 Chapter 41 of Problems in American Democracy. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. This reading by Allison Hester of Athens, Georgia. Problems in American Democracy by Times Williamson. Chapter 41, The National Administration. 520, Development of the Federal Executive. The President is the head of the Federal Executive, but in the performance of his numerous administrative duties, he is aided by a number of subordinate officers. No executive departments were directly established by the Constitution, but that document evidently assumes their existence, for it clearly states that the President may require the opinion and writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices. Footnote, Article 2, Section 2 of the Constitution. End of footnote. President Washington was authorized by Congress to appoint three assistants, a Secretary of State, a Secretary of the Treasury, and a Secretary of War. With the development of governmental functions, additional departments have been created. Congress established the Post Office Department in 1794, the Navy Department in 1798, the Department of the Interior in 1849, the Department of Justice in 1870, the Department of Agriculture in 1889, the Department of Commerce in 1903, and the Department of Labor in 1913. At present, then, there are 10 federal executive departments, all of them under the direct control of the President. 521, the Cabinet. The heads of these 10 departments are appointed by the President, nominally with the consent of the Senate. They may be removed only by the President and by him at will. Neither in the Constitution nor in the statutes of the Congress is their provision for a Cabinet, but as the result of custom, which has been formulating since Washington's second term, the heads of the federal executive departments have come to constitute in their collective capacity the President's Cabinet. Cabinet meetings are generally held twice a week or often are as the President desires. The American Cabinet should not be confused with the Cabinet in Great Britain and other European countries. In Europe, the Cabinet is generally a parliamentary ministry, that is to say, a group of men chosen from the majority party in the legislature. These Cabinet members or ministers sit in the legislature, propose laws, and defend their measures on the floor. They are held responsible for the national administration. This means that when the majority of the legislature fails to support them, they are expected to resign in order that the opposition party may form a new Cabinet. Quite different is the American Cabinet. This body is advisory only and the President may disregard the advice of any or all of its members. The Cabinet in this country is accountable only to the President. The attitude of Congress towards Cabinet officers has nothing to do with the tenure of office of these executive heads. Cabinet members do not sit in Congress. They do not, in the capacity of Cabinet officers, introduce or defend legislation and they are not held responsible for the administration. 522. Heads of Departments as Administrative Officers Collectively, the heads of the 10 executive departments act as the President's Cabinet. Individually, they administer their respective departments. Though responsible to the President and at all times working under his direction, the heads of departments are allowed a wide range of independence. Department heads may appoint and remove at will a large number of minor officers and their respective departments. Though of late years, this power has been considerably restricted by civil service rules. The exact scope of the work of the various departments is largely dimmed by law. Within the limits thus set, the head of the department is free to make regulations affecting the conduct of departmental business. To expedite business, the work of each department is divided and subdivided among numerous bureaus, boards and commissions functioning under the general direction of the head of the department. 523. The Department of State Without doubt, the most important of the subordinate executive officers is the Secretary of State. His most pressing duty is to conduct foreign affairs in accordance with the wishes of the President. In pursuance of this duty, the Secretary of State issues instructions to diplomatic and consular officers, issues passports to American citizens going abroad and otherwise exercises control of matters touching foreign relations. Important domestic duties devolve upon the Secretary of State. When the President desires to communicate with the governors of the several states, he acts through the Secretary of State. The Secretary is the custodian of the great still of the United States. It is he who oversees the publication of the federal statutes. The Secretary of State likewise has charge of the archives containing the originals of all laws, treaties and foreign correspondence. Much of the work of the Department of State is performed through bureaus, the titles of which indicate their respective functions. Of these bureaus, the following are the most important. The diplomatic bureau, the consular bureau, the Bureau of Accounts, the Bureau of Indexes and Archives, the Bureau of Roles and Library, the Bureau of Appointments and the Bureau of Citizenship. Each of these bureaus is headed by a chief who is directly responsible to the Secretary of State. In addition to these chiefs of bureaus, the Secretary is aided by three assistant secretaries of state. 524, Department of the Treasury. Supervision of the National Finances is the chief business of the Secretary of the Treasury. The Secretary annually submits to Congress estimates of probable receipts and expenditures and supervises the collection of customs and internal revenues. He also issues warrants for all monies paid out of the Treasury. The scope of the Department's work may be indicated by an enumeration of its chief officers. These include the Secretary himself, three assistant secretaries, six auditors, the Treasurer, the Comptroller of the Treasury, the Director of the Mint, the Register, the Comptroller of the Currency, the Commissioner of the Internal Revenue, the Director of the Bureau of Engraving and Printing, the Chief of the Secret Service Department, the Captain Commandant of the Coast Guard, the Superintendent of the Life Saving Service, the Surgeon General of the Public Health Service, the Supervising Architect, and the Farm Loan Commissioner. 525, the Department of War. National Defense is the chief concern of the Secretary of War. Coast fortifications, the supervision of navigation, and river and harbor improvements fall within the scope of the Department. Our insular possessions are administered by the Secretary of War. It is also the duty of this officer to prepare estimates of the expenses of his Department to supervise all expenditures for the support and transportation of the Army, and to take charge of the issuance of orders for the movement of troops. In addition, he has charge of the Military Academy at West Point and recommends all appointments and promotions in the Army service. Under the Secretary of War, are grouped a number of administrative bureaus each headed by an Army officer detailed for a period of four years. Of these officers, the following are the most important, the Inspector General, the Quartermaster General, the Adjutant General, the Surgeon General, the Chief of Engineers, the Chief of Ordinance, the Chief Signal Officer, the Chief of the Coast Artillery, the Judge Advocate General, the Provost Marshall General, and the Chief of the Bureau of Insular Affairs. 526, the Department of the Navy. The Department of the Navy is likewise concerned with national defense. While less important than the Department of War, the Department of the Navy is steadily gaining in prestige. The Department is in charge of a Secretary aided by an Assistant Secretary. It is the duty of the Department of the Navy to superintend the construction and armament of war vessels, and in addition, exercise a supervisory control over the Naval Service. The Naval Academy at Annapolis and the Naval War College at Newport are in charge of the Department of the Navy. The administrative work of the Department is carried on by seven bureaus, most of them in charge of line officers of the Navy, working directly under the Secretary. These bureaus are as follows, the Bureau of Navigation, the Bureau of Ordinance, the Bureau of Yards and Docks, the Bureau of Supplies and Accounts, the Bureau of Steam Engineering, the Bureau of Medicine and Surgery, and the Bureau of Construction and Repayers. 527, the Department of Justice. This department is headed by the Attorney General who acts as the Chief Legal Advisor of the National Government. It is his duty to represent the government in all cases to which the United States is a party. It is he who conducts proceedings against corporations or individuals who violate the federal laws. General supervision over all federal district attorneys and marshals is exercised by the Attorney General. This officer likewise examines the titles of lands which the government intends to purchase. The Attorney General has a supervisory charge of the penal and reformatory institutions which are federal and character. Applications for pardons by the President are investigated by the Attorney General. Still, another of his duties is to superintend the codification of the federal criminal laws. In these various duties, the Attorney General is assisted by an under-known officer known as the Solicitor General. 528, the Post Office Department. This department, headed by the Post Master General, has general charge of the Postal Service. The Post Master General awards contracts for the transportation of the males and directs the management of the domestic and foreign mail service. The handling of money orders, the parcel post system, and the postal savings banks come under the control of the Post Master General. Of great importance is the power of this officer to bar from the males' publications which are fraudulent or otherwise obnoxious. Working under the Post Master General are four assistant Post Masters General, each in general charge of a group of services within the department. 529, Department of the Interior. Aided by two assistant secretaries, the Secretary of the Interior performs a number of important functions. He has charge of all public lands, including national parks. The handling of Indian affairs constitutes one of his duties. The territories of Alaska and Hawaii come under the direct supervision of this department. Many miscellaneous functions are performed by the various bureaus within the department. Patents, pensions, and the Geological Survey come within the purview of the department. The Secretary of the Interior has charge of the distribution of government appropriations to various educational institutions. A general supervision over a number of charitable institutions within the District of Columbia is also exercised by this officer. 530, Department of Agriculture. All matters pertaining to agriculture in the widest sense are the concern of the Department of Agriculture. Under the direction of the Secretary, the department issues a large number of scientific and technical publications, including the Agricultural Yearbook, the series of farmers' bulletins, the monthly weather review, and the crop reporter. Quarantine stations for imported cattle and the inspection of domestic meats and imported food products are concerns of the various bureaus within the department. Of great importance is the work of the Weather Bureau in sending out storm, flood, frost, and drought warnings. An increasingly important phase of the department's work is in the Forest Service, the work of which has been described in Chapter 30. An important bureau is the Bureau of Animal Industry which combats animal diseases and gives advice concerning the best breeds of poultry and cattle. The Bureau of Plant Industry ransacks the world for new crops suitable for our soils and gives fruit growers and farmers advice concerning plant parasites. Insect pests are the concern of the Entomology Division. Additional functions of the Department of Agriculture may be indicated by an enumeration of some of the more important of its remaining bureaus and divisions. These include the Bureau of Chemistry, the Bureau of Soils, the Bureau of Statistics, the Bureau of Crop Estimates, the Office of Public Roads and Rural Engineering, the Federal Horticultural Board and the Bureau of Markets. 