Читать книгу The American Commonwealth - Viscount James Bryce - Страница 54
ОглавлениеState Governments: The Legislature
The similarity of the frame of government in the forty-eight republics which make up the United States, a similarity which appears the more remarkable when we remember that each of the republics is independent and self-determined as respects its frame of government, is due to the common source whence the governments flow. They are all copies, some immediate, some mediate, of ancient English institutions, viz., chartered self-governing corporations, which, under the influence of English habits, and with the precedent of the English parliamentary system before their eyes, developed into governments resembling that of England in the eighteenth century. Thirteen colonies had up to 1776 been regulated by a charter from the British Crown, which, according to the best and oldest of all English traditions, allowed each the practical management of its own affairs. The charter contained a sort of skeleton constitution, which usage had clothed with nerves, muscles, and sinews, till it became a complete and symmetrical working system of free government. There was in each a governor, in two colonies chosen by the people,1 in the rest nominated by the Crown; there was a legislature; there were executive officers acting under the governor’s commission and judges nominated by him; there were local self-governing communities. In none, however, did there exist what we call cabinet government, i.e., the rule of the legislature through a committee of its own members, coupled with the irresponsibility of the permanent nominal head of the executive. This separation of the executive from the legislature, which naturally arose from the fact that the governor was an officer directly responsible to another power than the colonial legislature, viz., the British Crown, his own master to whom he stood or fell,2 distinguishes the old colonial governments of North America from those of the British colonies of the present day, in all of which cabinet government prevails.3 The latter are copies of the present Constitution of England; the fomer resembled it as it existed in the first half of the eighteenth century before cabinet government had been fully developed.
When the thirteen colonies became sovereign states at the Revolution, they preserved this frame of government, substituting a governor chosen by the state for one appointed by the Crown. As the new states admitted to the Union after 1789 successively formed their constitutions prior to their admission to the Union, each adopted the same scheme, its people imitating, as was natural, the older commonwealths whence they came, and whose working they understood and admired.4 They were the more inclined to do so because they found in the older constitutions that sharp separation of the executive, legislative, and judicial powers which the political philosophy of those days taught them to regard as essential to a free government, and they all take this separation as their point of departure.
I have observed in an earlier chapter that the influence on the framers of the federal Constitution of the examples of free government which they found in their several states, had been profound. We may sketch out a sort of genealogy of governments as follows:
First. The English incorporated company, a self-governing body, with its governor, deputy-governor, and assistants chosen by the freemen of the company, and meeting in what is called the general court or assembly.
Next. The colonial government, which out of this company evolves a governor or executive head and a legislature, consisting of representatives chosen by the citizens and meeting in one or two chambers.
Thirdly. The state government, which is nothing but the colonial government developed and somewhat democratized, with a governor chosen originally by the legislature, now always by the people at large, and now in all cases with a legislature of two chambers. From the original thirteen states this form has spread over the Union and prevails in every state.
Lastly. The federal government, modelled after the state governments, with its president chosen, through electors, by the people, its two-chambered legislature, its judges named by the president.5
Out of such small beginnings have great things grown.
It would be endless to describe the minor differences in the systems of the several states. I will sketch the outlines only, which, as already observed, are in the main the same everywhere.
Every state has:
An executive elective head, the governor
A number of other administrative officers
A legislature of two houses
A system of courts of justice
Various subordinate local self-governing communities, counties, cities, townships, villages, school districts
The governor and the other chief officials are not now chosen by the legislature, as was the case under most of the older state constitutions, but by the people. They are as far as possible disjoined from the legislature. Neither the governor nor any other state official can sit in a state legislature.6 He cannot lead it. It cannot, except of course by passing statutes, restrain him. There can therefore be no question of any government by ministers who link the executive to the legislature according to the system of the free countries of modern Europe and of the British colonies.
Of these several powers it is best to begin by describing the legislature, because it is by far the strongest and most prominent.
