Government in the United States, National, State and Local

Marine Corps.– Officers in the Marine Corps have the same ranks as in the army. While serving generally under the direction of the secretary of the navy, the corps may serve with the army by order of the President.

Bankruptcy Legislation.– The Constitution confers upon Congress the power to pass uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy is the condition of a person whose liabilities exceed his assets, and a bankruptcy law is one which provides for the distribution of the assets of such a person among his creditors and for his discharge from further legal obligation to pay his debts, thus enabling him to make a new beginning in business. The discharge is only from the legal obligation; the moral obligation remains, and should be fulfilled in case of ability to do so in the future.

State Insolvency Laws.– Before the adoption of the Constitution the states passed insolvency laws discharging debtors from their legal obligations, and it has been held by the Supreme Court that they may still pass such laws, subject to the condition that they can affect only citizens of the state in which the law is passed, and apply only to such contracts as may be entered into subsequent to the enactment of the law. If there is a federal bankruptcy law in force it supersedes all conflicting provisions in the state laws on the subject.

Federal Acts.– Since the Constitution went into effect Congress has enacted four different bankruptcy laws, namely, in 1802, 1840, 1867, and 1898, the first three of which were in operation only fifteen years altogether. The present law – that of 1898 – provides for both "voluntary" and "involuntary" bankruptcy. Any debtor, except a corporation, may voluntarily have himself adjudged a bankrupt by filing a petition in a United States district court, showing that his liabilities are in excess of his assets. Any debtor except a corporation, a wage earner, or a farmer, may, against his will, upon petition of his creditors, be declared a bankrupt under certain conditions.

Bankruptcy petitions are referred to "referees" for examination and report. After hearing the testimony on the petition the referee reports his findings to the court, which makes its decision largely on the basis of such findings.

Implied Powers.– After expressly enumerating in succession the various powers of Congress, the more important of which have been described above, the Constitution concludes with a sort of general grant, empowering Congress to make all laws which shall be necessary and proper for carrying into execution those enumerated above. This is sometimes called "the elastic clause," since it is capable of being stretched by interpretation to cover many matters that Congress might not otherwise feel authorized to deal with. It is doubtful, however, whether it really adds anything to the power of Congress, since that body would unquestionably have authority to do whatever is necessary and proper to carry into effect the powers expressly conferred upon it. It is a maxim of constitutional construction that wherever power to do a particular thing is conferred, the means for doing it are implied. Manifestly it would have been impossible to set forth in detail all the incidental powers necessary to be exercised in carrying into effect the mandates of the Constitution relating to taxes, coinage, post offices, making war, etc.

Liberal vs. Strict Construction.– The question of the interpretation of the scope and meaning of this grant of powers arose very early in the history of the national government, in connection with the proposition of Hamilton to establish a United States bank. Hamilton contended that the authority to establish such an institution was clearly implied in the power to borrow money and pay the debts of the United States. A federal bank, he urged, was a proper if not a necessary means for carrying into effect these important powers of Congress, just as the establishment of a mint was necessary to carry out the power relating to the coinage of money. Jefferson and his school of political thinkers, however, held to a strict interpretation of the Constitution and maintained that Congress had no right to exercise any power which was not expressly conferred. The view of the "loose" or "liberal" constructionists, however, prevailed, and from the beginning Congress has relied upon the doctrine of implied powers for its authority to legislate on many important questions.

Examples of Implied Powers.– It was upon this authority that foreign territory has been purchased and governed; that a protective tariff has been levied; that a national bank was established; that legal tender paper money has been issued; that the construction of the Panama Canal has been undertaken; that ship subsidies have been granted; that postal savings banks have been established; that education has been fostered; and many other activities undertaken. The policy of liberal interpretation was first adopted by Chief Justice Marshall of the Supreme Court and his associates, and with rare exceptions has been followed by the court throughout its entire history. The effect has been to strengthen the national government and render it capable of fulfilling the great purposes for which it was created. The whole course of our political and constitutional history is different from what it would have been had the view of the strict constructionists prevailed.

References.– Andrews, Manual of the Constitution, pp. 120-148. Beard, American Government and Politics, ch. xix. Cooley, Principles of Constitutional Law, pp. 94-111. Fairlie, National Administration, chs. ix, x, xii. Hart, Actual Government, ch. xxiv.

Documentary and Illustrative Material.– Copies of the annual reports of the Postmaster-General, the Librarian of Congress, the Commissioner of Patents, the Secretary of War, and the Secretary of the Navy, all of which may be obtained gratis from the officials mentioned.

