
a strong public sentiment, it may be constitutional and the executive
may be willing and may even desire to enforce it, and yet be unable to
do so. The legislature may, and frequently does, enact laws under the
pressure of public opinion while at the same time quietly exercising
what is, in effect, a veto on their execution. In the case of much
important legislation it can accomplish this by merely not
appropriating the funds which are required for their enforcement. The
laws against adulteration are a good illustration. An official known
perhaps as a dairy and food commissioner may be provided for, whose duty
it is to enforce these laws. The nature of the work entrusted to him
requires that he should have a corps of assistants, inspectors who are
to keep a watchful eye on the goods likely to be adulterated and collect
samples of such goods from the various places in the state where they
are exposed for sale, and chemists who are to analyze the samples thus
procured and determine whether manufacturers and dealers are complying
with the law. Unless an adequate sum is appropriated for this purpose,
and for prosecuting those who are violating the law, such laws can not
be enforced.

In our state governments the subdivision of authority has been carried
so far that no effective control over the enactment or enforcement of
state laws is possible. Under the influence of the doctrine of checks
and balances the policy of widely distributing political authority has
inured to the benefit of those private interests which are ever seeking
to control the government for their own ends, since it has supplied the
conditions under which the people find it difficult to fix the blame for
official misconduct. Indeed it may be said that wherever power should be
concentrated to ensure responsibility, it has been almost invariably
distributed.

CHAPTER X

MUNICIPAL GOVERNMENT

Our municipal government, like the rest of our political system, was
originally an inheritance from England. The governing power in colonial
times was a single body, the common council, such as exists in England
to-day, composed of mayor, recorder, aldermen, and councilmen. As a rule
the councilmen were elected annually by the qualified voters, while the
mayor was appointed by the colonial governor. The council had authority
to enact local regulations not in conflict with English or colonial
legislation. The mayor had no veto and usually no appointing power.

The Revolution did not modify the general scheme of municipal government
in any important respect. The mayor was still, as a rule, appointed by
the governor, who now owed his office directly or indirectly to the
qualified voters of the state. The power to grant municipal charters,
which before the Revolution was exercised by the provincial governor,
was now lodged in the state legislature.

The important changes in municipal government were made after, and may
be regarded as an effect of the adoption of the Federal Constitution. As
the centralization of authority in the hands of the common council could
not be reconciled with the new doctrine of checks and balances,
municipal government was reorganized on the plan of distributed powers.
This effort to readjust the political organization of the city and make
it conform to the general scheme of the Federal government is seen in
the municipal charters granted after the adoption of the Constitution.
The tendency toward a bicameral council, the extension of the term for
which members of the council were elected and the veto power of the
mayor may be attributed to the influence of the Constitution rather than
to any intelligent and carefully planned effort to improve the machinery
of municipal government.

As in the case of the state governments, the development of the system
was influenced by the growing belief in democracy. Property
qualifications for the suffrage disappeared, and the mayor became a
directly elected local official. The changes made in municipal
government, however, as a concession to the newer democratic thought,
did not ensure any very large measure of popular control. Municipal
government in its practical working remained essentially undemocratic.

It would be perfectly reasonable to expect that popular government
would reach its highest development in the cities. Here modern democracy
was born; here we find the physical and social conditions which
facilitate interchange of thought and concerted action on the part of
the people. Moreover, the government of the city is more directly and
immediately related to the citizens than is the government of state or
nation. It touches them at more points, makes more demands upon them and
is more vitally related to their everyday life and needs than either
state or national government. For these reasons the most conspicuous
successes of democracy should be the government of present-day cities.
Under a truly democratic system this would doubtless be the case. But in
this country the most glaring abuses and most conspicuous failures of
government occur in the cities. The enemies of popular government have
used this fact for the purpose of discrediting the theory of democracy.
They would have us believe that this is the natural result of a system
which places political authority in the hands of the masses--that it is
the fruit of an extreme democracy. This conclusion rests upon the
assumption that municipal government in this country is democratic--an
assumption which will not bear investigation. American cities are far
from being examples of extreme democracy. In some important respects
they are less democratic than the government of either state or nation.
A careful analysis of the situation shows clearly that the municipal
evils so frequently attributed to an excess of democracy are really due
to the system of checks by which all effective power to regulate
municipal matters is withheld from the majority. In this country popular
control is reduced to a minimum in the cities, while in Great Britain
and the countries of western Europe we find in municipal government the
nearest approach to democracy. This is the true explanation of the fact
that municipal government is our greatest failure and their most
conspicuous success.

