The New Deal and a New Constitution
I
THREE years ago the country was promised a new deal. What it seems to be getting is a redistribution of the chips. Most of the administration’s solicitude, during the past thirty months, has been bestowed upon plans for taking part of their winnings from those who have won, and sharing them with the losers. Howsoever different they may be in their immediate purpose, nearly all the alphabetical agencies have had the same ultimate end in view, which is to use the power of the Federal Government to dominate the economic life of the nation and thereby compel a redistribution of what its people have accumulated by their thrift and industry. They have been tumbling over one another in their perfervid endeavors to do this. But it cannot be done without changing the rules of the game. The new deal needs a new deck.
Any brain trust worthy of the name ought to have realized at the outset that a nation’s social order cannot be radically transformed while leaving its frame and methods of government untouched. America cannot become an economic dictatorship while remaining a political democracy. The experience of Europe has proved that axiom, right up to the hilt, during the past dozen years, for not a single country of the Old Continent has succeeded in revamping its economic system without a general overhauling of its constitutional provisions. Alike in Russia, Italy, Germany, Austria, Poland, and Spain, the economic reconstruction has necessitated an overthrow of the established political institutions and the creation of a new governmental mechanism.
In every instance, moreover, it has been found essential to endow the government with prætorian powers in order to gain the end. This is exactly what might have been expected, for economics and politics have everywhere become so closely interwoven that there can be no thoroughgoing reconstruction in one field without alterations of a far-reaching and fundamental character in the other. That is a law of political science, if anything is, and one which even a new commandment from Sinai on the Potomac cannot avail to set aside. A government that expects to reorganize society must begin by reorganizing itself.
Constitutional reform, accordingly, should have had the first, not the last, place on the new-deal agenda. Two years ago it was just as self-evident as it is to-day that the existing constitutional powers of the national government are inadequate to the tasks which it is attempting to perform. That situation should have been frankly faced at the outset. The new deal would be further along if it had not started with an attempt to give the Constitution a raw deal.
Nor is it a sufficient answer to say that the emergency would not permit delay until the Constitution could be amended. In March 1933, when the country’s morale was at its lowest and Congressional enthusiasm for the new deal at its highest, a proposal to extend the powers of the national government over the entire domain of commerce and industry would almost certainly have received the necessary two-thirds vote in both Houses. Submitted at once to the states, as an essential part of the national recovery programme, it probably would have received the required ratifications within a few months. The amendment that repealed national prohibition went through in considerably less than a single year. No time would have been lost, moreover, for while the power-granting amendment was on its way Congress could have gone ahead with its grist of recovery and reform legislation.
To-day the chances of securing the adoption of any such constitutional amendment have become greatly lessened. The country has had its experience with NRA compliance boards, blue eagles, code authorities, and crackdown functionaries. It has learned that a centralized industrial paternalism does not function with the smoothness or efficiency of an airplane motor. Promise and performance are bound to be miles apart in the administration of an industrialized feudalism, and this is particularly true in the United States, where we have built up no corps of bureaucrats trained for the job. In the hysterical attempt to improvise such a body we have besprinkled the land with a horde of low-voltage busybodies, most of them progeny of the spoils system, whose ineptitude has very largely destroyed the reputation for superior administrative efficiency which the national government formerly possessed in the public imagination.
In the early stages of the new-deal programme, when the Sir Galahads surrounding the throne were denouncing the abuses which had everywhere grown up under state regulation, or the lack of it, they found millions of willing listeners. Portraying intolerable shortcomings in the banking system, the organization of industry, the public utilities, the stock exchanges, and the existing provisions for social security, they said nothing about the even more intolerable weaknesses in the mechanism of government wherewith a reform of all these things was to be undertaken. Yet it is government, first among all activities either private or public, that stands most urgently in need of a thoroughgoing reform. A governmental system which complacently tolerates a long chain of abuses, including pork-barrel appropriations, patronage appointments, filibusters, gag rules, riders, and printing of undelivered speeches, rubber-stamp legislation, and innumerable other abominations of the lawmaking process, is hardly the one to expect from the forty-eight states a vast endowment of additional authority.
It is a fair hazard, therefore, that the people of the United States will not transfer unlimited power over agriculture, industry, labor relations, and the whole domain of economic activity to any national government which is so badly constituted for the exercise of that vast power as our present one is.
