Front Page Titles (by Subject) CHAPTER XXXIX: the frame of government : state, local, and federal constitutions - Modern Democracies, vol. 2.
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CHAPTER XXXIX: the frame of government : state, local, and federal constitutions - Viscount James Bryce, Modern Democracies, vol. 2. 
Modern Democracies, (New York: Macmillan, 1921). 2 vols. Vol. 2.
Part of: Modern Democracies, 2 vols.
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the frame of government : state, local, and federal constitutions
Holding these dogmas and influenced by these assumptions, the people began after they had declared their independence to create frames of government for the colonies they had turned into States, and then in 1787–9, to substitute for the loose Confederation which had held them together, a scheme of Federal Government. To use the terms of our own day, they turned a Nationality into a Nation, and made the Nation a State by giving it a Constitution.
The instruments which we call Constitutions are among the greatest contributions ever made to politics as a practical art; and they are also the most complete and definite concrete expressions ever given to the fundamental principles of democracy. What we call the British Constitution is a general name including all the laws, both statutes and common law doctrines embodied in reported cases, which relate to the management of public affairs. But an American Written or Rigid Constitution is a single legal instrument prescribing the structure, scope, powers, and machinery of a government. It is, moreover, an instrument set in a category by itself, raised above ordinary laws by the fact that it has been enacted and is capable of being changed, not in the same way as statutes are changed by the ordinary modes of legislation, but in some specially prescribed way, so as to ensure for it a greater permanence and stability. This was virtually a new invention, a legitimate offspring of democracy, and an expedient of practical value, because it embodies both the principle of Liberty and the principle of Order. It issues from the doctrine that power comes only from the People, and from it not in respect of the physical force of the numerical majority but because the People is recognized as of right the supreme lawgiving authority. Along with the principle of Liberty, a Constitution embodies also the principle of Self-restraint. The people have resolved to put certain rules out of the reach of temporary impulses springing from passion or caprice, and to make these rules the permanent expression of their calm thought and deliberate purpose. It is a recognition of the truth that majorities are not always right, and need to be protected against themselves by being obliged to recur, at moments of haste or excitement, to maxims they had adopted at times of cool reflection. Like all great achievements in the field of constructive politics, and like nearly all great inventions in the fields of science and the arts, this discovery was the product of many minds and long experience. Yet its appearance in a finished shape, destined to permanence, was sudden, just as a liquid composed of several fluids previously held in solution will under certain conditions crystallize rapidly into a solid form.
The Constitutions of the States
The student of these American instruments must note some features which distinguish the State Constitutions from that of the Federal or National Government, which we shall presently examine. The former came first, and express the mind of the people in the days of the Revolutionary War, when liberty seemed the greatest of all goods. These early constitutions have been from time to time amended, or redrafted and re-enacted, and thus they record the changes that have passed upon public opinion. Those dating from the years between 1820 and 1860 show a movement towards a completer development of popular power, while those from 1865 to our own time present certain new features, some of a highly radical quality, some enlarging the functions of government, some restricting the powers of legislatures.
To describe in detail the variations in these instruments and the changes each underwent might confuse the reader's mind. It will suffice to indicate in outline the principles from which the authors of the first Constitutions set out, and to which the nation has in the main adhered, though the mode of their application has varied according to the particular aims it has from time to time striven to attain and the evils it has sought to cure.1
These principles were:
To secure the absolute sovereignty of the People.
To recognize complete equality among the citizens.
To protect the people against usurpation or misuse of authority by their officials.
In particular, with a view to this protection, to keep distinct the three great departments of government — Legislative, Executive, and Judicial.
What a very high authority2 says of the Federal Constitution applies to the State Constitutions also. “The peculiar and essential qualities of the Government established by the Constitution are:
“It is representative.
“It recognizes the liberty of the individual citizen as distinguished from the total mass of citizens, and it protects that liberty by specific limitations upon the power of government.
“It distributes the legislative, executive, and judicial powers into three separate departments and specifically limits the powers of the officers in each department.
“It makes observance of its limitations necessary to the validity of laws, to be judged by the Courts of Law in each concrete case as it arises.”
These leading characteristics of the Constitutions as documents flow from the aforesaid three fundamental principles. Let us now see how these principles were worked out, and in what forms these characteristic features appear in the Constitutions, taking first those of the States, both as elder in date, and as most fully expressing the democratic ideas of the time which saw their birth.