531. The Department of Commerce. In 1913, what for 10 years had been known as the Department of Commerce and Labor was divided into two separate departments a Department of Commerce and a Department of Labor. The Chief Duty of the Department of Commerce is to foster the foreign and domestic commerce of the United States to promote our mining, manufacturing and fishing industries and to develop our transportation facilities are therefore among the aims of this department. The Census, the Coast Survey and Lighthouses and Steamboat Inspection are concerns of the Department of Commerce. The scope of the department, which is increasing rapidly, may be indicated by an enumeration of the more important bureaus grouped within it. These include the Bureau of Foreign and Domestic Commerce, the Bureau of Census, the Bureau of Lighthouses, the Bureau of Coast and Geodetic Survey, the Steamboat Inspection Service, the Bureau of Navigation, the Bureau of Standards and the Bureau of Fisheries. 532, the Department of Labor. Though at present, the functions of the Department of Labor are fewer than those of the other departments. They are being rapidly expanded by the extension of government interest in industry. The department is concerned with practically all matters which affect labor conditions in the United States. The Department of Labor collects and publishes information upon all subjects connected with labor and capital, the hours and wages of labor and methods of improving the condition of the working classes. It seeks to encourage industrial goodwill and to adjust labor disputes peaceably. An important bureau within the department is the Bureau of Immigration, which, under the direction of the Commissioner General of Immigration, is concerned with the administration of our immigration laws. The Bureau of Naturalization keeps a record of immigrants and supervises their naturalization. Of growing importance is the Children's Bureau, which investigates matters having to do with child labor, infant mortality, orphanage, and the work of the juvenile courts. 533, miscellaneous boards and commissions. In addition to the executive departments which have been briefly discussed, the federal administration includes many independent boards, bureaus and commissions which perform duties not assigned to any of the 10 departments. These agencies have been established from time to time under the authority of Congressional Statutes. The chiefs of the bureaus and the members of the boards and commissions are appointed by the President and the Senate, most of them, for a term ranging between 6 and 12 years. These officials are largely experts who happily are sufficiently exempt from the SPOIL system to stand a fair chance of surviving a change of administration. Among the more important of these boards and commissions are the following, the Federal Reserve Board, the Federal Farm Loan Board, the Federal Board for Vocational Education, the Federal Trade Commission, the Interstate Commerce Commission, the United States Tariff Commission, and the Civil Service Commission. The nature and functions of most of these administrative agencies have been discussed elsewhere in the text and need not be gone into here. End of Chapter 41 Chapter 42 of Problems in American Democracy. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. This reading by Allison Hester of Athens, Georgia. Problems in American Democracy by Times-Williamson. Chapter 42 Nature and Powers of Congress. 534 Congress Consists of Two Houses The National Legislature, or Congress, consists of a Senate or upper chamber and a House of Representatives or lower chamber. Several factors are responsible for this division of Congress into two houses. Undoubtedly, the framers of the Constitution were influenced by the fact that British Parliament and nearly all of the colonial legislatures that consisted of two houses. A second factor is that in the opinion of the Fathers, a two-chambered legislature would allow each House to act as a check upon the other. Finally, the creation of a two-chambered legislature was necessary in order to reconcile the conflicting desires of the large and small states. During the Constitutional Convention, two opposing factions were brought together by the creation of a two-chambered legislature in the upper house of which the states were to be represented equally and in the lower house of which representation was to be on the basis of population. A, the Senate. 535 Terms and Qualifications of Senators. Two senators are chosen from each state, regardless of population. The senatorial term is six years. In order to make the Senate a permanent body, membership is so arranged that one-third of the senators retire every two years. The federal Constitution provides that senators must be at least 30 years of age. In addition, a senator must have been nine years a citizen of the United States and he must be an inhabitant of the state from which he is chosen. The Senate alone is judge of the qualifications of its members. With respect to the Senate, two disqualifications are imposed by the federal Constitution. No one holding a federal office may stand for election as senator, nor may any person become a senator who has taken part in a rebellion against the United States after having taken an oath as a government officer to support the Constitution. 536 Election of Senators Previous to 1913, senators were chosen by the various state legislatures according to the provisions of the federal Constitution. Article 1, Section 3. This method proved unsatisfactory. Demoralizing political battles often took place in the state legislatures in the effort to select the state senators to Congress. Sometimes, even after a long struggle, no candidate was able to secure a majority and a deadlock occurred. Thus, on the one hand, a state might be deprived of representation in the Senate for weeks or months, while on the other hand, the attention of the legislature was so distracted by the senatorial struggle that purely state interests suffered. As the result of a long agitation growing out of these evils, the federal Constitution was amended 1913 to permit a direct election of senators. Since 1913 then, any person may vote directly for senator who, under the laws of his state, is qualified to vote for members of the more numerous branch of the state legislature. When for any reason of vacancy occurs in the representation of any state in the Senate, the governor of the state issues a writ of election to fill such vacancy. Provided the state legislature grants the authority, the governor also may appoint some person to serve as senator until the vacancy is filled by popular election. Senators are generally reflected and, at the present time, the average term of service is not six, but about 12 years. 537, privileges and immunities of senators. By the terms of the Constitution, senators are paid out of the national treasury an amount to be determined by statute. At present, both senators and members of the House of Representatives receive 7,500 a year plus an allowance for traveling expenses, clerk hire and stationery. Except in case of treason or breach of the peace, senators and representatives are immune to arrest during attendance at the sessions of their respective houses and in going to and returning from the same. Both senators and representatives likewise enjoy freedom of speech and debate in their respective houses. In either chamber, only the House itself may call members to account for their statements during the legislative session. No member of Congress may be prosecuted in the courts for label or slander on account of statements made in Congress or for the official publication of what he has said during the legislative session. B, the House of Representatives. 538, membership of the House. Since the Senate is composed of two senators from each state, its membership has been relatively stable. For a number of years there have been 96 senators, two for each of the 48 states of the Union. The membership of the House of Representatives on the one hand is steadily increasing because based upon population, the number of representatives to which any state is entitled depends upon its population as ascertained every 10 years by federal census. After each census, Congress determines the number of representatives of which the House shall consist. The population of the United States is then divided by this number and the quotient is taken as the ratio of representation. The population of each state is then divided by this ratio to discover the number of representatives to which it is entitled. As a single exception to this rule, the Constitution provides that each state shall have at least one representative regardless of population. Thus, Nevada, Arizona, Wyoming, and Delaware are entitled to one representative whereas according to the above rule they would now be denied representation. The present membership of the House of Representatives is 435. 539. Who may vote for representatives? The federal Constitution provides that members of the House of Representatives shall be chosen by persons who in their respective states are qualified to vote for members of the more numerous branch of the state legislature. Most male and female citizens over 21 years of age may vote for members of this more numerous branch and hints for representatives to Congress. In a number of states, however, educational, property, and other qualifications are imposed. Certain types of criminals, the insane, and the otherwise defective are regularly excluded. 540. Qualifications of representatives. The federal Constitution declares that a representative must be at least 25 years of age. He must have been a citizen for at least seven years and at the time of his candidacy he must also be an inhabitant of the state from which he is chosen. The House itself determines whether or not these qualifications have been met. No state may add to the constitutional qualifications but through the force of custom a representative is almost always a resident of the district which he is chosen to represent. 541. Election of representatives. The federal Constitution permits the legislatures of the several states to regulate the time, manner, and place of elections for its representatives to Congress. However, the Constitution reserves to Congress the right to alter these regulations at its discretion. This right has been exercised several times. Congressional statute has provided that representatives shall be elected on the Tuesday following the first Monday in November of even numbered years and that the election shall be by written or printed ballot. It is also in accordance with Congressional statute that representatives are selected on the district plan. One representative being chosen from each congressional district in the state. Congress has furthermore provided that these districts shall be as nearly equal population as possible. And that they shall be composed of compact and contiguous territory. 