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going treatment of the subject which will impose on the governor the duty of formulating, submitting and defending money measures will solve the problem of securing economy and responsibility in the appropriation and management of public funds.*



Not only is the constitution lacking in the essentials for developing leadership, but it is also wholly lacking in provisions for enforcing responsibility. In the discussion of the "electorate" and "the organization and procedure of the legislature," it was pointed out that no means has been provided for defining and submitting issues to the voters. (Above, pp. 21-24.)

No Provision for Making the "Opposition" Effective

As has been shown, the organized official agency of the state for formulating and discussing issues and matters of public policy and administrative proposals is the legislature—an independent elected body representing constituencies. It has also been shown that responsible leadership is necessary to the definition of issues as well as the location of official responsibility. The big principle that has been missed in our constitution making and in establishing the procedures governing the legisla. tive body has been the necessity for making the "opposition" effective, and bringing political criticism to some positive test before the electorate. The Provision for the Prompt Retirement of Officers Who Are Not Supported by a Majority

The principles of responsiveness and responsibility in a representative government both call for a means whereby officers who do not have the support of an undoubted and united majority shall retire. This is true of both public and private management. The methods for making the "opposition" effective are: (1) to put it in a position to prevent executive action that does not have the approval of a majority of representatives, and to prevent legislative action by a majority of representatives that does not have the approval of the executive; (2) to provide for a prompt reference to the electorate in case these two independent branches cannot come to an agreement.

The Power of Executive Dissolution

As in the case of the constitutional provisions for executive leadership we have gone part way and stopped. We have provided for the

*See Proceedings of the New York Academy of Political Science for October, 1914, pp. 141-148, for a more adequate discussion of the subject and for definite constructive proposals.

negative but not for the positive action. An effective way of enforcing both responsiveness and responsibility is to give to the executive power to dissolve the legislative body and at the same time make the executive conform in his action to the decision of the electorate on the issues presented. Not having provided the machinery that is known to operate effectively in both public and private institutions controlled by representative bodies, the makers of American constitutions have again resorted to new and untried expedients-temporized mechanism and various roundabout and laborious procedures for securing responsibility to the electorate.

Historic Reasons for Failure to Adopt Constitutional Plan That Provides for Responsive and Responsible Government

Aside from the fact that the mechanics of responsible government under a representative system had not been developed at the time our political independence was won, the circumstances surrounding the establishment of the republic were unfavorable to a government in which provision was made for enforcing responsiveness and responsibility (see above, pp. 55-58). There had been years of ineffective protest against what was regarded as the unwarranted use of executive power. Following this came the Revolution-a phase of opposition to the reactionary monarch, which in this country brought about national independence, but which in England finally resulted in the establishment of a procedure for establishing and controlling responsible leadership. Without experience to guide them, as a safeguard against usurpation, the American mind became attached to another principle of control, viz.: to render persons in office comparatively harmless by limiting their powers through innumerable checks which hamper positive action but do not prevent neglect, wastefulness and malfeasance.

Provision Made to Prevent a Misuse of the Powers of Government.

No way having been found to make governing agents responsible to the people for the manner in which their powers were exercised, the initial plan of employing constitutional inhibitions and one branch of the government to prevent abuse of power by another was developed to such a degree of complication that it has at last broken down by its own weight and has forced upon public attention the need of change. Nowhere in the world is there such a chaos of conflicting powers, agencies, authorities, officers and jurisdictions.

Use of the Governor as a Negative Force Against the Legislature

At the very beginning of the history of New York as a state fear was expressed lest "laws inconsistent with the spirit of the constitution or


with the public good may be hastily and inadvisedly passed." In 1777, therefore, it was ordained "that the governor for the time being, the chancellor and the judges of the supreme court, or any two of them, together with the governor, shall be and hereby are constituted a council to revise all bills about to be passed into laws by the legislature * * and that all bills which have passed the senate and the assembly shall, before they become laws, be presented to said council for their revisal and consideration; and if upon such revision and consideration, it should appear improper to the said council or a majority of them, that the said bill shall become a law of this state, that they shall return the same, together with their objections thereto in writing, to the senate or house of assembly (in whichsoever it shall have originated), who shall enter the objections sent down by the council at large in their minutes, and proceed to reconsider the said bill." If any bill so returned by the council of revision was repassed by a majority of two-thirds in both houses, it became a law. With a view to preventing unwise legislation the governor was also given the power to prorogue the legislature for a period of not more than sixty days.

These methods of executive control over legislation were abandoned in the constitution of 1821 which swept away the council of revision and vested the straight veto power in the governor. Since that date the chief executive has enjoyed the veto power alone and all of the states of the union except North Carolina have now adopted the principle.

