The Shifting of Power: Balances and Checks in Government

WITHOUT change in the written form of our institutions, the spirit and practice of them have undergone a veritable revolution in the last nine years, or may be only in the midst of a revolution not yet accomplished The seat of practical, immediate, and available power has shifted, is shifting, and will be shifted, either backwards or forwards. If the revolution continues as rapidly for the next ten years, it requires but little foresight to point exactly where it will all land. If there is a reaction in the direction of the ancient balances of the Constitution, its ancient theory and practice may be restored. But such has not been the history of such movements. Since the introduction and practice of representative and constitutional government, in every contest for power between the balancing weights and checking forces, that branch of the legislature nearest to the holders of all power has ultimately vanquished its competitors, and, without formally driving them from the field, has securely held the prize until the next revolution. This fact seems to have been overlooked, or not much considered, by the Senate of the United States, else, in accepting the battle so freely offered them on a late occasion by the Executive, they would not have allowed the heat of battle and the flush of substantial, though not technical, victory to carry them into a war against the office when the officer had been beaten. A far-seeing political wisdom, mere selfishness,—.using the word as a political and not as a personal or even as a senatorial epithet,— would aim to keep on reasonable terms with the President, that is, with the Presidential office, for there is something more in such a movement than seems to have been perceived, — a history behind the present phenomena, a law of politics as inevitable as the law of gravity ; and the Senate before many years might find that they had wrested power from the Presidential office, only to find it in turn wrested from themselves by the House of Representatives. The preservation of real balances in politics, while it may be a very good thing, has always been a matter of consent and not of constraint ; and consent once thrown aside, and open rivalry for power commenced, the lists are open to all comers, and the strongest must bear away the prize.

The first revolution effected by the late civil war and the legislation of reconstruction established more definite and better understood relations,— whether better or worse is not here the question, — between the general and State governments. It was easy to foresee from the first that the war would do this, that it would vindicate in this country for an indefinite time, perhaps for a very great while, either the doctrine of real and effective nationality, or the doctrine of State sovereignty, and the right of secession. It was foreseen with equal clearness by many that, let the war go as it might, it was the beginning of the end of slavery on this continent.

But no one could very well have foreseen what has happened to our “ checks and balances.” On the contrary, the general fear was that the result would be an enormous and an almost unendurable increase of Executive power. It was not feared that that office would be diminished, almost abolished, while real power would suddenly loom up from the Senate Chamber, to be in turn more slowly but more permanently succeeded by the omnipotence of the House. The civil contest which has been waged since the war closed does not seem to have been engaged in because Presidential power had been enhanced. It could not be said of that power, from 1865 to 1870, as compared only with the same power from 1861 to 1865, that the power of the Executive has increased, is increasing, and ought to be diminished. I speak now simply of the contest for political and administrative power, and not of the contest for the control of the process of reconstruction, with which it was, by accident, so intimately allied. I do not even speak of the Tenure of Office Act, a law which I believe to have been in entire harmony with the Constitution, without here entering upon any discussion of its principle as a permanent policy, its origin and purpose being exceptional and well known. I speak simply and in general terms, and without any specifications of instances, of the contest for power, in both domestic and foreign affairs, which has been waged openly by the Senate against the Presidential office, and only less openly between the Senate and House. Nor do I discuss the merits of these controversies, nor the merits of the questions that seemed to be the occasions for them, especially the personal questions. I discuss a political phenomenon, a stage of our political development, with no reference whatever to the merits of political questions, or to the merits or the faults and mistakes, personal and political, of the parties engaged in the contest.