II
But a fundamental problem exists and it has not been solved by the decision of the Supreme Court in the Schechter Case. To say that there are certain things which the national government cannot do constitutionally does not mean that these same things can be done by the various states effectively. As a matter of fact, many of them cannot be done by independent state action in ways in which the national well-being requires them to be done.
One serious defect in the American scheme of government is that it rests upon an assumption which is no longer tenable — namely, that all problems are either state problems or national problems. This was doubtless true in the days when the Constitution was adopted, although under present conditions it is clearly at variance with the facts. Consequently the fathers of the republic provided us with only two alternatives — we can convey a power to the nation by constitutional amendment, or we can leave it to the states under their reserved authority. Both courses of action, in some cases, seem to be equally undesirable.
The first must mean, in the long run, an excessive degree of centralization, with an ultimate accumulation of powers which all history has shown to be dangerous in the extreme. As a longrange proposition it would result in apoplexy at the centre and paralysis at the extremities.
The second alternative implies that forty-eight assorted commonwealths can safely be permitted to go their own way in the uncoördinated handling of economic and social problems which transcend state boundaries in their implications, whatever may be said of them as a matter of geography. The states, for example, have a right to charter and regulate banks within their own areas, but who will deny that a collapse of the state banks in any one commonwealth is likely to have repercussions on the banking systems of neighboring states? The banking debacle of 1933 started with the state banks, and the helplessness of the individual states in meeting a nation-wide crisis was never more conspicuously shown than on that occasion.
Likewise, in dealing with the problem of unemployment relief the impotence of the state governments has been pitiful. And as for a programme of social insurance, they have been, one and all of them, patiently awaiting the national government’s leadership. Not only this, but every state in the Union has been coming to Washington as a mendicant during the past two or three years, begging alms from the Federal Treasury and agreeing to all sorts of onerous conditions in return. It is difficult to believe, therefore, that an economic order shorn of its admitted abuses can be established and maintained in the United States by the simple device of letting each state use or misuse its reserved constitutional powers as it may see fit.
People will not starve, or suffer continued injustice, or forever tolerate economic inequities in the name of States’ rights. If there is no other alternative they may be driven to accept an enlargement of federal jurisdiction, with all the dangerous concentration of power that it may involve. Of two evils they are likely to choose it as the less.
III
But may there not be a third alternative? It has been suggested that uniform action on matters affecting a number of states might be secured by compacts among them, thus attaining the desired ends without any surrender of state authority. The difficulties in the way of this arrangement, however, are great and obvious, owing to the number of authorities who have to be brought into agreement. Although the Constitution has always permitted interstate compacts, with the consent of Congress, very few of them have ever been negotiated, and these have invariably been between two or more states in the same region. In the light of this experience it seems rather futile to hope that uniform action among the states or even among groups of neighboring states can ever be obtained by such a method except in rare instances.
What appears to be needed, therefore, is a group of new political entities standing midway between the nation and the states — in other words, a series of regional governments. One sometimes hears it said that we have too much governmental mechanism in the United States. The real trouble, however, does not arise from the amount of it, but from its bad distribution, or rather from the fact that it has never been redistributed to carry new governmental burdens. A century and a half ago we started out with a national government and thirteen state governments which were adequate for the needs of the day. But during the interval the number of states has nearly quadrupled, the population has increased thirtyfold, the economic activities of the nation have increased in complexity a thousand times over, and the burden of public administration has been enlarged in almost unmeasurable degree. The result has been a spread between the states and the nation far wider than the fathers of the republic could ever have anticipated.
This does not mean, however, that the time has come to consider the advisability of abolishing the existing state governments and replacing them by a series of larger areas. Such a plan has been suggested from several academic sources, but it is wholly outside the realm of possibilities. Traditions count for much in practical politics, and the boundaries of our states have become traditional. To eliminate them would require a more thoroughgoing revolution than there is any likelihood of happening in the United States. Nor would the abolition of the existing state divisions be a wise move even if it were possible. The state governments should be continued, no matter what changes are made in the general distribution of powers, because there will always be work for them to do — for example, the supervision of local government, the maintenance of public education (including the state universities), the conduct of elections, and a variety of other functions for which they are well adapted.
Regional governments should not replace the state governments, therefore, but (if established at all) should be interposed between the states and the nation. New England might well form one of these regions, New York and New Jersey a second, while Pennsylvania, Delaware, and West Virginia would appropriately constitute a third. Other regions might be organized from the South Atlantic States, the Tennessee Valley area, the Middle West, the Northwest, the Southwest, and the Pacific Coast. An effective grouping, from the standpoint of economic integration and cultural unity, would require a good deal of study, and doubtless some compromises would have to be made; but the general idea could be worked into a definite plan if the country really appreciated the need for it.
