by Gore Vidal
Even the newspapers that belong to the governing establishment of the republic are beginning to fret about that national malaise which used to trouble the thirty-ninth Oval One. Two years ago, The New York Times printed three articles, more in sorrow than in anger, on how, why, where, when did it all go wrong? “The United States is becoming increasingly difficult to govern,” the Times keened, “because of a fragmented, inefficient system of authority and procedures that has developed over the last decade and now appears to be gaining strength and impact, according to political leaders, scholars and public interest groups across the country.”
Were this not an observation by an establishment newspaper, one would think it a call for a Mussolini: “difficult to govern…inefficient system of authority….” Surely, We the People govern, don’t we? This sort of dumb sentiment is passed over by the Times, which notes that “the national political parties have continued to decline until they are little more than frameworks for nominating candidates and organizing Congress and some state legislatures.” But this is all that our political parties have ever done (honorable exceptions are the first years of the Republican party and the only years of the Populists). The Framers did not want political parties—or factions, to use their word. So what has evolved over the years are two pieces of electoral machinery devoted to the acquiring of office—and money. Since neither party represents anything but the interests of those who own and administer the country, there is not apt to be much “choice” in any election.
Normally, The New York Times is perfectly happy with any arrangement of which the Times is an integral part. But a series of crazy military adventures combined with breathtaking mismanagement of the economy (not to mention highly noticeable all-out corruption among the politicos) has thrown into bright relief the failure of the American political system. So the thirty-ninth Oval One blames the people while the people blame the lousy politicians and wish that Frank Capra would once more pick up the megaphone and find us another Gary Cooper (not the second lead) and restore The Dream.
Serious establishment types worry about the Fragmentation of Power. “Our political system has become dominated by special interests,” said one to the Times, stars falling from his eyes like crocodile tears. After all, our political system is—and was—the invention of those special interests. The government has been from the beginning the cosa nostra of the few and the people at large have always been excluded from the exercise of power. None of our rulers wants to change this state of affairs. Yet the heirs of the Framers are getting jittery; and sense that something is going wrong somewhere. But since nothing can ever be their fault, it must be the fault of a permissive idle electorate grown fat (literally) before our eyes, which are television. So give the drones less wages; more taxes; and put them on diets.
But the politician must proceed warily; if he does not, that 71 percent which has been conned into thinking that they enjoy the highest standard of living in the world might get suspicious. So for a while the operative word was “malaise” in political circles; and no effort was made to change anything. Certainly no one has recognized that the principal source of all our problems is the Third Constitution, which allows the big property owners to govern pretty much as they please, without accountability to the people or to anyone else, since for at least a century the Supreme Court was perhaps the most active—even reckless—part of the federal machinery, as we shall demonstrate.
There is more than the usual amount of irony in the fact that our peculiar Constitution is now under siege from those who would like to make it either more oppressive (the Right-to-Lifers who want the Constitution to forbid abortion) or from those sly folks who want to make more and more money out of their real estate shelters. But no matter what the motive for change, change is now very much in the air; and that is a good thing.
This autumn, the counsel to the president, Mr. Lloyd N. Cutler, proposed some basic changes in the Constitution.*4 Although Mr. Cutler’s approach was tentative and highly timid (he found no fault at all with the Supreme Court—because he is a partner in a Washington law firm?), he does think that it is impossible for a president to govern under the present Constitution because the separation of powers has made for a stalemate between executive and legislative branches. Since “we are not about to revise our own Constitution so as to incorporate a true parliamentary system,” he proceeded to make a number of suggestions that would indeed give us a quasi-parliamentary form of government—president, vice-president, and representative from each congressional district would all be elected at the same time for a four-year term (Rep. Jonathan Bingham has such a bill before the House); half the Cabinet to be selected from the Congress where they would continue to sit—and answer questions as in England; the president would have the power, once in his term, to dissolve the Congress and hold new elections—and the Congress would have the power, by a two-thirds vote, to call for a new presidential election; et cetera. Mr. Cutler throws out a number of other notions that would involve, at most, amendments to the Constitution; he believes that a new constitutional convention is a “non-starter” and so whatever change that is made must originate in the government as it now is even though, historically, no government has ever voluntarily dissolved itself.
Mr. Cutler also suffers from the malaise syndrome, contracted no doubt while serving in the Carter White House: “The public—and the press—still expect the president to govern. But the president cannot achieve his overall program, and the public cannot fairly blame the president because he does not have the power to legislate and execute his program.” This is perfect establishment nonsense. The president and the Congress together or the president by himself or the Supreme Court on its own very special power trip can do virtually anything that they want to do as a result of a series of usurpations of powers that have been taking place ever since the Second Constitution of 1793.