In the contest over reconstruction, referring now only to the question of power, and not to the manner or wisdom of its employment, Congress had the advantage which all representative assemblies have over one man in all such cases, and the two houses of Congress were equally determined in both the defensive and the offensive war of that celebrated contest. But the competition and rivalry for general political power which sprang up in the midst of the controversy over reconstruction,— a controversy as to which department of the government should dominate in all its affairs, and, after that, which branch of the legislature should dominate, instead of each department and each branch maintaining its constitutional portion of a joint control, was a different contest,—a contest that yet continues, at least on one side, is fought upon entirely different grounds and for different motives, and, smile as we may, at speculative political philosophy, seems about to become one more of many illustrations and vindications of the opinions of the philosophers, the closet thinkers, that all permanent division and balancing and checking of political power are impossible, that it is ephemeral in practice, and always leads, first to a contest for supremacy, and then quickly to arrogation and absorption by one of the rivals, which will then either thrust its defeated rivals out of the field, — as the assembling of estates was nearly everywhere, except in England, suspended after consolidation of nationalities was followed by absolute personal government, — or will tolerate their presence and their nominal power only on condition of prompt and very deferential compliance with the wishes of the dominating victor ; just as, even in England, kings and queens used to tell the Commons what they were expected to do, and scold them and dissolve them for any considerable reluctance, — called presumption and meddling with matters which, they were told, they did not understand.

In our own case I do not essay to defend or condemn the President,— or rather his office, — the Senate, the House, or the Supreme Court, but only to discover the revolution that is going on before our eyes. I do not even intend to argue whether the Constitution, or the practice of it, after having been wrenched out of its original line and proportion, should be restored. Many will say it should ; and many will say, no ; that the tendency is a good one, though the operation is a little rough ; that the movement is in harmony with the spirit and meaning, if not with the written form, of our institutions, and they will therefore bid it God-speed, and will demand that we simply let the movement drift to its result, which is, they think, perfectly logical, when tested by the sovereignty of public opinion. I do not here enter into questions of such portent. I desire only to indicate what seems to me probably the ultimate lodgement and resting-place of secondary, delegated power, which at present is shifting.

This involves a short review and consideration of the history of the theory and practice of “ balances and checks ” in government.

Government, as first practised among men, was a centralized unit. The patriarch, the tribal chief, the Asiatic despot, the governing body, whether one, few, many, or all; the autonomous cities of Greece, whether oligarchical or purely and simply democratic ; the old Things of Northern Europe, were absolute, and combined in themselves all the faculties and powers of government. This was true of those chiefs or leaders of tribes called kings, who, though elective and often even deposable, held and discharged all the functions of government while in office. Later, not at any given period all over the world, but later in the political growth and development of each people, nation, government, when success in war, and money-getting, and slave-capturing, and land-robbing, and other forms of personal, family, and political success had raised up a class generally known as the nobility, a large share of power and of local and personal authority passed into the hands of these magnates and grandees, often giving rise to conflicts of pretensions between themselves, and between them and the monarch ; and they checked and balanced each other, not in the interests of the mass of the governed, or at all as a scheme or theory of government, but only in the contest as to who should govern most. Sometimes an oligarchy, a self-constituted senate or chief council, became the sole governing power to the exclusion of the kingly office.

The next step, speaking in general terms, and not as to any epoch throughout the world, but as a stage of development in the history of each people, was the appearance and influence, in one form or another, of the democratic element attempting either to check or to abolish oligarchy. The most renowned instances of this were in the Greek cities, and in the secession of the plebs and the establishment of the tribunes at Rome. Thus the contest was for a long time between two rival forces, between the nobility and the king, or between the nobility and the people ; though as long ago as Plato, Aristotle, and Polybius we find suggestions that the best government is a due admixture of royalty, nobility, and democracy, — a theory that much later became the ideal of perfection, the standard par excellence of political thinkers and writers, and that may be called the era of mixed governments and limited monarchies, — the era of balances and checks, not merely as an armed strife for power, but as a part of political science, — a notion from which the world is just now emerging.

