Constitutionalism and the Separation of Powers

TEN Progressivism and Political Science in America

Constn_251-300.indd 289 9/10/07 12:53:11 AM TEN Progressivism and Political Science in America TH E c oN s TIT uTI o N A L theory of the United States down to the Civil War was dominated by the interaction between the two doctrines of the separation of powers and checks and balances, forming a complex pattern of opposition and interaction , until they both dissolved into a number of tactical political positions with little coherence or consistency. The confused picture of constitutional thought presented in the 184o's and 185o's is indicative of the extent to which neither of these old theories of constitutionalism any longer possessed the ideological fire of an earlier age. Both represented points of view fast becoming inadequate in the face of the tasks of government in the modern world. Yet at the end of the Civil War the formal Constitution of the United States still embodied that combination of the separation of powers and checks and balances which the men of 1787 had devised, and indeed it still does so today. It seemed, therefore, that the triumph of the Union over the Confederacy was a confirmation of the constitutional system not only against the threat of secession, but in its entirety. When Cooley published his Constitutional Limitations in 1868 the work of the Founding Fathers seemed more secure against attack than at any Constn_251-300.indd 290 9/10/07 12:53:11 AM CONSTITUTIONALISM AND THE SEPARATION OF POWERS time since the Convention dispersed in 1787. More important, the Constitution , with its elaborate barriers to the exercise of effective governmental power, suited very well the aims of that group of flourishing big-business men who were to dominate politics in the latter part of the nineteenth century , giving to it the character of the age of the tycoon. The high point of this philosophy of government in an industrial age was reached, perhaps, in 1918, when in the child-labour case the Supreme Court invalidated as unconstitutional the attempt by Congress to limit the hours of work for children in factories to eight hours a day. Nevertheless, the Civil War did mark a turning-point in American political thought, for it ushered in a long, intense period of criticism and attack upon the established constitutional theory, of an unprecedented ferocity, conducted alike by practical politicians, journalists, and academics. The growth of the trusts and the concentration of economic power, the wealth and political influence of a few men, and the nature of politics in what Lippmann has called the twenty dangerous and humiliating years between the death of Lincoln and the rise of Grover Cleveland, called into existence an impressive protest, a demand for reform that built up through the Granger, Greenback, and Populist movements to its climax in Progressivism . This was another of those great democratic revolts against power and privilege which had characterized the modern world since the mid seventeenth century, but now it was a revolt with a different ideological impulse. It was no longer an attack upon oppressive arbitrary rule taking the form of demands for freedom from government action, but a demand for government to act to deal with pressing economic and social problems. It was an attack upon a constitutional system that allowed these problems to be shelved, or indeed required them to be shelved. Thus although, as on earlier occasions, this democratic onslaught was directed at the system of checks and balances which entrenched privilege, it was no longer based upon the rival principle of the pure separation of powers; on the contrary it was directed equally against that doctrine, in its extreme form at any rate, as one of the factors making for an ineffectual and weak system of government . Changing attitudes towards the nature of freedom and the role Constn_251-300.indd 291 9/10/07 12:53:11 AM PROGRESSIVISM AND POLITICAL SCIENCE of government in society demanded a new approach and a consequent rejection of the over-simplified theories of earlier liberal constitutionalists. The need now was for a system of government that would give expression to the growing demands for government action, a system in which the unity of the "powers" of government would be as important a consideration as their separation. As early as 1864 George H. Pendleton introduced into Congress the first of a long line of bills which proposed a closer relationship...