Under any consistent application of the theory of democracy a city would
be entitled to the fullest measure of local self-government. It ought to
be given an absolutely free hand to initiate and carry out any policies
of purely local concern. This right, however, the American city does not
possess. Local self-government is recognized neither in theory nor in
practice under our political scheme. The true local unit is the city,
and this, according to our legal and constitutional theory, is merely
the creature of the state legislature. The latter called it into being,
determines what powers it may exercise, and may strip it of them at
pleasure. According to the prevailing practice of our state legislatures
and the almost uniform decisions of our courts the exercise of local
self-government by our cities is to be regarded as a mere privilege and
not a right.

The municipal charter was originally a grant of certain privileges of
local government in return for money payments or other services rendered
to the king. It was a mere concession of privileges based upon
expediency, and not a recognition on the part of the Crown of local
self-government as an admitted right. As an express and formal statement
of the measure of local government which the king would bind himself to
respect, it tended to limit his power of interference in matters covered
by such charter, since privileges solemnly granted could not with safety
be lightly and arbitrarily disregarded. Municipal charters thus have the
same origin as the constitution of the state itself, in that they are
the outcome of an effort to place a check upon an irresponsible central
authority.

The legislature of the American commonwealth in succeeding to the power
of the king over municipal charters manifested at first an inclination
to concede to the city the right to a measure of local self-government.
Thus "the city of New York received from the English kings during the
colonial period a charter which, on the Declaration of the Independence
of the colony of New York, and the establishment of the new state of New
York, was confirmed by the first Constitution of the state. For a
considerable period after the adoption of this constitution, changes in
that charter were made upon the initiation of the people of the city,
which initiation took place through the medium of charter conventions
whose members were elected by the people of the city, and no statute
which was passed by the legislature of the state relative to the affairs
of the city of New York took effect within the city until it had been
approved by the city."[160]

But as Professor Goodnow observes, American cities "have very largely
lost their original powers of local self-government."[161] The original
conception of the city charter as a contract which established certain
rights of local self-government which the legislature was bound to
respect, merely recognized municipal corporations as entitled to the
same exemption from unreasonable legislative interference, as the courts
have since the Dartmouth College decision enforced in favor of private
corporations. If this view had prevailed cities could not have been
deprived arbitrarily of rights once recognized by the legislature, but
they could have enforced the recognition of no rights not thus granted.
The recognition of this doctrine would have prevented many of the abuses
that have characterized the relation between state and municipal
government in this country, but it would have guaranteed no rights which
the legislature had not seen fit to confer. Any liberal interpretation
of the theory of democracy must of necessity go farther than this, and
make municipal self-government a fundamental right which the central
authority of the state can, not only neither abridge nor destroy, but
can not even withhold, since it is a right having its source not in a
legislative grant, but in the underlying principles of popular
government.

The failure to recognize the right of local self-government as
fundamental in any scheme of democracy was unfortunate. Some of the
worst evils of municipal government would have been avoided, however, if
authority once granted to municipalities had been treated by the courts
as a limitation of the power of the legislature to interfere in purely
local matters. The refusal of the state government to recognize an
appropriate sphere of municipal activity which it would have no right to
invade, has been the main cause of corruption and inefficiency in
municipal government.