Every State has to-day:
The salaries of these officials vary according to the wealth of the State and the importance of the particular post, but are mostly small, averaging about $6000 (£1200).
Local Government has had such profound importance for democracy in America that the forms it has taken deserve to be described. Though every State has its own system, both for rural and for urban areas, all systems can be referred to one or other of a few predominant types. Those in force for rural areas, while varying from State to State, are the three following:
The New England type has its basis in the Town, a rural circumscription, dating from the first settlement of the country, which was originally small in population as well as in area. The Town, corresponding roughly to the English Parish, is governed by a general meeting of all the resident citizens, held at least once a year, in which the accounts of town expenses and receipts are presented, the general affairs of the community are discussed, the Selectmen (a small locally elected administrative council) are interrogated, and the officials for the ensuing year are elected. This Town meeting corresponds to the general meeting of the inhabitants of the Commune (Gemeinde) in Switzerland, and is the child of the old English Vestry, which was already decadent when the first settlers came to New England. No American institution has drawn more praise from foreign as well as American observers, and deservedly, for it has furnished a means of political training and an example of civic co-operation to every class of citizens, all deliberating together on the same level. It has been both the school and the pattern of democracy. It still flourishes in the agricultural parts of the six New England States, but works less well where a large industrial population has sprung up, especially if that population consists of recent immigrants. Above the Town stands the County which exists chiefly for the purposes of highways and as a judicial district, and which (in most States) elects its judges. It is governed by officials elected by the citizens for short terms, each official (or Board) having specific statutory functions. There is not, as in Great Britain, a County Council.
In the Southern States there are (broadly speaking) no Towns or Townships, and the County has always been the unit of local government. It has no council, but a number of officials elected by the citizens, each with his own prescribed functions. The most important of the smaller local authorities are the elected School Committees.
In the Middle and Western States both the Townships (for this is the name here given to the small local areas) and the Counties are important. In the latter single officials or small administrative Boards are elected for short terms. As their respective duties are prescribed by statute it has not been deemed necessary to have a council to supervise them. In those States which have been settled from New England, a Township has its Town meeting working on the old New England lines, but enlisting to a less extent the active interest of the people. The many different forms of local government that belong to this third type need not detain us. It is enough to say that in all the Northern, Middle, and Western States, though in varying degrees, the management of local affairs is entirely in the hands of the inhabitants, and thus receives more attention, and stimulates more sense of public duty, than it does in most of the free countries of Europe.
In Towns and Townships elections are generally conducted without reference to political parties, but County offices are frequently contested, this being due not so much to zeal for the public interest as to the influence of party spirit desiring to reward party services. The salient feature of rural local government is that everywhere local affairs are in the hands of persons locally elected, not, as in many parts of the European continent, of officials appointed by the Central Government. The citizens looking to no central authority for guidance, nor desiring (except for special purposes, such as education) the supervision which the central government gives in England, are content with such directions as general statutes give to the officials.
The principles of popular government are applied with unswerving consistency to the political arrangements of cities both large and small.1 There are two forms of municipal government. One, which till very recently was almost everywhere the same in its general lines, follows in most respects the model of a State Government.
There is a Mayor, but he is elected not by the City Council but by the whole body of citizens at the polls, and for a period nowhere exceeding four years.
There is a Legislature consisting in some cities of one Chamber, in others of two, elected in wards for a period which nowhere exceeds four years, and receiving salaries.
There are, in the larger cities, or many of them, officials, or Boards, also directly elected by the citizens for a period nowhere exceeding four years, as well as other inferior officials appointed either by the Mayor or by the Legislature.
There are judges and police magistrates elected by the citizens for terms of years, generally short.
All these elections are on the basis of manhood, or universal, suffrage. The Mayor, being directly chosen by the people, enjoys large powers, and has in many cities a veto on acts of the city legislature. He receives a salary which in the greater cities is large.
The other form of municipal government was introduced in 1901 in the city of Galveston in Texas, and having worked well there has spread widely, especially in the form of City Manager government into which it has recently developed. As it was adopted in order to cure evils conspicuous under the pre-existing system, and is an offspring of the new reforming movement, I reserve the account of it till these evils have been described (see Chapter XLV.).
