Government in the United States, National, State and Local

The Question of Counting the Slaves.– The next problem, which was almost equally difficult and which likewise had to be settled by compromise, was the question of whether the slaves should be counted in determining the population of the state for purposes of representation. The delegates from the Southern states argued that slaves were an important factor in contributing to the wealth and power of the country and should, therefore, be counted for purposes of representation. To this argument the delegates from the Northern states, where the slave population was inconsiderable, objected on the ground that the slaves at law were treated merely as property and were not allowed to vote in the states where they resided. The discussion over this question was long and at times exciting, but finally a compromise was reached by which it was agreed that in determining the population for purposes of representation, all the white population but only three fifths of the slaves should be counted. At the same time it was decided that direct taxes among the states should be apportioned on the same basis. This compromise was favorable to the slave states in that it gave them an increased number of representatives, but it was unfavorable in that it increased their proportion of direct taxes. This is known as the three-fifths compromise.

Federal Regulation of Commerce.– Another question which became the subject of heated discussion related to the national control of commerce. The Northern states wished Congress to be given the power to regulate commerce, but the Southern states, which at the time furnished the principal articles of export, feared that the power might be employed in such a manner as to injure their commerce, and might also be used to prohibit the slave trade and thus prevent the Southern planters from stocking their farms with laborers. They accordingly insisted that Congress should be expressly prohibited from interfering with the importation of slaves, and that it should be allowed to pass navigation acts only by a two-thirds majority of both houses. The whole matter was finally settled by a compromise which forbade Congress to interfere with the importation of slaves before the year 1808, but which allowed it to pass laws by a majority vote for the regulation of commerce. This was the last great compromise of the Constitution.

Other Compromises.– Many other questions were settled on the basis of compromise, though none of them occasioned so much discussion as the three mentioned above. Some have regretted that such compromises as that which allows the states equality of representation in the senate, as well as the one which allowed representation on the basis of the slave population, should have ever found their way into the Constitution; but it is certain that without these compromises the Constitution could never have been adopted.

After the settlement of the questions mentioned above, the work of framing the Constitution proceeded with less difficulty. Finally, on September 17, the completed draft was signed by thirty-nine delegates, after which the convention adjourned. A few were absent and did not sign for that reason; others, such as Gerry of Massachusetts and Mason of Virginia, disapproved of the Constitution and refused to attach their signatures.

Ratification of the Constitution.– Before adjourning, the convention resolved to send the draft of the Constitution to Congress with the request that it should transmit the instrument to the legislatures of the several states and that these in turn should submit it to conventions for ratification. It was agreed, moreover, that when it should have been ratified by conventions in nine states it should go into effect between the states so ratifying.

Opposition to the Constitution.– As soon as the text of the Constitution was made known to the people of the states, a flood of criticism was turned loose on it from almost every part of the country. Those who approved the Constitution and favored its ratification were called Federalists; those who opposed it were called Anti-Federalists. The principal grounds of opposition were that in providing for a national government with extensive powers the Constitution had sacrificed, to a large degree, the rights of the states; that such a government would prove dangerous to the liberties of the people; that the President for which the Constitution provided might become a dictator and a tyrant; that the senate would be an oligarchy; and that the Federal Constitution, unlike those of the states, contained no bill of rights for the protection of the people against governmental encroachment upon their inherent rights such as freedom of speech, freedom of press, freedom of religious worship, freedom of assembly, and the like. The last mentioned objection was removed by the assurance on the part of the friends of the Constitution that in the event of ratification they would endeavor to have the Constitution amended at the earliest opportunity in such a way as to provide proper safeguards for the security of these rights, a promise which was carried out soon after the new government went into effect, by the adoption of the first ten amendments.

Ratification by the States.– The first state to ratify the Constitution was Delaware, one of the small states whose delegates in the Philadelphia convention had been strongly opposed to changing the existing system. This state ratified on December 6, 1787, without a dissenting vote. Its action was shortly followed by Pennsylvania, New Jersey, Georgia, and Connecticut, the last three of which were small states whose delegates in the Philadelphia convention had also been in the opposition. In Pennsylvania, however, the Constitution was ratified with less unanimity and only after a fierce struggle in which the Anti-Federalists attacked almost every part of it. Massachusetts was the next to ratify, although by a narrow majority, many of the leading citizens being opposed or indifferent. Maryland and South Carolina followed, and finally the favorable action of New Hampshire on June 21, 1788, insured its success, since nine states had now ratified and the Constitution could be put into effect between the states that had so ratified. Four days later, before news of the ratification of New Hampshire was received, Virginia fell in line and ratified, in spite of the powerful opposition of Patrick Henry, Mason, Lee, and others.