The policy of state interference in municipal affairs was the inevitable
outgrowth of the doctrine that cities had no powers except such as had
been expressly given, or were necessarily implied in their charters.
This lack of the power of initiative made it necessary for cities, as
they increased in size and complexity, to make constant appeals to the
legislature for permission to supply their wants. Every new problem
which the city had to deal with, every new function which it had to
perform, was a ground for state interference. This necessity of invoking
the aid of the state legislature, constantly felt in every rapidly
growing city, tended to develop a feeling of dependence upon legislative
intervention as an indispensable factor in the solution of local
problems. Thus the refusal of the state government to recognize the
right of municipal initiative compelled the cities to welcome state
interference as the only means of dealing with the new problems with
which they were being continually confronted.

Another reason for the extension of state authority at the expense of
the municipality is to be found in the twofold character of city
government. Besides being a local government the city is also for
certain purposes the administrative agent of the state, and as such is
properly subject to state supervision. But, in the absence of any clear
distinction between state and local interests, it was an easy matter for
protection of the former to serve as a pretext for undue interference
with the latter.

The city was thus placed at the mercy of the state government, since the
legislature could make the needs of the municipality or the protection
of the general interests of the state a pretext for any interference
calculated to further the private or partisan ends of those who
controlled the legislative machine. As cities increased in importance it
was found that this unlimited power over them could be made a valuable
asset of the party machine in control of the state legislature. The city
offered a rich and tempting field for exploitation. It had offices, a
large revenue, spent vast sums in public improvements, let valuable
contracts of various kinds and had certain needs, as for water, light,
rapid transit, etc., which could be made the pretext for granting
franchises and other privileges on such terms as would ensure large
profits to the grantees at the expense of the general public. That the
political machine in control of the state government should have yielded
to the temptation to make a selfish use of its powers in this direction,
is only what might have been expected.

"The legislature has often claimed also the right to appoint municipal
officers and to fix and change the details of municipal organization,
has legislated municipal officers out of office, and established new
offices. In certain cases it has even provided that certain specific
city streets shall be paved, has imposed burdens upon cities for the
purpose of constructing sewers or bringing in water; has regulated the
methods of transportation to be adopted within the limits of cities; in
a word, has attended to a great number of matters which are purely local
in character; matters which do not affect the people of the state as a
whole, and in regard to which there is little excuse for special
legislative action."[162]

The extent to which state regulation of local matters has been carried
in New York is indicated by the fact that in the year 1886 "280 of the
681 acts passed by the legislature ... interfered directly with the
affairs of some particular county, city, village, or town, specifically
and expressly named....

"The Philadelphia City Hall Building affords a good example of how far
this lack of local responsibility may sometimes carry the legislature in
the exercise of local powers, and in the imposition of financial burdens
on cities. 'In 1870 the legislature decided that the city should have
new buildings. The act [which was passed to accomplish this result]
selected certain citizens by name, whom it appointed commissioners for
the erection of the buildings. It made this body perpetual by
authorizing it to fill vacancies.... This commission was imposed by the
legislature upon the city, and given absolute control to create debts
for the purpose named, and to require the levy of taxes for their
payment.

"'The public buildings at Broad and Market streets were,' in the words
of Judge Paxson, 'projected upon a scale of magnificence better suited
for the capitol of an empire than the municipal buildings of a
debt-burdened city.' Yet this act was declared constitutional, the city
was compelled to supply the necessary funds, and 'for nearly twenty
years all the money that could be spared from immediate and pressing
needs' was 'compulsorily expended upon an enormous pile which surpasses
the town halls and cathedrals of the Middle Ages in extent if not in
grandeur.'"[163]

The legislature is strongly tempted to abuse its power when the party
machine in control of the state does not have the political support of
the local authorities. One of the most notorious examples of such
interference in recent years was the so-called "ripper" legislation
enacted in Pennsylvania in 1901, by which the mayors of Pittsburg and
Allegheny were removed from office and the governor given the power to
appoint and remove their successors until the regular municipal election
in the year 1903. The motive for this legislation was the desire to
crush local opposition to the state machine by putting the control of
municipal offices in the hands of a governor friendly to the political
boss of the state. In order to provide an opportunity for the mayor
appointed by the governor to use his office in building up and
perpetuating a local machine that would support the clique in control of
the state government, the appointee of the governor was declared
eligible for re-election, although his locally elected successors were
made ineligible. A more flagrant abuse of legislative authority could
hardly be imagined; yet this act was declared constitutional by the
supreme court of the state.

