36
CHECKS, BLOCKS AND TACKLES OF
GOVERNMENT
CHECKS, BLOCKS AND TACKLES OF
GOVERNMENT
OUR INEFFECTIVE GOVERNMENT
The paramount problem of our time has been described as that of increasing the efficiency of government without inviting tyranny. Hessler, in "Our Ineffective State."
Do the American people want effective government? Do they want a powerful government?
Superficially, no. Many Americans are so scared of powerful government that they are afraid to accept an effective government that will really do the job.
This is the historical fear of "centralization of power" which is called "dictatorship" today.
But it is substantially true that Americans really do want effective government. They want it strong enough to protect life, liberty and property. Americans also want a government which keeps the economic processes going, and which makes it possible for every man to have a job if he is willing to work. Besides that, Americans want peace and adequate "common defense" as provided for in our Constitution.
In the face of a growing number of serious needs today, our government—federal, state and local—is falling short. Many state governments are hopelessly inefficient both from the viewpoint of government policy and ordinary administration. Many cities in America are still run by the old crooked political machines.
The state and local situations can be corrected by the local citizens and by them alone. Efficient state and local government will make the general job of government easier of accomplishment and less costly. In addition, if in this field persons of courage and integrity are drawn into the public service, more and more persons will be trained for efficient government service in the federal field.
But our interest here is chiefly in the United States government. Although the federal government is generally far more efficient and effective than state and local government, it can become still more efficient, and very much more effective.
Confining myself to the federal government, I want to discuss this matter of efficiency as it affects our daily lives.
We need some changes in our constitutional practices, but none in our Constitution. We have in our written Constitution all the constitutional authority necessary for effective government. We need no amendments; our Constitution is all right. Constitutional government grows, anyhow. As people learn more about their government, as they develop ideas and create public opinion, they begin to expect and demand that executive, legislative, and judicial authorities actually do what the majority of the people want done. They grow sick of branches of government blocking, tackling, and checking each other. And this growth of intelligent public opinion makes for honest democratic and efficient government.
As we all know, the blocking and tackling goes on among our three branches of government. A bill must pass two houses; having passed, it must hurdle the Presidential veto. Duly enacted, it may stay on the books for from a year to fifty years, and then be declared "unconstitutional," because five out of the nine judges may not like the law, or because some single judge has changed his mind.
All-American honors for blocking and tackling must go the the Supreme Court. In the period preceding the Civil War, Chief Justice Taney, at least in the latter part of his career, built up the judicial power, as against the executive and legislative power, in order to protect and enrich the slaveholders. From about ten years before the Spanish War through the Hoover administration, various justices again built the judicial power—this time as against both national and state power to govern, in order to strenthen corporate and private finance. It was in this period that great corporations and monopolies became practically independent governments.
Consequently, as I pointed out in a previous chapter, many now believe that the Supreme Court is actually supposed to be supreme over the other branches of government. This is neither constitutionally true, nor is it a democratic way of government.
The Supreme Court itself should abandon the practice of functioning as a Super-Legislature and a Super-President. It should itself withdraw from the field rightly belonging to Congress, whose members are the constitutionally elected representatives of the people. If the High Court does not do so, the people must require it. All that is needed is unified public opinion.
If the Supreme Court will, of its own accord, merely follow its own rulings and not interfere with Congress except when Congress does violate the Constitution beyond "all reasonable doubt," government will be more effective, and the country will not be repeatedly torn by conflicts over the judiciary. It should itself consider more cases concerning human rights, especially at a time of hysteria, red-hunts, and invasions of civil liberties throughout the country. In that way it would become a Supreme Court of Justice, which it is supposed to be.
Concerning the Supreme Court acting as a super-legislature, Hessler says in Our Ineffective State: "It's equipment for such a task is faulty, not only because it is unrepresentative of public opinion and not responsible to it, but because the background of a learned lawyer is not one calculated to enable its possessor to weight the changing needs of a dynamic, industrial society . . . the court is not equipped to maintain a progressive constitution in step with a progressive society."