An American state legislature always consists of two houses, the smaller called the Senate, the larger usually called the House of Representatives, though in six states it is entitled “the Assembly,” and in three “the House of Delegates.” The origin of this very interesting feature is to be sought rather in history than in theory. It is due partly to the fact that in some colonies there had existed a small governor’s council in addition to the popular representative body, partly to a natural disposition to imitate the mother country with its Lords and Commons, a disposition which manifested itself both in colonial days and when the revolting states were giving themselves new constitutions, for up to 1776 some of the colonies had gone on with a legislature of one house only. Now, however, the need for two chambers has become an axiom of political science, being based on the belief that the innate tendency of an assembly to become hasty, tyrannical, and corrupt, needs to be checked by the coexistence of another house of equal authority. The Americans restrain their legislatures by dividing them, just as the Romans restrained their executive by substituting two consuls for one king. The only states that ever tried to do with a single house were Pennsylvania, Georgia, and Vermont, all of whom gave it up: the first after four years’ experience, the second after twelve years, the last after fifty years.7 It is with these trifling exceptions the quod semper, quod ubique, quod ab omnibus of American constitutional doctrine.8
Both houses are chosen by popular vote, generally9 in equal electoral districts, and by the same voters, although in a few states there are minor variations as to modes of choice.10 Illinois by her Constitution of 1870 created a system of proportional representation by means of the cumulative vote; i.e., the elector may cast as many votes for any one candidate as there are representatives to be elected in the district, or may distribute his votes among the candidates. The plan was suggested to the people of Illinois, by the fact that the northern counties (called Canaan) had usually had a Republican, the southern (called Egypt) a Democratic, majority, so that there were special reasons for breaking the party solidity of each section. So far as I have been able to gather, experience has not commended the scheme, and it has not improved the quality of the legislature.
The following differences between the rules governing the two houses are general:
1. The senatorial electoral districts are always larger, usually twice or thrice as large as the house districts, and the number of senators is, of course, in the same proportion smaller than that of representatives.
2. A senator is usually chosen for a longer term than a representative. In twenty-nine states he sits for four years, in one (New Jersey) for three, in thirteen for two, in two (Massachusetts and Rhode Island) for one year only; the usual term of a representative being two years.
3. In most cases the Senate, instead of being elected all at once like the House, is only partially renewed, half its members going out when their two or four years have been completed, and a new half coming in. This gives it a sense of continuity which the House wants.
4. In some states the age at which a man is eligible for the Senate is fixed higher than that for the House of Representatives.11 Other restrictions on eligibility, such as the exclusion of clergymen (which still exists in a few states, and is of old standing), that of salaried public officials (which exists everywhere), that of United States officials and members of Congress, and that of persons not resident in the electoral district (frequent by law and practically universal by custom), apply to both houses. In some states this last restriction goes so far that a member who ceases to reside in the district for which he was elected loses his seat ipso facto.
I have dwelt in an earlier chapter (Chapter 14) on the strength of this local feeling as regards congressional elections, and on the results, to a European eye mostly unfortunate, which it produces. It is certainly no weaker in state elections. Nobody dreams of offering himself as a candidate for a place in which he does not reside, even in new states, where it might be thought that there had not been time for local feeling to spring up. Hence the educated and leisured residents of the greater cities have no chance of entering the state legislature except for the city district wherein they dwell; and as these city districts are those most likely to be in the hands of some noxious and selfish ring of professional politicians, the prospect for such an aspirant is a dark one. Nothing more contributes to make reform difficult than the inveterate habit of choosing residents only as members. Suppose an able and public-spirited man desiring to enter the Assembly or the Senate of his state and shame the offenders who are degrading or plundering it. He may be wholly unable to find a seat, because in his place of residence the party opposed to his own may hold a permanent majority, and he will not be even considered elsewhere. Suppose a group of earnest men who, knowing how little one man can effect, desire to enter the legislature at the same time and work together. Such a group can hardly arise except in or near a great city. It cannot effect an entrance, because the city has at best very few seats to be seized, and the city men cannot offer themselves in any other part of the state. That the restriction often rests on custom, not on law, makes the case more serious. A law can be repealed, but custom has to be unlearned; the one may be done in a moment of happy impulse, the other needs the teaching of long experience applied to receptive minds.
The fact is, that the Americans have ignored in all their legislative as in many of their administrative arrangements, the differences of capacity between man and man. They underrate the difficulties of government and overrate the capacities of the man of common sense. Great are the blessings of equality; but what follies are committed in its name!
The unfortunate results of this local sentiment have been aggravated by the tendency to narrow the election areas, allotting one senator or representative to each district. Under the older Constitution of Connecticut, for instance, the twelve senators were elected out of the whole state by a popular vote. Now the thirty-five senators are chosen by districts, and the Senate is today an inferior body, because then the best men of the whole state might be chosen, now it is possible only to get the leading men of the districts. In Massachusetts, under the Constitution of 1780, the senators were chosen by districts, but a district might return as many as six senators: the assemblymen were chosen by towns,12 each corporate town having at least one representative, and more in proportion to its population, the proportion being at the rate of one additional member for every 275 ratable polls. In 1836 the scale of population to representatives was raised, and a plan prescribed (too complicated to be here set forth) under which towns below the population entitling them to one representative, should have a representative during a certain number of years out of every ten years, the census being taken decennially. Thus a small town might send a member to the Assembly for five years out of every ten, choosing alternate years, or the first five, or the last five, as it pleased. Now, however (Amendments of 1857), the state has been divided into 40 senatorial districts, each of which returns one senator only, and into 175 assembly districts, returning one, two, or, in a few cases, three representatives each. The composition of the legislature has declined ever since this change was made. The area of choice being smaller, inferior men are chosen; and in the case of the assembly districts which return one member, but are composed of several small towns, the practice has grown up of giving each town its turn, so that not even the leading man of the district, but the leading man of the particular small community whose turn has come round, is chosen to sit in the Assembly.