542. The congressional district. Subject to the above limitations, the legislature of each state may determine the boundaries of its congressional districts. The state legislature finds it necessary to redistrict the state if the decennial census shows that the population of the state has increased unequally in various sections. Or in case the apportionment act of Congress changes the state's representation. In many cases, states have redistricted their territory for illegitimate reasons. The federal provision with referenced contiguous territory has been loosely interpreted. In many cases, territory is held to be contiguous if it touches the district at any point. The requirement that districts shall be of nearly equal population has often been disregarded altogether. Since the state legislature is controlled by the political party having a majority, the dominant party can arrange the district lines so as to secure a party majority in the greatest possible number of districts. This is done by concentrating the opposition votes in a few districts, which would be hostile under any circumstances and so grouping the remaining votes as to ensure for the dominant party a majority in numerous districts. 543, gerrymandering. The result of this illegitimate redistricting has been to create districts of great irregularity. In 1812, when Elbridge Gerry was governor of Massachusetts, the Republican Party was in control of the state legislature. In districting the state so as to win for themselves as many districts as possible, the Republicans gave one of the congressional districts a dragon-like appearance. To the suggestion of a famous painter that this looked like a salamander, a local wit replied that it was more nearly a gerrymander. The term gerrymander has since continued to be used to designate this type of illegitimate redistricting. 544, term of representatives. Representatives are elected for two years, the legal term commencing on the 4th of March following the election. Except in the case of a special session, the actual service of representatives does not commence until the first Monday in December, 13 months after election. Members are frequently re-elected, the average term being about four years. When for any reason a vacancy occurs in the representation from any state, the governor May on the authority of the federal constitution issue a writ of election to fill the vacancy. A special election is then held in the district in which the vacancy has occurred and the representative so chosen serves for the remainder of the term. C, the powers of congress. 545, special powers of the senate. Of the three powers exercised exclusively by the senate, the power to approve treaties is one of the most important. All treaties negotiated by the president must be approved by a two-thirds vote of the senate before becoming law. The treaty may be approved or rejected as a whole or it may be rejected in part in additional articles recommended as amendments. If changed in form or content by the senate, the treaty does not become law until both the president and the foreign power have assented to the amendment or change. In order to become valid a large number of presidential appointments must receive the approval of the senate. The senate exercises a special judicial function in that it may sit as a court of impeachment for the trial of persons whom the house of representatives has formally charged with treason, bribery or other high crimes in misdemeanors, excluding military and naval officers who are tried by court-martial and excluding also members of congress who are subject only to the rules of their respective houses. All federal officers are subject to impeachment. Impeachment requires a two-thirds vote of the senator's present. Removal from office and disqualification to hold any office under the United States is the heaviest penalty which can be imposed upon an impeached official. 546 Special Powers of the House The House, likewise, enjoys three special powers. One of these is the right to elect a president of the United States in case no candidate has majority of the electoral votes. This has happened only twice in 1800 and again in 1824. The federal constitution provides that all revenue bills must originate in the lower house. However, the senate has come to share this power through its power to amend such bills. The House of Representatives has the sole power to prefer charges of impeachment. That is to say, to present what may be called the indictment against the accused official. The case is then tried before the senate. The House, appointing a committee of its own members to act as the prosecuting agency. 547 General Survey of the Powers of Congress The Powers of Congress, i.e. the two houses acting together are of two kinds. 1. Express powers by which is meant those specifically enumerated in the federal constitution and 2. Implied powers by which is meant those that are incident to express powers and necessary to their execution. The foundation of the doctrine of implied powers is the constitutional clause. Footnote Article 1 Section 8 of the Constitution into footnote which authorizes Congress to make all laws necessary and proper for carrying out the powers granted it by the federal constitution. Grouping express and implied powers together the more important powers of Congress may be summarized as follows. Revenue and Expenditures Congress has the power to lay and collect taxes, duties, imports and excises and to appropriate money in order to pay the debts and provide for the common defense and general welfare of the United States. But indirect taxes must be uniform throughout the United States and all direct taxes except income taxes must be apportioned among the states according to population. A further limitation is that Congress may not tax exports from any state nor levy upon the necessary instrumentalities of any state government. National Defense Here the powers of Congress are practically unlimited except by the constitutional provisions that the President shall be commander-in-chief and that military appropriations shall not be made for more than two years. Congress can raise and support armies, create and maintain a Navy and provide for the organization in use of the state militia. Congress may also declare war and make rules concerning captures on land and sea. Foreign Relations Congress as a body has little direct control over foreign relations though the Senate shares the treaty-making power with the President. But Congress has the power to create diplomatic and consular posts as well as to define and punish piracies and felonies committed on the high seas and offenses against the law of nations. Congress also exercises control over immigration and naturalization. Economic Interests Congress may regulate commerce with foreign countries among the several states and with Indian tribes. The exclusive power to coin money and otherwise control the monetary system is vested in Congress. Congress may make uniform laws on bankruptcy throughout the United States and fix the standards of weights and measures. The establishment of post offices and post roads and protection of authors and inventors through legislation on patents and copyrights are also functions of Congress. Territories Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Congress likewise exercises exclusive control over the District of Columbia and overall places purchased by the federal government for the erection of forts, arsenals and similar buildings. Congress also has the right to determine the admission to the Union of New States and to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Crime In criminal matters the power of Congress is slight. For example it cannot say what constitutes treason since that crime is defined by the Constitution. However Congress may provide for the punishment of counterfeiters and persons committing crimes on the high seas or offenses against international law. It may also define certain crimes against federal law and prescribed penalties therefore. Control over the judiciary. The judiciary is an independent branch of government but Congress may determine the number of Supreme Court judges fix their salaries within certain limits and define their appellate jurisdiction. Congress may also determine the jurisdiction and define the procedure of the inferior federal courts. Implied powers Last among the powers of Congress is the authority granted to it by the Constitution to make all laws which shall be deemed necessary and proper for carrying into execution the powers expressly granted to Congress by the Constitution. It is under the authority of this clause that the implied powers of Congress have been so greatly expanded. End of Chapter 42 Chapter 43 of Problems in American Democracy This is a LibriVox recording all LibriVox recordings are in the public domain For more information or to volunteer please visit LibriVox.org This reading by Allison Hester of Athens, Georgia Problems in American Democracy by Times Williamson Chapter 43 Congress in Action Part A Organization of Congress 548 Congressional Sessions The federal Constitution requires Congress to assemble at least once a year and Congress has provided that the date of meeting shall be the first Monday in December. In addition to such special sessions as may be called either by the President or by Congress itself there are two regular sessions. One of these is the long session from December of each odd year until Congress adjourns generally sometime during the following summer. The other is the short session beginning when Congress assembles in December of each even year and ending at noon on the 4th of March following. The two houses of Congress jointly fix the time for adjournment but in case they cannot agree upon this point the President has the right to adjourn them to such time as he thinks fit. During the Congressional Session neither house may without the consent of the other adjourn for more than three days nor to any other place than that in which the two houses are sitting. Since 1800 Congressional Sessions have regularly been held at Washington D.C. the National Capitol. 549 Internal Organization Each House of Congress has the right to determine its own rule of practice punish members for disorderly conduct and by a two-thirds vote expel a member. Members guilty of acts of violence or abusive language may be punished by a vote of censure or may be obliged to apologize to the House. For the commission of a grave offense a congressman may be expelled from the House to which he was elected. The Constitution requires that each House shall keep a journal of its proceedings and from time to time publish the same accepting such parts as may in their judgment require secrecy and the yeas and nays of the members of either House shall at the desire of one-fifth of those present be entered upon the journal. The object of this is to secure a permanent record of legislative action as well as publicity of proceedings. The vote by yeas and nays fixes responsibility for his vote upon each member by making it a matter of public record. The congressional record, an official account of the congressional debates and proceedings appears daily during congressional sessions. This is supposedly a verbatim report of what is said in each House but as a matter of fact members are allowed to edit and revise the remarks before these are printed. In the case of the House many of the published speeches have never been delivered at all. Five-fifty the officers of Congress. In the House of Representatives the chief officer is the speaker or presiding officer. The speaker is chosen from the membership of the House by that body itself. As will be pointed out shortly this officer is an important personage. In the Senate the vice president of the United States acts as the presiding officer. In the absence of the vice president or in case that officer succeeds to the presidency the Senate itself chooses a president pro-temperor to occupy the chair. The presiding officer of the Senate is much less powerful than the speaker of the House. Indeed he is little more than a chairman or moderator. There are a number of additional officers of Congress who are chosen by the respective houses from outside their own membership. These officers include a clerk who in the Senate is called the secretary, the doorkeeper, the sergeant at arms, the postmaster and the chaplain. Nominally these officers are chosen by each house but as a matter of practice the choice is made by the caucus of the majority party which is held a few days before the organization of each house. 