Attention was now turned to New York, where the opponents of the Constitution were believed to be in the majority. Geographically, New York was like a wedge which divided the Union into two parts, and hence its adhesion was especially desirable. Because of its favorable commercial position, the state enjoyed great advantages under the Articles of Confederation, since it could collect and turn into its own treasury the duties on all articles coming into its ports from abroad – a privilege of which it would be deprived under the Constitution. There was good reason, therefore, why it should hesitate to exchange its position for one less favorable. When the state convention assembled to take action on the Constitution, it was found that about two thirds of the members were at first opposed to ratification. Among the friends of the Constitution, however, was Alexander Hamilton, whose powerful argument prevailed, and the Constitution was ratified by a majority of three votes.

Rhode Island, like New York, enjoyed a favorable position under the Articles of Confederation, and was not in sympathy with the Constitution. She refused to ratify and remained out of the Union until May, 1790, more than a year after the Constitution had gone into effect. North Carolina likewise refused to ratify until November, 1789.

The Constitution Goes into Effect.– When the ratification of the Constitution had been assured, the old Congress of the Confederation enacted that the new government should go into effect on March 4, 1789. In the meantime senators and representatives were elected as the first members of the new Congress, and George Washington was chosen President. Thus the old Confederation passed away and the new Republic entered upon its great career.

The System of Government Created.– The government created by the Constitution is federal in character; that is, it consists of a system of national and state government under a common sovereignty. It is a republic as contradistinguished from such a limited monarchy as the British; that is, it is a government having a popularly elected executive rather than a titular executive who holds his office for life by hereditary tenure, who is politically irresponsible, and who governs through ministers who are responsible to the Parliament for his acts. It is also distinguished from confederate government or that form in which the states are practically sovereign and in which the general government is nothing but the agent of the states for the care of a very few things of common concern, such as defense against foreign aggression. Finally, the American system is one of popular rather than of aristocratic government, that is, it is government by the masses of the people instead of government by the favored few.

References.– Andrews, Manual of the Constitution, ch. ii. Beard, American Government and Politics, ch. iii. Bryce, The American Commonwealth (abridged edition), ch. ii. Fiske, Critical Period of American History, chs. vi-vii. Hinsdale, American Government, chs. vii-xi.

Documentary Material.– 1. The Articles of Confederation. 2. The Constitution.

Research Questions

1. Trace the steps leading up to the meeting of the convention which framed the Constitution.

2. How were the delegates to the convention chosen? What, in general, was the nature of their instructions? Who was the oldest delegate? the youngest? the most distinguished? Who of them were signers of the Declaration of Independence? Who acted as president of the convention?

3. Name the members of the convention who refused to sign the Constitution.

4. Why did Hamilton, the author of the resolution calling the convention, take so little part in the work of making the Constitution?

5. Why did not New York send its ablest men to the convention?

6. Did the convention organize itself into committees for the transaction of business?

7. What was the attitude of some of the delegates from the Eastern states toward the West?

8. In general, what part of the country was in favor of the Constitution and what part opposed?

9. What were some of the objections urged against its adoption?

10. Why was the Constitution not submitted to a direct vote of the people as is the custom with state constitutions?

11. When the draft of the completed Constitution was laid before the Congress of the Confederation, did that body make any changes in it before submitting it to the states?

12. Might North Carolina and Rhode Island have remained permanently out of the Union? If so, what would have been their status?

13. Do you think the time has come when the best interests of the country require a new Constitution? What is your opinion of the proposition that the country has outgrown the Constitution?

14. What, in the light of more than a century's experience, do you consider some of the defects of the Constitution?

CHAPTER X

THE TWO HOUSES OF CONGRESS

The House of Representatives.– The Constitution provides that the national house of representatives – the lower house of Congress – shall consist of members chosen every second year by popular election. Under the Articles of Confederation members of the old Congress were chosen annually, but that term was too short to enable them to acquire that familiarity with their duties which is essential to efficient legislation. The term of a representative begins on the 4th of March in the odd-numbered years, though Congress does not meet until the first Monday in December following, unless the President calls it together in extraordinary session earlier.

