First Congress, has been effected in two ways, by congressional legislation and by usage.
Congress was empowered by the Constitution to pass statutes on certain prescribed topics. On many other topics not specially named, but within its general powers, statutes were evidently needed. For instance, the whole subject of federal taxation, direct and indirect, the establishment of federal courts, inferior to the Supreme Court, and the assignment of particular kinds and degrees of jurisdiction to each class of courts, the organization of the civil, military, and naval services of the country, the administration of Indian affairs and of the Territories, the rules to be observed in the elections of presidents and senators, these and many other matters of high import are regulated by statutes, statutes which Congress can of course change but which, in their main features, have been not greatly changed since their first enactment. Although such statutes cannot be called parts of the Constitution in the same sense as the interpretations and constructions judicially placed upon it, for these latter have (subject to the possibility of their reversal) become practically incorporated with its original text, still they have given to its working a character and direction which must be borne in mind in discussing it, and which have, in some instances, produced results opposed to the ideas of its framers. To take a recent instance, the passing of the Interstate Commerce Act, which regulates all the greater railways over the whole United States, is an assertion of federal authority over numerous and powerful corporations chartered by and serving the various states, which gives a new aspect and significance to the clause in the Constitution empowering Congress to regulate commerce. Legal interpretation held that clause to be sufficiently wide to enable Congress to legislate on interstate railways; but when Congress actually exerted its power in enacting this statute a further step, and a long one, was taken towards bringing the organs of transportation under national control.1 Legislation, therefore, though it canot in strictness enlarge the frontiers fixed by the Constitution, can give to certain provinces lying within those frontiers far greater importance than they formerly possessed, and by so doing, can substantially change the character of the government. It cannot engender a new power, but it can turn an old one in a new direction, and call a dormant one into momentous activity.
Next as to usage. Custom, which is a law-producing agency in every department, is specially busy in matters which pertain to the practical conduct of government. Understandings and conventions are in modern practice no less essential to the smooth working of the English Constitution, than are the principles enunciated in the Bill of Rights. Now understandings are merely long-established usages, sanctioned by no statute, often too vague to admit of precise statement,2 yet in some instances deemed so binding that a breach of them would damage the character of a statesman or a ministry just as much as the transgression of a statute. In the United States there are fewer such understandings than in England, because under a Constitution drawn out in one fundamental document everybody is more apt to stand upon his strict legal rights, and the spirit of institutions departs less widely from their formal character. Nevertheless some of those features of American government to which its character is chiefly due, and which recur most frequently in its daily working, rest neither upon the Constitution nor upon any statute, but upon usage alone. Here are some instances.
The presidential electors have by usage and by usage only lost the right the Constitution gave them of exercising their discretion in the choice of a chief magistrate.
No president has been elected to more than two continuous terms, though the Constitution in no way restricts reeligibility.3
The president uses his veto more freely than he did at first, and for a wider range of purposes.
The Senate now never exercises its undoubted power of refusing to confirm the appointments made by the president to cabinet offices.
The president is permitted to remove, without asking the consent of the Senate, officials to whose appointment the consent of the Senate is necessary. This was for a time regulated by statute, but the statute having been repealed the old usage has revived. (See Chapter 6.)
Both the House and the Senate conduct their legislation by means of standing committees. This vital peculiarity of the American system of government has no firmer basis than the standing orders of each house, which can be repealed at any moment, but have been maintained for many years.
The Speaker of the House was for a long time entrusted with the nomination of all the House committees. That function now belongs to the Committee of Ways and Means.
The chairmen of the chief committees of both houses, which control the great departments of state (e.g., foreign affairs, navy, justice, finance), have practically become an additional set of ministers for those departments.
The custom of going into caucus, by which the parties in each of the two houses of Congress determine their action, and the obligation on individual members to obey the decision of the caucus meeting, are mere habits or understandings, without legal sanction. So is the right claimed by the senators from a state to control the federal patronage of that state. So is the usage that appropriation bills shall be first presented to the House.
The rule that a member of Congress must be chosen from the district, as well as from the state, in which he resides, rests on no federal enactment; indeed, neither Congress nor any state legislature would be entitled thus to narrow the liberty of choice which the words of the Constitution imply.
Jackson introduced, and succeeding presidents continued the practice of dismissing federal officials belonging to the opposite party, and appointing none but adherents of their own party to the vacant places. This is the so-called Spoils System, which, having been applied also to state and municipal offices, became and long continued to be the cornerstone of “practical politics” in America. The Constitution was nowise answerable for it, and legislation only partially.
Neither in English law nor in American is there anything regarding the reeligibility of a member of the popular chamber; nor can it be said that usage has established in either country any broad general rule on the subject. But whereas the English tendency has been to reelect a member unless there is some positive reason for getting rid of him, in many parts of America men are disposed the other way, and refuse to reelect him just because he has had his turn already. Anyone can understand what a difference this makes in the character of the chamber.
We see, then, that several salient features of the present American government, such as the popular election of the president, the restriction of eligibility to Congress to persons resident in the district to be represented, the influence of senators and congressmen over patronage, the immense power of the Speaker, the Spoils System, are due to usages which have sprung up round the Constitution and profoundly affected its working, but which are not parts of the Constitution, nor necessarily attributable to any specific provision which it contains. The most remarkable instance of all, the working of the system of government by highly organized parties, including the choice of presidential candidates by the great parties assembled in their national conventions, will be fully considered in later chapters.
One of the changes which began about twenty years after the adoption of the Constitution deserves special mention. The Constitution contains no provision regarding the electoral franchise in Congressional elections save the three following:
That the franchise shall in every state be the same as that by which the members of the “most numerous branch of the State legislature” are chosen (art. I, § 2);
That when any male citizens over twenty-one years of age are excluded by any state from the franchise (except for crime) the basis of representation in Congress of that state shall be proportionately reduced (amend. XIV, 1868);
That “the right of citizens of the United States
