Constitution of Upper Chambers. It is not possible here to discuss in detail the constitution of upper chambers, even of the more important states. Upon examination it will be found that they may be grouped in the following classes :
- First: Those which are constituted wholly or predominantly upon the hereditary principle. They include the British House of Lords, the former Hungarian Table of Magnates (prior to 1926), and the former upper chamber of Austria. Until recently there was a large hereditary element in the upper chambers of most of the German states, although it was not predominant.
- Second: Those which are composed wholly or in preponderating part of members appointed by the executive for life or a term of years, which in countries having the cabinet system means appointment by the ministry. In this group are the Italian Senate, the Japanese House of Peers, the Canadian Senate, the upper chambers of Quebec and Nova Scotia, certain Australian states, and until recently New Zealand.
- Third: Those which are composed of members elected directly on the basis of the same suffrage as that upon which the lower chamber is elected. In this class are the Senate of the United States (since 1913), the senates of the several states composing the federal union, the senates of Brazil, Australia, New Zealand, Sweden, Chile and most of the other Latin-American states, Czechoslovakia, and Poland.
- Fourth : Those composed wholly or preponderantly of members chosen by indirect election based on popular suffrage. In this class are the upper chambers of France and Denmark.
- Fifth: Those composed of members elected by the local legislatures or councils. They include the upper chambers of the Netherlands, Prussia, China, Portugal, Union of South Africa, and formerly the United States.
Several upper chambers combine two or more of these methods of selection. Thus the British, House of Lords contains both hereditary and appointed members and so did a number of the Continental upper chambers prior to the World War. As stated above, the Japanese upper chamber is composed of hereditary, appointed, and elected members.
The Danish upper chamber is composed of two classes of members, those chosen by indirect election and those appointed by the crown. Similarly the upper chamber of the South African Union is composed of eight senators appointed by the governor general in council and , eight senators elected from each of the four provinces by the provincial council thereof.
The Spanish upper chamber prior to 1931 contained three categories of members, indirectly elected members, hereditary members, and appointed members. The Belgian Senate since 1921 has consisted of three classes of members popularly elected senators, senators chosen by the provincial councils, and senators chosen by the Senate itself (coopted senators).
The senate of Rumanian is composed of two classes of senator’s, those who are elected and those who are senators of right ex officio. The upper chamber of Norway is unique in that it consists entirely of members coopted from the lower chamber.
The Swiss upper chamber also is peculiar in the majority of cantons members of the upper chamber are chosen by direct popular election , in those which have landesgemeinden they are chosen by the popular assemblies, which amounts to the same thing in seven cantons they are chosen by the cantonal legislatures.
Merits of the Several Systems :
It will be seen from this summary that the constitutions and modes of election of upper chambers vary widely. It would be difficult to say which of these has the most (or the least) to commend it. As to those like the British House of Lords which are composed mainly of hereditary members the consensus of opinion now even in England is distinctly hostile.
In fact, chambers constituted on this principle have disappeared everywhere in Europe except in Great Britain, and here the House of Lords has been deprived of real power, as we have seen. Appointed chambers, such as those of Italy. Canada, and some of the Australian states, are objectionable for various reasons.
The members being appointed by the ministry of the day, the appointments are made as rewards for party service, or for the purpose of “packing” the chamber in order to overcome opposition to ministerial policies, and in any case a chamber so constituted, owing no responsibility to the electorate, and uninfluenced by public Opinion, is likely to be weak and distrusted by the public. Such a body is naturally undemocratic, especially when the members are appointed for life.
For these reasons the late Professor Goldwin Smith pronounced the Canadian Senate to be
“as nearly a cipher as it is possible for an assembly legally invested with large powers to be.”
In recent years the demand for “reform” of the Senate has been widespread and today it is one of the paramount questions of Canadian Politics. The only thing that can be said in favor of a chamber constituted on this principle is that it affords a means by which distinguished scholars and statesmen, who could not gain access to it through popular election, may become members.
If it is a gain to the state to have such men in the legislature the method of appointment may be commended for thus Opening the door to them. Since appointed members usually serve for life or for long periods, it may also be argued that there is an advantage in having one chamber composed of men who are not influenced by the momentary changes of party politics and who by reason of their long tenures acquire a valuable experience which may be a distinct asset in the performance of the increasingly difficult tasks of legislation.