Certainly it would be easier to group the present forty-eight states into nine or ten regional commonwealths than it was to combine thirteen of them into a single federation one hundred and fifty years ago. The public mind has become somewhat familiarized with the idea of regional divisions through the establishment of Federal Reserve districts and army corps areas.
But the regional commonwealths that are here suggested ought to be a great deal more than areas for the administration of federal authority. Established by an amendment to the national Constitution, they would be given a definite endowment of autonomous power and equipped with both executive and legislative organs of government. The opportunity thus afforded to try out the ‘responsible executive’ system in a modified form might well be utilized by having the regional executive chosen by the legislature and dependent on it for continuance in office. This legislature should consist of a single small chamber, not exceeding thirty members. These might well be chosen at large from each of the states composing the region, the apportionment being made on a basis of population. Their terms of office should be reasonably long, say six or eight years, with one third or one fourth of the membership renewed biennially. With such a plan of partial renewal at frequent intervals there would be no need to give the executive the power of dissolution such as is possessed (but very rarely exercised) under the orthodox type of parliamentary government.
What powers and functions should these new regional governments be given? Their authority should come from two sources: certain powers now exercised by the national government might be handed down to them and certain powers now possessed by the states handed up. Congress, for example, should be restricted to the control of foreign and interregional commerce, while the states should surrender to the new regional governments jurisdiction over all other commerce, the regulation of industry and labor relations, the supervision of public utilities, and the making of provisions for social security. In the apportionment of authority it might be found that various other Congressional powers could be advantageously devolved — for example, the management of national parks and forests, the construction of regional public works such as the Boulder Dam and the Tennessee Valley project, the reclamation service, and most of the work now performed by the Federal Department of Agriculture. Consider how much simpler the administration of the new social security programme would be if the national government could deal with nine or ten regional governments instead of forty-eight state legislatures.
Objection will be made, of course, that the foregoing paragraphs suggest a plan which would encounter a great many practical difficulties. That is undoubtedly true. Its realization would require a much greater sacrifice of ambition on the part of both national and state governments than either of them has been accustomed to display. No government ever contemplates with equanimity the surrender of even a small portion of its powers.
Nevertheless the issue of practical difficulties is always a relative one. It depends upon the character of the alternatives. And in this instance the alternatives appear to have no advantage on the score of practicality. It may be taken for granted, on the one hand, that the national government will not cease its endeavor to extend federal control over the industrial life of the entire country, and with the steadily growing complexity of the economic mechanism its progress toward this end will inevitably be facilitated. If the Washington authorities cannot secure an overt grant of power by constitutional amendment, they may be driven to pervert the whole scheme of federal taxation into an agency for the adjustment of social relations. On the other hand, if the states stand adamant against any changes whatever in the present allocation of powers, they are likely to lose — slowly, perhaps, but inexorably. That is what they have been doing for a generation or more. The vital question, therefore, is whether a third alternative can be suggested, one which will join groups of states together, thus permitting uniform action in regions which have problems of a common character and at the same time providing a buffer of protection against the march of federal centralization.
IV
In connection with the establishment of regional governments, such as is here suggested, an opportunity would be afforded for correcting one of the seriously weak features of the national system — namely, the equal representation of the states in the Senate. The unfairness of this equal representation becomes more conspicuous year by year.
Pennsylvania has more inhabitants than the whole of New England; yet the Keystone State has two Senators, while New England has twelve. The six most populous states in the Union contain nearly 40 per cent of the population; the six least populous states have only 2 per cent; yet each group has the same equal representation. A majority of the Senators come from states which contain less than one fifth of the national population. This is not representative government, and there is every indication that the disparity will become greater, not less.
On the other hand, it seems altogether undesirable to place the Senate on the same basis as the House. To do this would be merely duplicating the representation which the latter already affords. In a country so large and so diversified as the United States, moreover, the national legislature should represent both people and geographical areas, but these areas ought to be large enough to embody unified sectional interests. And to a considerable extent the Senators do, in fact, represent these regional interests, even though they are chosen by individual states. Anyone who follows the votes in the Senate, year in and year out, will have noted the frequency with which members from the same region vote en bloc without reference to their party affiliations. At any rate the present suggestion is that the equal representation of the states be replaced by the equal representation of regions, with nine or ten Senators elected at large from each, thus giving a reasonable approach to the population basis without increasing the Senate in size. The wider area of selection would also have its advantages.