Many such instances of partisan interference may be found in the recent
legislation of some of the larger and more populous states.

The best example of the misgovernment of cities by the legislature for
private or partisan ends is seen in the franchise legislation by which
privileges of great value have been secured by street railway and other
corporations without any compensation to the cities concerned. The power
which the legislature can exercise in the interest of private
corporations monopolizing for their own profit the very necessities of
life in the modern city--water, light, transportation, communication,
etc.--has been one of the most serious evils resulting from state
domination of municipal affairs. It exposed the legislature to the
temptation which individuals and corporations seeking valuable
concessions readily took advantage of for their own gain. It thus
brought into active operation those forces which have been the chief
factor in corrupting both state and municipal government.

As soon as it came to be generally recognized that state control of
local affairs not only did not prevent, but was, in fact, the chief
source of the misrule of American cities, an effort was made to provide
a remedy by the adoption of constitutional provisions regulating the
power of the legislature to interfere in municipal affairs. These
limitations relate to those matters wherein the evils of state
interference have been most pronounced. Thus in some states the
legislature is not allowed to grant the use of streets to railways or
other private companies without the consent of the municipal
authorities; to create special commissions and bestow upon them
municipal functions; or to incorporate cities or regulate them by
special laws.

It was not the purpose of these constitutional provisions to grant to
municipalities any immunity from state control, but merely to forbid
certain modes of exercising legislative supervision which, as experience
had shown, were liable to serious abuses. The prohibition of special
legislation, generally incorporated in recent state constitutions, has,
however, largely failed to accomplish its purpose, owing to the fact
that the courts have permitted the legislature to establish so many
classes of cities that it has been able to pass special acts under the
guise of general laws.

The state of Ohio furnishes a good example of the practical
nullification of a constitutional provision by the legislature through
the abuse of its power of classification. The constitution of 1851
prohibited the legislature from passing any special act conferring
corporate powers and provided for the organization of cities by general
laws. The legislature, however, adopted a method of classifying cities
which defeated the object of this provision. In 1901 each of the eleven
principal cities in the state was in a separate class. Consequently all
laws enacted for each of these classes were in reality special acts, and
as such were clearly an evasion of the constitutional prohibition of
special legislation. Nevertheless, this method of classification had
been repeatedly upheld by the courts. Its advantages to the party in
control of the state government were obvious, since it gave the
legislature a free hand in interfering in local affairs for partisan
ends. It permitted the state machine to make concessions to a city which
gave it political support and at the same time extend state control over
those cities in which it encountered opposition. This was the situation
down to 1902, when the supreme court rendered two decisions which
overthrew the system of classification in vogue and invalidated the
charter of every city in the state. It is unfortunate that this change
in the attitude of the court, though much to be desired, occurred at a
time when it had the appearance of serving a partisan end. One of these
suits was brought by the Republican attorney-general of the state to
have the charter of the city of Cleveland declared invalid on the ground
that it was a special act. This charter had been in force for over ten
years, having granted liberal corporate powers at a time when Cleveland
was a Republican city. Later it passed into the Democratic column, and
this suit was instituted as part of the plan of the Republican machine
of the state to curb the power and influence of the mayor of that city.
The new municipal code which was adopted at an extra session of the
legislature provided a scheme of government applicable to Cleveland
under which the powers of the mayor were much curtailed.

