We the Fallen People, page 7
From his diplomatic post in London, John Adams similarly praised the new plan of government. It respected “all the great principles necessary to order, liberty, and safety,” he exulted to John Jay.36 Adams particularly admired the proposal’s two-house legislature in conjunction with a strong executive and independent judiciary. He had long been convinced that such a balance and separation of powers was essential to sustain a free government.
Eleven years earlier, Thomas Paine had recommended in Common Sense that the united colonies adopt a simple continental government consisting solely of a unicameral legislature. Adams had “regretted . . . to see so foolish a plan recommended to the people of the United States.” He was positively despondent when the country embraced such foolishness and incorporated it into the Articles of Confederation. “A people cannot be long free, nor ever happy, whose government is in one assembly,” he had written then. The absence of any check on its power would allow such a simple government to expand inexorably until it became an engine of tyranny.37
As for Paine, the best that Adams could say was that the heavy-drinking polemicist was better “at pulling down” than at building. Paine’s argument for independence had merit, Adams conceded. But his plan for continental government was nothing more than a “poor, ignorant, malicious, short-sighted, crapulous mass.”38 (That last adjective may not mean what you think it means. In the late eighteenth century it alluded to the excessive influence of alcohol. Adams was implying that Paine—who rarely took up his pen without a decanter of brandy close at hand—was drunk when he wrote Common Sense. He probably was.)
John Adams
Paine’s contempt for any check on the power of the legislature made sense only on the assumption that political actors would be guided by virtue. Adams knew better. “All men would be tyrants if they could,” he had observed in a 1763 essay on “man’s lust for power.” A generation later, he remained convinced that “religion, superstition, oaths, education, laws, all give way before passions, interest, and power.” The solution, Adams maintained in words reminiscent of The Federalist, was for “power [to] be opposed to power, and interest to interest.”39
In contrast to Paine’s “crapulous mass,” the “Report of the Convention at Philadelphia” represented “the greatest single effort of national deliberation that the world has ever seen,” Adams gushed to his son-in-law. The secret of the delegates’ success, he explained, was that they had rejected the injurious notion “that a certain celestial virtue, more than human, has been necessary to preserve liberty.” A “well-ordered constitution” could go a long way toward compensating for the defects in human nature, Adams observed. Indeed, it was more than possible that a republic could exist “even among highwaymen [i.e., bandits], by setting one rogue to watch another.”40
Even among highwaymen. If widespread virtue among the people and their elected leaders is the indispensable pillar of free government, then the statesmen who convened in Philadelphia in 1787 had no reason for optimism and no solution to offer. Their hope was grounded primarily in their ability to fashion a government that could compensate for “the defect of better motives.” “The science of politics . . . has received great improvement,” Publius trumpeted. Now there are “powerful means by which the excellencies of republican government may be retained.”41
Chief among these is the system of checks and balances that we learn about in junior high civics class and rarely think about afterward: the division of the legislative branch into two houses, the executive’s power to veto acts of the legislature, the legislature’s role in approving executive treaties, and so forth. Nearly two and a half centuries later, these “constitutional securities” fairly shout to us the Framers’ understanding of human nature.42 They were created as safeguards against selfish citizens and ambitious rulers, for a world in which “wrong will generally be done” whenever the incentive and power to do wrong coincide.
The Framers’ “great difficulty” was to give the central government the necessary power to avoid anarchy and promote the general welfare without creating at the same time a Frankenstein’s monster that could devour our liberty. It was an awesome twofold task. As Madison summarized it, they had to “enable the government to control the governed” while simultaneously obliging the government “to control itself.”43
This is where checks and balances come in. “Ambition must be made to counteract ambition,” Madison famously noted in explaining the Constitution’s separation of powers in Federalist #51. “If men were angels” such precautions would be unnecessary. In the world we actually live in, they come in handy.44
The Framers weren’t as pessimistic as the New York federalist who thought it safest to “say all men are dishonest.” Nor would they go as far as the influential British philosopher, David Hume, who recommended that, “in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed to be a knave.” Though comparatively less cynical, they did take for granted that “enlightened statesmen will not always be at the helm,” and so they planned accordingly.45
During the state-level debates on ratification, defenders of the Constitution frequently pointed to its checks and balances as evidence that the Framers had found a way to make virtue less necessary. Writing under the pseudonym “Americanus,” a federalist writer contended that the Philadelphia convention had designed a government “founded on the broad basis of human nature.” Its plan of separation of powers, checks and balances, and frequent elections required “none of those heroic virtues which we admire in the ancients, and to us are known only by story. The sacrifice of our dearest interests, self-denial, and austerity of manners, are by no means necessary.”46
Federalist Noah Webster made much the same argument. Praising the safeguards built into the Constitution, Webster proclaimed that “virtue . . . never was and never will be, till men’s natures are changed, a fixed, permanent principle and support of government.” The proposed Constitution was superior to the Articles of Confederation because the Framers had made allowances for this inviolable truth. Following Washington’s advice to “take human nature as we find it,” they had fashioned a framework for government that would deter a degeneration into tyranny “so long as there shall remain any virtue in the people.”47
Nowhere does the Framers’ understanding of human nature come through more clearly than in their fundamental suspicion of democracy. The delegates at Philadelphia were wholeheartedly committed to preserving a republic—a thing of the people grounded in the consent of the people—but rejecting monarchy isn’t the same thing as embracing democracy, and with very few exceptions the Framers wanted nothing to do with the latter.
