Part 14

In his view "the evil of two coequal Houses of distinct natures is obvious." "Most constitutions," he declares, "have committed this blunder. The two most remarkable Republican institutions in the world commit it. In both the American and Swiss Constitutions the Upper House has as much authority as the second; it could produce the maximum of impediment--a dead-lock, if it liked; if it does not do so, it is owing not to the goodness of the legal constitution, but to the discreetness of the members of the Chamber. In both these constitutions this dangerous division is defended by a peculiar doctrine.... It is said that there must be in a federal government some institution, some authority, some body possessing a veto in which the separate States comprising the Confederation are all equal. I confess this doctrine has to me no self-evidence, and it is assumed, but not proved. The State of Delaware is not equal in power or influence to the State of New York, and you cannot make it so by giving it an equal veto in an Upper Chamber. The history of such an institution is indeed most natural. A little State will like, and must like, to see some token, some memorial mark, of its old independence preserved in the Constitution by which that independence is extinguished. But it is one thing for an institution to be natural, and another for it to be expedient. If indeed it be that a federal government compels the erection of an Upper Chamber of conclusive and coordinate authority, it is one more in addition to the many other inherent defects of that kind of government. It may be necessary to have the blemish, but it is a blemish just as much."

It would be in the highest degree indiscreet to differ lightly with any conclusion to which Mr. Bagehot may have come in viewing that field of critical exposition in which he was supreme, the philosophical analysis, namely, of the English Constitution; and it must be apparent to any one who reads the passage I have just now quoted that his eye sees very keenly and truly even when he looks across sea at institutions which were repugnant to his own way of thinking. But it is safe to say that he did not see all in this instance, and that he was consequently in error concerning the true nature of our federal legislative system. His error, nevertheless, appears, not when we look only at the facts which he held up to view, but when we look at other facts which he ignored. It is true that the existence of two coequal Houses is an evil when those two Houses are of distinct natures, as was the case under the Victorian Constitution to which Mr. Bagehot refers by way of illustrative example. Under that Constitution all legislative business was sometimes to be seen quite suspended because of irreconcilable differences of opinion between the Upper House, which represented the rich wool-growers of the colony, and the Lower Assembly, which represented the lesser wool-growers, perhaps, and the people who were not wool-growers at all. The Upper House, in other words, was a class chamber, and thus stood quite apart from anything like the principle embodied in our own Senate, which is no more a class chamber than is the House of Representatives.

The prerogatives of the Senate do, indeed, render our legislative system more complex, and for that reason possibly more cumbersome, than the British; for our Senate can do more than the House of Lords. It can not only question and stay the judgment of the Commons, but may always with perfect safety act upon its own judgment and gainsay the more popular chamber to the end of the longest chapter of the bitterest controversy. It is quite as free to act as is any other branch of the government, and quite as sure to have its acts regarded. But there is safety and ease in the fact that the Senate never wishes to carry its resistance to the House to that point at which resistance must stay all progress in legislation; because there is really a "latent unity" between the Senate and the House which makes continued antagonism between them next to impossible--certainly in the highest degree improbable. The Senate and the House are of different origins, but virtually of the same nature. The Senate is less democratic than the House, and consequently less sensible to transient phases of public opinion; but it is no less sensible than the House of its ultimate accountability to the people, and is consequently quite as obedient to the more permanent and imperative judgments of the public mind. It cannot be carried so quickly by every new sentiment, but it can be carried quickly enough. There is a main chance of election time for it as well as for the House to think about.

By the mode of its election and the greater length of the term by which its seats are held, the Senate is almost altogether removed from that temptation to servile obedience to the whims of popular constituencies to which the House is constantly subject, without as much courage as the Senate has to guard its virtue. But the men who compose the Senate are of the same sort as the members of the House of Representatives, and represent quite as various classes. Nowadays many of the Senators are, indeed, very rich men, and there has come to be a great deal of talk about their vast wealth and the supposed aristocratic tendencies which it is imagined to breed. But even the rich Senators cannot be said to be representatives of a class, as if they were all opulent wool-growers or great land-owners. Their wealth is in all sorts of stocks, in all sorts of machinery, in all sorts of buildings, in possessions of all the sorts possible in a land of bustling commerce and money-making industries. They have made their money in a hundred different ways, or have inherited it from fathers who amassed it in enterprises too numerous to imagine; and they have it invested here, there, and everywhere, in this, that, and everything. Their wealth represents no class interests, but all the interests of the commercial world. It represents the majority of the nation, in a word; and so they can probably be trusted not to neglect one set of interests for another; not to despoil the trader for the sake of the farmer, or the farmer for the sake of the wool-grower, or the wool-grower for the behoof of the herder of short-horned cattle. At least the Senate is quite as trustworthy in this regard as is the House of Representatives.