The Frame of National Government
The Federal or National Constitution was drafted in 1787 when the country was depressed by economic troubles and the State legislatures had shown signs of feebleness and unwisdom, was enacted in 1788, and took effect in 1789. It resembles in its general lines the Constitutions of the thirteen original States (as they existed in 1787), subject to those variations which the nature of the case prescribed. The Convention which prepared it was not only under the influence of a reaction from the over-sanguine temper of war time, but contained many men of larger experience and more cautious minds than those who had led the States in the work of constitution making. Thus the National Constitution is not only a more scientifically elaborated but also a more “conservative” document, in the American sense of the word, than the State Constitutions. Moreover, some of the more “radical” or “democratic” provisions which were suitable to small communities, such as the States then were — only one had a population exceeding 500,000 — were ill suited to a country so large as the whole Union, and were therefore omitted. Ten amendments were made in 1791 in order to satisfy those who disliked some features of the instrument, two others in 1798 and 1804 respectively, and three others just after the War of Secession in the years 1865–70. Four others have been made between 1911 and 1920,1 yet none of these materially affects the structure of the National Government. Under this Constitution there exist in the United States —
This Frame of Government is less democratic than that of the States in respect of the length of the Senatorial term, of the life-tenure of the judges, and of the provision that both administrative officials and judges are appointed, instead of being directly elected by the people, but is equally democratic in respect of its placing the source of executive as well as legislative power in direct popular election, and of the shortness of the term of service allowed to Representatives.
Let us note how consistently the general principles have been followed, both in the State Governments and in that of the nation.
In the States the principle of Popular Sovereignty is carried out (a) by entrusting as many offices as possible, even (in most States) judgeships, to direct popular election, so that the official may feel himself immediately responsible to the people, holding office by no pleasure but theirs; (b) by making terms of office short, in order that he may not forget his dependence, but shall, if he desires a renewal of his commission, be required to seek it afresh; and (c) by limiting as far as possible the functions of each official to one particular kind of work. Similarly the doctrine of Equality is respected in the wide extension of the electoral franchise, in the absence of any kind of privilege, in the prohibition of all public titles of honour, and practically also in the usage which, taking little account of special fitness, deems everybody fit for any office he can persuade the people to bestow. Both in the States and in the National Government the apprehension felt regarding the possible abuse of power by holders of office, found expression (a) in the division of the Legislature into two Houses, (6) in the granting of a veto on legislation, in the State to the Governor and in the nation to the President, (c) in requiring the consent of the Federal Senate, and (in some States) of the State Senate, to appointments made by the Executive, (d) in the provisions for the removal of officials by impeachment, (e) by the Constitutional restrictions placed upon legislative and executive action. In these points we are reminded of the desire of the Athenian democracy to retain all power in the hands of the Assembly, and to watch with suspicious vigilance the conduct of all its officials, short as were the terms of office allowed to them.
Note also how the same principles run through the schemes of Local Government. Officials are all chosen by the direct election of the people, except those (a now increasing number) whose functions are of a technical character, such as surveyors or city engineers or public health officers. Many matters which would in Europe be assigned to elective county or city councils are left to the elected officials, who, uncontrolled by the supervision of a representative body, are simply required to act under statutes prescribing minutely to them their respective duties. This is supposed to guard the rights of the people, though in fact it makes the due discharge of those duties depend on whatever vigilance, often far too slight, some one in the people may display in instituting a prosecution for neglect or misfeasance.
The fact that the United States is a Federation in which there are everywhere two authorities, the National Government and the State Government, each supreme in its own sphere, concerns us here only in so far as it emphasizes and illustrates the American practice of limiting all elected authorities, whether persons or bodies. The powers of the National Government are defined and limited by the National Constitution, just as the powers of each State Government are defined and limited both by the National Constitution, which has taken from them some of the attributes of sovereignty, and by the Constitution of the particular State.1 Furthermore each branch of the Government, executive and legislative, both in Nation and in State, is limited. Congress has no such range of power as belongs to the legislature of Great Britain or of a British self-governing Dominion, but is debarred by the Constitution from interfering with the functions allotted to the executive and to the judiciary. So in each State the legislature, executive, and judiciary are each confined by the State Constitution to a particular field of action, which is further narrowed, as respects the legislature, by the exclusion of a long list of subjects from legislative competence. This fundamental principle of American public law needs to be constantly remembered, because it has not only restrained popular impulses, delayed changes, and protected vested rights, but also created a strongly marked legal spirit in the people and accustomed them to look at all questions in a legal way. It has, moreover, by placing many matters outside the scope of legislative action, compelled the direct intervention of the people as the ultimate power capable of dealing with such matters. Whatever powers cannot be exercised by an elected authority have been reserved to the people, who exert them by amending the Constitution. That stability in great things coexistent with changefulness in small things, which is characteristic of the United States, is largely due to this doctrine and practice of limited powers, a feature foreign to the French scheme of government, and less marked in some other Federal Governments with Rigid constitutions, such as those of Switzerland, Canada, and Australia.