At a later period the admixture of a fierce but manly vigor from the North, with certain Roman and Gallic ideas and forms, produced feudality; the Church had become an organized, established, and recognized power in the world ; and democracy seems pretty generally to have passed out of the world. New rivals, or perhaps only old rivals under new forms and names, were thus brought into the political arena. For a long time we hear of crown, church, or clergy, and nobility, but little or nothing of the people, and nothing of what is now called PUBLIC OPINION, these three rivals for power resorting to various means of artifice or of violence to check and defeat each other. Later in modern history the democratic element began to appear again in the affairs of the world, partly owing to the formation of guilds, growing into rich and populous self-governing cities of artisans, traders, and merchants ; and partly owing to the great Rénaissance, or revival of learning, which led first to the Reformation, — the mother of political freedom, — then to the religious wars and to the Revolution in the Netherlands, then the two English Revolutions, then to American Independence, and finally to the French Revolution. In the mean time we hear of the three orders or “ estates ” : as, in France, the nobility, the clergy, and the third estate ; and in England, the crown, nobility, and commons ; the commons answering to the third estate in France, and occasionally, and more logically of four estates, the crown, nobility, clergy, and people, as in Sweden. Parliaments were the assemblages of delegates or representatives from these several estates, in one or more chambers, to deliberate, contend, possibly agree, upon what were supposed to be the highest, if not the only, public interests,— the interests of these estates as such. Hence the origin of checking and balancing ; and hence, in great part, the machinery of representation, unknown to the ancients, growing up alongside of democracy, and now universally adopted by it. The long contests of these estates, sometimes with each other and sometimes with the crown, often resulted in anarchy and the most frightful suffering. And the common, indeed almost uniform phenomena, not everywhere at once, but always at the same epoch or stage of development, were, that there was first oppression of the people and defiance of the crown by the nobility, who ground their tenants, villeins, and followers under their heels, and thrust their fists into the face of the king; then came an alliance between people and crown to break the power of the oppressive nobility ; and, this accomplished, and national existence and power being consolidated, and executive or royal power being both enhanced and abused, then came the self-assertion of the people to check and limit the power of the crown. These varying contests furnish us with the real origin of checks and balances in politics, and the theory and practice of mixed governments. And it is curious how generally, and for how long a period, the two inconsistent ideas were accepted, that these several estates were the regular order of nature, and

that the principal object and highest difficulty of government was so to balance them against each other, and so check their antagonistic pretensions, as to produce a harmonious whole. Man first throws nature into disorder, then mistakes the disorder for nature, and sets himself about harmonizing it.

In the midst of and during these long-continued contests, representation was not invented, but began to grow. We have already seen one element that entered into this growth. Guizot thinks politics borrowed it from the Church, — the example of the bishops and prelates assembled in council. This only presented the idea of a deliberative assembly, acting for an immense region and population, over matters esteemed of vital importance. But the members of such councils would seem generally to have acted more in virtue of what was deemed an inherent ecclesiastical jurisdiction, than of delegated authority to deliberate and determine. For us there is a better origin and explanation. The king of England used to summon, as lord paramount, all his barons in council to grant him aids ; and they, finding attendance irksome, began to send up a few to speak for all. This growing into a recognized custom, the king at last began to direct his writ to his sheriffs to hold the elections and return the members. Suffrage and eligibility to the commons began to be enlarged ; and when the commons began to refuse aids and grants of money until the crown had redressed grievances, three things were established, — election, representation, and placing the purse-strings in the hands of the legislature.

Still later came that other noble and beneficent improvement in government, the division of its functions into three departments, — legislative, executive, and judicial. This, too, was more a gradual growth than an invention, and here again England bears off the palm of praise and gratitude for its introduction into the world. There were faint traces of it in Roman administration, but the lines were never clearly drawn nor even clearly perceived. But so thoroughly had men’s minds become imbued with the old idea of checks and balances, as applied to “ interests ” or estates, that this division of governmental functions was generally considered as being based on the same idea. And in the nature of things there is much of this result in its operation. But considering that all sovereignty, the paramount moving and directing political power of any community, no matter where lodged nor how organized, must in the last analysis be a unity, and that it is also entirely incapable of legal limitation, the real or a better explanation of this departmental division would be, labor of administration divided and better performed.

As the democratic element began to assert itself so strongly as to make the legislative the strongest power in free states, we discover a tendency among advanced liberal thinkers to revert to the ancient idea of the oneness and unity of governing power, without destroying the tripartite division in the administration of government. This idea embraced not only the absolute political ascendency of legislative will, but also the organization of the legislature in one chamber instead of two. It is known that Franklin was partial to this idea ; and it was boldly and ably advocated by Turgot, whose criticism upon the organization of political power in America was instrumental in calling forth the elaborate “ Defence of the American Constitutions,” by the elder Adams, written while he was Minister to England, and before the adoption of our national Constitution.

