The American Commonwealth. Viscount James Bryce

But the creation of a court entitled to place an authoritative interpretation upon the Constitution in which the supreme will of the people was expressed, provided a remedy available in many, if not in all, of such cases, and a security for the faithful observance of the Constitution which England did not, and under her system of an omnipotent Parliament could not, possess.

      “They builded better than they knew.” They divided the legislature from the executive so completely as to make each not only independent, but weak even in its own proper sphere. The president was debarred from carrying Congress along with him, as a popular prime minister may carry Parliament in England, to effect some sweeping change. He is fettered in foreign policy, and in appointments, by the concurrent rights of the Senate. He is forbidden to appeal at a crisis from Congress to the country. Nevertheless his office retains a measure of solid independence in the fact that the nation regards him as a direct representative and embodiment of its majesty, while the circumstance that he holds office for four years only makes it possible for him to do acts of power during those four years which would excite alarm from a permanent sovereign. Entrenched behind the ramparts of a rigid Constitution, he has retained rights of which his prototype the English king has been gradually stripped. Congress on the other hand was weakened, as compared with the British Parliament in which one house has become dominant, by its division into two coequal houses, whose disagreement paralyzes legislative action. And it lost that direct control over the executive which the presence of ministers in the legislature, and their dependence upon a majority of the popular House, give to the Parliaments of Britain and her colonies. It has diverged widely from the English original which it seemed likely, with only a slight difference, to reproduce.

      The British House of Commons has grown to the stature of a supreme executive as well as legislative council, acting not only by its properly legislative power, but through its right to displace ministers by a resolution of want of confidence, and to compel the sovereign to employ such servants as it approves. Congress remains a pure legislature, unable to displace a minister, unable to choose the agents by whom its laws are to be carried out, and having hitherto failed to develop that internal organization which a large assembly needs in order to frame and successfully pursue definite schemes of policy. Nevertheless, so far-reaching is the power of legislation, Congress has encroached, and may encroach still farther, upon the sphere of the executive. It encroaches not merely with a conscious purpose, but because the law of its being has forced it to create in its committees bodies whose expansion necessarily presses on the executive. It encroaches because it is restless, unwearied, always drawn by the progress of events into new fields of labour.

      These observations may suffice to show why the Fathers of the Constitution did not adopt the English parliamentary or cabinet system. They could not adopt it because they did not know of its existence. They did not know of it because it was still immature, because Englishmen themselves had not understood it, because the recognized authorities did not mention it. There is not a word in Blackstone, much less in Montesquieu, as to the duty of ministers to resign at the bidding of the House of Commons, nor anything to indicate that the whole life of the House of Commons was destined to centre in the leadership of ministers. Whether the Fathers would have imitated the cabinet system had it been proposed to them as a model may be doubted. They would probably have thought that the creation of a frame of government so unified, so strong, so capable of swiftly and irresistibly accomplishing the purposes of a transitory majority as we now perceive it to be, might prove dangerous to those liberties of the several states, as well as of individual citizens, which filled the whole background of their landscape. But as the idea never presented itself, we cannot say that it was rejected, nor cite the course they took as an expression of their judgment against the system under which England and her colonies have so far prospered.

      That system could not be deemed to have reached its maturity till the power of the people at large had been established by the Reform Act of 1832. For its essence resides in the delicate equipoise it creates between the three powers, the ministry, the House of Commons, and the people. The House is strong, because it can call the ministry to account for every act, and can, by refusing supplies, compel their resignation. The ministry are not defenceless, because they can dissolve Parliament, and ask the people to judge between it and them. Parliament, when it displaces a ministry, does not strike at executive authority; it merely changes its agents. The ministry, when they dissolve Parliament, do not attack Parliament as an institution; they recognize the supremacy of the body in asking the country to change the individuals who compose it. Both the House of Commons and the ministry act and move in the full view of the people, who sit as arbiters, prepared to judge in any controversy that may arise. The House is in touch with the people, because every member must watch the lights and shadows of sentiment which play over his own constituency. The ministry are in touch with the people, because they are not only themselves representatives, but are heads of a great party, sensitive to its feelings, forced to weigh the effect of every act they do upon the confidence which their party places in them. The only conjuncture which this system of “checks and balances” does not provide for is that of a ministry supported by a parliamentary majority pursuing a policy which was not presented to the people at the last general election, and of which the bulk of the people in fact disapprove.¹⁰ This is a real danger, yet one which can seldom last long enough to work grave mischief, for the organs of public opinion are now so potent, and the opportunities for its expression so numerous, that the anger of a popular majority, perhaps even of a very strong minority, is likely to alarm both the ministry and the House, and to arrest them in their course.¹¹

      

      The drawback to this system of exquisite equipoise is the liability of its equilibrium to be frequently disturbed, each disturbance involving either a change of government, with immense temporary inconvenience to the departments, or a general election, with immense expenditure of money and trouble in the country. It is a system whose successful working presupposes the existence of two great parties and no more, parties each strong enough to restrain the violence of the other, yet one of them steadily preponderant in any given House of Commons. Where a third, perhaps a fourth, party appears, the conditions are changed. The scales of Parliament oscillate as the weight of this detached group is thrown on one side or the other; dissolutions become more frequent, and even dissolutions may fail to restore stability. The recent history of the Third French Republic has shown the difficulties of working a chamber composed of groups; and the same source of difficulty has more recently appeared in England.¹²

      It is worth while to compare the form which a constitutional struggle takes under the cabinet system and under that of America.

      In England, if the executive ministry displeases the House of Commons, the House passes an adverse vote. The ministry have their choice to resign or to dissolve Parliament. If they resign, a new ministry is appointed from the party which has proved itself strongest in the House of Commons; and cooperation being restored between the legislature and the executive, public business proceeds. If, on the other hand, the ministry dissolve Parliament, a new Parliament is sent up which, if favourable to the existing cabinet, keeps them in office, if unfavourable, dismisses them forthwith.¹³ Accord is in either case restored. Should the difference arise between the House of Lords and a ministry supported by the House of Commons, and the former persist in rejecting a bill which the Commons send up, a dissolution is the constitutional remedy; and if the newly elected House of Commons reasserts the view of its predecessor, the Lords, according to the now recognized constitutional practice, yield at once. Should they, however, still stand out, there remains the extreme expedient, threatened in 1832, but never yet resorted to, of a creation by the sovereign (i.e., the ministry) of new peers sufficient to turn the balance of votes in the Upper House. Practically the ultimate decision always rests with the people, that is to say, with the party which for the moment commands a majority of electoral votes. This method of cutting knots applies to all differences that can arise between executive and legislature. It is a swift and effective method; in this swiftness and effectiveness lie its dangers as well as its merits.

      In America a dispute between the president and Congress may arise over an executive act or over a bill. If over an executive act, an appointment or a treaty, one branch of Congress, the Senate, can check the president, that is, can prevent him from doing what he wishes, but cannot make him do what they wish. If over a bill which the president has