551 the speaker of the House of Representatives A few days before the organization of the House the caucus of the majority party settles upon its choice for speaker. The candidate chosen invariably receives the solid vote of his party in the House since it is a rule of the caucus that party members who take part in its discussions must abide by its decisions. As chairman of the House the speaker performs the customary duties of a presiding officer. He opens and closes the sittings of the House, maintains order and decides questions of parliamentary law. The speaker acts as the official representative of the House in its collective capacity and authenticates all official proceedings by his signature. It is he who announces the order of business states the question and announces the vote. He also has the right to appoint the chairman of the committee of the whole. The speaker takes part in debate and may also vote. 552 power of the speaker over legislation. In addition to performing the customary duties of a presiding officer the speaker possesses important powers over legislation. The imperfect organization of the House and its lack of effective leadership as well as the vast amount of business coming before it have tended to centralize much of the legislative power of the House in the hands of this officer. The speaker of the House has the power to determine to which committee a bill shall be referred. Thus he may determine the fate of a measure by sending it to a committee which he knows to be hostile to the bill or to a friendly committee just as he likes. It is the speaker who decides when a member is entitled to the floor and no motion or speech can be made except by a member who has been duly recognized by the chair. There are a number of unwritten rules in this regard but in the last analysis the speaker may recognize only persons whom he desires to have speak. Thus, congressmen who are not of the speaker's party may be kept for making themselves heard upon important measures. When a bill is before the House the chairman of the committee in charge of the measure usually hands the speaker a list of congressmen who are to be heard upon the floor. By recognizing only those whose names appear on this list the speaker may confine the discussion to members who are favored by himself and his party. The speaker has the power to decide points of order and otherwise to deal with such obstructions to legislative business as the filibustering tactics of the minority party. Often this power is exercised in connection with the quorum. The quorum or number of members who must be present in order that business may be transacted is fixed by the constitution as a majority of each House. Formally, it was the habit of the minority members to remain silent at roll call so that if several members of the majority party were absent it might be that no quorum would appear. In such a case legislative business would be blocked. But in 1890 speaker Reid adopted the practice since becoming variable. Of counting as present members actually in the House whether or not they respond to their names at roll call. The speaker also checks filibustering by disregarding all motions and appeals which he thinks are made simply for the purpose of obstructing legislative business. 553 the committee on rules of great importance in the House is the committee on rules. This committee has the power to decide upon the order for considering bills and to determine the length of debates. It also determines the time when the vote shall be taken. This it does by reporting a rule. That is to say by presenting a report as to the time and conditions under which the House shall consider a measure. This report takes precedence over all other business. Thus the fate of a bill may be determined by the committee on rules. Previous to 1910 this committee consisted of the speaker into majority into minority members named by the speaker. But in the 61st Congress there occurred what has been called the Revolution of 1910. This revolution opposed Speaker Cannon's policy of using for personal and partition purposes his power to appoint the other members of the committee on rules. As the result of a violent agitation the House finally placed marked restrictions upon the speaker's control over the committee. The membership of the committee on rules was increased first to 10 and then to 12. Of these 12 members eight belonged to the majority party and four are minority members. The committee is no longer chosen by the speaker but is selected by the House itself. The speaker is even excluded from membership in the committee. 554 the Congressional Committee System. In both houses of Congress the assembly is divided into a number of committees each of which is charged with the consideration of legislation dealing with particular subjects. Previous to 1911 the speaker appointed all House committees but since that date all committees have been chosen by the House as a body. Though in practice the decisions are made by the caucuses of the majority and minority parties held just before the organization of the House. Similarly the Senate chooses its own committees from the lists drawn up by the caucuses of the two political parties. In either House the minority party has such representation upon committees as the majority party chooses to allow. There are in the House more than 50 of these committees while in the Senate that number is even larger. In the House of representatives the more important committees are those own rules, ways and means, appropriations, judiciary, banking and currency, interstate and foreign commerce and rivers and harbors. Part B the making of a federal law. 555 How legislation is initiated? The course of congressional legislation may be illustrated by following a bill through the House of representatives. Any member of the House may introduce a bill by filing it with the clerk. The title of the bill is printed in the journal and record. This is constituting a first reading. The bill is then delivered to the speaker who refers it to the proper committee. Once a bill has been passed to the committee its fate rests largely with that body. The committee may confer with certain administrative officers. Listen to individuals interested in the subject, summon and examine other persons and then reach a decision upon the bill. The committee may amend the bill as it pleases. If unfavorable to the measure the committee may report it adversely or too late for legislative action. Indeed, it may even fail to report it at all. Theoretically, the House may overrule the committee's decision on a bill but so generally are the committee's recommendations followed by the House that the adverse action of the committee virtually kills a bill. 556 The bill is reported to the House. Let us suppose that the committee reports the bill back to the House. The measure is then placed upon a calendar and here awaits its turn unless the committee on rules sees fit to direct the immediate attention of the House to it. The second reading is an actual and full reading of the bill for the purpose of allowing amendments to be offered. After the second reading which may result in the adoption of amendments the speaker puts the motion. Shall the bill be engrossed and read a third time? Debate is then in order. If the vote which follows is in the affirmative the bill is read a third time but only by title. The question of passage is put by the speaker immediately after the third reading. 557 Debate upon the bill. Debate in the House of Representatives has little influence upon most bills. The fate of a measure being practically determined by the committee considering it. Most speeches are frankly intended for political purposes and for circulation in the congressional record rather than as actual and positive influences upon the bill which is being discussed. Debate in the House is limited in several ways. No member may spend more than an hour in debate upon any question except the member in charge of the bill. This member may have an additional hour at the close. In the committee of the whole speeches are limited to five minutes. No member may speak more than once on the same subject without special permission from the chair. The single exception to this rule is the member who has introduced the bill. Before debate begins the chairman of the committee in charge of the bill arranges in consultation with the speaker a list of members who are to be heard upon the bill. No other members are ordinarily recognized by the speaker in the ensuing debate. After a certain amount of discussion the member in charge of the bill will generally move the previous question in order to cut short the debate and bring the House to a direct vote upon the question. 558. The vote. In the House voting may be by any one of three methods. Voting may be by sound of voices in this case the speaker calls in turn for the yays and nays and decides by the volume of the sound whether the motion has been carried or lost. This is usually the first method employed but either of the other two methods may be demanded before or after voting by the sound of voices has been employed. Voting may be by tellers when this is decided upon the members passed between tellers appointed by the speaker those in the affirmative first and are counted. This method requires the demand of one-fifth of a quorum. Voting may be by yays and nays in this event the clerk calls the roll and each member as his name is reached answers I or no the vote then being recorded. The constitution provides that one-fifth of the members present may demand the yays and nays since it takes a long time to call the roll of the House demands for roll calls are frequently employed by minorities with the intent of obstructing legislative business. Five-fifty-nine the bill goes to the Senate. A bill defeated in the House never reaches the Senate of course but if it receives a majority vote in the House it is engrossed and sent to the Senate. Here the bill goes through practically the same stages as in the House. Footnote in the Senate however debate is unlimited end of footnote. If the Senate rejects the bill the measure is dead. If the Senate passes the bill without amendment it is returned to the House and enrolled on parchment for signature by the President. If the Senate amends the bill the bill and the attached amendments are returned to the House. If the House disagrees with the proposed changes it may either ask for an interhouse conference or it may simply send a notice of its disagreement to the Senate. In the latter case the Senate either reconsideres its amendments or asks for a conference. In case of a conference each House appoints an equal number of managers who arrive at some sort of compromise and embody this in a report. This report is acted upon by each House in separate session. 