Now we find in modern history two very significant facts. The first is, that in every country agitated by a revolution undertaken to secure greater political freedom, the provisional political power, between the overthrow of the old order of things and the settlement of the new order, either organizes itself in one constituent assembly of one chamber, or selects that branch of theexisting legislature nearest to the people — the popular branch — as its instrument and mouthpiece. The second is, that, without violent revolution, but acting only through gradual change, there is, in every constitutional representative government, directed by a legislature organized with two chambers, a constant tendency of the dominating political power to settle itself in and to express itself through the branch of legislature nearest to the people, the popular branch. Witness several European legislatures, and especially the British Parliament, where the House of Lords was first hated for its obstructiveness, and is now openly contemned for its impotence ; and where the House of Commons — not in Blackstone and later books, but in modern practice — is at once the broad basis and the high apex of the British Constitution.

I have not stopped to contend that the balances of our own Constitution could be or ought to be restored. I have only tried to indicate where the present contest and process of change will land us, if we continue to drift. Power will settle in and speak through the House of Representatives.

Different minds will view the prospects of such a change with different emotions and opinions. We must not forget that as any institution grows in power and responsibility it draws to itself more of intelligence, worth, and patriotic ambition than its feebler competitors can command. When Congress was first organized, Mr. Madison’s friends, desiring him to become a member, he selected the House as the better theatre for his usefulness and future reputation, as the House of Commons had already become in England. In theory his opinion certainly seemed correct, though in practice the Senate soon became the higher aim and the higher reward. There were special causes to produce this result, but the causes are not strong enough to support an aggressive movement, and probably not strong enough to prevent natural and historical forces from again asserting themselves. Considering the nature and the persistence of those forces, the fact that both the President and the House are nearer to the people than the Senate, and considering several features in the constitutional organization, generally deemed elements of strength, but really elements of weakness in a contest of this sort, we have probably only to witness the spectacle of the Senate defeating, on material public questions, the joint will of the House and the President, in order to see the revolution rapidly accomplished.

The first establishment of the Tribunes at Rome was only to protect the people against patrician and senatorial domination by the interposition of the celebrated veto. From that they advanced to a joint exercise of legislative power. And from this they proceeded by inevitable stages to the exercise of dominating and absolute legislative power, when the plebiscitum became what the senatus consultum had once been ; and the proud senate subsided into a mere executive and administrative council ; what our own Senate may be, if it aspire to overmuch power.

I do not forget the constitutional organization and power of the Senate, its joint voice with the House in legislation, and its joint voice with the President in selecting the agents of administration. And it is possible that the Senate have not yet, in a strict legal sense, exceeded their power, — only using that power in such a way as to make it felt, make it visible, and make it grow. But such rivalries, once begun, have absolutely no regard for paper lines or immemorial customs. Consult any of the older books to learn the constitutional power of the Crown and the Lords, then observe the present practice, and compare the facts with the theory, or even the facts now with the facts then. And the Lords had facilities and advantages for preserving their power which are not available to our Senate. Constitutions, in the long run, are facts, and not theories ; they grow, and are not invented or made to order; and they will, in the long run, express or yield to the demands of the strongest governing power. We may yet see that the voice of the House will await the formal but matter-ofcourse response of the Senate in all important matters of popular interest, while, as in England with the Lords, any prolonged dissent or hesitation will only amuse or irritate or make more determined, but never alarm, because compliance is certain in the end.

And when senatorial functions have been compressed within less than their present constitutional measure, we may see new relations springing up between the House and the President. We may see adverse votes in the House enforcing Cabinet resignations and Presidential compliance. And if the Constitution is not verbally changed so as to cast away the machinery for measuring out the Presidential tenure four years long to an hour, regardless of what has happened to public measures and public opinion, we may at last see the President made in the House, on the plan of Congressional influence and leadership, as the nominal premier, but real king, is made in England ; thus becoming a development, a production of the times, its questions, its abilities, and its wants. We are in advance of all the world in the absolute equality of civil rights, and in the breadth and freedom of the basis of political power ; but we are behind every free parliamentary government in the world with our constitutional machinery and practice for bringing the executive and administrative will of the government into harmony with the popular and legislative will. This is unnatural, ought not to last, and cannot.

If I am asked what power is to effect all these changes, I reply, the power of public opinion and the necessities of our political development, with or without formal constitutional amendments, and about as easily in one case as the other.