This was quoted in defense of the right of secession by Alexander H. Stephens in his "Constitutional View of the Late War between the States."[192]
The chief remaining obstacles to popular legislation are the Senate and the Supreme Court. Some means must be found to make these two branches of the government responsible to the majority before the government as a whole can be depended upon to give prompt and effective expression to public opinion. The Senate presents the most difficult problem for democracy to solve. The present method of choosing senators is altogether unsatisfactory. It has resulted in making the upper house of our Federal legislature representative of those special interests over which there is urgent need of effective public control. It has also had the effect of subordinating the making of laws in our state legislatures to that purely extraneous function—the election of United States senators. The exercise of the latter function has done more than anything else to confuse state politics by making it necessary for those interests that would control the United States Senate to secure the nomination and election of such men to the state legislatures as can be relied upon to choose senators who will not be too much in sympathy with anti-corporation sentiments.
The Senate has fulfilled in larger measure than any other branch of the government the expectation of the founders. It was intended to be representative of conservatism and wealth and a solid and enduring bulwark against democracy. That it has accomplished this purpose of the framers can scarcely be denied. But the political beliefs of the framers are not the generally accepted political beliefs of to-day. It is immaterial to the people generally that the attitude of the Senate on public questions is in line with the purpose for which that body was originally established. The criticism of the Senate's policy expressed in the phrase "all brakes and no steam"[193] indicates not so much a change in the character and influence of that body as in the attitude of the people toward the checks which the Constitution imposed upon democracy. Conservatism has always been characteristic of the United States Senate, which, as Sir Henry Maine says, is "the one thoroughly successful institution [upper house] which has been established since the tide of modern democracy began to run."[194] Measuring success by the degree of resistance offered to the will of the majority, as this writer does, the conclusion is correct. This is the standard of judgment which the framers of the Constitution would have applied, but it is not the generally accepted standard according to which the success of that body would be judged to-day. We have now come to accept the view that every organ of government must be approved or condemned according as it furthers or thwarts the ends of democracy. Applying this test, the conclusion is inevitable that the Senate as now constituted is out of harmony with present-day political thought.
What, then, can be done to make that body an organ of democracy? There are three distinct evils in the Senate as it is now organized. The first pertains to the irresponsibility of its members due to their method of election and long term of office. But inasmuch as this could be remedied only by a constitutional amendment, it is not likely that anything short of a revolutionary public sentiment in favor of such change could compel the preliminary two-thirds majority in that body which the Constitution makes necessary. A body made up of men who for the most part realize that they owe their political advancement to a minority would naturally be loth to support a change in the system which would place the election to membership in that body directly in the hands of the people. It is improbable that any such reform can be accomplished at present. Any such direct attack upon the system would under present conditions be almost certain to fail. Some method of accomplishing this object must be employed which does not require the co-operation of the Senate, and which, without any constitutional amendment, really deprives the legislature of the power to select United States Senators as the electoral college has been deprived of all power in the choice of President.
The second defect in the Senate is the equal representation of the states in that body. It is not only absurd but manifestly unjust that a small state like Nevada should have as much representation in the controlling branch of Congress as New York with more than one hundred and seventy-one times as much population. A more inequitable distribution of representation it would be difficult to imagine; yet this evil could not be removed even by constitutional amendment, since this matter does not come within the scope of the amending power, unless the state or states affected by such proposed change should all give their assent.
The third defect in the Senate is the extraordinary power which the Constitution has conferred upon it. If it were a directly elected body whose members were apportioned among the states according to population, the overshadowing influence of the Senate would not be a serious matter. But, as shown in Chapter VI, that body controls jointly with the President the appointing and the treaty-making power. Moreover, the latter power may be exercised with reference to many things concerning which Congress has or could legislate. The Senate and the President may thus repeal what Congress has enacted. We thus have the peculiar situation that a law enacted with the concurrence of the House may be repealed without its consent, while a law which takes the form of a treaty can not be repealed without the consent of the Senate.
Theoretically, the Constitution could be amended so as to diminish the power of the Senate, but as a matter of fact no change in the Constitution would be more difficult to bring about. Any proposal to reduce the power of the Senate would jeopardize the prestige and influence of the smaller states no less than the proposal to deprive them of equal representation in that body. The small states approach political equality with the large, just in proportion as the influence of the Senate is a dominating factor in the policy of the government. Any attack on this equality of representation would ally the small states together in defense of this privilege, and make it impossible to obtain the assent of three-fourths of the states to any such change.
There is still another respect in which this equality of representation in the Senate is unfortunate. It tends to make it easier for corporation influences to dominate that body. This arises out of the fact that it is more difficult and more expensive to control the election of senators in a large than in a small state. This tends to make the small states a favorite field for political activity on the part of those corporations which wish to secure or prevent Federal legislation.
The Supreme Court is generally regarded as the most effective of all our constitutional checks upon democracy. Still, if the Senate were once democratized, it would not be a difficult matter to bring the Federal judiciary into line with the popular movement. In fact, the means employed in England to subordinate the House of Lords to the Commons indicates the method which might be employed here to subordinate the Supreme Court to Congress. The Ministry in England, virtually appointed by and responsible to the majority in the House of Commons, secured control of the prerogatives of the Crown, one of which was the right to appoint peers. No sooner did the House of Commons come into possession of this power through a responsible Ministry than it realized the possibility of making use of it to overcome opposition to their policies on the part of the Lords. If the House of Lords did not yield to the House of Commons, the latter, through its Cabinet, could create new peers in sufficient number to break down all resistance in that body. The possession of that power by the Commons and the warning that it would be used if necessary has been sufficient to ensure compliance on the part of the Lords. In a similar manner Congress and the President could control the Supreme Court. The Constitution does not fix the number of Supreme judges. This is a matter of detail which was left to Congress, which may at any time provide for the addition of as many new judges to the Supreme Court as it may see fit. Thus Congress, with the co-operation of the President, could control the policy of the Supreme Court in exactly the same way and to the same extent that the House of Commons controls the House of Lords.
That the Federalists who were in possession of our general government during the early years of its history appreciated the advantage of controlling the policy of the Supreme Court was pointed out in the chapter on the Federal judiciary. They accomplished their purpose, however, by selecting for membership in that body, men whose political record was satisfactory and whose views concerning judicial functions were in harmony with the general plan and purpose of the Federalist party. In fact, the scheme of government which they set up contemplated no such possibility as the democratization of the Executive or the Senate. If their expectation in this regard had been fully realized, a judicious use of the appointing power would have been all that was necessary to ensure a conservative court. Perhaps the framers of the Constitution did not imagine that the power to increase the number of judges would ever be needed to enable the President and Senate to secure the co-operation of the Supreme Court. At any rate, the power given to Congress and the President to enlarge the membership of that body was not, in the opinion of the framers, a power that could ever be employed against the conservative class, since the radical element, it was believed, would never be able to control more than one branch of the government, the House of Representatives. But, although it can not be determined whether the Federalists had in mind the possibility of using this power to control the policy of the court, it should be noted that, according to their view of the government, it might be used by, but not against, the conservative class. Nor is it likely that they would have hesitated to use this power had it been necessary to the success of their plan.