The application of the principle that governmental power must be kept out of the hands of the few is responsible for that fundamental characteristic of American constitutions known as the separation of powers among the three departments of government. The entire power of the government is exercised by the executive, the legislative, and the judicial departments. None is allowed to perform any of the functions which belong to either of the others. If it does so, its action is unconstitutional and void. Each department is, therefore, supreme and independent in its own field. This is the beginning of decentralization. In the distribution of powers, each department is designed to be a check upon the others. The legislature, being the most powerful by reason of its control over the making of the laws and appropriations, is naturally a substantial check upon the executive and judicial departments. Our constitution-makers have, therefore, been particular to devise checks upon the legislature by the other two departments. The executive is given a wide veto power upon all legislation, although the veto may be overridden by a two-thirds vote of the legislature. The courts in their power to declare laws unconstitutional are given, potentially at least, an effective veto power upon legislation. The scope of it is narrower than the executive veto, but on the other hand the veto of the courts cannot be overridden by any action of the legislature. The actual operation of these checks and balances, coupled with the complete separation of powers, has resulted in irritation and bickering between the departments. The trouble between the executive and the legislative departments especially is frequent and acute. The executive is the most conspicuous single official. He is elected upon a platform of pledges for legislation. He seeks to redeem those pledges by promoting the introduction of bills and pushing them through the legislature. The legislature feels hostile toward the executive for attempting to coerce its action. The executive loses patience with the legislature for not redeeming the pledges of the executive to the electorate. The legislature is frequently hostile toward the Supreme Court for declaring laws unconstitutional. The executive also comes in conflict with the judiciary by reason of the fact that the latter upsets legislation which the executive has sometimes been able to secure only by trading for votes important appointments which cannot be recalled. The executive and legislative departments are likely to feel that the Supreme Court has gone beyond its judicial power in declaring laws unconstitutional. The result is that each of the departments of government fails to work in harmony with the others. Each tends to retire to its own constitutional sphere and there spend considerable time in doing what it pleases, regardless of the other departments, and from time to time blocking and hampering them. In this way the least progress is made with the important business of legislation and the functioning of the executive and the judicial departments.
Our constitution-makers, however, went even farther in preventing the concentration of the powers of government. They split up and dissipated the powers of each department among as many different offices as possible. They split up the legislative power between two chambers, each operating as a check upon the other. In Illinois they went a step farther and split up the power of the lower house by providing a method whereby every third member might be the representative of a minority party. A general check upon the power of the legislature is frequently found in the provision that it can meet for general legislative business only every two years, or that it can remain in session for such general legislative purposes only a specified number of days. The result is that the legislative power is not only hampered from without by executive and judicial vetoes and the limited time in which to act, but it is divided within among bodies which are more or less antagonistic to each other. The executive power of the state, if lodged wholly in the governor, acting through his appointees, might still have been a very extensive power, but it would have been too much power in one man to meet the approval of our constitution-makers. Hence the executive power has been split up among several independently elected executive officers, viz., the governor, the attorney-general, the secretary of state, the state treasurer, the state auditor, the state superintendent of public instruction, and the trustees of the state university. Each one of these officers is independent in the discharge of his statutory or constitutional duties. So far as they divide executive power among them, they take power from the chief executive. In the judicial department we find the same pains to give out the minimum amount of power to any single judge or group of judges. We find usually several courts of original jurisdiction, each with power to handle limited and defined classes of cases. There are justices of the peace, municipal courts, probate courts, juvenile courts, criminal courts, and circuit courts, the last having the most general jurisdiction. Then follow a succession of appellate tribunals, each with a limited jurisdiction to hear appeals. The trial judges have had their power restricted by being forbidden to exercise any control over juries by oral instructions upon the law. They have no power to give any instructions upon the evidence. They have been reduced in jury trials to the position of umpires for forensic duels between lawyers. In the appellate tribunals they are usually forbidden to review questions of fact. Their function is confined very narrowly to the affirming of the decision below, or reversing it without remanding it, or reversing and remanding it for a new hearing. They are denied any power of hearing further evidence or making a proper order so as to settle the litigation if possible in the appellate tribunal. The work of appellate courts consists to so large an extent of opinion writing and closet work that the office is inconspicuous and not very attractive. In most states the judges are elected. Each one is independent in the exercise of the duties of his statutory jurisdiction. Even the clerks of the various separate courts are in many instances elected. They are absolutely independent of the judiciary or of any other officer of the legal government in the exercise of their statutory duties. There is no administrative head of the court with large powers over the direction of the work of other judges and the clerical force and a corresponding responsibility for the conduct of judicial business. In the everyday work of his office the judge, under the present plan of government, is amenable to no authority except his own conscience and a fear of unfavorable public comment upon his actions.