Sessions of Congress.– There are two regular sessions of every Congress; the long session which begins on the first Monday in December of the odd-numbered years and lasts until some time in the following spring or summer; and the short session which begins on the same date in the even-numbered years and lasts until the 4th of March following, when the terms of all representatives expire. Each Congress is numbered, beginning with the first, which began March 4th, 1789. The sixty-seventh Congress began March 4, 1921, and will end March 4, 1923. Extraordinary sessions are sometimes called by the President to consider matters of special importance which need to be acted upon before the meeting of the regular session. From 1789 to 1921 there were only nineteen such sessions, the last being that called by President Harding to meet in April, 1921, to consider tariff and revenue measures and readjustment of international relationships.

Number and Apportionment of Representatives.– The Constitution provided that the first house of representatives should consist of sixty-five members, but that as soon as a census of the inhabitants should be taken the number was to be apportioned among the several states on the basis of population, not exceeding one for every 30,000 of the inhabitants. After each decennial census is taken a new apportionment is made by Congress on the basis of the new population. The total number of representatives at present is 435,25 being in the proportion of one member for every 211,877 inhabitants, which is known as the congressional ratio. The largest number from any one state is forty-three, the number from New York. Pennsylvania has thirty-six, Illinois twenty-seven, Ohio twenty-two, and so on down the list. Five states are entitled to but one member each, namely, Arizona, Delaware, Nevada, New Mexico, and Wyoming. As the population of several of these states is less than the congressional ratio, they might not be entitled to a single member but for the provision in the Constitution which declares that each state shall have at least one representative.

Election of Representatives.– The Constitution provides that representatives shall be chosen in each state by vote of such persons as are qualified to vote for members of the lower house of the legislature of that state. Thus it happens that the qualifications for participating in the choice of national representatives varies widely in the different states. But the choice must be made by the people, not by the legislature or by executive appointment, and, under the Fifteenth and Nineteenth Amendments to the Federal Constitution, the states cannot, in fixing the suffrage, discriminate against any class of persons because of their color, race, or sex. Subject to these restrictions the states are practically free to limit the right to vote for national representatives to such of their citizens as they may see fit. It is true that the Fourteenth Amendment declares that whenever a state shall limit the right of its adult male citizens to vote except for crime its representation in Congress shall be proportionately reduced, but this provision has never been enforced. Some statesmen hold that it was really superseded by the Fifteenth Amendment.

Manner of Choosing Representatives.– As in fixing the qualifications of the electors of representatives, so in the choosing of them, the states are left a free hand, subject to the provision of the Constitution which gives Congress power to alter the regulations of the states in regard to the manner and time of choosing members. For a long time Congress did not exercise its power in this respect and each state chose its representatives when it wished and in such manner as it pleased. Some states chose their representatives on general ticket from the state at large, while others chose theirs by districts; some chose by secret ballot, while others did not. To secure uniformity in regard to the method of choice, Congress enacted in 1842 that representatives should be chosen by districts of contiguous territory containing populations as nearly equal to the congressional ratio as possible. In 1871 it enacted that they should be chosen by written or printed ballots (later choice by voting machine was also permitted). In 1872 it enacted that representatives should be chosen on the same day throughout the Union, namely, Tuesday after the first Monday in November.26

"Gerrymandering." – When the number of representatives to which each state shall be entitled has been determined, after the decennial census, it devolves upon the legislature to divide the state into as many districts as it is entitled to representatives.27 In the exercise of this power the political party in control of the legislature may arrange the districts in an unfair manner so as to make it possible for the party to elect a larger number of representatives than its voting strength entitles it to. This is done by putting counties in which the opposite party is in a large majority in the same districts so that it may choose a few members by large majorities, while the other party carries the remaining districts by small majorities. Thus the voting strength of the party in power is economized while that of the other party is massed in a few districts and made to count as little as possible. This practice is known as "gerrymandering" and has often been resorted to by both the two great political parties, sometimes in such a manner as to result in flagrant injustice to the minority party.

The requirement that the districts shall contain as nearly equal population as possible, is sometimes flagrantly violated. Thus one of the Republican districts in New York recently contained 165,701 inhabitants while one of the Democratic districts had a population of 450,000. In 1910 one of the Illinois districts contained 167,000 while another contained 349,000.

Sometimes districts are so constructed as to have fantastic shapes. Thus a district in Mississippi some years ago was dubbed the "shoe string" district from its long irregular shape. It followed the Mississippi River for the whole length of the state though in one place it was less than thirty miles wide.