In the New York constitution of 1894 an effort was made to guard against
the abuse of special legislation. The cities of the state were by the
constitution itself divided into three classes according to population,
and any law which did not apply to all the cities of a class was
declared to be a special act. Special legislation was not prohibited;
but when any act of this kind was passed by the legislature it was
required to be submitted to the authorities of the city or cities in
question, and if disapproved of by them after a public hearing, it could
become law only by being passed again in the regular manner. This merely
afforded to the cities affected by the proposed special legislation an
opportunity to protest against its enactment, the legislature having
full power to pass it in the face of local disapproval. That this is not
an adequate remedy for the evils of special legislation is shown by the
fact that the two charters of New York City enacted since this
constitution went into effect, have both been framed by a
state-appointed commission and passed over the veto of the mayor.

The constitutional changes which have been mentioned must not be
understood as implying any repudiation of the doctrine that a municipal
corporation is a creature of the general government of the state. These
provisions merely secured, or rather sought to secure, to cities some
benefits of a negative character--immunity from certain recognized
abuses of legislative authority. They are the expression of an effort to
find a remedy for the evils of municipal government by restricting the
authority of the legislature rather than by giving cities the power to
act independently in local matters. They have diminished somewhat the
evils of state interference, but they failed to remove the cause by
giving the cities the constitutional right to control their own affairs.

The failure of all these measures to accomplish what was expected of
them finally brought the advocates of municipal reform to a realization
of the fact that the American system made no provision for real local
self-government, and that our refusal to recognize this principle was
the chief cause of the prevalent corruption and misrule of our cities
and the insuperable obstacle to all effective and thoroughgoing reform.
As soon as attention was directed to this feature of the problem it was
seen that no system could be devised that would be better adapted to the
purpose of defeating the end of good city government, since those who
would be directly benefited by the reforms in municipal government were
powerless to bring them about except with the co-operation of the
legislature. Moreover the consent of the legislature, though once given,
was liable at any time to be withdrawn at the instigation of private or
partisan interests, since this body was not directly interested in
establishing and maintaining good municipal government nor responsible
to those who were.

It was finally seen that some more effective measure than the
prohibition of special legislation was required. The next step was the
attempt to secure to cities the needed authority in local matters by
means of a constitutional provision authorizing them to frame their own
charters. In this movement the state of Missouri led the way by
incorporating a home-rule provision in its constitution of 1875.
California, Washington, Minnesota, and Colorado have since adopted
similar provisions. In each of these states the charter is framed by a
commission locally elected except in Minnesota, where it is appointed by
the district judge.

In Missouri this privilege is accorded only to cities having more than
100,000 inhabitants. The constitution of California adopted in 1879
also restricted the benefits of home rule to cities of more than 100,000
population, but it has since been extended to all cities having more
than 3,500 inhabitants. Washington allows all cities having 20,000 or
more population to frame their own charters. Minnesota extends the
privilege to all cities and villages without respect to size, while
Colorado restricts it to cities having more than 2,000 inhabitants.

The right to serve as a member of a charter commission is limited to
freeholders in all these states except Colorado, where it is restricted
to taxpayers. The object of these home-rule provisions was to give
cities some measure of initiative in local affairs without at the same
time permitting them to organize on the plan of simple majority rule. In
the Missouri constitution of 1875 a four-sevenths vote was required to
adopt a charter and a three-fifths vote to ratify an amendment, although
the constitution itself was adopted and could be amended by mere
majority vote. The constitution of California permits ratification by a
majority of the qualified voters, but every charter thus ratified must
be submitted to the legislature for its approval or rejection as a
whole. No charter amendment can be adopted except by a three-fifths
majority of the popular vote and subsequent legislative approval,
although, as in the case of Missouri, a majority vote is sufficient to
approve an amendment to the state constitution. In Washington the
constitution provides for the ratification of charters and charter
amendments by a majority of the qualified electors. The constitutional
amendment adopted in Minnesota in 1896, with its subsequent
modifications, provides for the ratification of charters and charter
amendments by a four-sevenths vote except in the case of certain cities
where a three-fourths majority is required. A three-fifths vote in favor
of a charter amendment is necessary for its ratification. Colorado, by a
constitutional amendment adopted in 1902, permits the ratification and
amendment of charters by a majority vote. A constitutional amendment
adopted in Missouri in 1902 provides for the ratification of charters by
majority vote.