560 the bill goes to the President. Bill is killed in Congress never reached the President but a measure duly approved by both Houses is then sent to the Chief Executive for his approval. If he signs it the bill becomes law. If he does not approve it he may return it with his objections to the House in which it originated. If this House votes for the passage of the measure by two-thirds of majority and if this action is concurred in by the other House the measure becomes a law over the veto of the President. If the President neither signs nor returns the measure within 10 days it automatically becomes law. However measures reaching the President during the last 10 days of the Congressional session become law only if signed by him. His failure to sign a bill reaching him under these circumstances constitutes a pocket veto. End Chapter 43 Chapters 44 and 45 of problems in American democracy. This is a LibriVox recording all LibriVox recordings for more information or to volunteer please visit LibriVox.org This reading by Allison Hester of Athens, Georgia. Problems in American democracy by Times-Williamson Chapter 44 The Federal Courts Part A Framework of the Federal Courts 561 Constitutional Basis of the Federal Judiciary The Federal Constitution makes only slight reference to the structure of the federal courts. It merely provides that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. In accordance with this provision Congress in 1789 passed the Judiciary Act which still forms the basis of our federal judicial system. The Judiciary Act provided for the organization of the Supreme Court and also created a system of circuit and district courts. It likewise distributed federal jurisdiction among the three grades of courts, established the Office of Attorney General and provided for a federal marshal in each judicial district. In order to relieve the Supreme Court of part of its appellate jurisdiction Congress in 1891 created nine circuit courts of appeals. In 1912 Congress abolished the circuit courts which had been established by the Act of 1789. At the present time thus there are three grades of federal courts. The Supreme Court nine circuit courts of appeals into 81 district courts. In addition there are several special federal courts. 562 federal judicial agents. All federal judges are appointed by the president subject to confirmation by the Senate. They hold office for life or during good behavior. Since federal judges can be removed from office only by impeachment they are relatively independent both of the appointing power and of the popular will. Judges receive salaries which may be increased but which cannot be diminished during their term of office. Each of the eight associate judges of the Supreme Court receives an annual salary of $14,500 while the Chief Justice receives $14,900 a year. Circuit judges receive a salary of $7,000 a year. Each district court judge receives $6,000 a year. Upon reaching the age of 70 years any federal judge who has held his commission for at least 10 years may resign and continue to draw full salary during the remainder of his life. Some additional judicial agents may be mentioned. In each federal judicial district there is a United States Marshall who is charged with the duty of enforcing the orders of the court. There is also in each district a federal prosecutor who has the title of United States district attorney. It is this officer who institutes proceedings against persons violating federal law. Both marshals and district attorneys work under the direction of the Attorney General of the United States. 563 the Supreme Court. At the head of the federal judicial system stands the Supreme Court. This tribunal holds its annual sessions at Washington DC usually from October until May. By far the most important business coming before this court involves questions of constitutional law. Footnote jurisdiction over questions of constitutionality is a form of appellate jurisdiction. In addition the Supreme Court has original jurisdiction in one cases affecting diplomatic and consular offices and two cases to which a state is a party. In practice however the original jurisdiction of the Supreme Court has been relatively unimportant. End of footnote. Cases involving questions of constitutionality are always brought up to the Supreme Court from either the lower federal courts or from the state courts. Cases of this kind are brought before the Supreme Court either on appeal or by writ of error. When a case is submitted to the Supreme Court each justice makes an independent study of it and a conference is then held in which the various sides of the question are discussed and a decision reached. The Chief Justice then requests one of his colleagues to prepare the opinion of the court containing the conclusions reached by the majority. In important cases the disagreeing minority prepares a dissenting opinion setting forth their reasons for believing that the case should have been decided otherwise. This dissenting opinion does not however affect the validity of the decision reached by the majority of the Justices. 564 The Circuit Court of Appeals The United States is divided into nine circuits in each one of which a Circuit Court of Appeals exercises jurisdiction. The Circuit Court consists of three judges. As a general proposition this court has appellate jurisdiction to review the decisions of the district courts. But in some instances cases may be taken from the district courts directly to the Supreme Court of the United States. In cases in which jurisdiction results from the fact that the suit is one between an American citizen and an alien or between citizens of different states in the Union the decision of the Circuit Court of Appeals is generally final. The jurisdiction of this court is also final in all cases arising under the revenue, patent and copyright laws of the United States. 565 The District Court The lowest of the regular federal courts is the district court. One of these courts exists in each of the 81 districts into which the country is divided. For each district court there is generally a separate district judge who holds court at one or more places within the district. The matters which may be brought before a federal district court are various. Among other things the jurisdiction of the court extends to all crimes and offenses cognizable under the authority of the United States. Cases arising under the internal revenue postal and copyright laws proceedings in bankruptcy all suits proceeding arising under any law regulating immigration and also all suits and proceedings arising under any law to protect trade and commerce against monopoly. 566 Special Federal Courts Besides the three sets of federal courts described above Congress has from time to time created a number of special courts. The court of claims was created in 1855. It consists of five justices sitting at Washington and exercising jurisdiction over cases involving claims against the United States. In 1911 Congress created the Court of Customs Appeals consisting of five judges who may review the decisions of the Board of General Appraisers with respect to the classification and taxation of imports. Congress has also provided a system of territorial courts to handle cases arising in the territories and in the District of Columbia. Courts Marshall for the trial of military and naval offenses have also been provided for by Congressional statute. Part B The Federal Courts in Action 567 Jurisdiction of the Federal Courts The Federal Courts exercise limited rather than general jurisdiction that is to say they have authority to try only such cases as are specifically placed within their jurisdiction by the Constitution or by Congressional statute. Cases falling within the jurisdiction of the Federal Courts may be grouped under two heads. First, cases affecting certain parties or persons. And second, cases relative to certain matters. Under the first head may be grouped cases affecting ambassadors, other diplomatic representatives and consuls. In the same group are controversies to which the United States is a party. Controversies between two or more states. Controversies between a state and the citizen of another state. Controversies between citizens of different states. And controversies between a state or the citizens thereof in foreign states. Citizens or subjects thereof. Under the second head fall three types of cases. First, controversies between citizens of the same state claiming lands under grants of different states. Second, cases of admiralty in maritime jurisdiction. And third, cases in law or equity arising under the constitution or laws of the United States or treaties made under their authority. Five sixty eight, the writ of habeas corpus. In the exercise of their judicial functions, the Federal Courts may have the power of issuing three great rites affecting the rights of citizens. Of these, the most famous is the writ of habeas corpus. This writ is designed to secure any imprisoned person to the right to have an immediate preliminary hearing for the purpose of discovering the reason for his detention. Where the writ is properly issued, the prisoner is brought into court for a summary examination. If it is found that he has been detained in violation of law, he is released. If not, he is remanded for trial. Federal judges may not issue rites of habeas corpus indiscriminately. A writ can only be issued in the following cases. First, when a prisoner is in jail under federal custody or authority. Second, when an individual is in jail for some act done or admitted in pursuance of a law of the United States or the order, process or decree of some federal court or judge. Third, when an individual has been detained for cause of violation of the Constitution or some law or treaty of the United States. And fourth, when a citizen of a foreign country claims to be imprisoned for some act committed with the sanction of his government. 569, the writ of mandamus. The writ of mandamus may be used against public officials, private persons and corporations for the purpose of forcing them to perform some duty required of them by law. Properly used, the writ of mandamus is called into action to compel executive officers to perform some administrative duty. The court will not intervene, however, where the duty is purely discretionary and its performance dependent either upon the pleasure of the official or upon his interpretation of the law. Usually, the applicant for a writ of mandamus must show that he has no other adequate legal remedy and that he has a clear legal right to have the action in question performed by the officer. 570, the writ or bill of injunction. This writ may be of several distinct types. It may take the form of a mandatory writ, ordering some person or corporation to maintain a status quo by performing certain acts. For example, striking railway employees may be ordered to continue to perform their regular and customary duties while remaining in the service of their employer. The injunction may take the form of a temporary restraining order forbidding a party to alter the existing condition of things in question until the merits of the cases have been decided. This is often used in labor disputes. Sometimes the writ is in the form of a permanent injunction, ordering a party not to perform some act. The results of which cannot be remedied by any proceeding in law. This too has often been used in labor and disputes. 