Qualifications of Representatives.– To be eligible to the house of representatives, a person must have been a citizen of the United States for at least seven years, must have attained the age of twenty-five years, and must be an inhabitant of the state from which he is chosen. Residence in the particular district which the member represents is not required by the Constitution or laws of the United States, but is nearly always required by public opinion. A nonresident, however able and distinguished he might be as a statesman, would have little chance of election.

Objections to the Residence Requirement.– This custom of insisting upon residence in the district has frequently been criticized, especially by foreign writers, as being a serious defect in our system of representation. It contrasts widely with the practice in Great Britain, where members of Parliament are very often chosen from other districts than those in which they reside. London barristers of promise are not infrequently chosen to represent country districts in which they are practically strangers. The late William E. Gladstone, a resident of Wales, represented for a long time a Scotch district. When an important leader of any party in the House of Commons happens to be defeated in his home district, it is a common practice for him to be made a candidate in some district in which his party has a safe majority. In the United States, in such a case, the man's service in Congress would probably be ended.

Finally, one of the worst evils of the district system is that it tends to make the member feel that he is the representative, not of the United States as a whole, but of the locality which chooses him. Instead of entertaining broad views upon purely national questions his views tend to become narrow and he votes and acts with reference to the welfare of his own district rather than with reference to the good of the whole country. On the other hand, it may be said in favor of the district system that it is better adapted to secure local representation and makes responsibility to the member's constituency more effective.

The Senate.—Purposes.– Regarding the desirability of creating a national legislature of two houses there was little difference of opinion among the members of the convention. Experience with a single-chambered congress during the period of the Confederation had revealed certain defects in such an organization. Moreover, all the state legislatures except two were composed of two houses and these exceptions were destined soon to disappear. If a state legislature ought to consist of two houses, it was all the more important that the national congress should be bicameral in organization, because, the union being composed of states, it was desirable to provide a separate house in which they could be represented as constituent political units just as the other house was to be a body representing the people without regard to political divisions. Aside from considerations growing out of the character of the federal system, there were the usual advantages which we associate with the bicameral system, such as protection against hasty and ill-considered legislation, insurance against the possible despotism of a single chamber, and the like. Having decided that Congress should consist of two houses, the convention felt that if the upper house was to exert an effective restraining influence on the lower house it ought not to be a mere duplication of the latter but should be differently composed. It should to a certain extent be a more conservative body than the lower house, which, being elected by the people, would incline toward radicalism; it should, therefore, be smaller in size, its members should be chosen for a longer term and by a different method, higher age and residence qualifications should be required, and it should be given certain powers which were not conferred on the lower house, such as a share in the appointing, treaty making, and judicial powers.

Term.– As already stated, the Constitution provides that the states shall be represented equally in the senate. It also provides that each state shall elect two senators and that each senator shall have one vote. Under the Articles of Confederation, each state had one vote in Congress, and the vote of the state could not be divided; but under the Constitution the two senators from a state frequently vote on opposite sides of a question, especially if they belong to different political parties. On the question of the term of senators there was much difference of opinion among the members of the convention. Some favored a two-year tenure, some four years, some six, some nine, while Alexander Hamilton favored a life tenure. The term finally agreed upon was six years, which seemed to be long enough to give the senate an element of permanence and independence, and yet short enough to secure responsibility to the people.

Classification of Senators.– The Constitution provided that immediately upon the assembling of the senators after the first election they should be divided into three classes and that the seats of those in the first class should be vacated at the end of the second year, those of the second class at the expiration of the fourth year, and those of the third class at the expiration of the sixth year, so that thereafter one third might be chosen every second year. The purpose of this provision is to avoid having the entire senate renewed at the same time. As a result, not more than one third are new and inexperienced members at any particular time. When a new state is admitted to the Union, its first two senators draw lots to see which class each shall fall in. In 1921 there were thirty-two senators in the first class, and their terms expire March 4, 1923; thirty-two in the second class, and their terms expire March 4, 1925; and thirty-two in the third class, and their terms expire March 4, 1927. The three classes are kept as nearly equal as possible.

Reëlection of Senators.– While the term of a senator is six years, he may be reëlected as often as his state may see fit to honor him, and in practice reëlections have been frequent. Justin S. Morrill of Vermont, John Sherman of Ohio, and William B. Allison of Iowa, each served continuously for a period of thirty-two years. Nearly one third of the senators in 1911 had served twenty years or more. Thus the senate is an assembly of elder statesmen and is a more conservative and stable body than the house of representatives.