The Constitution of the United States / A Brief Study of the Genesis, Formulation and Political Philosophy of the Constitution

by James M. Beck

This system of checks and balances again illustrates that the Constitution is the great negation of unrestrained democracy. The framers believed that a people was best governed that was least governed. Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action.

Time does not suffice to state the intricate system of checks and balances whereby the legislature acts as a check upon the executive and the executive upon the legislature, and the Supreme Court upon both. When the Republic was small, and its public affairs were few, this system of checks and balances worked admirably, but to-day, when the nation is one of the greatest in the world, and its public affairs are of the most important and complicated character, and often require speedy action, it may be questioned whether the system is not now an undue brake upon governmental efficiency, and does not require some modification to ensure efficiency. Indeed, it is a serious question with many thoughtful Americans whether the growth of the United States has not put an excessive strain upon its governmental machinery.

This system was in part due to the confident belief of the framers of the Constitution in the Montesquieu doctrine of the division of government into three independent departments—legislative, executive and judicial; but experience has shown how difficult it is to apply this doctrine in its literal rigidity. One result of the doctrine was the mistaken attempt to keep the legislative and the executive as far apart as possible. The Cabinet system of parliamentary government was not adopted. While the President can appear before Congress and express his views, his Cabinet is without such right. In practice, the gulf is bridged by constant contact between the Cabinet and the committees of Congress, but this does not wholly secure speedy and efficient co-operation between the two departments. As I speak, a movement is in progress, with the sanction of President Harding, to permit members of his Cabinet to appear in Congress and thus defend directly and in person the policies of the Executive.

This separation of the two departments, which causes so much friction, has been emphasized by one feature of the Constitution which again marks its distrust of democracy, namely the fixed tenure of office. The Constitution did not intend that public officials should rise or fall with the fleeting caprices of a constituency. It preferred to give the President and the members of Congress a fixed term of office, and, however unpopular they might become temporarily, they should have the right and the opportunity to proceed even with unpopular policies, and thus challenge the final verdict of the people.

If a parliamentary form of government, immediately responsive to current opinion as registered in elections, is the great desideratum, then the fixed tenure of offices is the vulnerable Achilles-heel of our form of government. In other countries the Executive cannot survive a vote of want of confidence by the legislature. In America, the President, who is merely the Executive of the legislative will, continues for his prescribed term, though he may have wholly lost the confidence of the representatives of the people in Congress. While this makes for stability in administration and keeps the ship of state on an even keel, yet it also leads to the fatalism of our democracy, and often the "native hue" of its resolution is thus "sicklied o'er with the pale cast of thought." Take a striking instance. I am confident that after the sinking of the Lusitania, the United States would have entered the world war, if President Wilson's tenure of power had then depended upon a vote of confidence.

6.

The sixth fundamental principle is the joint power of the Senate and the Executive over the foreign relations of the Government.

I need not dwell at length upon this unique feature of our constitutional system, for since the Versailles Treaty, the world has become well acquainted with our peculiar system under which treaties are made and war is declared or terminated. Nothing, excepting the principle of local rule, was of deeper concern to the framers of the Constitution. When it was framed, it was the accepted principle of all other nations that the control of the foreign relations of the Government was the exclusive prerogative of the Executive. In your country the only limitation upon that power was the control of Parliament over the purse of the nation, and some of the great struggles in your history related to the attempt of the Crown to exact money to carry on the wars without a Parliament grant.

The framers were unwilling to lodge any such power in the Executive, however great his powers in other respects. This was primarily due to the conception of the States that then prevailed. While they had created a central government for certain specified purposes, they yet regarded themselves as sovereign nations, and their representatives in the Senate were, in a sense, their ambassadors. They were as little inclined to permit the President of the United States to make treaties or declare war at will in their behalf as the European nations would be to-day to vest a similar authority in the League of Nations. It was, therefore, first proposed that the power to make treaties and appoint diplomatic representatives should be vested exclusively in the Senate, but as that body was not always in session, this plan was so far modified as to give the President, who is always acting, the power to negotiate treaties "with the advice and consent of the Senate." As to making war, the framers were not willing to entrust the power even to the President and the Senators, and it was therefore expressly provided that only Congress could take this momentous step.

Here, again, the theory of the Constitution was necessarily somewhat modified in practical administration, for under the power of nominating diplomatic representatives, negotiating treaties, and in general, of executing the laws of the nation, the principle was soon evolved that the conduct of foreign affairs was primarily the function of the President, with the limitation that the Senate must concur in diplomatic appointments and in the validity of treaties, and that only both Houses of Congress could jointly declare war. This cumbrous system necessarily required that the President in conducting the foreign relations of the Government should keep in touch with the Senate, and such was the accepted procedure throughout the history of the nation until President Wilson saw fit to ignore the Senate, even when the Senate had indicated its dissent in advance to some of his policies at the Versailles Conference.