The Americans

by Hugo Münsterberg

At the present day it is urged from many sides that the provisions of the Constitution ought to be changed. It is said that the frequently recurring presidential elections, with the popular excitement which they involve during the months immediately preceding, are an appreciable disturbance to economic life and that the possibility of being re-elected is too apt to make the President in the first term of office govern his actions with an eye to his second election. It is proposed, therefore, that every President shall be elected for six years and that re-election shall be forbidden by the Constitution. Experience of the past, however, hardly speaks for such a plan. The inclination shown by the President to yield to popular clamours or the instances of his party has been very different with different presidents, but on the whole it has not been noticeably greater in the first than in the second term of office. More especially, the disadvantages which come from the excitement over elections are certainly made up for by the moral advantage which the act of election brings to the people. The presidential election is a period of considerable reflection and examination of the country’s condition, and everybody is worked up to considerable interest; and the more changeable the times are so much the more rapidly new problems come up. Therefore there should be no thought of putting the decisive public elections, with their month-long discussions, at further intervals apart.

The most important duties and prerogatives of the President involve foreign as well as domestic affairs, and of the latter the most important concern the administration; a less important, although by no means an insignificant, part of his duties relates to legislation. The President is commander-in-chief of the army and of the navy, and with the approval of a majority of the Senate he appoints ambassadors, consuls, judges of the Supreme Court, and all the higher federal officials. Subject to the ratification of two-thirds of the Senate, he concludes treaties with foreign powers and regulates diplomatic relations. He has, moreover, the right to send back inside of ten days, with his veto, any bill which Congress has passed, and in this case the bill can become law only by being once more voted on by Congress and receiving in both houses a two-third’s majority. The President has the power to convene both houses in special sessions, and is expected to send messages to both houses when they meet, in which he describes the political situation of the country and recommends new measures. In addition to this he has the right of pardon and the right to afford protection to individual states against civil violence, if they cannot themselves quell the disturbance.

Such are the principal features of the presidential office, and it is clear that here as everywhere in American civil law the spirit of precaution has tried from the outset to limit the possibilities of abuse. Although he is commander-in-chief of the army, the President has not the right to declare war, this right being given to Congress. The President negotiates with foreign representatives and signs all treaties, but these are not valid until the Senate has approved them with a two-thirds vote. He nominates government officials, but once again only with the sanction of the Senate. The President convenes Congress and recommends matters for its legislative consideration, but the President cannot, like the German Government, lay bills before Congress for its ratification. While the President sends his message to Congress his ministers have not, as in Germany, a seat in parliament, and cannot, therefore, in the debates actively support the President’s policy.

The President is authorized to veto any bill that is passed through Congress, but his veto is not final since the bill can still become a law if Congress is sufficiently of one accord to override his veto. Therefore a whimsical or arbitrary president would find small scope for his vagaries so long as he keeps within his powers, while if he exceeds them he can be impeached, like a king under old English law. The House of Representatives can at any time file complaint against the President if he is suspected of treason or corruption or any other crime. In such case the Senate, under the chairmanship of a judge of the Supreme bench, constitutes a court of trial which is empowered to depose the President from office. Up to the present time but one president, Andrew Johnson, has been impeached, and he was acquitted. The seditionary ambition of a man who should try to gain complete control, to overthrow the Constitution, and at the head of the army, or of the populace, or, as might be more likely, of the millionaires, to institute a monarchy, would have no chance of success. Neither a Napoleon nor a Boulanger would be possible in America.

In spite of these provisions, it is to be observed that tremendous power is in the hands of this one man. Thousands and thousands of officials appointed by his predecessor can be removed by a stroke of his pen, and none can take their places except those whom he nominates. And he can put a barrier before any law such as Congress could only in exceptional cases ride over. Cleveland, for instance, who to be sure made the freest use of his authority in this respect, vetoed more than three hundred bills, and only twice did Congress succeed in setting aside his veto. The President may negotiate with foreign powers up to the point where a loyal and patriotic Congress has hardly any choice but to acquiesce. The President can virtually force Congress to a declaration of war, and if insurrection breaks out in any state he can at his pleasure employ the federal troops on behalf of one or the other faction, and when war has once been declared the presidential authority grows hourly in importance. The army and navy stand under his direction, and since the Constitution makes him responsible for the maintenance of law and order in the country he becomes virtually dictator in case of an insurrection. Bryce says very justly that Abraham Lincoln exercised more power than any man in England since Oliver Cromwell, and the anti-imperialistic papers of America always assert that in their Philippine policy McKinley and Roosevelt have taken on themselves more authority than any European monarch, excepting the Czar, could acquire.