Research Questions

1. Why should the postal service be conducted by the government? Should the transportation of the mail be a government monopoly?

2. Should the rates of postage on second-class matter, in your opinion, be increased? Why?

3. What are the advantages of a postal savings bank system?

4. Ought the government to establish a parcels post system? To what extent do we already have a parcels post service?

5. Do you think our postal facilities with South America and the Orient should be improved by means of ship subsidies?

6. What would be the advantage of making the tenure of postmasters permanent?

7. Why should the granting of copyrights and patents be placed under the jurisdiction of the national government rather than under that of the state governments?

8. Why should the term of a copyright or patent be limited?

9. Socialists argue that since the granting of a patent to an inventor secures to him a monopoly of the manufacture and sale of his invention, the government ought not to grant patents for such purposes. What is your opinion of this argument? Would it be better for the government to compensate the inventor and remove the restrictions upon the manufacture and sale of his invention?

10. Why are the appropriations for the maintenance of the army limited to two years?

11. Should the expenditures on account of the army and navy, in your opinion, be reduced?

12. What do you understand by the movement among the nations for disarmament? Do you think disarmament desirable or practicable?

13. Tell something of the objects and results of The Hague Peace Conferences. Give examples of some disputes between the United States and other countries that have been settled by arbitration.

14. What is the purpose of a bankruptcy law, and why should the power to enact bankruptcy legislation be conferred upon Congress rather than left to the states?

15. What is the distinction between "implied" and "inherent" powers under the Constitution? Give some examples of each.

16. Which in your judgment is the safer policy, that of strict construction of the Constitution or liberal construction?

CHAPTER XV

THE PRESIDENCY: ORGANIZATION AND MODE OF ELECTION

The Presidential Office.– One of the weaknesses in the organization of the government under the Articles of Confederation was, as we have seen, the lack of an executive to carry into effect the resolutions of Congress and the treaties of the United States. There was no doubt, therefore, in the minds of the framers of the Constitution in regard to the desirability of providing for an executive department coördinate with the legislative department. It was accordingly declared that the executive power should be vested in an officer called the President of the United States.

Proposed Executive Council.– While the convention was practically unanimous in the view that the supreme executive power should be vested in a single person, a good many members looked with favor on a proposition to associate with the President an executive council which should share with him the exercise of the executive power in certain important fields. Most of the state constitutions then in force had provided such councils, and now that a national executive with far larger powers was being created there was all the more reason why it should be placed to some extent under the guardianship of a council. But the proposition was rejected, and in its place the Senate was charged with acting as an executive council to the President in negotiating treaties and the making of appointments, but in no other respects.

Qualifications of the President.– The Constitution requires that the President shall be a natural born citizen of the United States,58 that he must have attained the age of thirty-five years, and must have been fourteen years a resident of the United States. The same qualifications are required of the Vice President.

The Presidential Term.– There was considerable discussion in the convention regarding the term of the President. It was first decided that the term should be seven years and the President made ineligible to a second term, but upon further consideration the convention decided to fix the term at four years and nothing was said in regard to reëligibility. The result is, the President may serve as many terms as the people may see fit to elect him. The following Presidents have been elected to two terms: Washington, Jefferson, Madison, Monroe, Jackson, Lincoln, Grant, Cleveland, McKinley, and Wilson.59 Cleveland, after serving one term, was renominated by his party but was defeated by the Republican candidate. He was then nominated for the third time by his party and was elected. Washington declined a third term and his example has been followed by his successors. The precedent thus established, that the President shall serve only two terms, has become part of our unwritten constitution, and but two attempts have ever been made to break the custom.60

Mode of Election.– No question consumed so much of the time of the convention as that relating to the method of choosing the President. Various schemes were proposed. A few members favored election by the people; others urged election by Congress. Against the method of popular choice it was argued that the people were not competent to choose a chief magistrate for the entire country, and besides, under such a system, they would be influenced by demagogues and scheming politicians. Again, the tumults and disorders, the "heats and ferments" of a popular election would convulse the community to the breaking point. Against the method of election by Congress, it was urged that the President would be a mere creature or tool of that assembly and would be under the temptation of making promises or entering into bargains with influential members in order to secure an election. Moreover, such a method was contrary to the great principle upon which all the members were agreed, namely, that the three departments of the national government should be kept separate and independent of one another.