When a president claims that he is blocked by Congress or Court, this usually means that he does not want to take a stand that might lose him an election. He will then complain that he is stymied by Congress or Court. In 1977, Carter could have had an energy policy if he had wanted one. What the president cannot get directly from Congress (very little if he knows how to manage those princes of corruption), he can often obtain through executive order, secure in the knowledge that the House of Representatives is not apt to exercise its prerogative of refusing to fund the executive branch: after all, it was nearly a decade before Congress turned off the money for the Vietnam war. In recent years, the presidents have nicely put Congress over a barrel through the impounding of money appropriated for projects displeasing to the executive. Impounded funds combined with the always vast Pentagon budget and the secret revenues of the CIA give any president a plump cushion on which to rest his Pharaonic crook and flail.
Obviously, a president who does not respect the decent opinion of mankind (namely, The New York Times) can find himself blocked by the Court and impeached by Congress. But the Nixon misadventure simply demonstrated to what extremes a president may go before his money is turned off—before the gates of Lewisberg Federal Penitentiary, like those to Hell or Disneyland, swing open.
Carter could have given us gas rationing, disciplined the oil cartels, encouraged the development of alternative forms of energy. He did none of those things because he might have hurt his chances of reelection. So he blamed Congress for preventing him from doing what he did not want to do. This is a game that all presidents play—and Congress, too. Whenever the Supreme Court strikes down a popular law which Congress has been obliged to enact against its better judgment, the Supreme Court gets the blame for doing what the Congress wanted to do but dared not. Today separation of powers is a useful device whereby any sin of omission or commission can be shifted from one branch of government to another. It is naïve of Mr. Cutler to think that the president he worked for could not have carried out almost any program if he had wanted to. After all, for eight years Johnson and Nixon prosecuted the longest and l
east popular war in American history by executive order. Congress’s sacred and exclusive right to declare war was ignored (by Congress as well as by the presidents) while the Supreme Court serenely fiddled as Southeast Asia burned. Incidentally, it is startling to note that neither Congress nor the Court has questioned the principle of executive order, even in the famous steel seizure case.
What was the original Constitution all about? I mean by this, what was in the document of 1787 as defended in the Federalist Papers of 1787–1788 by Madison, Hamilton, and Jay? Currently, Ferdinand Lundberg’s Cracks in the Constitution is as good a case history of that Constitution (and its two successors) as we are apt to get this troubled season. Lundberg is the latest—if not the last—in the great line of muckrakers (TR’s contemptuous phrase for those who could clean with Heraclean zeal the national stables which he, among others, had soiled) that began with Steffens and Tarbell. Luckily for us, Lundberg is still going strong.
The father of the country was the father if not of the Constitution of the convention that met in May 1787, in Philadelphia. Washington had been troubled by the civil disorders in Massachusetts in particular and by the general weakness of the original Articles of Confederation in general. From Mount Vernon came the word; and it was heard—and obeyed—all around the states. Quick to respond was Washington’s wartime aide Alexander Hamilton, who knew exactly what was needed in the way of a government. Hamilton arrived at Philadelphia with a scheme for a president and a senate and a supreme court to serve for life—while the state governors would be appointed by the federal government.
Although neither John Adams nor John Jay was present in the flesh at Philadelphia, Jay’s handiwork, the constitution of New York State (written with Gouverneur Morris and R. J. Livingston), was on view as was that of John Adams, who wrote nearly all of the Massachusetts state constitution; these two charters along with that of Maryland were the basis of the convention’s final draft, a curious document which in its separation of powers seemed to fulfill not only Montesquieu’s cloudy theories of separation of powers but, more precisely, was a mirror image of the British tripartite arrangement of crown, bicameral legislature, and independent judiciary. Only the aged Franklin opted for a unicameral legislature. But the other Framers had a passion for England’s House of Lords; and so gave us the Senate.
Lundberg discusses at some length just who the Framers were and where they came from and how much money they had. The state legislatures accredited seventy-four men to the convention. Fifty-five showed up that summer. About half drifted away. Finally, “no more than five men provided most of the discussion with some seven more playing fitful supporting roles.” Thirty-three Framers were lawyers (already the blight had set in); forty-four were present or past members of Congress; twenty-one were rated rich to very rich—Washington and the banker Robert Morris (soon to go to jail where Washington would visit him) were the richest; “another thirteen were affluent to very affluent” nineteen were slave owners; twenty-five had been to college (among those who had not matriculated were Washington, Hamilton, Robert Morris, George Mason—Hamilton was a Columbia dropout). Twenty-seven had been officers in the war; one was a twice-born Christian—the others tended to deism, an eighteenth-century euphemism for agnosticism or atheism.
All in all, Lundberg regards the Framers as “a gathering of routine politicians, eyes open for the main chance of a purely material nature…. What makes them different from latter-day politicians is that in an age of few distractions, many—at least twenty—were readers to varying extents in law, government, history and classics.”