571, judicial interpretation of the statutes. The crowning feature of the American judiciary is its power to pass upon the constitutionality of state and federal laws. The constitution does not give to the courts the power to declare state or federal statutes invalid on the ground that they may conflict with the federal constitution. But in the famous case of Marbury versus Madison in 1803, Chief Justice Marshall demonstrated that under the constitution the Supreme Court must possess the power of declaring statutes null and void when they conflict with the fundamental law of the land. In deciding against the validity of a law, the court does not officially annul it but merely refuses to enforce the statute in the particular case before the court. Thereupon, the executive officials who might be charged with the administration of that particular law neglect to enforce it. 572 General Policy of the Federal Courts The federal courts have consistently refused to decide abstract questions not presented in the form of a concrete case between parties to an actual suit. The Supreme Court for example will take no notice of a statute until the question of its constitutionality arises in the form of a concrete case. The federal courts have consistently refused to interfere in purely political questions the decision of which rests with executive or legislative authorities. For example, the court will not touch questions of the existence of war or peace or the admission of a new state into the union. In reaching a decision two forces are brought First, the character of the previous decisions in similar or analogous cases influences a decision. Second, important consideration is given the demands of justice or equity in the particular case in hand regardless of precedent. Generally speaking, judicial decisions strike a course midway between these two extremes. End of chapter 44 Chapter 45 State and Local Government Constitutional Basis of State Government 573 Constitutional Limitations on State Governments Under the Articles of Confederation the states exercised practically sovereign powers. In the interests of a strong national government the Constitution adopted in 1789 distinctly limited the scope of state government. The federal constitution transferred many important powers from the states to the federal government and imposed certain specific limitations upon state governments. The more important of these limitations are as follows. No state may without the consent of Congress lay or collect imposts or duties upon exports and imports. The single exception to this constitutional prohibition is that a state may lay such imports or duties as are absolutely necessary for executing its inspection laws. No state may lay a tonnage duty without the consent of Congress. No state may levy attacks on the property, lawful agencies or instrumentalities of the federal government. This is not a constitutional limitation but was deduced by Chief Justice Marshall from the nature of the federal system. In recent years, however, this doctrine has been modified to mean that no state may tax a federal instrumentality if such a tax would impair its efficiency in performing the function which it was designed to serve. States may legislate concerning local commercial matters but no state may interfere with interstate commerce. No state may pass any law impairing the obligation of contracts. The states have practically no control over the monetary system. They may not coin money, emit bills of credit or make anything but gold and silver coin legal tender. States may charter and regulate state banks. However, it may also authorize a state bank to issue notes for circulation. No state may make or enforce any law which abridges the privileges or immunities of citizens of the United States. No state shall pass any bill of a tanger by which is meant a legislative act which inflicts punishment upon some person without ordinary judicial trial. Nor may any state pass an ex post facto law that is to say a law which imposes punishment for an act which was not legally punishable at the time when it was committed. Lastly, no state may deprive any citizen of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of law. 574 powers of state governments. Federal law is the highest law of the land and no state constitution state statute or local law or ordinance may contraven it. But beyond this restriction the authority of the state is supreme. Just as state government must defer to federal authority so local government is subservient to state authority. Just as the federal supreme court may declare unconstitutional any executive or legislative act either of the national state or local authorities so the supreme court of any state may declare null and void the acts of state or local authorities which conflict with its constitution. Though they are limited by the federal constitution in matters which are preeminently national the states reserved to themselves a vast body of authority. Almost all of the ordinary activities of life are controlled by state or local governments rather than by the federal government. 575 classification of state constitutions according to age. Each of the 48 states in the union has a written constitution to bring out the fundamental similarities and differences among the various state constitutions. These documents may be classified in two ways. First as to age and second in the light of democratic development. If state constitutions are classified on the basis of age it will be noted that the constitutions of Massachusetts, Connecticut, Rhode Island and other New England states show signs of having been strongly influenced by colonial precedents. Next come constitutions which inform and general consent stand midway between the earlier New England constitutions and those of more recent years. The constitutions of New York 1894 Pennsylvania 1873 Indiana 1851 Wisconsin 1848 Kentucky 1891 Minnesota 1857 and Iowa 1857 are examples. Next come those constitutions of the southern states which have been revised within the last quarter of a century. Finally we may note that California Oregon Oklahoma and a few other western states have recently drafted new constitutions in which there has been a more or less radical departure from the precedents set in the older Commonwealths. 576 classification of state constitutions in the light of democratic development. Between 1776 and 1800 American state constitutions were generally brief and conservative. Between 1800 and 1860 the growing tendency toward democratic control resulted in the formation of state constitutions which were more and more liberal. During this period fear of the masses was superseded by distrust of the executive and an unbounded faith in the people acting in their collective capacity. The suffrage was extended. The governor and often state judges came to be elected by direct vote and the power of the state legislature was enlarged. After 1860 there was a reverse movement. This was due partly to a growing faith in the executive and partly to a reaction against the abuse of power by state legislatures. Particularly the more recent state constitutions have limited the power of the state legislature increase the power of the executive provided for the centralization of the state administration and shorten the ballot. The present tendency among state constitutions is to continue in the direction of the above mentioned reforms. The parts of a state constitution 577 the Bill of Rights A vital part of a state constitution is the Bill of Rights roughly corresponding to the first 10 amendments to the federal constitution. Generally the Bill of Rights affirms the principle of Republican government maintains that all powers are inherent in the people and declares that all free government is formed by the authority of the people. A typical Bill of Rights also provides that the laws of the state shall not be suspended except by the legislative assembly and includes the traditional limitations on behalf of private rights. These include the right of free speech the right to jury trial the free exercise of religious worship the right to peaceably assemble and petition the government for redress of grievances the privilege of the writ of hapious corpus accepting case of rebellion invasion or public danger the prohibition of excessive bail and cruel and unusual punishments and compensation for private property when taken for public use. 578 the framework of the government a second part of a typical state constitution deals with the distribution of powers the limitations upon state officials and other elements in the framework of government especially in the more recent constitutions is the form of state government outlined in considerable detail in addition to providing a system of checks and balances by separating the executive legislative and judicial powers of state government this part of the constitution defines and limits the suffrage provides for the organization of state legislature and prescribes the limitations under which the legislature must operate the election of the governor and other important state officials is provided for as is the relation of rural and municipal government to the state government this part of the constitution likewise creates the state judicial system though the regulation of details with regard to jurisdiction procedure and appeals is generally left to the discretion of the state legislature 579 state finances a third division of a typical state constitution places a number of limitations upon the financial powers of the state legislature these provisions are often detailed and complicated and hence are difficult to summarize their general purpose however is to fix a debt limit beyond which the legislature cannot go and to compel that body to make adequate provision for the payment of interest and principle in the case of debts which shall be incurred 580 control of economic interests the more recent state constitutions provide in considerable detail for the regulation of economic interests within the state the activities of industrial organizations are often narrowly restricted in many states the constitution provides for a corporation commission with large powers in the regulation of rates and charges as well as general supervision of corporate business many recent constitutions specify the conditions under which women and children may be employed in industrial establishments 581 provision for the general welfare an increasingly important part of the state constitution deals with the general welfare such vital concerns as the public school system are dealt with in a typical western state for example the constitution requires the legislature to provide free instruction in the common schools of the state for all persons between the ages of five and twenty-five the same document sets aside certain revenues for educational purposes the safeguarding of public health in detailed provision for the creation and maintenance of public institutions for the dependent defective and delinquent classes are other concerns of this part of the state constitution 582 provision for amendment in about two-thirds of the states the constitution provides for its own amendment by a constitutional convention composed of delegates elected by the voters of the state the convention method is universally employed when a new constitution is desired sometimes the state constitution provides for the holding of such conventions at regular intervals but generally the initiative is left to the legislature when by vote or resolution this body declares in favor of a convention the proposition is placed before the voters if a majority of these favor the project the legislature arranges for the election of delegates and fixes the time and place for the convention sessions after the convention has completed its work it is customary for the new constitution to be submitted to the people before approval another common way of amending the state constitution found in every state except new hampshire is through legislative action subsequently ratified by popular vote by this method separate constitutional amendments may be adopted without necessitating a wholesale revision of the constitution such individual amendments are usually proposed by the legislature and are later submitted to popular vote in some states only a majority vote of the legislature