The clause as finally adopted provides that the President shall be chosen, not directly by the voters, but by electors to be appointed in each state in such manner as the legislature thereof may direct, each state to have as many electors as it has senators and representatives in Congress.

Breakdown of the Electoral Plan.– It was at first expected that the electors of the different states, composed of leading citizens presumably well acquainted with the qualifications of the candidates for the chief magistracy, would meet at the state capitals, discuss among themselves the strength and weaknesses of the several candidates, and then exercising their full judgment, cast their votes for the fittest. But the scheme quickly broke down in practice, and instead of a real choice by small bodies of men, we have a system which amounts to direct election by the masses of the voters, though the form of indirect election is still followed. As soon as political parties were thoroughly organized, the electors, who were intended to be men "capable of analyzing the qualities adapted to the Presidential office," were reduced to the position of party puppets who no longer exercised their own judgment in choosing the President but merely registered, like automata, the will of their party. As Ex-President Harrison once remarked, an elector who should fail to vote for the nominee of his party would be the object of execration and in times of very high excitement might be the subject of a lynching.61 So closely do the electors obey the will of their party that we always know at the close of election day, on Tuesday after the first Monday in November, when the electors themselves are chosen, who will be the next President, though in fact the electors do not meet in their respective states until the following January, formally to register the choice of the people.

Choosing Presidential Electors.– In the beginning the presidential electors of each state were chosen by the legislature, either by joint ballot of the two houses sitting together, or by concurrent vote. In the course of time, however, popular election of electors was introduced, South Carolina (1868) being the last state to choose its electors by the legislature.

Choice by General Ticket.– When the system of popular choice of electors was adopted, two different methods were followed: choice by districts, and choice on general ticket from the state at large; but by 1832 all the states except Maryland had adopted the general ticket method, and now there is no state which follows the district method.

Representatives in Congress, as we have seen, are elected by districts, and hence the delegation in Congress from a particular state is often divided between Democrats and Republicans. But not so with Presidential electors; usually the party in the majority in the state, however small the majority, chooses all the electors. Thus when the Democratic party carried New York by a majority of hardly more than 1,000 votes in 1884, the entire electoral vote was counted for Cleveland.62

Among the results of the rule which gives the entire electoral vote of the state to one of the candidates, notwithstanding the size of the vote polled by the other candidate, is that each party concentrates its efforts in the large "pivotal" states whose votes are decisive, and thereby bribery and fraud in such states are powerfully stimulated.

Candidates for the office of elector are nominated usually by the state conventions of each party. No senator or representative or any person holding an office of honor, trust, or profit under the United States is eligible to the office of elector. Congress, under the Constitution, has power to fix the day on which the electors shall be chosen, and it has fixed the day as Tuesday after the first Monday in November.

Electoral and Popular Vote.– Generally the candidate for President whose electors receive the largest popular vote will also receive the largest electoral vote; but this has not always happened, and usually there is only a rough correspondence between the popular vote and the electoral vote. Thus in 1860 Lincoln received only about forty per cent of the popular vote, though he received a substantial majority (about fifty-nine per cent) of the electoral vote. Again, in 1864 he received only about fifty-five per cent of the popular vote, but ninety-one per cent of the electoral vote. In 1912 Wilson received forty-two per cent of the popular vote, and eighty-two per cent of the electoral vote. Such discrepancies are due to the fact that the entire electoral vote of a state is usually cast for the candidate who receives a plurality of the popular vote of the state, however small it may be. A party, therefore, may carry enough states by small margins to secure a majority of the electors and yet be in a minority so far as the popular vote of the entire country is concerned.

Choice of the President by the Electors.– The electors, on the second Monday of January following their election, assemble in their respective state capitals for the purpose of choosing the President.63 The Constitution as it now stands requires the electors to vote by ballot for President and by a distinct ballot vote for Vice President, and make separate lists of all persons voted for as President and of all persons voted for as Vice President.

The Original Method.– The Constitution as originally adopted did not require the electors in casting their ballots to indicate the person for whom they were voting as President and whom for Vice President, or to prepare distinct lists. The one who received the highest vote (if a majority) was to be President, and the one receiving the next highest number (whether a majority or not) was to be Vice President. The result of this method of choosing the President was that as soon as political parties were formed and the electors came to vote strictly on the basis of party there would be a tie between the two persons highest on the list, and as there was nothing to show on the record which was intended for President and which for Vice President there would be no election. This happened in 1801, when Jefferson and Burr each received seventy-three electoral votes, and the choice between them had to be made by the house of representatives as the Constitution provides.