Popular Election of Upper Chambers :
The method of direct popular election of the members of upper chambers in the same manner and by the same electorate as those by which the members of lower chambers are elected appears to represent the modern tendency. The chief argument for this method is that it is more in harmony with current notions of democracy and of popular responsibility. In fact the only upper chambers today which share anything like equality of actual power and influence with the lower chamber are those which are elected by the people either directly or indirectly. Those which are composed of hereditary or appointed members in all democratic countries play a distinctly subordinate role-the modest role of revising and of delaying bills passed by the lower chamber.
On the other hand, it may be argued and was so argued during. the debates on the proposed amendment to the constitution of the United States providing for the popular election of senators, that this method of choice would lead to the general lowering of the character of the Senate, that it would result in the election of a larger number of demagogues and politicians in the place of eminent statesmen who are often poor vote-getters, and that it would even drive from the Senate a class of able men who would be disinclined to seek election under a system which required their active participation in long-drawn-out and expensive campaigns.
That , the change has had this effect, in some measure at least, there is abundant evidence. Another objection which may be made to a chamber chosen by the same electorate as that which chooses the lower chamber, especially if there is no great disparity between the duration of their tenures and the qualifications required for, membership in it, is that in such a case much of the value of the bicameral system will be lost.
If, the two chambers are identical in constitution, then the second is a mere duplication of the first. In that case you will have two rival chambers competing for leadership. Why then have two ? Cannot the will of the people be effectively made known through one? “If the two houses were elected for the same period and by the same electors,”
“They would amount in practice to little more than two committees of the same house we want two bona fide different houses representing the impulse as well as the continuity, the progress and the conservatism, the onward zeal and the retentive element, innovation and adhesion, which must ever form integral elements of all civilization. One house, therefore, ought to be large the other comparatively small, and elected or appointed for a longer time.”
Some writers maintain that no advantage whatever is to be gained by the bicameral system ,if the two chambers are identical in constitution. In such a case it is, said Bluntschli, like employing duplicate organs to do the same thing. Bluntschli argued that the upper chamber ought to rest on a different basis from the lower chamber, that it ought, to some extent at least, to represent special classes or interests or political wits as such without full regard to population, while the lower chamber ought to represent the Opinion and interests of the mass of population, and to this end the representatives ought to be chosen by the whole body of the citizens.
Judge Story was of the same opinion. The division of the legislature into two branches, he declared, would be of little or no intrinsic value unless the organization was such that each house could operate as a real check upon undue and rash legislation.
Indirect Election of Upper Chambers :
It was to avoid the above mentioned objections that some states have adopted the method of indirect election, the most important example of which is France, where the senators are chosen in each departmental circumscription by a college of electors who themselves (with the exception of the municipal delegates) have been chosen by direct popular election. There is little demand in France for the method of direct popular election of senators, such as led to the change in the United States, although there is considerable criticism that some of the electors are chosen not by popular vote but by the municipal councils, this for the same reason that the election of United States senators formerly by the state legislatures was criticized, namely, that it throws upon the municipal councils extraneous duties of a partisan character and injects into municipal elections issues relative to senatorial elections.
Election of Local Legislatures :
The method of election by local legislatures or councils is a favorite one, and in states having the federal system of government it has something to recommend it. It was the method by which United States senators were elected for 120 years, but it was abandoned in 1913 partly because of the inherent defects and difficulties of the method. So long as senators were chosen by the state legislatures there were frequent dead locks between the two houses, cases of flagrant bribery were not lacking, the legislatures were often diverted from the discharge of their normal functions by long-drawn-out senatorial contests, and not infrequently the election of members of the legislature itself was determined not so much on the basis of their qualifications as representatives but with reference to their preferences for particular candidates for the United States Senate.
Proposals for Organization of Upper Chambers :
The question as to the best mode of constituting an upper chamber is one of the most difficult in the whole held of political science, and it has frequently occupied the attention of political writers and of constitution makers. Professor Goldwin Smith is said to have remarked that it passed the wit of man to construct an effective upper chamber which would give general satisfaction. Even now there is no general agreement or uniformity of practice, although, as stated above, the tendency is to make the upper chamber a duplicate of the lower chamber so far as the source and manner of its election are concerned.
John Stuart Mill advocated a second chamber constructed on the principle of political experience and training, without reference to considerations of birth or wealth. If one chamber, he said, represents popular feeling, the other should represent personal merit, tested and guaranteed by actual public service and fortified by practical experience. If one is they people’s Chamber, the other should be a chamber of statesmen, a council composed of all living public men who have passed through important political offices or employments. Such a chamber, Mill argued, would, be not merely a moderating body, or a simple check, but also an impelling force. It would be a body of natural leaders and would guide the people forward in the path of progress.