Inasmuch as the Senate is thus separated from class interests and quite as representative of the nation at large as is the House of Representatives, the fact that it is less quickly sensitive to the hasty or impulsive movements of public opinion constitutes its value as a check, a steadying weight, in our very democratic system. Our English cousins have worked out for themselves a wonderfully perfect scheme of government by gradually making their monarchy unmonarchical. They have made of it a republic steadied by a reverenced aristocracy and pivoted upon a stable throne. And just as the English system is a limited monarchy because of Commons and Cabinet, ours may be said to be a limited democracy because of the Senate. This has in the trial of the scheme proved the chief value of that upper chamber which was instituted principally as an earnest of the abiding equality and sovereignty of the States. At any rate, this is the most conspicuous, and will prove to be the most lasting, use of the Senate in our system. It is valuable in our democracy in proportion as it is undemocratic. I think that a philosophical analysis of any successful and beneficent system of self-government will disclose the fact that its only effectual checks consist in a mixture of elements, in a combination of seemingly contradictory political principles; that the British government is perfect in proportion as it is unmonarchical, and ours safe in proportion as it is undemocratic; that the Senate saves us often from headlong popular tyranny.

"The value, spirit, and essence of the House of Commons," said Burke, "consists in its being the express image of the feelings of the nation;" but the image of the nation's feelings should not be the only thing reflected by the constitution of a free government. It is indispensable that, besides the House of Representatives which runs on all fours with popular sentiment, we should have a body like the Senate which may refuse to run with it at all when it seems to be wrong--a body which has time and security enough to keep its head, if only now and then and but for a little while, till other people have had time to think. The Senate is fitted to do deliberately and well the revising which is its properest function, because its position as a representative of state sovereignty is one of eminent dignity, securing for it ready and sincere respect, and because popular demands, ere they reach it with definite and authoritative suggestion, are diluted by passage through the feelings and conclusions of the state legislatures, which are the Senate's only immediate constituents. The Senate commonly feels with the House, but it does not, so to say, feel so fast. It at least has a chance to be the express image of those judgments of the nation which are slower and more temperate than its feelings.

This it is which makes the Senate "the most powerful and efficient second chamber that exists,"[43] and this it is which constitutes its functions one of the effectual checks, one of the real balances, of our system; though it is made to seem very insignificant in the literary theory of the Constitution, where the checks of state upon federal authorities, of executive prerogatives upon legislative powers, and of Judiciary upon President and Congress, though some of them in reality inoperative from the first and all of them weakened by many "ifs" and "buts," are made to figure in the leading roles, as the characteristic Virtues, triumphing over the characteristic Vices, of our new and original political Morality-play.

It should, however, be accounted a deduction from the Senate's usefulness that it is seldom sure of more than two thirds of itself for more than four years at a time. In order that its life may be perpetual, one third of its membership is renewed or changed every two years, each third taking its turn at change or renewal in regular succession; and this device has, of course, an appreciably weakening effect on the legislative sinews of the Senate. Because the Senate mixes the parties in the composition of its Committees just as the House does, and those Committees must, consequently, be subjected to modification whenever the biennial senatorial elections bring in new men, freshly promoted from the House or from gubernatorial chairs. Places must be found for them at once in the working organization which busies itself in the committee-rooms. Six years is not the term of the Senate, but only of each Senator. Reckoning from any year in which one third of the Senate is elected, the term of the majority,--the two thirds not affected by the election,--is an average of the four and the two years which it has to live. There is never a time at which two thirds of the Senate have more than four years of appointed service before them. And this constant liability to change must, of course, materially affect the policy of the body. The time assured it in which to carry out any enterprise of policy upon which it may embark is seldom more than two years, the term of the House. It may be checked no less effectually than the lower House by the biennial elections, albeit the changes brought about in its membership are effected, not directly by the people, but indirectly and more slowly by the mediate operation of public opinion through the legislatures of the States.

