The Congressional Government. Woodrow Wilson
traversed body of law became suddenly all the vogue, and criticism was estopped. From the first, even down to the time immediately preceding the war, the general scheme of the Constitution went unchallenged; nullification itself did not always wear its true garb of independent state sovereignty, but often masqueraded as a constitutional right; and the most violent policies took care to make show of at least formal deference to the worshipful fundamental law. The divine right of kings never ran a more prosperous course than did this unquestioned prerogative of the Constitution to receive universal homage. The conviction that our institutions were the best in the world, nay more, the model to which all civilized states must sooner or later conform, could not be laughed out of us by foreign critics, nor shaken out of us by the roughest jars of the system.
Now there is, of course, nothing in all this that is inexplicable, or even remarkable; any one can see the reasons for it and the benefits of it without going far out of his way; but the point which it is interesting to note is that we of the present generation are in the first season of free, outspoken, unrestrained constitutional criticism. We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended; the first to entertain any serious doubts about the superiority of our own institutions as compared with the systems of Europe; the first to think of remodeling the administrative machinery of the federal government, and of forcing new forms of responsibility upon Congress.
The evident explanation of this change of attitude towards the Constitution is that we have been made conscious by the rude shock of the war and by subsequent developments of policy, that there has been a vast alteration in the conditions of government; that the checks and balances which once obtained are no longer effective; and that we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession. In short, this model government is no longer conformable with its own original pattern. While we have been shielding it from criticism it has slipped away from us. The noble charter of fundamental law given us by the Convention of 1787 is still our Constitution; but it is now our form of government rather in name than in reality, the form of the Constitution being one of nicely adjusted, ideal balances, whilst the actual form of our present government is simply a scheme of congressional supremacy. National legislation, of course, takes force now as at first from the authority of the Constitution; but it would be easy to reckon by the score acts of Congress which can by no means be squared with that great instrument's evident theory. We continue to think, indeed, according to long-accepted constitutional formulae, and it is still politically unorthodox to depart from old-time phraseology in grave discussions of affairs; but it is plain to those who look about them that most of the commonly received opinions concerning federal constitutional balances and administrative arrangements are many years behind the actual practices of the government at Washington, and that we are farther than most of us realize from the times and the policy of the framers of the Constitution. It is a commonplace observation of historians that, in the development of constitutions, names are much more persistent than the functions upon which they were originally bestowed; that institutions constantly undergo essential alterations of character, whilst retaining the names conferred upon them in their first estate; and the history of our own Constitution is but another illustration of this universal principle of institutional change. There has been a constant growth of legislative and administrative practice, and a steady accretion of precedent in the management of federal affairs, which have broadened the sphere and altered the functions of the government without perceptibly affecting the vocabulary of our constitutional language. Ours is, scarcely less than the British, a living and fecund system. It does not, indeed, find its rootage so widely in the hidden soil of unwritten law; its tap-root at least is the Constitution; but the Constitution is now, like Magna Carta and the Bill of Rights, only the sap-centre of a system of government vastly larger than the stock from which it has branched,—a system some of whose forms have only very indistinct and rudimental beginnings in the simple substance of the Constitution, and which exercises many functions apparently quite foreign to the primitive properties contained in the fundamental law.
The Constitution itself is not a complete system; it takes none but the first steps in organization. It does little more than lay a foundation of principles. It provides with all possible brevity for the establishment of a government having, in several distinct branches, executive, legislative, and judicial powers. It vests executive power in a single chief magistrate, for whose election and inauguration it makes carefully definite provision, and whose privileges and prerogatives it defines with succinct clearness; it grants specifically enumerated powers of legislation to a representative Congress, outlining the organization of the two houses of that body and definitely providing for the election of its members, whose number it regulates and the conditions of whose choice it names; and it establishes a Supreme Court with ample authority of constitutional interpretation, prescribing the manner in which its judges shall be appointed and the conditions of their official tenure. Here the Constitution's work of organization ends, and the fact that it attempts nothing more is its chief strength. For it to go beyond elementary provisions would be to lose elasticity and adaptability. The growth of the nation and the consequent development of the governmental system would snap asunder a constitution which could not adapt itself to the new conditions of an advancing society. If it could not stretch itself to the measure of the times, it must be thrown off and left behind, as a by-gone device; and there can, therefore, be no question that our Constitution has proved lasting because of its simplicity. It is a corner-stone, not a complete building; or, rather, to return to the old figure, it is a root, not a perfect vine.
The chief fact, therefore, of our national history is that from this vigorous tap-root has grown a vast constitutional system,—a system branching and expanding in statutes and judicial decisions, as well as in unwritten precedent; and one of the most striking facts, as it seems to me, in the history of our politics is, that that system has never received complete and competent critical treatment at the hands of any, even the most acute, of our constitutional writers. They view it, as it were, from behind. Their thoughts are dominated, it would seem, by those incomparable papers of the "Federalist," which, though they were written to influence only the voters of 1788, still, with a strange, persistent longevity of power, shape the constitutional criticism of the present day, obscuring much of that development of constitutional practice which has since taken place. The Constitution in operation is manifestly a very different thing from the Constitution of the books. "An observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory."1 It is, therefore, the difficult task of one who would now write at once practically and critically of our national government to escape from theories and attach himself to facts, not allowing himself to be confused by a knowledge of what that government was intended to be, or led away into conjectures as to what it may one day become, but striving to catch its present phases and to photograph the delicate organism in all its characteristic parts exactly as it is to-day; an undertaking all the more arduous and doubtful of issue because it has to be entered upon without guidance from writers of acknowledged authority.
The leading inquiry in the examination of any system of government must, of course, concern primarily the real depositaries and the essential machinery of power. There is always a centre of power: where in this system is that centre? in whose hands is self-sufficient authority lodged, and through what agencies does that authority speak and act? The answers one gets to these and kindred questions from authoritative manuals of constitutional exposition are not satisfactory, chiefly because they are contradicted by self-evident facts. It is said that there is no single or central force in our federal scheme; and so there is not in the federal scheme, but only a balance of powers and a nice adjustment of interactive checks, as all the books say. How is it, however, in the practical conduct of the federal government? In that, unquestionably, the predominant and controlling force, the centre and source of all motive and of all regulative power, is Congress. All niceties of constitutional restriction and even many broad principles of constitutional limitation have been overridden, and a thoroughly organized system of congressional control set up which gives a very rude negative to some theories of balance and some schemes for distributed powers, but which suits well with convenience, and does violence to none of the principles of self-government contained