Other points in which the observance of democratic principles appears are the following:
All members of legislatures receive salaries, so that no one shall be debarred by want of independent means from entering them.
Elections are frequent, so that no one shall ever forget his constant dependence on the people.
No official of the Federal Government is eligible to sit in Congress, no official of the Government of a State to sit in its legislature. This provision, a tribute to the famous doctrine of the Separation of Powers, was meant to prevent the Executive from controlling the Legislature. Its effect has been to make the two powers legally independent of one another; but (as will be seen presently) it has not prevented the exercise of extra-legal influence, for just as Congress may hamper a President (or a State Legislature its Governor) by legislation narrowly restricting the sphere of his action, so a President may put pressure on Congress, or a Governor on his State Legislature, by appealing to the people against them; while a President may act upon the minds of individual legislators by granting, or refusing, requests made to him by them for the exercise of his patronage in the way they desire.
We have now seen (1) what were the favouring physical and economic conditions under which the United States began its course as a nation; (2) what were the doctrines and beliefs, the hopes and apprehensions with which the schemes of government — State and Local and Federal — were framed; and (3) how these ideas and sentiments found expression in the institutions of which the frames consist. To test the soundness of the doctrines we must examine their results as seen in the actual working of the American government. But before considering these let us regard another factor, viz. the economic and social changes which have passed upon the United States during one hundred and thirty years of national life. The machinery has worked under conditions unforeseen when it was created. Never, perhaps, has any nation been so profoundly affected by new economic and racial phenomena, while retaining most of its institutions and nearly all its original political ideas.
The first of these changes was territorial extension. In 1789 the United States stretched westward only to the Mississippi, and did not reach the Gulf of Mexico, the coasts of which then belonged to France. The area of the thirteen States was then about 335,000 square miles, and the present area of the forty-eight States is now nearly 3,000,000 square miles. Its (free) population was then about 3,000,000, and is now (1920) over 110,000,000.
As the settlers moved into the interior, amazing natural resources were disclosed, an immense expanse of extremely fertile soil, vast deposits of coal, iron, silver, copper, and other minerals, forests such as had never been known to the Old World. The native free population grew swiftly, and had by 1840 risen to nearly 15,000,000. Soon afterwards a flood of immigrants began to come from Europe.1 They and their descendants now form a majority of the American people. But as they came from many countries, and much the larger number from well-educated countries, such as the United Kingdom, Germany, and the Scandinavian kingdoms, and as those who settled on the land were quickly intermingled with and assimilated to the native population, the general standard of intelligence and conduct did not suffer in the rural districts. It was otherwise in the cities and mining regions. The growth of manufacturing industries, with the volume of trade that poured outward and inward from the great seaports, created enormous aggregations of labouring people fresh from the more backward parts of Europe, who being herded together were but slowly diffused into the pre-existing population. The gift of American citizenship, hastily conferred, found them unfit for its responsibilities. Another new factor was introduced by the Civil War, when slavery was first practically and then legally extinguished. The States were in 1870 forbidden to withhold the electoral suffrage from any citizen on the ground of “race, colour, or previous condition of servitude.” This amendment to the Constitution placed under Federal sanction the right of voting conferred by Acts of Congress and State constitutions previously enacted upon a large mass of coloured citizens, the vast majority of whom were unfitted to exercise political rights with advantage either to the State or to themselves.
Meanwhile the material progress of the country had produced other not less significant changes. The development of agriculture, mining, and manufactures, the growth of commerce, foreign and domestic, which the use of steam for navigation and the construction of railroads had raised to gigantic proportions, created immense wealth, and concentrated a large share of it in the hands of comparatively few men.1 Three results followed. The old equality of fortunes disappeared, and though such distinction of ranks as had existed in colonial days melted away, the social relations of different classes lost their simplicity and familiarity when the rich lived in one quarter of great cities and the poorer were crowded together in others. That personal knowledge which made the feeling of a common interest a bond between the citizens was weakened. The power which money inevitably carries with it went on growing as the means of using it multiplied. Railroads and other business enterprises came to be worked on so vast a scale that it was worth while to obtain facilities for starting or conducting them by the illegitimate expenditure of large sums. The number of persons rich enough to corrupt legislators or officials increased, and as the tempters could raise their offers higher, those who succumbed to temptation were more numerous. Thus the power of money, negligible during the first two generations, became a formidable factor in politics.
