Constitution of the legislative organ. The Unicameral Principle. For a long time it was regarded almost as an axiom in political science that legislative bodies especially national legislatures should be constituted of two chambers, and in practice the great majority of them are so constituted today.
This principle, said Bryce, is the quad semper, the quod ubique, the quad omnibus of American constitutional doctrine. Sir Henry Maine expressed the opinion that almost any kind of second chamber is better than none, what ought to be expected of it, he said, is not a rival infallibility but an additional security.
Bagehot thought that with an ideal lower chamber Perfectly representing the nation, always moderate, never passionate, abounding in men of leisure,never omitting the slow and steady forms necessary to good consideration an upper chamber would not be necessary, but that it would be extremely useful as a revising and leisured legislature.
In the eighteenth and early part of the nineteenth century single-chambered (unicameral) assemblies were looked upon with more favor. In America the unicameral system had an in influential advocate in Benjamin Franklin, who is said to have compared a double-chambered legislative assembly to a cart with a horse hitched to each end, both pulling in opposite directions.
Largely through his influence the legislature of Pennsylvania under its first constitution was constructed on the unicameral principle and we have the testimony of John Adams that the question of whether the early American legislatures generally should consist of one or two chambers was one of transcendent importance at the time of the adoption of the first state constitutions. In England, at the same time, a unicameral parliament was advocated by Bentham.
In France, at the time of the Revolution, the unicameral idea had many supporters, and the, principle was incorporated in the constitution of 1791 by an almost unanimous vote of the National Assembly, and was continued in the constitution of 1793.
The constitution of the year III (1795), however, established the bicameral system and it was continued until 1848, when the single chamber system was again reverted to, though only for a brief interval. Among the powerful advocates of the unicameral principle in 1848 was Lamartine, as Turgot had been its ablest defender at the time of the Revolution.
The experience of France with single-chamber legislative assemblies, however, was not satisfactory and their proceedings, it is said, were marked by violence, instability, and excesses of the worst kind With very few exceptions the states which have experimented with the single chamber system have abandoned it for the bicameral system.
In England, during the Commonwealth, it was tried for a brief period, but without satisfaction and the House of Lords, which had been abolished, was soon restored. The lack of a second chamber in the national Congress was one of the causes of dissatisfaction with the Articles of Confederation in the United States, and, with the exception of Benjamin Franklin, none of the framers of the constitution favored retaining the unicameral system.
In Pennsylvania, where it existed for a time (until 1790), as also in a few other states for a time, we are told that it was marked by a “want of stability” and resulted in “extremely impulsive and variable Legislation.” Other countries, notably Spain, Portugal,Naples,Mexico,Bolivia, Ecuador, and Peru, all abandoned it, after trial, for the double chambered system. But the new Spanish constitution of 1931 provides for a single chamber.
Argument in Favor of the Unicameral System :
The Chief argument advanced in favor of the unicameral system by French statesmen and political writers in 1789 and again in 1848 was that it secured “unity” instead of “duality” in the organization of the legislative branch of the government. Two or three chambers, it was argued, meant two or three sovereignties.
The law, said Sieyes, is the will of the people the people cannot at the same time have two different wills on, the same subject therefore, the legislative body which represents the people ought to be essentially one. Where there are two chambers, discord and division will be inevitable and the will of the people will be paralyzed by inaction. If a second chamber dissents from the first, it is mischievous , if it agrees with it, it is superfluous a dilemma, said Bryce, which recalls that attributed to the Khalif Omar when be permitted the destruction of the library at Alexandria. If the books agree with the Koran, they are not needed, if they differ they ought to perish. The same view was expressed by Lamartine, who maintained that the double chamber sacrificed the great principle of unity by dividing the sovereignty of the state.
A similar line of reasoning was followed by Condorcet, Robespierre, and other leaders in. France at the time of the Revolution. In America, likewise, the same kind of argument was advanced by Franklin and others against the bicameral theory. Legislation being merely the expression of the common will, the necessity of committing it to two separate assemblies, each having a veto upon the action of the other, Was not apparent.
All the arguments, said Judge Story,
“derived from the analogy between the movements of political bodies and the operations of physical nature, all the impulses of political parsimony, all the prejudices against a second coordinate legislative assembly stimulated by the exemplification of it in the British parliament, were against a division of the legislative power.”
In short, a double-chambered legislature was an assembly divided against itself.
Notwithstanding all the objections raised against the? bicameral system, it has, as stated above, become almost universal. It accompanies the Anglican race, observed Francis Lieber,
“like the common law, and everywhere it succeeds.”
Of all the forms of government that are possible among mankind, said Lecky,
“I do not know any which is likely to be worse than the government of a single omnipotent democratic chamber. It is at least as susceptible as an individual despot to the temptations that grow out of the possession of an uncontrolled power, and it is likely to act with much less sense of responsibility and much less real deliberation.”