With the exception of California, where the constitutional amendment of
1902 allows 15 per cent. of the qualified voters to require the
submission of a charter amendment, and Colorado, where 25 per cent. of
the voters have that right, the states above mentioned make no provision
in their constitutions for the popular initiative. Both Washington and
Minnesota, however, have permitted it by statute, the former on the
application of 15 per cent., and the latter when 5 per cent. of the
qualified voters demand it.

The chief defect of these constitutional provisions relating to home
rule is that they do not really grant it. There are too many
restrictions imposed upon cities availing themselves of this privilege,
and in two of the states in question, notably in Missouri, they are for
the benefit of the larger cities only. The restriction of the
charter-framing right to freeholders, the withholding from the majority
of the power to amend in California and Minnesota, and the failure to
provide in the constitution for the popular initiative in Missouri,
Washington, and Minnesota indicate a willingness to grant the right of
home rule only under such conditions as are calculated to ensure
adequate limitation of the power of the majority.

These constitutional provisions certainly point in the direction which
we must follow if we would find any satisfactory solution of our
municipal problem. They would, if liberally interpreted by the courts,
secure to cities immunity from interference in local matters. But the
courts are naturally opposed to innovations in our constitutional
system, and have consequently been disposed to give provisions of this
character such an interpretation as will minimize their effect. The
requirement that the charters framed under these provisions must be in
harmony with the constitution and laws of the state has been declared by
the courts to mean that they must not only conform to the laws in force
at the time the charters are adopted, but also that they must conform to
all legislation subsequently enacted. Had the courts been thoroughly
imbued with the principle of local self-government, they could easily
have given these constitutional provisions an interpretation which would
have effectually deprived the legislature of the power to interfere in
purely local affairs. They could have declared all acts by which the
state government sought to invade the sphere of local affairs null and
void, just as they have all acts of the municipal government which have
encroached upon the powers reserved exclusively to the state. What the
courts have done, however, is to hold that these constitutional
provisions merely authorize cities to govern themselves in accordance
with the constitution and in harmony with such laws as the legislature
has or may hereafter enact. The city may adopt a charter which is in
harmony with the constitution and the laws of the state, but the charter
thus adopted may be freely modified by general laws relating to cities.
The unfriendly attitude of the courts has thus largely defeated the
object of these home-rule provisions. The state legislature is still
free to encroach upon or abridge the sphere of municipal
self-government.

The constitutional provisions above mentioned may be regarded as having
a twofold purpose. They were designed to limit, if not destroy, the
power of the legislature to invade the sphere of municipal affairs, and
also to confer upon cities the general power to act for themselves, by
virtue of which they could on their own initiative, subject to certain
restrictions contained in the constitution, set up their own government,
formulate and carry out a municipal policy and manage their own affairs
to suit themselves. This would seem to be implied necessarily in the
grant of constitutional power to frame a charter for their own
government. A liberal interpretation of this feature of the
constitutions in question would have held that all cities to which it
applied were thereby authorized to exercise all powers not expressly
withheld by the constitution or the statutes of the state. This,
however, has not been the attitude of the courts. Their reluctance to
give home-rule provisions a liberal interpretation may be illustrated by
a decision of the supreme court of Washington. In addition to the power
granted to cities of the first class to frame their own charters the
constitution of this state provides that "any county, city, town, or
township, may make and enforce within its limits all such local, police,
sanitary and other regulations as are not in conflict with general
laws." In view of the attitude that courts have generally taken in this
matter it is not surprising that the supreme court of Washington has
intimated that the above-mentioned constitutional provisions are not
self-executing. Moreover, it does not seem disposed to concede even to
cities of the first class any important powers except such as have been
expressly conferred by statute. For example, the statutes of Washington
authorize cities of the first class "to regulate and control the use" of
gas supplied by a private corporation, and the charter of Tacoma
expressly gave to the city council the power to fix the price of gas so
supplied. Suit was brought to enjoin the city from exercising this power
which was claimed under the constitutional and statutory authority given
to cities of the first class. The supreme court held that while Tacoma
had the power to regulate and control, expressly given it by statute, it
did not have the power to fix the price.[164] This decision evinces a
singular lack of sympathy on the part of the court with the home-rule
provisions of the constitution of Washington.