It will be suggested, no doubt, that such a change would be impossible because of the constitutional provision to the effect that no state, without its own consent, shall ever be deprived of its equal representation in the Senate. The legal issue here involved is one on which nobody can venture an authoritative opinion because it has never arisen in justiciable form; but students of political science have generally held that an unamendable constitution is a contradiction in terms. In any event, even if the composition of the Senate is irrevocably protected, its powers certainly are not. If the country ever desires to gain the end in a roundabout way it need only put through a constitutional amendment providing that whenever the Senate and House disagree on any measure a joint session shall be held and the deadlock resolved by majority vote. That would bring Congress a good deal closer to a population basis.
V
In the administration of the new deal during the past two years the greatest confusion has resulted from the vast employment of untrained administrators in subordinate positions. A huge staff, numbering tens of thousands, has been improvised to take over, in the various alphabetical agencies, duties of a character which require intelligence, sound judgment, and administrative skill. While there have been many professions of nonpartisanship in the selection of these emergency officials, it is plain to the naked eye that large numbers of the appointments, probably most of them, have been dictated by political considerations. The spoils system, in fact, has had a greater renaissance during the past couple of years than at any previous time since the days of Andrew Jackson.
So long as the work of government is concerned with administration of a routine or nontechnical character it is practicable to have this work performed, although with rather indifferent results, by untrained officials who have been short-circuited upon the public payroll by political influence, without much reference to their individual merits. But when a government undertakes to replan, regulate, and control the highly complicated economic mechanism which the American people have built up during the past five decades, it is self-evident that success can only be had by employing personnel of high competence. A planned economy, administered by politicians and their needy friends, is merely another name for administrative chaos saddled upon the economic life of the nation.
If the Federal Government hopes to continue its expansion of authority it must concern itself, promptly and seriously, with the improvement of its administrative service. ‘Governments are like clocks,’ said William Penn. ‘They go from the motion that men give them.’ It is a commonplace that laws are no better than the men who administer them, yet no commonplace of statesmanship is more flagrantly disregarded in the United States than this one.
England during the past ten years has been able to enlarge the sphere of government control even more widely than we have done it in this country, but without turmoil or economic confusion, because the British civil service is by general recognition the most competent in the world. A large measure of regimentation over industry has been accomplished in England without any serious upsetting of legitimate business practices, because British administrators have depended for their success upon quiet efficiency rather than upon press agents, ballyhoo, and crack-down interdicts. Administrative incompetence customarily resorts to blatant methods because it has had experience with no other. At a serious crisis in our national life we have found ourselves without the means whereby even the best of emergency laws could be smoothly put into operation.
The most immediate need of the American Federal Government is not for additional powers but for a more competent and better-trained administrative personnel, especially in the subordinate ranks of its service. This improvement can only be secured by making the public service a career of such attractiveness and security of tenure that it will draw young men of ability into it and keep them there. It is futile to talk of effective, long-range planning while maintaining in full vigor a spoils system which is the very negation of all that planning implies. It is idle to expect that the economic life of the nation can be guided into proper channels by men whose chief claim to a place in the public service is the fact that they have failed to make headway in private vocations.
No new deal in this or any other country will prove an enduring success until the thousands of subordinate public officials to whom its routine work of administration is entrusted are chosen on a merit basis, accorded a reasonable degree of security, and properly trained in the work which they are expected to do.
VI
There is no intent to gloss the immense practical difficulties in the way of constitutional changes along the lines here vaguely outlined. Not in a day or in a generation shall we see the revamping of our political framework or the upbuilding of a professionalized administrative personnel. The national traditions are all set against anything of the sort. That, however, is no reason why the various possibilities should fail to be explored by those who appreciate Macaulay’s truism that nations move ahead of their governments. Left to itself, the gap between the two keeps widening until something akin to a revolution is needed to bring the government into line with the national aspirations.
Progress in the application of science to industry will continue to create new problems of socialization even more complicated than those of to-day. If it advances during the next fifty years as it has done during the last, can we reasonably expect that our existing frame and methods of government will be sufficient to the tasks which statesmanship is asked to perform?
Too often, in the past, there has been a disinclination to face such questions until the urgency has become acute. Then emotion usurps the place of reason in framing the decision. Those who envisage a new social order should at least be willing to discuss the adequacy of the tools with which such an order is to be established and maintained.