As material interests grew more prominent and the passion for money-making more intense, policies and projects were more and more judged by the pecuniary prospects they opened up. That this did not exclude the influence of moral or humanitarian ideals is shown by the history of the Slavery controversy, for America, like England, is a country in which two currents of feeling have been wont to run side by side, sometimes apart, sometimes each checking or disturbing the course of the other. While the economic aspect of every question came more insistently into view, and tinged men's opinions on public issues, so also business enterprises had a greater attraction for men of ability and energy, diverting into other careers talents and ambitions which would in earlier days have been given to the service of the State. Men absorbed in business did not cease to vote, but were apt to leave their votes at the disposal of their political leaders. None of these changes could have been foreseen by the framers of the early Constitutions, for although Jefferson and some of his contemporaries predicted for America a boundless growth of wealth, population and prosperity, they did not envisage the social and political consequences to follow.
The results of these geographical and economic changes may be summarized in a brief comparison:
The political institutions of the United States were created —
For a territory of which only about 100,000 square miles were inhabited.
For a free white population of little over 2,000,000.
For a population five-sixths of which dwelt in rural tracts or small towns. For a people almost wholly of British stock.1
For a people in which there were practically no rich, and hardly any poor.
For a people mainly engaged in agriculture, in fishing, and in trading on a small scale.
These institutions are now being applied —
To a territory of 2,974,000 square miles, three-fourths of which is pretty thickly inhabited.
To a nation of over 110,000,000.
To a population fully one-third of which dwells in cities with more than 25,000 inhabitants.
To a people less than half of whose blood is of British origin and about one-tenth of whom are of African descent.
To a people which includes more men of enormous wealth than are to be found in all Europe.
To a people more than half of whom are engaged in manufacturing, mining, or commerce, including transportation.
It would not be strange if these institutions should bear signs of the unforeseen strain to which they have been subjected. The wonder is, not that the machinery creaks and warps, but that it has stood the strain at all. But before examining the results of the changes referred to we must take note of a phenomenon of supreme importance which has affected in many ways the development of the institutions aforesaid. This is the growth of Party, and in particular of Party Organizations the most complete and most powerful that the world has seen. They constitute a sort of second non-legal government which has gained control of the legal government.
This outline of the scheme of American government is given in order to enable those readers who have not time to study the Federal and State Constitutions to understand the institutional conditions under which democracy works and which have influenced countries so different as Switzerland, Australia, and Argentina.
Mr. Elihu Root in an admirable little book entitled, Experiments in Government and the Essentials of the Constitution (1913).
There have been a few cases in which there was no direct popular enactment. See the author's American Commonwealth, vol. i. chap. xxxvii.
There is also usually a Lieutenant-Governor, who succeeds to the Governor if the latter dies or resigns, and who, in some States, presides over the Senate.
“City” is the term used in the United States to describe any community organized as a municipality.
One of these transfers the right of choosing senators from the Legislatures to the Peoples of the States, another forbids the production and sale of intoxicating liquors, and a third extends the suffrage to women over the whole Union.
In S. Carolina and Mississippi it was in 1911 rather more than half.
They may be elected either by a “general ticket” vote over the whole State or in districts, according to the laws of each State. But the “general ticket” system is now universal.
But whereas Congress possesses only such powers as have been expressly granted, a State legislature possesses all that have not been expressly withheld.
Many have recently come from Western Asia also.
The improvement in the condition of the poorer class has, however, more than kept pace with the growth of millionaires, and it may be doubted whether these will be so numerous and play so large a part in the future as they have done during the last half-century. It is not true to say of America that the poor are poorer and the rich richer, for the number of persons moderately well off increases faster in proportion than does that of the wealthy, and the total wealth of the nation becomes more widely diffused.
There were about 150,000 Germans in Pennsylvania, but the other small non-British elements had been pretty thoroughly Americanized by 1789.