Advantages Claimed fer the Bicameral System :
The advantages claimed for a second chamber may be summarized as follows First, it serves as a check upon hasty, rash, and ill-considered legislation. Legislative assemblies are often subject to strong passions and excitement and are sometimes impatient, impetuous, and careless. The function of a second chamber is to restrain such tendencies and to compel careful consideration of legislative projects. It interposes delay between the introduction and final adoption of a measure and thus permits time for reflection and deliberation.
One great object of the separation of the legislature into two houses acting separately and with coordinate powers, said Chancellor Kent, is to destroy the evil effects of sudden and strong excitement and of precipitate measures springing from passion, caprice, prejudice, personal influence, and party intrigue, which have been found by sad experience to exercise a potent and dangerous sway in single assemblies. It is clear, said Bluntschli, in explaining the advantages of the bicameral system, that four eyes see beter than two, especially When a subject may be considered from different standpoints.
In the second place, the bicameral principle not only serves to protect the legislatures against its own errors of haste and impulse, but it also affords a protection to the individual against the despotism of a single chamber. The existence of a second chamber is thus a guarantee of liberty as well as to some extent a safeguard against tyranny.
There is a natural propensity on the part of legislative bodies to accumulate power into their hands, to absorb the powers of the executive and the judiciary, in short, to draw into their grasp the whole government of the state. They have a constant tendency, said Judge Story, to overstep their proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming influence of private interests.
Under such circumstances, he added, the effective barrier against oppression, Whether accidental or in intentional is to separate its operations, to balance interest against interest, ambition against ambition, the combinations and spirit of dominion of one body against the like combinations and Spirit of another.
The existence of a second chamber, Story continued, doubles the security of the people by requiring the concurrence of two distinct bodies in any scheme of usurpation or perfidy where otherwise the ambition of a single body would be sufficient. The necessity of two chambers, said Bryce, based on the belief that the innate tendency of an assembly to become hateful, tyrannical, and corrupt, needs to be checked by the co-existence of another house of equal authority.
A third advantage formerly claimed for the,bicameral system is that it affords a convenient means of giving representation to special interests or classes in the state and particularly to the aristocratic portion of society, in order to counterbalance the undue preponderance of the popular element in one of the chambers, thus introducing into the legislature a conservative force to curb the radicalism of the popular chamber. We cannot, said Bluntschli, ignore the distinction between the aristocratic and democratic elements in the population of the state and allow one of these elements alone representation in the legislature without doing the other an injustice.
It also affords a means of giving separate representation to the somewhat dissimilar interests of capital and labor. An actual illustration of the value of this principle is found, we are told by a well-known writer, in the Australian state of Victoria, where the upper chamber of the legislature is made up mainly of the representatives of capital, while the other chamber is composed principally of the representatives of labor.
This is the result chiefly of a restricted suffrage for the upper house, higher property qualification for membership in it, and the non-payment of its members for their services. But it was such a situation as this which led to the abolition of the upper chamber of Queensland in 1922.
Finally, the bicameral system affords an opportunity, in countries having the federal form of government, of giving representation to the units composing the federation. In order to maintain the proper equilibrium between the component members and the federation as a whole, the former ought to be represented in one chamber of the legislature without regard to population, that is, represented as distinct and equal political organizations. This, in fact, is the principle upon which the legislatures of most states having the federal form of government are at present constructed.
Reaction against the Bicameral System :
Notwithstanding the spread of the bicameral system there has been in recent years more and more of a disposition to recognize that some of the advantages claimed for it are not real and to maintain that, on the contrary, the advantages of a single-chamber assembly, under modern conditions, more than counterbalances the disadvantages.
The bicameral principle, therefore, like the theory of the separation of powers, has lost much of the sacrosanct character which it once possessed in the popular mind and has been the object of increasing attack by political writers. Important movements have taken place in several. American states (notably California, 1913, Oregon, 1914, 1916, Nebraska, 1914) for the substitution of a single chamber in the place of the existing bicameral legislature. Similar movements have taken place in other countries, in some instances with success.
Thus in the state of Queensland, Australia in 1922 the upper chamber of the legislature was formally abolished when the South African Union was formed in 1909 the upper chambers of the local legislatures were all abolished and there Was a strong sentiment in favor of establishing a unicameral parliament for the Union, but the force of tradition was too deep rooted to be overcame.
Bulgaria, Costa Rica, Honduras, Salvador, Panama, all the Canadian provinces except two (Quebec and Nova Scotia), the cantons of Switzerland, many of the individual states of the German and Austrian federal republics, and most of the individual states of the Latin American federations, have unicameral legislatures. In a sense the parliament of Norway may also be regarded as unicameral, since the upper chamber is a body coop-ted from the assembly elected by the people.
Several of the new states that have come into existence since the war-Finland, Latvia, and Estonia have adopted the unicameral system. In 1931 Spain abolished the Senate. In this connection it may be observed that constituent assemblies or constitutional Conventions (as they are called in the United States) for framing and revising constitutions have universally been unicameral in structure and no one, apparently, has ever Proposed another system.