In estimating the value of the Senate, therefore, as a branch of the national legislature, we should offset the committee organization, with its denial of leadership which disintegrates the Senate, and that liability to the biennial infusion of new elements which may at any time interrupt the policy and break the purpose of the Senate, against those habits of free and open debate which clear its mind, and to some extent the mind of the public, with regard to the nation's business, doing much towards making legislation definite and consistent, and against those great additions to its efficiency which spring from its observation of "slow and steady forms" of procedure, from the mediate election which gives it independence, and from its having a rational and august cause for existing.

When we turn to consider the Senate in its relations with the executive, we see it no longer as a legislative chamber, but as a consultative executive council. And just here there is to be noted an interesting difference between the relations of the Senate with the President and its relations with the departments, which are in constitutional theory one with the President. It deals directly with the President in acting upon nominations and upon treaties. It goes into "executive session" to handle without gloves the acts of the chief magistrate. Its dealings with the departments, on the other hand, are, like those of the House, only indirect. Its legislative, not its executive, function is the whip which coerces the Secretaries. Its will is the supreme law in the offices of the government; and yet it orders policy by no direct word to the departments. It does not consult and negotiate with them as it does with the President, their titular head. Its immediate agents, the Committees, are not the recognized constitutional superiors of Secretary A. or Comptroller B.; but these officials cannot move a finger or plan more than a paltry detail without looking to it that they render strict obedience to the wishes of these outside, uncommissioned, and irresponsible, but none the less authoritative and imperative masters.

This feature of the Senate's power over the executive does not, however, call for special emphasis here, because it is not a power peculiar to the Senate, this overlordship of the departments, but one which it possesses in common with the House of Representatives,--simply an innate and inseparable part of the absolutism of a supreme legislature. It is the Senate's position as the President's council in some great and many small matters which call for particular discussion. Its general tyranny over the departments belongs rather with what I am to say presently when looking at congressional government from the stand-point of the executive.

The greatest consultative privilege of the Senate,--the greatest in dignity, at least, if not in effect upon the interests of the country,--is its right to a ruling voice in the ratification of treaties with foreign powers. I have already alluded to this privilege, for the purpose of showing what weight it has had in many instances in disarranging the ideal balance supposed to exist between the powers of Congress and the constitutional prerogatives of the President; but I did not then stop to discuss the organic reasons which have made it impossible that there should be any real consultation between the President and the Senate upon such business, and which have, consequently, made disagreement and even antagonism between them probable outcomes of the system. I do not consult the auditor who scrutinizes my accounts when I submit to him my books, my vouchers, and a written report of the business I have negotiated. I do not take his advice and seek his consent; I simply ask his endorsement or invite his condemnation. I do not sue for his cooperation, but challenge his criticism. And the analogy between my relations with the auditor and the relations of the President with the Senate is by no means remote. The President really has no voice at all in the conclusions of the Senate with reference to his diplomatic transactions, or with reference to any of the matters upon which he consults it; and yet without a voice in the conclusion there is no consultation. Argument and an unobstructed interchange of views upon a ground of absolute equality are essential parts of the substance of genuine consultation. The Senate, when it closes its doors, upon going into "executive session," closes them upon the President as much as upon the rest of the world. He cannot meet their objections to his courses except through the clogged and inadequate channels of a written message or through the friendly but unauthoritative offices of some Senator who may volunteer his active support. Nay, in many cases the President may not even know what the Senate's objections were. He is made to approach that body as a servant conferring with his master, and of course deferring to that master. His only power of compelling compliance on the part of the Senate lies in his initiative in negotiation, which affords him a chance to get the country into such scrapes, so pledged in the view of the world to certain courses of action, that the Senate hesitates to bring about the appearance of dishonor which would follow its refusal to ratify the rash promises or to support the indiscreet threats of the Department of State.