is required for the proposal of amendments but ordinarily a special majority of two-thirds or three-fourths of the members of each house is required in a few states amendments cannot be considered until they have been proposed by two successive legislatures after the amendment has been proposed for the second time it must be ratified at the polls within the last decade several states particularly in the west have adopted a more direct method of amending the constitution this is through initiative and referendum in oregon for example eight percent of the legal voters may petition for a proposed amendment to the constitution the proposal is then submitted to the voters and if it receives a majority of all votes cast it becomes part of the state constitution arizona arkansas california colorado michigan missouri nebraska novata north dakota and other states allow this type of constitutional amendment end of chapter forty five chapters forty six and forty seven of problems in american democracy this is a libra vox recording all libra vox recordings are in the public domain for more information or to volunteer please visit libravox.org this reading by allison hester of athens georgia problems in american democracy by times williamson chapter forty six the state executive a the governor five eighty three the election of the governor in every state in the union the governor is elected by popular vote in most of the states this election takes place together with that of other state officials on the tuesday following the first monday in november usually a gubernatorial candidate is required to be at least thirty years of age he must be a united states citizen and also a resident of his state of at least five years standing the governor's term varies from two years in massachusetts to four years in more than twenty states in general the term of office is increasing the average salary received by a state governor is five thousand dollars a year five eighty four limitations upon the governor a number of factors operate to limit the power of the state governor the federal constitution limits his authority by declaring that persons charged with crime in and escaped from a neighboring state must be delivered up to the executive authorities of the state in which the crime is charged to have been committed the executive power of state government is not concentrated under the governor but is shared by the governor with a host of administrative officials many of these officials are elected directly by the people and cannot therefore be held accountable by the governor furthermore the actual execution of the state laws rests primarily with municipal and other local officials and over these officers the governor has little or no control the express powers of the president of the united states have been rather liberally interpreted by the courts but the powers of the state governor have generally been construed in a narrow and literal sense in many states the power of the governor rarely or never extends beyond the express limits imposed by the state constitution five eighty five executive powers of the governor the governor is charged by the state constitution to see that the laws are faithfully executed this is similar to the chief duty of the president of the united states but whereas the president is aided by subordinate administrative officials over whom he has complete control the governor must act through a large number of state and local officials over whom he has little effective control of some value however is the power of the governor to exercise general supervision over the various executive officers of the state he enjoys in addition the power to appoint many of the subordinate administrative officials usually these appointments must be confirmed by the upper house of the state legislature in most cases the governor cannot remove officials so appointed without the consent of the senate or council the governor is commander in chief of the armed forces of the state and when the regular officers of the law are unable to cope with domestic violence he is empowered to call out the militia in this connection the governor has the power of suspending the writ of habeas corpus though most states declare that this writ may not be suspended except in times of rebellion and invasion two or three states have recently provided that the writ of habeas corpus may not be suspended in any case whatsoever five eighty six legislative powers of the governor in general the governor occupies the same relation to the state legislature as does the president toward congress thus the governor may send periodic messages to the legislature and may recommend such legislative measures as he believes desirable the governor often communicates with the legislature concerning the financial condition in needs of the state the governor may also call special sessions of the state legislature for the consideration of urgent matters in case the two houses of the legislature are unable to agree for a time for adjournment the governor may adjourn the state legislature in one respect the governor's power of veto exceeds that of the president for in about two-thirds of the states the governor may veto individual items and appropriation bills this privilege is denied the president who must accept or reject a bill as a whole like the president the governor influences legislation through his relations with the leaders of his party in the legislature as well as through his power of the patronage five eighty seven judicial powers of the governor in almost every state the governor has considerable control over the issuance of pardons and reprieves in the case of all offenses committed against the state in some states the power to issue pardons and reprieves is exercised with the consent of the state legislature in other states the governor shares this power with a board of pardons in a few states the governor may act alone five eighty eight the tendency of the governor's power to increase the earlier state constitutions tended to restrict the powers of the governor and to extend liberal grants of power to the state legislature of recent years the abuse of legislative power has tended to encourage suspicion of the legislature and a growing confidence in the governor as a consequence the governor's term is in many states increasing in the effort to shorten the ballot and concentrate responsibility for the state administration upon someone official various states are increasing the point of power of the governor in a few states the governor now has authority to make special inquiries into the workings of the various executive departments with a view to checking inefficient and irresponsible methods of work in some states the governor's share in budget making is increasing in the majority of states the general tendency toward a shorter ballot the reorganization of the state administration and other methods of reforming state government will probably continue to enlarge the power and influence of the governor part b the state administration five eighty nine the older group of administrative officers aside from the governor the administrative officers of the state fall into two groups first the older officers who are relatively few and who are almost always elective in second the newer officers boards and commissions who are relatively numerous and who may be either elective or a point of the first group comprises such officers as the lieutenant governor the secretary of state the state treasurer the auditor or comptroller and the attorney general these older officers are usually elected at the general state election for a term varying from state to state these officers are not under the control of the governor but fulfill duties prescribed by the constitution and are responsible only to the people and to the courts they may be and often are of a different political party than the governor and since they are not under the control of that official they often work at cross purposes with him this lack of coordination is in striking contrast to the harmony of action existing between the president of the united states and the heads of the federal executive departments five ninety the newer group of administrative officers as state government has increased in complexity the older group of administrative officers has been supplemented by the addition of a large number of new officers these newer administrative officials are quite numerous but their general character may be indicated by dividing them into two classes the first class includes individual officers such as for example a superintendent of prisons state architect a state historian a commissioner of health a food inspector a geologist a commissioner of corporations a commissioner of banking a superintendent of public works and a state surveyor besides individual officers the newer group of administrative officials includes a large number of boards and commissions which have been created by the state legislature and endowed with large powers for the study and control of specific matters the following boards and commissions are examples of the second class a state civil service commission a tax commission a board of charities and correction a water supply commission a tax equalization board a quarantine commission a voting machine commission a board of pharmacy a highway commission and a public service commission five ninety one defects of state administration the enlargement of the state administration by this creation of numerous individual offices boards and commissions indicates an attempt on the part of state governments to grapple with the problems of democracy nevertheless this rapid growth of state administration has had serious consequences once created many of the newer officers have attempted to perpetuate themselves state legislatures have been harassed by boards and commissions seeking unnecessary appropriations politicians without expert training or ability are often placed on boards and commissions dealing with technical matters responsible and efficient state government is rendered difficult by the inability of the governor effectively to control the few elective officials who constitute the older group of administrative officers an even greater difficulty arises from the creation and expansion of the newer group of officers the excessive number of individual officers boards and commissions makes for inefficient and irresponsible government some of these officials are elected by the people others are appointed by the governor their terms vary so widely that as professor beard had pointed out the appointing power never has an opportunity to make a clean sweep and introduce more efficient administrative methods there is little or no coordination between the various administrative offices and very little centralization of responsibility five ninety two the state of civil service the spoil system has long constituted a defect not only in the federal government but in american state government as well and as is in the case of the national government this evil has been attacked primarily through the merit system new york state led the way in eighteen eighty three by passing a comprehensive civil service act this law provided for a commission authorized to cooperate with the governor and preparing rules classifying the state civil service and conducting the examinations for the positions to be filled since then massachusetts wisconsin colorado new jersey california ohio illinois and other states have adopted some type of civil service system state civil service laws are largely modeled after the national civil service act of eighteen eighty three in most of the legislating states laws of this type provide for competitive examinations of a practical nature they prohibit political and religious