The best constitution of the second chamber, he declared, is that which embodies the greatest number of elements exempt from the class interests and prejudices of the majority, but having in themselves nothing offensive to democratic feeling.
Proposal of the Bryce Conference :
In 1918 a conference of which Lord Bryce was chairman, appointed to study and report upon the question of the reform of the British House of Lords, made an elaborate report in which it examined the various systems by which existing upper chambers are constituted and elected, and , it recommended the recruitment of the British upper chamber by a combined process of derivation and cooperation under which a large majority of the members would be chosen by, though not from, the House of Commons divided into geographical groups. The other members were to be selected by a joint committee of the two houses on the basis of the great interests from which the House of Lords originally sprang. The report was not favorably received, no action has been taken upon its proposals, and the House of Lords still remains “unreformed.”
Lessons of Experience :
Reason and experience would seem to suggest that if legislative bodies are to continue to be organized on the bicameral principle the two chambers should be constituted on different bases and principles. The members of one chamber ought to enjoy longer tenures, they ought to represent a larger constituency, higher membership qualifications ought to be required of them, and they might well be chosen in a different manner and by a differently constituted electorate. But as stated above, modern democratic notions are not favorable to such chambers.
Where these requirements exist there will always be one chamber smaller in size than the other, possessing a higher degree of experience and perhaps of ability, more conservatism of spirit, and representing more fully the higher property and intellectual interests of the state.
Thus the high age qualification (the attainment of the fortieth year) required of senators in Belgium, France, Poland and Italy (the forty-fifth year in Czechoslovakia) has had the effect of securing more experienced statesmen in the legislatures of those countries. The longer tenure and the larger constituency of members of upper chambers generally have had something of the same effect.
Distribution of Seats in Upper Chambers :
As to the basis of representation in upper chambers two rules ate followed in practice. In the first place, in most federal unions members are apportioned roughly among the provinces, departments, or states on the basis of population. This method is followed in France, Germany, Belgium, Canada, and other countries. In the ,United States, Brazil, and the Commonwealth of Australia the principle of equality of representation prevails. In the United States each state has two senators, in Brazil three, and in Australia six.
In view of the vast inequality of population among the different states it is hard to defend the principle of equality of representation upon the theory of democracy. In the United States where the state of New York with a population of more than 12,500,000 has only two senators, whereas Nevada with a population of about 91,000 has two, the inequality is absurd and indefensible.
On a proportional basis New York would be entitled to 275 senators. The five states of New York, Pennsylvania, Illinois, Ohio, and Texas have forty-two million inhabitants, or about 34 per cent of the total Population of the country, yet in a Senate of ninety-six members they have but ten, that is, slightly more than 10 per cent of the total.
Powers of Upper Chambers :
It has long been an almost universal practice to confer upon upper chambers certain special powers which lower chambers do not possess. Thus the House of Lords is the Supreme Court of Appeal for Great Britain, in cases arising in the United Kingdom, although its jurisdiction is exercised in fact by the Lord Chancellor and six law lords.
As already stated above, the upper chamber in various European countries may serve as a high court of justice for the trial of the chief of state ministers, and all persons charged with offenses against the safety of the state. In the United States and some other countries it serves as a court for the trial of impeachment cases. In Chile it is a sort of “competence-conflict” ,court, charged with deciding disputes between the administrative and political authorities on the one hand, and the superior courts of justice on the other.
In Germany under the old constitution it exercised numerous judicial and administrative powers. In France and Poland its consent is necessary to a dissolution of the Chamber of Deputies. In the United States its assent is necessary to the validity of presidential appointments to public office and to the ratification of treaties, and in Chile it is charged with advising the president upon any questions Upon which he may desire its opinion. In Chile also pro posed laws relating to amnesties and general pardons may originate only in the senate.
On the other hand, upper chambers generally are on a footing of inequality with the lower chambers in respect to financial, legislation. In Great Britain, the United States, France, and various other countries, particularly those of Latin America, revenue bills cannot be initiated in the upper chambers. In France there is a difference of opinion as to whether the Senate has power to amend or reject the budget as passed by the lower chamber.
The preponderance of opinion seems to be that while the Senate has no power to propose appropriations or new taxes it may reduce amounts voted by the lower chamber and may even restore items in the budget proposed by the ministry but which have been stricken out by the lower chamber.