Recent Curtailment of the Powers of Upper Chambers :
Finally, and this is significant, there has been a marked disposition in recent years to curtail the powers of upper chambers in countries where, they exist and to reduce them to the role of mere revising and delaying bodies. This movement began with the British Parliament Act of 1911, which virtually took away from the House of Lords its power to defeat bills passed, by the House of Commons.
In consequence of this Act the upper chamber retains only the power to oppose legislation proposed by the lower house and to delay its enactment, but the latter may override the Lords and make its own will prevail in the end. To a large extent therefore, it may be said that the British parliament is the House of Commons.
Likewise many of the new Continental constitutions Which have been framed since the World War provide that the lower chambers may by an extraordinary majority override the upper chamber and make their own will prevail in respect to legislation which they insist upon. Such provisions in one form or another are found in the new constitutions of Germany, Austria,Poland, and Czechoslovakia. These facts leave little doubt that the :old idea of the necessity of two chambers with equality of legislative powers is losing ground.
Results of Experience as the Test of Utility :
The value of the unicameral system should be determined not on the basis of a priori. considerations or time honored theories but upon considerations of utility founded upon the results of actual experience. Where careful studies of the actual workings of the system have been made the results do not by any means support all the claims that have been put forward in favor of the utility of second chambers.
Thus a study of the work of the New York legislature at its session of 1910 brought out the fact that the lower house rejected only six per cent of the bills passed by the upper house while the latter house rejected only fourteen per cent of the bills passed by the lower house.
It was shown that a much larger number of bills were defeated by the executive veto than through the checking device of the bicameral system, from which I the author concluded that it can scarcely be claimed, therefore, that the bicameral system provides an effective check on hasty, ill considered, and careless legislation.
In 1914 a joint committee of the Nebraska legislature made a report in favor of a constitutional amendment providing for a legislature of a single house. Among other reasons why, in the Opinion of the committee, the bicameral system was not a mum, it stated that in practice it has been found that the mullet check between the two houses results in deadlocks and the absence of real responsibility which should be felt by representatives of the people.
Nothing is more common, said the committee, “than for one house to pass a bill and for the members who voted for it to urge the other house to defeat it, and for a little group of members in one house to hold up legislation for the other house until they extort from it what they demand.” Deliberation and reflection, it added, do not now mark the work of a two-house legislature, which passes most of its legislation in the last ten days of the session. A smaller body, with a more direct responsibility upon each member arising therefrom, will tend to greater deliberation and reflection than the present system.
One of the common arguments in support of the bicameral system is that it increases the difficulty of getting measures through the legislature by means of bribery and corruption or measure, which are objectionable upon their intrinsic merits and for which there is no popular demand or necessity. But those who rely upon this argument overlook the fact that the device works both ways, since it may serve to delay or prevent the enactment of good laws as well as bad ones.
A committee of the People’s Power League of Oregon, in an argument prepared-in 1914 in support of a constitutional amendment to abolish the Senate in that state, asserted that the Senate had more often prevented the enactment of laws for which there was a popular demand than it had defeated the enactment of bad laws. Whether the assertion was true or not may be questioned, but it may at least be said that the possibility exists where the bicameral system is found.
The Popular notion that large double chamber legislatures insure greater safeguards against haste, corruption, and irresponsibility than do small single-chamber bodies may be seriously doubted on the contrary, where the legislature consists of a small unicameral assembly each member’s responsibility can be more definitely fixed and there can be no shifting of responsibility from one chamber to another.
Experience with the bicameral system also shows that the operation of the legislative machine is frequently impeded and sometimes paralyzed , by deadlocks between the two chambers, and it is hardly necessary to add that it is characterized by logrolling and trading between the two chambers. The possibility of deadlocks is recognized by the constitutions of various states (for example Australia and the South African Union) and provision has been made by which they may be terminated.
Another criticism of the bicameral system has been made, namely, the increased expense in the form of salaries of members and the hire of extra clerks and other employees.
In considering the merits of the bicameral system one further element may be mentioned, namely that it was not adopted originally out of consideration of utility, efficiency, or protection against the despotism and tyranny of single chambers but was rather the result of historical conditions. Both in England and on the Continent second chambers grew into existence as the result of the existence in those countries of privileged aristocratic classes to which it was necessary to accord special representation in a separate chamber.
But for this necessity it is by no means certain that second chambers would ever have been provided for. In the British colonies of America, Australia, and elsewhere the historical reasons which gave rise to the bicameral system in England never existed. To what extent its adaption in these latter countries Wag due to the unconscious force of imitation and to what extent it was due to deliberate creation and a conscious belief that it possessed distinct advantages over the unicameral system, cannot be determined.
So far as the United States Senate is concerned and to a certain extent this may be said of the upper chambers of federal unions generally its creation was certainly the result quite as much of political necessity (the necessity as it was then understood of providing a separate chamber in which the individual states as such could be represented) as of any belief as to the inherent superiority of the bicameral system. But it does not follow that because the establishment of the bicameral system is a necessary condition in the process of formation of federal unions or because it may possess certain intrinsic merits in such states, it is equally necessary and desirable in unitary States.