interrogatives they forbid the assessment of holders of civil service positions for political purposes appointment and promotion are upon the basis of merit although as is in the case of the federal civil service the standards for judging the character and capacity of individual office holders have not yet been perfected and of chapter forty six chapter forty seven the state legislature five ninety three structure of the state legislature the representative branch of state government is known under different names in various states but the term state legislature is in more or less general use the state legislature is invariably a two-chambered body the upper house is the smaller and is called the senate while the lower and more numerous branch is variously known as the house of representatives house of delegates or assembly usually the state senate differs from the lower house in certain important particulars the senatorial districts from which members of the upper house are elected are always larger than are the districts from which members to the lower house are chosen senators are usually chosen for longer terms than our representatives as in the case of the national senate the senate in most states is made a continuous body by the provision that its members shall begin their terms at certain periodic intervals in the lower house of the state legislature on the other hand all of the members take their seats at the same time five ninety four basis of representation for the purpose of electing members of the state legislature practically all of the states are divided into numerous senatorial and representative election districts some states apply the rule that representatives in the state legislature shall be apportioned among districts containing practically an equal number of inhabitants other states however provide exceptions to this rule for example, Alabama, Florida, New York and other states provide that each county shall have at least one member in the house often the result of this arrangement is that the smaller or more sparsely populated counties are over represented in the state legislature while the more populous counties are under represented several states notably Connecticut and Vermont arrange representation in the state legislature so that with respect to overpopulation cities are under represented and rural districts are over represented five ninety five membership the state constitution determines the qualifications for those who are entitled to vote for state legislatures footnote for an enumeration of these qualifications see chapter thirty three section four fifteen into footnote generally anyone qualified to vote for a state legislator is also eligible to membership however holders of both federal and state offices are excluded from sitting in the state legislature in some states the term of a senator is the same as that of a representative but generally senators are elected for a longer term than our members to the lower house representatives are generally chosen for two years senators for four in all states members of the legislature are paid either a fixed annual salary or a per diem allowance based upon the length of the legislative session in most states senators and representatives receive equal compensation all state legislators are privileged from arrest or civil process during the session in addition they enjoy the usual privilege of free speech in their official capacities five ninety six organization formally state legislatures met annually but at present the great majority convene only once in two years in the effort to cut down the amount of superfluous legislation a number of state constitutions now restrict the legislative session to from forty to ninety days the legislature may adjourn itself to meet later in special session or the governor may call special sessions the governor may adjourn the legislature if the two houses fail to agree upon a time for adjournment in an internal organization the state legislature resembles congress except that the lieutenant governor is often the presiding officer of the senate each house chooses all of its own officers each house determines its own rules of procedure and keeps a journal of its proceedings in addition each house exercises the right of deciding upon the qualifications of its members and disciplines and punishes its members for misconduct as in the national legislature work is expedited by the committee system the party is a dominant force in the state as well as in the national legislature five ninety seven powers of the state legislature the lawmaking powers of the state legislature extend practically to all subjects the presumption is that this body has a right to legislate upon any subject unless specific prohibitions have been imposed upon it by either the federal or the state constitution the federal constitution forbids any state legislature to emit bills of credit coin money or pass laws impairing the obligation of contract neither bills of a tanger nor ex post facto legislation may be enacted by state legislature the federal constitution likewise declares that state legislatures may neither abridge the privileges and immunities of citizens of the united states nor deprive persons of life liberty or property without due process of law no state may deny to any person within the state jurisdiction the equal protection of the laws restrictions imposed by the state constitution fall into several groups these include restrictions in favor of trial by jury religious freedom and other privileges usually invited in a bill of rights provisions controlling the grant of special favors to corporations restrictions upon the financial powers of the state legislature provisions defining the framework of state government and prohibitions upon the power of the legislature to pass special and local laws footnote a special or local law is one which applies to some particular individual or corporation or to some particular city county or other locality prohibitions upon special and local laws are necessary in order to prevent the legislature from extending special favors to particular individuals or localities end of footnote 598 how a state law is made bills may originate in either house of the state legislature except that in most states money bills must originate in the lower chamber to illustrate law making in the state legislature let us assume that a bill is introduced in the lower house this may be done by any one of several methods any member of the house may deposit a bill in a box near the speaker's desk sometimes a bill is introduced by the report of a committee or even by a messenger from the senate when the bill has been introduced it is given a first reading with the consent of the house the speaker then refers the measure to the appropriate committee the adverse report of the committee generally kills the bill but if the bill is favorably reported and this report is approved by the house the bill is placed on the order of second reading and is debated section by section unless by unanimous vote it is advanced to the third reading if the bill passes the second reading it is generally referred to the committee on revision it is then engrossed reported back to the house for a third reading and the final vote sometimes the yeas and nays of this final vote are entered upon the journal so that the responsibility may be fixed upon each member the bill then goes to the senate where the procedure is very much like that of the house except that the committee of the whole sometimes takes the place of the order of the second reading as conducted in the house 599 the bill goes to the governor in every state except north carolina a bill which has passed both branches of the legislature must then go to the governor for approval if this officer signs it it becomes law if he disapproves it he returns it with his objections to the house in which it originated in spite of this objection by the governor the legislature may enact the measure into law if a sufficiently large majority in each house votes in favor of the bill this majority is usually two-thirds of the members in each house generally the governor has a ten day period in which to consider bills if a bill is not returned to the legislature with his objections within this period it automatically becomes law without his signature unless the adjournment of the legislature prevents its return to that body in most states the governor has the important privilege of vetoing particular items and appropriation bills while sanctioning the rest of the measure 600 defects in state legislation there is among students of american government a general agreement that the legislative procedure of the various states evidences a number of serious defects one of these defects is the absence of responsibility any member of the state legislature may introduce as many bills as he likes but he need not assume responsibility for any of them another serious evil is the lack of experience and technical skill on the part of the legislators legislators are frequently ignorant of the subject matter with which they are called upon to deal there is a tendency for legislators to ignore the effect of a new statute upon the existing body of law nor is the constitutionality of the measure contemplated always taken into account ill-advised and pernicious legislation is the result log-rolling and lobbying constitute another defect of state legislation log-rolling leads to the passage of numerous bills without their adequate scrutiny by individual members and without either individual members or legislative committees assuming responsibility for those measures the pressure exerted upon state legislatures for legislation favoring special interests is still great 601 the reform of legislative procedure a few states have attempted to overcome the lack of technical information on the part of legislators by providing for expert bill drafters in new york for example the state legislature has been provided with a number of competent bill drafters whose duty it shall be during the session of the legislature to draw bills examine and revise proposed bills and advise as to the legal effect of any legislation these bill drafters may be set to work on the request of either house or of a committee member or officer thereof a large number of states now have a legislative reference bureau which keeps a careful record of the laws passed in the various states of the union this bureau maintains a library and issues bulletins for the guidance of legislators in 1909 wisconsin created the office of reviser this officer keeps a loose leaf system of laws and collects court decisions affecting statutes at the beginning of each session this officer also presents to the committees on revision of each house of the legislature bills providing for such consolidation and revisions as may be completed from time to time the reviser supervises the preparation printing and binding of such compilations of particular portions of the statutes as may be ordered by the head of any state department there is an increasing tendency to curb lobbying in state legislatures the laws of new york and wisconsin may be taken as typical the state of new york provides that every person retained or employed for compensation as a council or agent by any person firm corporation or association to promote or oppose directly or indirectly the passage of any bill of resolution must be registered every year in the office of the secretary of state and must give the name of the person by whom he is retained the wisconsin law provides that legislative agents or councils may not attempt to influence members privately but must confine themselves to arguing before committees and filing printed briefs with the members of the legislature end of chapter forty seven