Enlightenment political philosophy taught that a republic could theoretically encompass any form of government in which the sovereign power was exercised by more than one person. It was an elastic concept. As one historian has noted wryly, “Republicanism was simply what monarchism was not.” While this ruled out dictatorship and absolute monarchy, it left a host of alternative arrangements still on the table. Alexander Hamilton, for example, recommended that both senators and the president be elected for life. “Is this a republican system?” he asked his fellow delegates. “It is strictly so, as long as they remain elective.”48
Hamilton’s proposal went nowhere, but neither did the suggestions of a handful of delegates that the convention construct a “democracy.” In the ancient world, “democracy” referred to what today we might label “direct democracy”—a system of government in which every eligible citizen participates personally in every political decision. The Framers struggled to find anything good to say about such an arrangement. Their study of history taught them, as Madison observed, that “such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”49
Given the size of the United States, of course, direct democracy, at least at the national level, was never a viable option in 1787. As John Adams noted in defense of the Constitution, the people as a whole “can never act, consult, or reason together, because they cannot march five hundred miles, nor spare the time, nor find a space to meet.”50
That was true, no doubt, but the Framers also rejected representative democracy. As Adams made clear, it was a truism that the new government would necessarily rely on some form of representation. But this foregone conclusion left unanswered two critical questions: How much of a voice would the people have in choosing their representatives? And would these representatives, however chosen, be constrained by the opinions of their constituents?
In a republic, James Madison explained in Federalist #38, the officeholders administering the government could be chosen by the people either directly or indirectly. The Framers mostly opted for the latter. As a modern political scientist observes, “This new constitution, born in celebration of ‘republican government,’ did not grant anyone the right to vote.”51 The closest that the Framers came was in Article I, section 2, in which they stipulated that the qualifications for voting for the House of Representatives should be identical to those that the states individually imposed for elections to the state assemblies.
The Framers agreed to this provision knowing full well that the vast majority of states at the time imposed property or tax-paying requirements to vote. As we’ve already seen, these restrictions collectively disqualified between 30 and 40 percent of the adult white male population, not to mention women, the enslaved, and most people of color generally. Such restrictions notwithstanding, the proportion of citizens able to participate was probably higher than anywhere else in the world at the time, and the Framers felt no hesitation in designating the House of Representatives as “the grand depository of the democratic principle of the government.”52
In all other branches of the new government, however, the influence of the people would be decidedly remote. Senators would be chosen not by the people directly but by the state legislatures. The president would be chosen not by the people directly but through the agency of an “electoral college.” This meant that, in most instances, members of the House of Representatives would choose the president, selecting from among a pool of finalists determined by “electors” appointed in some unspecified manner by state legislators elected by adult white male property holders. Federal judges would be chosen not by the people directly but by a president elected by members of the House of Representatives selecting among finalists identified by electors appointed by state legislators placed in office by a significantly restricted electorate.
Confused yet? As convoluted as it was, there was method in the Framers’ madness. They proposed such a complicated system in order to erect a republican form of government simultaneously “derived from the great body of the society” and significantly shielded from popular pressure. As Alexis de Tocqueville would recognize a half century later, their goal was to construct a government that “represents the majority without being necessarily the slave of its passions.”53 This was no simple task. The complexity of the solution reflects the magnitude of the challenge.
And why did the Framers go to such lengths to shield officeholders from popular pressure? Because they were convinced that there would be occasions “when it may be necessary and proper to disregard the opinions which the majority of the people have formed.” A New York federalist went so far as to estimate that “there are a thousand things which an honest man might be obliged to do, from a conviction that it would be for the general good, which would give great dissatisfaction to constituents.”54
There are two basic ways to conceive of representatives’ duty to their constituents. On the one hand, they can function much like a professional agent. A sports agent, for example, seeks the best deal that he can for his client; he gives advice freely, but in the end it’s the client who calls the shots. An agent who disregards his client’s instructions deserves to be fired. On the other hand, a representative can function like a trustee. A court may appoint a trustee to manage a minor’s inheritance, for instance, and it is her job to manage the funds in the best interest of the beneficiary, not to take orders from a teenager.