Universal manhood suffrage, subject to certain disqualifications in respect of crime (including bribery and polygamy) and the receipt of poor-law relief, which prevail in many states—in nine states no pauper can vote—is the rule in nearly all the states. Ten states (Wyoming, Utah, Idaho, Colorado, Washington, Kansas, Arizona, California, Oregon, and Illinois) give the suffrage to women. A property qualification was formerly required in many, and lasted till 1888 in Rhode Island, where the possession of real estate valued at $134, or the payment of a tax of at least $1 was required from all citizens not natives of the United States.13 Ten other states require the voter to have paid some state or county tax (some call it a poll tax); but if he does not pay it, his party usually pay it for him, so the restriction is of little practical importance. Massachusetts also requires that he shall be able to read the state constitution in English, and to write his name (Amendment of 1857); Connecticut, that he shall be able to read any section of the constitution or of the statutes, and shall sustain a good moral character (Amendents of 1855 and 1845). This educational test is of no great consequence, partly, no doubt, because illiteracy is not high in either state; and the ballot laws have reduced the need for it. In Massachusetts it is now enforced, but for a while the party managers on both sides agreed not to trouble voters about it. Mississippi prescribes that the person applying to be registered “shall be able to read any section of the Constitution or be able to understand the same when read to him, or give a reasonable interpretation thereof” (Constitution of 1890).14 Certain terms of residence within the United States, in the particular state, and in the voting districts, are also required. These vary greatly from state to state, but are usually short.
The suffrage is generally the same for other purposes as for that of elections to the legislature, and is in most states confined to male inhabitants. In many states women are permitted to vote at school district elections and on matters affecting libraries; and some confer a direct popular vote or referendum on women taxpayers where a question is submitted to the people. Nowhere is any disability imposed upon married women as such; nor has it been attempted, in the various constitutional amendments framed to give political suffrage to women, accepted in some states, and rejected by the people in others, to draw such a distinction, which would indeed be abhorrent to the genius of American law.
It is important to remember that, by the Constitution of the United States, the right of suffrage in federal or national elections (i.e., for presidential electors and members of Congress) is in each state that which the state confers on those who vote at the election of its more numerous house. That the differences which might exist between one state and another in the width of the federal franchise thus granted, are at present (except in the South) insignificant is due, chiefly to the prevalence of democratic theories of equality over the whole Union, partly perhaps also to the provision of the Fourteenth Amendment to the federal Constitution, which provides that the representation of a state in the federal House of Representatives, and therewith also its weight in a presidential election, may be reduced in proportion to the number of adult male citizens disqualified in that state. As a state desires to have its full weight in national politics, it has a strong motive for the widest possible enlargement of its federal franchise, and this implies a corresponding width in its domestic franchise.
The number of members of the legislature varies greatly from state to state. Delaware, with seventeen senators, has the smallest Senate, Minnesota, with sixty-three, the largest. Delaware has also the smallest House of Representatives, consisting of thirty-five members; while New Hampshire, a very small state, has the largest with 389. The New York houses number 51 and 150 respectively, those of Pennsylvania 50 and 201, those of Massachusetts 40 and 240. In the Western and Southern states the number of representatives rarely exceeds 120.15
As there is a reason for everything in the world, if one could but find it out, so for this difference between the old New England states and those newer states which in many other points have followed their precedents. In the New England states local feeling was and is intensely strong, and every little town wanted to have its member. In the West and South, local divisions have had less natural life; in fact, they are artificial divisions rather than genuine communities that arose spontaneously. Hence the same reason did not exist in the West and South for having a large assembly; while the distrust of representatives, the desire to have as few of them as possible and pay them as little as possible, have been specially strong motives in the West and South, as also in New York and Pennsylvania, and have caused a restriction of numbers.