Twelfth Amendment.– To remove the difficulty, the Twelfth Amendment was adopted in 1804, requiring the electors in preparing their ballots to indicate their choice for President and their choice for Vice President so that the person intended for the latter office could not be confused with the person intended for President. The amendment also requires a majority of the electoral vote to elect the Vice President as well as the President.

Restrictions on the Electors.– In casting their votes the electors are prohibited from voting for candidates for both offices from the same state as themselves. The purpose of this provision is to prevent the electors from one state – if any state should ever become powerful enough – from choosing both the President and the Vice President from that state. This does not mean, however, that both the President and the Vice President could not be elected from the same state, since the electors of the other states are not prohibited from voting for two candidates from the same state.

Formalities and Precautions.– The Constitution requires the electors of each state to sign, certify, seal, and transmit to the president of the United States senate, a list of the votes cast for President and Vice President. The statutes also require two additional lists to be prepared, one to be sent to the president of the senate by special messenger, and the other to be deposited with the nearest United States district judge. These extra precautions are taken to prevent the loss of the state's votes through accident or otherwise. This done, the office of the Presidential elector expires and the electoral colleges cannot be again summoned to correct errors or to make a new choice in case the President elect should die before inauguration.

Counting the Electoral Vote.– The Constitution directs that the votes transmitted to the president of the senate shall be opened in the presence of both houses of Congress and that the votes shall then be counted. The Constitution does not say who shall count the votes. Apparently the framers believed that the process of counting would never involve anything more than a simple act of addition. But in the course of time disputed returns began to be sent in, and then the process of counting came to involve the more difficult task of determining what should be counted. Thereupon the question was raised, who shall count? Was the president of the senate to count and the two houses act merely as spectators, or was the president of the senate to open the votes and the two houses do the counting? For a long time, when the disputes were not serious enough to affect the result, the president of the senate was allowed to count the vote and proclaim the result.64 In 1865 by a joint rule Congress assumed the right to count the electoral vote, thus taking the power away from the president of the senate.

The Disputed Election of 1876.– In 1876 a serious election dispute arose, involving the presidency. Both Hayes and Tilden claimed to have been elected, and the result depended upon which of two conflicting lists of votes from Florida, Oregon, South Carolina, and Louisiana should be counted. Under the joint rule mentioned above, either house could reject a questionable vote. One of the houses was Democratic and the other Republican, and because of the great excitement over the matter, it was feared that the votes of many states might be rejected for trivial reasons. After much discussion, in the course of which many ugly threats were made, Congress agreed to the creation of an electoral commission, to decide the disputed votes. The commission was to consist of five senators, five representatives, and five justices of the Supreme Court. As finally constituted it was composed of eight Republicans and seven Democrats, and by a strict party vote the commission decided in favor of Hayes in every case, thus insuring his election. The minority accepted the result, but not without protest and criticism.

The Act of 1887.– After this decision, Congress took up the task of devising permanent rules for counting the electoral vote, and finally in 1887 it passed an elaborate act which now regulates the electoral count. In brief, it places the responsibility so far as possible on the state authorities, and provides that the determination of each state as to how its electoral vote was cast shall, under certain conditions, be final. If, however, a state neglects to settle its own election contests, and double returns are transmitted to the president of the senate, the two houses of Congress sitting separately must determine how the votes shall be counted. But if the two houses fail to agree, as they did in counting the vote of 1876, then the vote of the state is lost. The day fixed by Congress for opening and counting the vote is the second Wednesday in February.

Election by the House.– In case no candidate receives a majority of the electoral votes, the choice devolves upon the house of representatives. But in that case the house votes by states, each state having one vote, irrespective of its number of representatives, and the choice is made from the three candidates standing highest on the list.65 A quorum for the election of a President by the house consists of a member or members from two thirds of the states, and the vote of a majority of all the states is necessary to a choice.

Objections to Election by the House.– The objections to this method of choice are obvious. It is undemocratic, because the house on which the choice would devolve in any case would be, not the new house chosen at the recent election, but the old house, which might indeed, as has often happened, be in the hands of the political party defeated at the late election. In the second place, under such a scheme, New York with a population over 100 times as great as that of Nevada would have no larger share in choosing the executive. In 1873, for example, had the choice devolved upon the house, it would have been possible for 45 members (being a majority of the representatives of nineteen states) to determine the choice in spite of the wishes of the other 247 members. Finally, the state delegations in the house might be equally divided politically, and hence fail to elect.66