Lundberg does not accept the traditional American view that a consortium of intellectual giants met at Philadelphia in order to answer once and for all the vexing questions of how men are to be governed. Certainly, a reading of the Federalist Papers bears out Lundberg. Although writers about the Constitution like to mention Locke, Hume, Montesquieu, and the other great savants of the Enlightenment as godfathers to the new nation, Montesquieu is quoted only four times in the Federalist Papers; while Hume is quoted just once (by Hamilton) in a passage of ringing banality. Locke is not mentioned. Fans of the Framers can argue that the spirit of Locke is ever-present; but then non-fans can argue that the prevailing spirit of the debate is that of the never mentioned but always felt Hobbes. There is one reference each to Grotius, Plato, and Polybius. There are three references to Plutarch (who wrote about great men) and three to Blackstone (who showed the way to greatness—or at least the higher solvency—to lawyers). God is mentioned three times (in the Thank God sense) by Madison, a clergyman’s son who had studied theology. Jesus, the Old and New Testaments, abortion, and women’s rights are not alluded to. The general tone is that of a meeting of the trust department of Sullivan and Cromwell.
Lundberg quotes Merrill Jensen as saying, “Far more research is needed before we can know, if ever, how many men actually voted for delegates to the state conventions [which chose the Framers]. An old guess that about 160,000 voted—that is, not more than a fourth or fifth of the total adult (white) male population—is probably as good as any. About 100,000 of these men voted for supporters of the Constitution and about 60,000 for its opponents.” It should be noted that the total population of the United States in 1787 was about 3,000,000, of which some 600,000 were black slaves. For census purposes, each slave would be counted as three fifths of a person within the First Republic.
The Framers feared monarchy and democracy. In order to prevent the man who would be king from assuming dictatorial powers and the people at large from seriously affecting the business of government, the Framers devised a series of checks and balances within a tripartite government that would, they hoped (none was very optimistic: they were practical men), keep the people and their passions away from government and the would-be dictator hedged ’round with prohibitions.
In the convention debates, Hamilton took on the romantic notion of the People: “The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to [the rich and wellborn] a distinct, permanent share in the government.” The practical old Tory Gouverneur Morris took the same view, though he expressed himself rather more serenely than the fierce young man on the make: “The rich will strive to establish their dominion and enslave the rest. They always did. They always will. The proper security against them is to form them into a separate interest.” Each was arguing for a Senate of lifetime appointees, to be chosen by the state legislatures from the best and the richest. It is curious that neither envisioned political parties as the more natural way of balancing economic interests.
Since Hamilton’s dark view of the human estate was shared rather more than less by the Framers (“Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many”), the House of Representatives was intended to be the principal engine of the tripartite government. Like the British Parliament, the House was given (in Hamilton’s words) “The exclusive privilege of originating money bills…. The same house will possess the sole right of instituting impeachments; the same house will be the umpire in all elections of the President….” And Hamilton’s ultimate defense of the new Constitution (Federalist Paper No. 60) rested on the ingenious way that the two houses of Congress and the presidency were chosen: “The House of Representatives…elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”
This was disingenuous: the electoral franchise was already so limited in the various states that only the propertied few had a hand in electing the House of Representatives and the state legislatures. Nevertheless, this peculiar system of government was a success in that neither the mob nor the d
ictator could, legally at least, prevail. The turbulent “democratic” House would always be reined in by the appointed senators in combination with the indirectly elected president and his veto. The Constitution gave the oligarch, to use Madison’s word, full possession of the government—the object of the exercise at Philadelphia. Property would be defended, as George Washington had insisted that it should be. Since Jefferson’s teeth were set on edge by the word property, the euphemism “pursuit of happiness” had been substituted in the Declaration of Independence. Much pleased with this happy phrase, Jefferson recommended it highly to the Marquis de Lafayette when he was Rights of Man-ing it in France.
The wisest and shrewdest analysis of how the House of Representatives would evolve was not provided by the would-be aristo Hamilton but by the demure James Madison. In Federalist Paper No. 59, Madison tried to set at ease those who feared that popular gathering in whose horny hands had been placed the national purse. Madison allowed that as the nation increased its population, the House would increase its membership. But, said he with perfect candor and a degree of complacency, “The people can never err more than in supposing that by multiplying their representatives beyond a certain limit they strengthen the barrier against the government of the few. Experience will forever admonish them that…they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic” because “the greater the number composing [a legislative assembly] the fewer will be the men who will in fact direct their proceedings.” Until the present—and temporary—breakdown of the so-called lower House, this has proved to be the case.
By May 29, 1790, the Constitution had been ratified by all the states. The need for a bill of rights had been discussed at the end of the convention but nothing had been done. Rather than call a second convention, the Bill of Rights was proposed—and accepted—as ten amendments to the new Constitution. A principal mover for the Bill of Rights was George Mason of Virginia, who had said, just before he left Philadelphia, “This government will set out [commence] a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical [oppressive] aristocracy: it will most probably vibrate some years between the two, and then terminate in the one or the other.” The words in brackets were supplied by fellow Virginian—and notetaker—Madison. As the ancient Franklin observed brightly, sooner or later every republic becomes a tyranny. They liked reading history, the Framers.