The machinery of consultation between the Senate and the President is of course the committee machinery. The Senate sends treaties to its Standing Committee on Foreign Relations, which ponders the President's messages accompanying the treaties and sets itself to understand the situation in the light of all the information available. If the President wishes some more satisfactory mode of communication with the Senate than formal message-writing, his only door of approach is this Committee on Foreign Relations. The Secretary of State may confer with its chairman or with its more influential members. But such a mode of conference is manifestly much less than a voice in the deliberations of the Senate itself,--much less than meeting that body face to face in free consultation and equal debate. It is almost as distinctly dealing with a foreign power as were the negotiations preceding the proposed treaty. It must predispose the Senate to the temper of an overseer.[44]

Still, treaties are not every-day affairs with us, and exceptional business may create in Senators an exceptional sense of responsibility, and dispose them to an unwonted desire to be dispassionate and fair. The ratification of treaties is a much more serious matter than the consideration of nominations which every session constitutes so constant a diversion from the more ponderous business of legislation. It is in dealing with nominations, however, that there is the most friction in the contact between the President and his overlord, the Senate. One of the most noteworthy instances of the improper tactics which may arise out of these relations was the case of that Mr. Smythe, at the time Collector for the port of New York, whom, in 1869, President Grant nominated Minister to the Court of St. Petersburg. The nomination, as looking towards an appointment to diplomatic service, was referred to the Committee on Foreign Relations, of which Mr. Charles Sumner was then chairman. That Committee rejected the nomination; but Smythe had great influence at his back and was himself skilled beyond most men in the arts of the lobby. He accordingly succeeded in securing such support in the Senate as to become a very formidable dog in the manger, not himself gaining the appointment, but for a time blocking all other appointments and bringing the business of the Senate altogether to a stand-still, because he could not.[45] Smythe himself is forgotten; but no observer of the actual conditions of senatorial power can fail to see the grave import of the lesson which his case teaches, because his case was by no means an isolated one. There have been scores of others quite as bad; and we could have no assurance that there might not in the future be hundreds more, had not recent movements in the direction of a radical reform of the civil service begun to make nominations represent, not the personal preference of the President or the intrigues of other people, but honest, demonstrated worth, which the Senate is likely to feel forced to accept without question, when the reform reaches the highest grades of the service.

In discussing the Senate's connection with the civil service and the abuses surrounding that connection, one is, therefore, discussing a phase of congressional government which promises soon to become obsolete. A consummation devoutly to be wished!--and yet sure when it comes to rob our politics of a feature very conspicuous and very characteristic, and in a sense very entertaining. There are not many things in the proceedings of Congress which the people care to observe with any diligence, and it must be confessed that scandalous transactions in the Senate with reference to nominations were among the few things that the country watched and talked about with keen relish and interest. This was the personal element which always had spice in it. When Senator Conkling resigned in a huff because he could not have whom he liked in the collectorship of the port of New York, the country rubbed its hands; and when the same imperious politician sought reelection as a vindication of that unconstitutional control of nominations which masqueraded as "the courtesy of the Senate," the country discussed his chances with real zest and chuckled over the whole affair in genuine glee. It was a big fight worth seeing. It would have been too bad to miss it.

Before the sentiment of reform had become strong enough to check it, this abuse of the consultative privileges of the Senate in the matter of nominations had assumed such proportions as to seem to some the ugliest deformity in our politics. It looked as if it were becoming at once the weakest and the most tried and strained joint of our federal system. If there was to be a break, would it not be there, where was the severest wear and tear? The evil practices seemed the more ineradicable because they had arisen in the most natural manner. The President was compelled, as in the case of treaties, to obtain the sanction of the Senate without being allowed any chance of consultation with it; and there soon grew up within the privacy of "executive session" an understanding that the wishes and opinions of each Senator who was of the President's own party should have more weight than even the inclinations of the majority in deciding upon the fitness or desirability of persons proposed to be appointed to offices in that Senator's State. There was the requisite privacy to shield from public condemnation the practice arising out of such an understanding; and the President himself was always quite out of earshot, hearing only of results, of final votes.