But although the effort to confer upon cities by constitutional
enactment the power to manage their own affairs has thus far largely
failed, it indicates a growing appreciation of the nature of the problem
and the character of the remedy that must be applied. A more clearly
defined and effective public opinion in favor of municipal
self-government must in the end overcome judicial opposition.

The most liberal interpretation of which these constitutional provisions
are susceptible, however, would not have ensured complete municipal
self-government. Unless a city is given adequate financial powers, a
constitutional grant of the right of local self-government does not
enable it to exercise much choice in relation to the more important
matters of municipal policy. By narrowly limiting the powers of cities
in this direction, they have been largely deprived of the advantages
which they would have enjoyed under a consistent application of the
home-rule principle. A certain amount of freedom in the use of the
taxing power would seem to be no less essential to the city than to the
state itself. Within reasonable limits it ought to be conceded the right
to formulate its own scheme of taxation. In every important American
city the taxes collected for municipal purposes greatly exceed those
imposed for the support of the county and state government. In a matter
which so vitally concerns the city it ought to have some right to pursue
a policy of its own. This right has not been recognized, however, even
in the constitutions which have made most concessions to the principle
of municipal home rule. By this means all innovations or reforms in
municipal taxation except such as may be authorized by the state itself
are effectually prevented. It could not, for instance, exempt personal
property from taxation, or make a tax on ground rent the main source of
its revenue.

The power to incur debt for municipal purposes is no less essential than
the power to tax. The present-day city must spend large sums in making
public improvements the cost of which it is necessary to distribute over
a period of years. To limit too narrowly the borrowing power of cities
for these purposes would prevent them from realizing the full benefits
of unhampered self-government. This does not imply that a city should
own and operate all industries of a quasi-public character, but it does
imply that it should have the unquestioned right and the power to do so.
Unless this is the case it is not in a position to secure the most
favorable terms from such private corporations as may be allowed to
occupy this field. Unreasonable restrictions upon the borrowing power of
cities by placing obstacles in the way of municipal ownership of public
utilities tend to deprive the people of the most effective safeguard
against the extortion of private monopolies.

The limitation placed upon the amount of municipal indebtedness has not
had altogether the effect intended. This is mainly due to the fact that
the debt limit fixed in the state constitutions was in many cases so low
that it did not permit cities to make absolutely necessary public
improvements, such as the paving of streets and construction of sewers.
To make these improvements without resorting to credit would require the
owners of the property affected to advance the full amount of their
cost. This would in many instances be extremely inconvenient.
Accordingly, an effort was made to find some method of evading these
restrictions which would be upheld by the courts. This was accomplished
by issuing bonds to be paid out of a special fund which was to be
created by taxes assessed against the property of the district charged
with the cost of the improvements. The courts held that this was merely
a lien upon the property of the district in question, and not a
municipal debt within the meaning of the above-mentioned constitutional
limitations. These decisions by the courts may not appear to be in
harmony with the letter of the constitutional provisions relating to
municipal indebtedness, but they are hardly at variance with their
spirit. The object of these restrictions was not so much to limit the
rights of the property-owning classes as to protect them against the
extravagance of the propertyless voters. To make an exception in favor
of municipal indebtedness incurred in this way and for these purposes
was not calculated to work any hardship upon property owners, but rather
to give them the power to authorize the employment of credit for their
own advantage. They were protected against the abuse of this particular
kind of indebtedness inasmuch as the consent of the owners of a majority
of the property affected was quite generally required.