In two respects the President is more important as compared with the representatives of the people, even in times of peace, than the king of England or the President of France. Firstly, his cabinet is entirely independent of the voice of parliament, and it has often been the case that while a majority in Congress sharply opposed the party policy of the President, this has not influenced the composition of his cabinet. The cabinet ministers are the representatives of the presidential policy, and they do not even take part in the doings of Congress.

Secondly, the President is not less but rather more than Congress a representative of the people. A monarch who takes up a position against the parliament thereby antagonizes the people. The President of France is elected by the people, but only through their parliamentary representatives; the chambers elect him, and therefore he is not an independent authority. The President of the United States, on the other hand, is in his own person a symbol of the collective will of the people, as opposed to the different members of Congress, which is of diverse composition and chosen on more local issues. There is moral authority, therefore, vested in the President. He is the true will of the people and his veto is their conscience. It is almost astonishing that a Republican democracy should have put such tremendous power into the hands of a single man. It is the more striking inasmuch as the Declaration of Independence related at length the sins of the English monarch. But we must bear in mind that the framers of the Constitution had to make a new and dangerous experiment, wherein they were much more afraid of that so far unknown and incalculable factor, the rule of the people, than the power of that single person whose administrative possibilities they had, in the colonial days, been able to observe in the governors of the several states. These had been diminutive but, on the whole, encouraging examples. Before all else the great and incomparable George Washington, the popular, dashing, and yet cautious aristocrat, had presided at the deliberations in which the Constitution was discussed, and had himself stood tangibly before the popular mind as the very ideal of a president.

Thus the President stands with tremendous powers at the helm of the nation. Who has sought him out for this position from the hundreds of thousands, whose hot ambition has led them to dream of such a distinction, and who has finally established him in this highest elective office on the face of the earth? The Constitution makes no other provision for the selection of a candidate than that he shall have been born in the land, that he shall be at least thirty-five years old, and shall have resided at least fourteen years in this his native country. On the other hand, the Constitutional provisions for his election are highly complicated, much more so indeed than the circumstances really call for. In fact, while the electoral procedures still comply with the wording of the original Constitution, actual conditions have so changed since the establishment of the Union that the prescribed machinery is not only partly unnecessary, but in some cases even works in opposition to what had been originally intended, and inconsistently with itself. The law requires, merely to mention the main point, that every state shall elect by popular vote a certain number of men who are called electors, and that a majority of the electors shall choose the President. For each state the number of electors is the same as that of the representatives which it sends to both houses of Congress together; it depends, therefore, on the number of inhabitants. Out of the 447 electors, 36 come from the State of New York, 32 from Pennsylvania, 24 from Illinois, 23 from Ohio, 15 from Massachusetts, but only 4 from Colorado, Florida, or New Hampshire; and only 3 from Delaware, Idaho, North Dakota, Utah, and several others. In case the vote of the electors should give no absolute majority to any candidate, the House of Representatives has to elect the President from among the three candidates who have received the greatest number of electoral votes.

The intention of the men who framed the Constitution in making these roundabout electoral provisions is clear enough; the election was not meant to be made directly by the people. When in the first discussions of the Constitution it was suggested that the President be elected directly by the people, some of the framers called the scheme chimerical and others called it impracticable. Indeed, some even doubted whether the people would be competent to choose the electors since, it was said, they would know too little about the persons and so would be liable to grave errors. This mistrust went so far, it is said, that leaving the election of the highest executives directly to the people seemed as unnatural as asking a blind man to match colors. The first plan which was at all approved by the Assembly was that Congress should elect the President; and not until later did it adopt the system of electors. It was hoped that for the electoral college the people would select the best, most experienced, and most cautious men of the country, and that these men should be left quite free to choose the highest executive as carefully and conscientiously as possible: and so it really happened when the electors met for the first time and fixed unanimously on George Washington.

But the situation is somewhat changed to-day: for a hundred years it has been the case that the electors have inevitably been deprived of all free choice. They are as passive as a printed ballot. They are no longer elected in order to come to a decision as to the best President, but merely to vote for this or that special candidate as designated, and for a hundred years not a single elector has disappointed this expectation. Thus the election of the President is practically accomplished on the day in November when the electors are voted for. McKinley defeated Bryan for the Presidency on the ninth of November, 1900, although no elector had officially voted for either one or the other; nor would he have a chance to vote until the first day of January, when he was mechanically to deposit his ballot.