In all states the members of both houses receive salaries, which in some cases are fixed at an annual sum of from $150 (Maine) to $1,500 (New York), the average being $500. More frequently, however, it is calculated at so much for every day during which the session lasts, varying from $1 (in Rhode Island) to $8 (in California and Nevada) per day ($5 seems to be the average), besides a small allowance, called mileage, for travelling expenses. These sums, although unremunerative to a man who leaves a prosperous profession or business to attend in the state capital, are an object of such desire to many of the representatives of the people, that the latter have thought it prudent to restrict the length of the legislative sessions, which now generally stand limited to a fixed number of days, varying from 40 days in Georgia, Nebraska, and Oregon, to 150 days in Pennsylvania. The states which pay by the day are also those which limit the session. Some states secure themselves against prolonged sessions by providing that the daily pay shall diminish, or shall absolutely cease and determine, at the expiry of a certain number of days, hoping thereby to expedite business and check inordinate zeal for legislation.16
It was formerly usual for the legislature to meet annually, but the experience of bad legislation and over legislation has led to fewer as well as shorter sittings; and sessions are now biennial in all states except two (Alabama and Mississippi)17 where they are quadrennial, and in the six following: Massachusetts, Rhode Island, New York, New Jersey, South Carolina, Georgia, all of them old states. In these the sessions are annual, save in that odd little nook Rhode Island, which still convokes her legislature every May at Newport, and afterwards holds an adjourned session at Providence, the other chief city of the commonwealth. There is, however, in nearly all states a power reserved to the governor to summon the houses in extraordinary session should a pressing occasion arise, but the provisions for daily pay do not usually apply to these extra sessions.18
Bills may originate in either house, save that in most states money bills must originate in the House of Representatives, a rule for which, in the present condition of things, when both houses are equally directly representative of the people and chosen by the same electors, no sufficient ground appears. It is a curious instance of the wish which animated the framers of the first constitutions of the original thirteen states to reproduce the details of the English Constitution that had been deemed bulwarks of liberty. The newer states borrowed it from their elder sisters, and the existence of a similar provision in the federal Constitution has no doubt helped to perpetuate it in all the states. But there is a reason for it in Congress, the federal Senate not being directly representative of equal numbers of citizens, which is not found in the state legislatures; it is in these last a mere survival of no present functional value. Money bills may, however, be amended or rejected by the state Senates like any other bills, just as the federal Senate amends money bills brought up from the House.
In one point a state Senate enjoys a special power, obviously modelled on that of the English House of Lords and the federal Senate. It sits as a court under oath for the trial of state officials impeached by the House.19 Like the federal Senate, it has in many states the power of confirming or rejecting appointments to office made by the governor. When it considers these it is said to “go into executive session.” The power is an important one in those states which allow the governor to nominate the higher judges. In other respects the powers and procedure of the two houses of a state legislature are identical;20 except that, whereas the lieutenant-governor of a state is generally ex officio president of the Senate, with a casting vote therein, the House always chooses its own Speaker. The legal quorum is usually fixed, by the constitution, at a majority of the whole number of members elected,21 though a smaller number may adjourn and compel the attendance of absent members. Both houses do most of their work by committees, much after the fashion of Congress,22 and the committees are in both usually chosen by the Speaker (in the Senate by the president of that body), though it is often provided that the House (or Senate) may on motion vary their composition.23 Both houses sit with open doors, but in most states the constitution empowers them to exclude strangers when the business requires secrecy.
The state governor has of course no right to dissolve the legislature, nor even to adjourn it unless the houses, while agreeing to adjourn, disagree as to the date. Such control as the legislature can exercise over the state officers by way of inquiry into their conduct is generally exercised by committees, and it is in committees that the form of bills is usually settled and their fate decided, just as in the federal Congress. The proceedings are rarely reported. Sometimes when a committee takes evidence on an important question reporters are present, and the proceedings more resemble a public meeting than a legislative session. In some states when a bill is referred to a committee any citizen of the state may appear and give evidence for or against it, so that ample security is taken for the ascertainment of public sentiment and for enabling all private interests affected to state their case. This liberty is largely used in Massachusetts, and with excellent results. It need scarcely be added that neither house separately, nor both houses acting together, can control an executive officer otherwise than either by passing a statute prescribing a certain course of action for him, which if it be in excess of their powers will be held unconstitutional and void, or by withholding the appropriations necessary to enable him to carry out the course of action he proposes to adopt. The latter method, where applicable, is the more effective, because it can be used by a bare majority of either house, whereas a bill passed by both houses may be vetoed by the governor, a point so important as to need a few words.