It must be borne in mind that the Supreme Court has never declared an act of Congress unconstitutional on the ground that it directly violated the Bill of Rights or the personal liberties of the people. Just before Jefferson's time, during the Adams administration, the country was plagued by the notorious Alien and Sedition Acts, but the people got no relief at the hands of the federal courts. Only when Jefferson came in, did he, as President of the United States, declare the Acts unconstitutional. All he said of the Sedition Act was this: "It is unconstitutional, and I shall not enforce it." The various acts of Congress which either interfered with freedom of speech or press or came dangerously near it, have all been declared constitutional by the Supreme Court.
That is the reason I say the High Court should be a Super Court of Justice, not a Super-Legislature. It should unhesitatingly find acts of Congress unconstitutional when they clearly violate the Bill of Rights.
Two things should be understood as to the Court:
First: The Court should continue its policy of declaring acts of state legislatures unconstitutional when necessary. Even then it should not set itself up as a High State Legislature, but it would be intolerable to have state acts in defiance of the federal law or the federal Constitution. In addition, the High Court should constantly operate to eliminate conflicting laws.
Second: Congress has the right to make "exceptions" and "regulations" to cases brought up to the Court. Alexander Hamilton emphasized this right, as I have already pointed out; anyhow, the power is vested in Congress by the Constitution.
If Congress were to exercise this power, the people would likely consider it an unwarranted innovation, though the power is in the written Constitution and recognized by the Supreme Court itself. It would produce more or less of a "crisis" in government.
Everyone who knew the attitude of the Court in 1937 thought the majority would declare the Social Security, national Labor Relations and TVA Acts unconstitutional. But the judges reversed themselves on a dozen points of law and held the acts constitutional. As a result nothing happened.
But suppose the Court had knocked the laws out? Should Congress, in time of economic distress, let the American people wait—for fifteen years, say, as they did in the matter of the income tax, until the judges chanced their minds after having held the income tax constitutional for a hundred years? Or for fourteen years, as they did in the minimum wage cases?
That is the question, and it can be answered only by the American people. Do the American people want social progress to be made impossible because a majority of one on the Supreme Bench does not fancy a law?
I do not blieve that it could be practical for the American people as a whole to be voting continually on questions. Constant referendums are highly impractical, but occasionally we reach a "crisis"—and I can see no reason why crises involving serious national questions cannot be submitted to the people for popular vote either directly on a referendum or indirectly at a congressional election. Suppose there is a crisis on social security or the size of the Supreme Court—why should it not be promptly submitted to the people? And once submitted, of course, all branches of the government would be required to enforce the decision. Indeed, the President and the Congress take an oath to support the Constitution, and there is no reason to suspect that they would violate this oath any more than an official who has his job by appointment and for life, without responsibility to the people.
And I repeat, all these conflicts can be settled without any amendments. All that is necessary is intelligent vocal public opinion.
Now a few words about the cabinet and governmental efficiency. It would seem to me worthwhile for Congress to require the cabinet members' presence on the floor of the House. The procedure would be entirely constitutional. It has been suggested by several Presidents, Taft and Wilson among them, and by numerous political scientists and frequently by Congress.
In the British House of Commons, cabinet officers have to face the legislators and answer questions during debates and at other specifically stated times. This practice keeps them alert, and responsible for their acts.
Efficiency in administrative departments would follow as a result of a similar practice in the United States. Members of Congress would know more of the executive departments and how the government is administered.
Above all, We the People must recognize the importance of service to and in our government—service to, by developing intelligent public opinion; service in, by developing a thoroughly efficient civil service.
Devotion to service in the government has been weak largely because of the possibility of high pay or big fortunes in business. That was the frontier psychology and is still the psychology of millions of Americans. But with the continent now very well rounded out, and with the role of government expanding, more and more men and women of high caliber are being attracted to the public service.
Investigation leads me to believe that the British Civil Service is an excellent institution. Whether it is or not, we need trained officials, people who know their jobs and who have job security. No man who is doing his duty should be fired because he happens to belong to the wrong political party.
I am convinced, in conversation and correspondence with thousands of Americans, that we all have plenty to learn about government. There are many fields where sincere men and women of all political faiths, whether conservative or liberal, can cooperate. With a will to serve and with more knowledge, we can certainly have a more effective government. In the words of Chief Justice Hughes, spoken on the occasion of the 150th anniversary of the first meeting of Congress under the Constitution, "in the great enterprise of making democracy workable we are all partners."