The Use of the Courts as a Negative Force

Between the years 1777 and 1821, however, a radical change had taken place in the growth of the doctrine of judicial control over legislation. A number of state statutes had been declared invalid on constitutional grounds in several of the states before the end of the eighteenth century, and in 1803, Chief Justice Marshall laid down the doctrine in unmistakable language in the case of Marbury vs. Madison, which at once became a precedent for all other courts. As early as 1811 judicial control over legislation was used in New York, in the case of Dash vs. Van Kleech (7 Johns. 477), and five years later Kent blocked the enforcement of an act of the legislature on the ground of its invalidity. From that time forward, the principle that it was the duty of the courts to act as a check on the legislature was applied with increasing frequency.

Almost correlative with this growth of judicial power was the multiplication of specific constitutional limitations on the legislature. In the beginning, almost sovereign power was entrusted to that branch of the government, but by steady process its authority over finances, the affairs of cities, special legislation, and even its own procedure has been cut away until it has lost a large share of its former high prerogatives.

Our System of Checks and Balances

To this system of pitting the governor and the courts against the legislature are added innumerable other devices for breaking and distributing authority and responsibility until no one knows who is responsible for anything, except the unofficial boss, whose tenure usually outlasts that of all the official agents. Among these devices may be mentioned the following:

1. A large variety of methods of appointing administrative officers so that no single agency can claim complete authority.

2. Diversity in the terms of officers, applied also to the legislature where senators hold for two years and assemblymen for

one year.

3. Diversity in the methods of removal, various agencies being
employed singly or in conjunction with one another.
4. Overlapping terms in the same commission or board, so that no
new policies can be speedily adopted.

5. Popular election of some executive officers and appointment of
others equally important.

6. The necessity of constant resort to the courts to determine the
limitations on officers in purely administrative matters.
7. Distribution of kindred functions among many authorities in
order to prevent centralization.

Development of the Irresponsible Boss.

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Operating under the system of checks and balances on the doctrine of "original sin " in politics, that no one can be safely entrusted with any substantial authority-the legislature, through its control over the finances and over the structure and powers of offices and officers, developed an administrative system in which no leadership was contemplated. The result was that a non-official, outside, irresponsible, partisan organization came to have a dominant influence in determining what should be done, and the affairs of state were shaped through what came to be known as the American system of "log-rolling" legislation and "pork barrel politics. This irresponsible leadership has been the most conspicuous factor in the American governmental system for the last 140 years-a system which depends on satisfying the demands of small independent geographical constituencies through representatives whose controlling motives have been to commend themselves to the voters of their locality by furthering schemes for local development and by employing methods styled "invisible government" under the leadership of an irresponsible "boss."

Reaction Against Irresponsibility

During the first century after the Revolutionary War, while each


local constituency represented was striving for capital and population with which to develop natural resources and there was little else than local economic interests to serve, this system, in its various phases called the spoils system," was ardently supported or complacently endured. Later, when (through the development of transportation and the broadening demands for commerce) the constituencies that looked to the government came to comprehend the whole state or the whole nation, and the people themselves found that they must of necessity rely more largely on public institutions for protection and for the promotion of conditions favorable to their comfort and happiness, the methods that grew up as a necessary part of an irresponsible management were resented.

The Adoption of Palliatives to Little Purpose

There can be no doubt as to the widespread dissatisfaction with prevailing political methods. There can be no doubt as to the presence of conditions described. The defects in our system have been so vital as to cause some to question the desirability of retaining the representative system. There have been many advocates of direct control through the electorate. In the popular mind the failures of representative government under our present conditions of operation have been often attributed to the system itself rather than to our own failure to provide the essentials to its successful operation. Here, as in other cases, the reaction of popular dissatisfaction has caused the introduction of new devices, the patching up of an old defective mechanism rather than the remodelling of it in such manner as to adapt it to the work to be done. Out of this dissatisfaction has sprung a large number of constitutional and legislative devices, among which are

1. The direct primary which it was thought would destroy "the boss" and make all party nominees immediately responsible and responsive to the party electorate.

2. The initiative and referendum whereby the actual legal measures embodying the issues of politics can be submitted directly to the voters for their judgment.

3. The recall through which officers not responsive to popular will may be ousted from their places of power.

To attribute the wide extension of these political devices to a temporary wave of radicalism or to a determination to overthrow representative government would be a fundamental error. The most radical and revolutionary parties of Europe have never spent any time or effort in working for such institutional methods. Their wide extension has been due to a sincere quest for a responsible and responsive system of government. As a result, no doubt, it has been possible to get issues before the people and to introduce a certain amount of responsiveness and responsi

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