One state only, North Carolina, still vests legislative authority in the legislature alone. All the rest now require a bill to be submitted to the governor, and permit him to return it to the legislature with his objections. If he so returns it, it can only be again passed “over the veto” by something more than a bare majority. To so pass a bill over the veto there is required:
In one state (Connecticut) a majority in each house
In eight states a majority in each house of all the members elected to that house
In three states a majority of three-fifths in each house of all the members elected
In eight states a majority of two-thirds in each house of all the members present
In twenty-seven states a majority of two-thirds of all the members elected
In one state (Massachusetts) two-thirds of the elected members of the house in which the bill originated, and two-thirds of the members present in the other house
In one state (Virginia) two-thirds of the members present and a majority of those elected in each house
Here, therefore, as in the federal Constitution, we find a useful safeguard against the unwisdom or misconduct of a legislature, and a method provided for escaping, in extreme cases, from those deadlocks which the system of checks and balances tends to occasion.
I have adverted in a preceding chapter to the restrictions imposed on the legislatures of the states by their respective constitutions. These restrictions, which are numerous, elaborate, and instructive, take two forms.
I. Exclusions of a subject from legislative competence, i.e., prohibitions to the legislature to pass any law on certain enumerated subjects. The most important classes of prohibited statutes are:
Statutes inconsistent with democratic principles, as, for example, granting titles of nobility, favouring one religious denomination, creating a property qualification for suffrage or office.
Statutes against public policy, e.g., tolerating lotteries, impairing the obligation of contracts, incorporating or permitting the incorporation of banks, or the holding by a state of bank stock.24
Statutes special or local in their application, a very large and increasing category, the fulness and minuteness of which in many constitutions show that the mischiefs arising from improvident or corrupt special legislation must have become alarming. The lists of prohibited subjects in the Constitutions of Missouri of 1875, Montana and North Dakota of 1889, Mississippi of 1890, and Oklahoma, 1907, are the most complete I have found.25 Oklahoma enumerates twenty-eight topics, special legislation on which is forbidden.
Statutes increasing the state debt beyond a certain limited amount, or permitting a local authority to increase its debt beyond a prescribed amount, the amount being usually fixed in proportion to the valuation of taxable property within the area administered by the local authority.26
II. Restrictions on the procedure of the legislature, i.e., directions as to the particular forms to be observed and times to be allowed in passing bills, sometimes all bills, sometimes bills of a certain specified nature. Among these restrictions will be found provisions:
As to the majorities necessary to pass certain bills, especially appropriation bills. Sometimes a majority of the whole number of members elected to each house is required, or a majority exceeding a bare majority of those present.
As to the method of taking the votes, e.g., by calling over the roll and recording the vote of each member.
As to allowing certain intervals to elapse between each reading of a measure, and for preventing the hurried passage of bills, especially appropriation bills, at the end of the session.
As to reading of bills publicly and at full length.
As to sending all bills to a committee, and prescribing the mode of its action.
Against secret sessions (Idaho).
As to preventing an act from taking effect until a certain time, e.g., ninety days after the adjournment of the session.
Against changing the purpose of a bill during its passage.
As to including in a bill only one subject, and expressing that subject in the title of the bill.
Against reenacting, or amending, or incorporating, any former act by reference to its title merely, without setting out its contents.27
The last two classes of provisions might be found wholesome in England, where much of the difficulty complained of by the judges in construing the law arises from the modern habit of incorporating parts of former statutes, and dealing with them by reference.28
Where statutes have been passed by a legislature upon a prohibited subject, or where the prescribed forms have been transgressed or omitted, the statute will be held void so far as inconsistent with the constitution.
Even these multiform restrictions on the state legislatures have not been found sufficient. Bitted and bridled as they are by the constitutions, they contrive, as will appear in a later chapter, to do plenty of mischief in the direction of private or special legislation.
Although state legislatures have of course no concern whatever with foreign affairs, this is not deemed a reason for abstaining from passing resolutions on that subject. The passion for resolutions is strong everywhere in America, and an expression of sympathy with an oppressed foreign nationality, or of displeasure at any unfriendly behaviour of a foreign power, is not only an obvious way of relieving the feelings of the legislators, but often an electioneering device, which appeals to some section of the state voters. Accordingly such resolutions are common, and, though of course quite irregular, quite innocuous.
Debates in these bodies are seldom well reported, and sometimes not reported at all. One result is that the conduct of members escapes the scrutiny of their constituents; a better one that speeches are generally short and practical, the motive for rhetorical displays being absent. If a man does not make a reputation for oratory, he may for quick good sense and business habits. However, so much of the real work is done in committees that talent for intrigue or “management” usually counts for more than debating power.