Superficially, no. Many Americans are so scared of powerful government that they are afraid to accept an effective government that will really do the job.
This is the historical fear of "centralization of power" which is called "dictatorship" today.
But it is substantially true that Americans really do want effective government. They want it strong enough to protect life, liberty and property. Americans also want a government which keeps the economic processes going, and which makes it possible for every man to have a job if he is willing to work. Besides that, Americans want peace and adequate "common defense" as provided for in our Constitution.
In the face of a growing number of serious needs today, our government—federal, state and local—is falling short. Many state governments are hopelessly inefficient both from the viewpoint of government policy and ordinary administration. Many cities in America are still run by the old crooked political machines.
The state and local situations can be corrected by the local citizens and by them alone. Efficient state and local government will make the general job of government easier of accomplishment and less costly. In addition, if in this field persons of courage and integrity are drawn into the public service, more and more persons will be trained for efficient government service in the federal field.
But our interest here is chiefly in the United States government. Although the federal government is generally far more efficient and effective than state and local government, it can become still more efficient, and very much more effective.
Confining myself to the federal government, I want to discuss this matter of efficiency as it affects our daily lives.
We need some changes in our constitutional practices, but none in our Constitution. We have in our written Constitution all the constitutional authority necessary for effective government. We need no amendments; our Constitution is all right. Constitutional government grows, anyhow. As people learn more about their government, as they develop ideas and create public opinion, they begin to expect and demand that executive, legislative, and judicial authorities actually do what the majority of the people want done. They grow sick of branches of government blocking, tackling, and checking each other. And this growth of intelligent public opinion makes for honest democratic and efficient government.
As we all know, the blocking and tackling goes on among our three branches of government. A bill must pass two houses; having passed, it must hurdle the Presidential veto. Duly enacted, it may stay on the books for from a year to fifty years, and then be declared "unconstitutional," because five out of the nine judges may not like the law, or because some single judge has changed his mind.
All-American honors for blocking and tackling must go the the Supreme Court. In the period preceding the Civil War, Chief Justice Taney, at least in the latter part of his career, built up the judicial power, as against the executive and legislative power, in order to protect and enrich the slaveholders. From about ten years before the Spanish War through the Hoover administration, various justices again built the judicial power—this time as against both national and state power to govern, in order to strenthen corporate and private finance. It was in this period that great corporations and monopolies became practically independent governments.
Consequently, as I pointed out in a previous chapter, many now believe that the Supreme Court is actually supposed to be supreme over the other branches of government. This is neither constitutionally true, nor is it a democratic way of government.
The Supreme Court itself should abandon the practice of functioning as a Super-Legislature and a Super-President. It should itself withdraw from the field rightly belonging to Congress, whose members are the constitutionally elected representatives of the people. If the High Court does not do so, the people must require it. All that is needed is unified public opinion.
If the Supreme Court will, of its own accord, merely follow its own rulings and not interfere with Congress except when Congress does violate the Constitution beyond "all reasonable doubt," government will be more effective, and the country will not be repeatedly torn by conflicts over the judiciary. It should itself consider more cases concerning human rights, especially at a time of hysteria, red-hunts, and invasions of civil liberties throughout the country. In that way it would become a Supreme Court of Justice, which it is supposed to be.
Concerning the Supreme Court acting as a super-legislature, Hessler says in Our Ineffective State: "It's equipment for such a task is faulty, not only because it is unrepresentative of public opinion and not responsible to it, but because the background of a learned lawyer is not one calculated to enable its possessor to weight the changing needs of a dynamic, industrial society . . . the court is not equipped to maintain a progressive constitution in step with a progressive society."
It must be borne in mind that the Supreme Court has never declared an act of Congress unconstitutional on the ground that it directly violated the Bill of Rights or the personal liberties of the people. Just before Jefferson's time, during the Adams administration, the country was plagued by the notorious Alien and Sedition Acts, but the people got no relief at the hands of the federal courts. Only when Jefferson came in, did he, as President of the United States, declare the Acts unconstitutional. All he said of the Sedition Act was this: "It is unconstitutional, and I shall not enforce it." The various acts of Congress which either interfered with freedom of speech or press or came dangerously near it, have all been declared constitutional by the Supreme Court.
