The Spirit of American Government / A Study Of The Constitution: Its Origin, Influence And / Relation To Democracy

by J. Allen Smith

3. Unlimited and responsible.

As shown in a previous chapter, the Revolutionary movement largely destroyed the system of checks. It abolished the veto power, centralized authority and made the government in a measure responsible to the electorate. The Constitution, however, restored the old order in a modified form. In this sense it was reactionary and retrogressive. It went back to the old doctrine of the separation of powers, ostensibly to limit the authority of the government and thereby make it responsible to the people as Hamilton argued in The Federalist. That this could not have been the real object is evident to any one who has carefully studied the situation. The unthinking reader may accept Hamilton's contention that the system of checks and balances was incorporated in the Constitution to make the government the servant and agent of the people; but the careful student of history can not be so easily misled. He knows that the whole system was built up originally as a means of limiting monarchical and aristocratic power; that it was not designed to make government in any true sense responsible, but to abridge its powers because it was irresponsible. The very existence of the system implies the equal recognition in the Constitution of antagonistic elements. As it could not possibly exist where monarchy or aristocracy was the only recognized source of authority in the state, so it is likewise impossible where all power is in the people. It is to be observed, then, that what originally commended the system to the people was the fact that it limited the positive power of the king and aristocracy, while the framers of the Constitution adopted it with a view to limiting the power of the people themselves.

There is no essential difference between the viewpoint of the framers of the American Constitution and that of their English contemporaries. Lecky says: "It is curious to observe how closely the aims and standard of the men who framed the memorable Constitution of 1787 and 1788 corresponded with those of the English statesmen of the eighteenth century. It is true that the framework adopted was very different.... The United States did not contain the materials for founding a constitutional monarchy or a powerful aristocracy.... It was necessary to adopt other means, but the ends that were aimed at were much the same. To divide and restrict power; to secure property; to check the appetite for organic change; to guard individual liberty against the tyranny of the multitude...."[103]

Our Constitution was modeled in a general way after the English government of the eighteenth century. But while the English system of constitutional checks was a natural growth, the American system was a purely artificial contrivance. James Monroe called attention to this fact in the Virginia convention. He observed that the division of power in all other governments ancient and modern owed its existence to a mixture of monarchy, aristocracy, and democracy.[104] This artificial division of power provided for in the Constitution of the United States was intended as a substitute for the natural checks upon the people which the existence of king and nobility then supplied in England.

This idea of government carried out to its logical conclusion would require that every class and every interest should have a veto on the political action of all the others. No such extended application of the theory has ever been made in the actual working of government, nor is it practicable, since no class can acquire, or having acquired, retain a veto on the action of the government unless it is large and powerful enough to enforce its demands. The attempt on the part of a small class to acquire a constitutional right of this character must of necessity fail. This is why the system which theoretically tends toward a high degree of complexity has not in practice resulted in any very complex constitutional arrangements.

Poland is the best example of the practical working of a system of checks carried to an absurd extreme. The political disintegration and final partition of that once powerful country by its neighbors was due in no small degree to its form of government, which invited anarchy through the great power which it conferred upon an insignificant minority.

The fact that this system can not be carried far enough in practice to confer upon every distinct interest or class the veto power as a means of self defence, has given rise to the doctrine of laissez faire. No class in control of the government, or even in possession of the power to negative its acts, has any motive for advocating the let-alone theory. Its veto power affords it adequate protection against any harmful exercise of political authority. But such is not the case with those smaller or less fortunate classes or interests which lack this means of self-protection. Since they do not have even a negative control over the government, they naturally desire to limit the scope of its authority. Viewed in this light we may regard the laissez faire doctrine as merely supplementary to the political theory of checks and balances.

It is easy to see that if the idea of checks were carried out in practice to its extreme limits, it would lead inevitably to the destruction of all positive authority by vesting a veto in each class and ultimately in each individual. In fact, John C. Calhoun, the ablest and most consistent expounder of this doctrine, defines a perfect popular government as "one which would embrace the consent of every citizen or member of the community."[105] When this last stage is reached we would have no government in any proper sense; for each individual would be clothed with constitutional power to arrest its action. Indeed the theory of checks and balances, if taken without any qualification and followed out consistently, leads naturally to the acceptance of anarchy as the only scientific system.

The absence of king and aristocracy did not deter the members of the Convention from seeking to follow the English model. In doing this, however, it was necessary to find substitutes for the materials which were lacking. The constitutional devices adopted to accomplish this purpose form the system of checks and are the most original and interesting feature of our government.

The English model was followed, however, only so far as it served their purpose. In the case of the judiciary, for instance, they declined to follow it; but the reason for this as explained in the preceding chapter was their desire to establish a more effective check on the people. They showed no special preference for the English form where some other method would better accomplish the desired purpose. Hence in many instances they deliberately rejected English precedent, but always with the view of providing something that would impose a more effective check on the public will. An apparent exception to this may be found in the limited term of President and United States senators. But these were the very instances in which lack of king and nobility made departure from the English model a matter of necessity. Moreover, any avowed attempt to provide an effective substitute for the hereditary branches of the English model would have been distasteful to the people generally and for that reason would have ensured the rejection of the Constitution. Theoretically, the nearest approach to the English system possible would have been life tenure, and there were not wanting those who, like Hamilton, contended for it; but the certainty of popular disapproval was an unanswerable argument against it.