The Framers unapologetically advocated the latter view. A responsible representative would “take care to inform himself” of the electorate’s “dispositions and inclinations.” He “ought to be acquainted with the interests and circumstances of his constituents” and cultivate “a sympathy with the wants and wishes of the people.” But this most decidedly did not require that he simply channel the voice of the majority. A dedicated public servant would be characterized by a zeal for the public welfare, not by a slavish obedience to the public’s preference.55
It is the “dispassionate voice of the people” that constrains and informs public policy, Framer David Ramsay reminded the South Carolina ratification convention. The checks and balances of the Constitution were designed to translate “the sober second thoughts” of the people into “the law of the land,” not their passions and transient impulses. “It is the reason of the public alone that ought to control and regulate the government,” Publius bluntly insisted in The Federalist. “The passions ought to be controlled and regulated by the government.”56
When a New York opponent of the Constitution suggested that Congress should express the “feelings” of the people, federalist Robert R. Livingston erupted: “What! Shall the unjust, the selfish, the unsocial feelings be represented? Shall the vices, the infirmities, the passions of the people be represented? Government, Sir, would be a monster.” It’s worth noting that his opponent quickly backtracked, clarifying that representatives ought to be governed not by the people’s feelings but by their “true interest.”57 No Framer of the Constitution disagreed.
The problem was that the people’s “true interest” would sometimes be “at variance with their inclinations.” At times the people would err on their own, Madison noted, as “the passions of the unthinking” and “the prejudices of the misthinking” pointed them toward policies they would later regret. At other times they might be deceived, Hamilton observed, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, [and] the desperate.”58
When such occasions arise, the Framers maintained, the officeholder’s duty is clear: to thwart the will of his constituents. Because they were comparatively vulnerable to popular pressure, members of the House of Representatives could expect to be penalized by their constituents if they did so. To put it differently, it would require great virtue for a member of the House to serve the people wisely. For that reason, the Framers pinned their hopes elsewhere, most especially on the Senate and the executive.
Because the Senate wasn’t popularly elected, the Framers expected it to be filled with individuals of greater age, experience, and wisdom than their counterparts in the House. They opposed popular election of the Senate precisely in the hope that it would be able to proceed “with more coolness, with more system, and with more wisdom than the popular branch.” During the struggle for ratification, federalists portrayed the new framework as balancing “the wisdom of the Senate” against “the voice of the people . . . heard in the House of Representatives.”59
Madison endorsed this role explicitly in the pages of The Federalist. The Senate would occasionally serve “as a defense to the people against their own temporary errors and delusions,” he explained in Federalist #63. In a marvelous expression of the Framers’ conflicted views about democracy, Madison noted that “the cool and deliberate sense of the community” should “ultimately prevail” in a free society. There’s an element of optimism in this guarded pronouncement, an expression of faith that, in the long run, both the majority and their representatives can agree on policies that genuinely promote the common good.
That’s in the long run. In the meantime, there will be “particular moments . . . when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will be the most ready to lament and condemn.” In those instances, Madison explained, the Senate’s role would be to “suspend the blow meditated by the people against themselves, until reason, justice and truth can regain their authority over the public mind.”60 In sum, the division of the legislature into two branches would serve two purposes: to protect the people from the government and to protect the people from themselves.
The new office of president could serve in this latter role also. In his explication of the executive branch in The Federalist, Alexander Hamilton reminded readers that “the republican principle demands that the deliberate sense of the community should govern the conduct” of officeholders. “But it does not require an unqualified complaisance to every sudden breeze of passion,” he went on to clarify, “or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”61
Hamilton noted that opponents of the Constitution worried that the proposed four-year term of the president would render the executive too independent of the people, especially at the beginning of his term when the next election was far in the future. A shorter term, these critics argued, would ensure that the president would be more responsive to popular opinion. But this was precisely why a longer term was necessary, Hamilton countered, and those who thought otherwise simply didn’t get “the purposes for which government was instituted.” They didn’t understand “the true means by which the public happiness may be promoted.”62
Rather than a weak executive marked by “servile pliancy”—one who would constantly bow to every wind of opinion—wisdom called for a courageous president willing to stand against the clamor of the majority when the general welfare required that. Although hopefully infrequent, occasions would inevitably arise when the president’s job would be to “withstand the temporary delusion” of the people “in order to give them time and opportunity for more cool and sedate reflection.”63