In our municipal governments the legislative power is usually exercised by a single chamber, though there are instances of double chambers in the city council. In the less important municipal governments, such as counties, villages, and special commissions, we frequently find a part of the executive power vested in the municipal legislative body or in some member of it. Thus, in county governments we frequently find the chief executive the presiding and most influential member of the board of commissioners. In the cities, however, there is usually a complete separation of the legislative and executive functions, the legislative power being committed to a council and the executive functions to a mayor and other subordinate officers. There is a general tendency toward the splitting-up of the executive power among different executive officers who are elected and are independent of any superior authority in the performance of their statutory duties. A city government will usually distribute the executive power among a mayor, a treasurer, a comptroller, and a clerk. The executive power of a county government will be split up among a president of the county board, a county clerk, a sheriff, a county treasurer, a county superintendent of schools, members of the board of assessors, and the board of review. A great deal of unobserved splitting-up of executive and legislative functions in municipal governments has been accomplished by the creating of several municipal corporations with special functions operating in the same territory. For instance, where a city and county government cover the same territory we have two municipal legislatures operating in the same territory, and also two sets of executive officers. Thus is the legislative and executive power necessary for a given district split in half. If a drainage district, a park district, a school district, a public library district, each controlled by commissioners or trustees with executive and legislative power, be added, all operating in the same territory with a city government and a county government, we have still further split up the municipal executive and legislative power. Such situations are common enough.
The principle of decentralization has even been applied so as to prevent the assistance to the government which might be derived from experts in various lines. The place where the largest number and variety of experts in the most departments of learning can be found is the largest city of the state. If that city happens to be one of the great cities of the country and of the world, it will also be an important center of intellectual activity of all sorts. It will very likely have in or near it one or more great universities. Yet in such states we are likely to find that an ancient fear of mob influence over legislation has placed the state capital at some distant geographical center which is not even a transportation center. Not infrequently the state university will be found at some point more or less inaccessible to both the largest city of the state and the capital. These are arrangements which tend directly to the separation of the government from the aid of expert knowledge and the best intelligence of the state.[1]
Members of the state and municipal legislatures are, of course, elective. Moreover, the judges and state, county, and city administrative officers are also elective. In addition to preventing any officer from holding his place and his power against the will of the majority, the wide application of the elective principle aids in the decentralization of the executive power. It tends to make every elective officer independent of every other officer in the discharge of his statutory duties. By subjecting to an election at a given time a part only of the total number of officers elected, a further check upon the concentration of power is secured. The officers who do not come up for election at a particular time may be of a different political faith from those who are elected. In the same administration, therefore, some officeholders may stand as a check upon the actions of the others. In obedience to the principle of frequent elections all officers hold for brief terms of one, two, four, or six years—usually for two or four years.
Those who devised this plan of government for use in the United States no doubt thought that the citadel of popular government as thus guarded was absolutely impregnable. How could the power of government fall into the hands of the few when it had been so carefully split up among so many who could not possibly work together in harmony? How could the power of government be retained in the face of popular disapproval when those who exercised it were subject to such frequent elections? Nevertheless, the impossible has again happened. The impregnable citadel has been taken. The manner of its assault and capture is even now one of the unexpected and, to many who appreciate only in a general way what has occurred, one of the incomprehensible events of history.
FOOTNOTES:
[1] Compare Godkin, Essays on Problems of Modern Democracy, pp. 305-6.