That is the reason I say the High Court should be a Super Court of Justice, not a Super-Legislature. It should unhesitatingly find acts of Congress unconstitutional when they clearly violate the Bill of Rights.
Two things should be understood as to the Court:
First: The Court should continue its policy of declaring acts of state legislatures unconstitutional when necessary. Even then it should not set itself up as a High State Legislature, but it would be intolerable to have state acts in defiance of the federal law or the federal Constitution. In addition, the High Court should constantly operate to eliminate conflicting laws.
Second: Congress has the right to make "exceptions" and "regulations" to cases brought up to the Court. Alexander Hamilton emphasized this right, as I have already pointed out; anyhow, the power is vested in Congress by the Constitution.
If Congress were to exercise this power, the people would likely consider it an unwarranted innovation, though the power is in the written Constitution and recognized by the Supreme Court itself. It would produce more or less of a "crisis" in government.
Everyone who knew the attitude of the Court in 1937 thought the majority would declare the Social Security, national Labor Relations and TVA Acts unconstitutional. But the judges reversed themselves on a dozen points of law and held the acts constitutional. As a result nothing happened.
But suppose the Court had knocked the laws out? Should Congress, in time of economic distress, let the American people wait—for fifteen years, say, as they did in the matter of the income tax, until the judges chanced their minds after having held the income tax constitutional for a hundred years? Or for fourteen years, as they did in the minimum wage cases?
That is the question, and it can be answered only by the American people. Do the American people want social progress to be made impossible because a majority of one on the Supreme Bench does not fancy a law?
I do not blieve that it could be practical for the American people as a whole to be voting continually on questions. Constant referendums are highly impractical, but occasionally we reach a "crisis"—and I can see no reason why crises involving serious national questions cannot be submitted to the people for popular vote either directly on a referendum or indirectly at a congressional election. Suppose there is a crisis on social security or the size of the Supreme Court—why should it not be promptly submitted to the people? And once submitted, of course, all branches of the government would be required to enforce the decision. Indeed, the President and the Congress take an oath to support the Constitution, and there is no reason to suspect that they would violate this oath any more than an official who has his job by appointment and for life, without responsibility to the people.
And I repeat, all these conflicts can be settled without any amendments. All that is necessary is intelligent vocal public opinion.
Now a few words about the cabinet and governmental efficiency. It would seem to me worthwhile for Congress to require the cabinet members' presence on the floor of the House. The procedure would be entirely constitutional. It has been suggested by several Presidents, Taft and Wilson among them, and by numerous political scientists and frequently by Congress.
In the British House of Commons, cabinet officers have to face the legislators and answer questions during debates and at other specifically stated times. This practice keeps them alert, and responsible for their acts.
Efficiency in administrative departments would follow as a result of a similar practice in the United States. Members of Congress would know more of the executive departments and how the government is administered.
Above all, We the People must recognize the importance of service to and in our government—service to, by developing intelligent public opinion; service in, by developing a thoroughly efficient civil service.
Devotion to service in the government has been weak largely because of the possibility of high pay or big fortunes in business. That was the frontier psychology and is still the psychology of millions of Americans. But with the continent now very well rounded out, and with the role of government expanding, more and more men and women of high caliber are being attracted to the public service.
Investigation leads me to believe that the British Civil Service is an excellent institution. Whether it is or not, we need trained officials, people who know their jobs and who have job security. No man who is doing his duty should be fired because he happens to belong to the wrong political party.
I am convinced, in conversation and correspondence with thousands of Americans, that we all have plenty to learn about government. There are many fields where sincere men and women of all political faiths, whether conservative or liberal, can cooperate. With a will to serve and with more knowledge, we can certainly have a more effective government. In the words of Chief Justice Hughes, spoken on the occasion of the 150th anniversary of the first meeting of Congress under the Constitution, "in the great enterprise of making democracy workable we are all partners."