One influence which helped to mold a public sentiment in favor of
constitutional provisions limiting the amount of municipal indebtedness
was the rapid increase in the debts of American cities during the period
that immediately followed the Civil war. For this condition of affairs
the state government itself was largely to blame. It had prescribed a
form of municipal organization which was scarcely compatible with an
efficient and responsible management of financial matters. Moreover, the
state government, as we have seen, could empower its own agents to
borrow money for a purpose which it had authorized and obligate the city
to pay it. The effort to correct these evils, first noticeable about the
year 1870, took the form of constitutional provisions limiting the
amount of indebtedness which could be incurred by or on behalf of
cities. The main object of these provisions was to protect municipal
taxpayers against an extravagant use of the borrowing power for local
purposes, whether exercised by state or municipal authorities.

Another advantage which these provisions seemed likely to secure to the
capital-owning class deserves at least a passing mention. This policy of
limiting the amount of municipal indebtedness was adopted at a time
when, owing to the rapid growth of urban population, the local
monopolies of water, light, transportation, etc., were becoming an
important and extremely profitable field for the investment of private
capital. The restrictions imposed upon the power of cities to borrow
money would retard, if not preclude, the adoption of a policy of
municipal ownership and thus enable the private capitalist to retain
exclusive possession of this important class of industries.

That the constitutional restrictions upon the general indebtedness of
cities have retarded the movement toward municipal ownership is beyond
question. It is not likely, however, that they will much longer block
the way to municipal acquisition of those industries in which private
management has proven unsatisfactory, since it may be possible to evade
them by resorting to the device of a _special fund_. The same line of
argument which has been accepted by the courts as supporting the
constitutionality of the special fund for local improvement purposes is
no less applicable to special debts incurred for the purchase of
revenue-producing public utilities, such as water works, lighting plants
and street railways. Under this arrangement, however, the city must not
assume any responsibility for the payment of the capital borrowed, the
creditors advancing the purchase price or cost of construction, looking
solely to the earnings under municipal operation for the payment of both
principal and interest. It may be doubted whether the courts in
permitting cities to employ the special fund in relation to local
improvements realized its possibilities in the direction of municipal
ownership.[165]

These restrictions upon the powers of cities indicate a fear that too
much local self-government might jeopardize the interests of the
propertied classes. This attitude on the part of those who have framed
and interpreted our state constitutions is merely an expression of that
distrust of majority rule which is, as we have seen, the distinguishing
feature of the American system of government. It is in the cities that
the non-possessing classes are numerically strongest and the inequality
in the distribution of wealth most pronounced. This largely explains the
reluctance of the state to allow cities a free hand in the management of
local affairs. A municipal government responsive to public opinion might
be too much inclined to make the public interests a pretext for
disregarding property rights. State control of cities, then, may be
regarded as a means of protecting the local minority against the local
majority. Every attempt to reform this system must encounter the
opposition of the property-owning class, which is one of the chief
reasons why all efforts to establish municipal self-government have thus
far largely failed.

We thus see that while property qualifications for the suffrage have
disappeared, the influence of property still survives. In many ways and
for many purposes property is directly or indirectly recognized in the
organization and administration of municipal government. The movement
toward democracy has had less influence upon property qualifications for
the suffrage and for office-holding in its relation to municipal than in
its relation to state and national affairs. When the Federal
Constitution was adopted the property qualifications for voting and
office-holding in force in the various states were not disturbed. The
Constitution did not recognize the principle of universal suffrage. It
not only allowed the states to retain the power to prescribe the
qualifications of voters in state and municipal elections, but also
limited the suffrage for Federal purposes to those who were qualified to
vote at state elections.[166] The removal, during the first half of the
nineteenth century, of property qualifications for voting at state
elections and holding state offices had the effect of placing the
Federal suffrage upon a popular basis.

The influence of the democratic movement was less marked, however, in
the domain of municipal affairs. Here the old system under which voting
and office-holding were regarded as the exclusive right of the
property-owning class has not entirely disappeared. In this as in other
respects the American state has evinced a fear of municipal democracy.