Constitutional Myths

by Ray Raphael

  The compromise on presidential selection included a recommendation that only the House could initiate money bills. Although delegates had overturned this component of the Great Compromise on August 8, and although the measure was totally unrelated to electing the president, it was reintroduced to win the votes of delegates from large states. The elector compromise, because it awarded votes in large measure according to representation in the House, also reenforced the three-fifths compromise, thereby giving added heft to the South and gaining the support of delegates from slaveholding states.40

  This drama, played on a small stage within a committee, was part of a larger one. Most framers did not trust the people enough to put the choice of president in their hands (see chapter 4), but they did not think Congress should make that decision either. Meanwhile, delegates from small states insisted that any system of presidential selection be tilted, at least slightly, in their favor. No coherent philosophy could encompass such divergent suspicions or impulses. What we have, in place of coherence, is the Electoral College, shaped at the Federal Convention amidst extravagant wheeling and dealing. This convoluted institution, which few Americans have ever understood, has granted the presidency to the loser of the popular vote on four occasions. Forged through compromise, it is ours to this day.41

  Representation in Congress, slavery, commercial regulations, election of the president—these contentious issues were hotly debated by delegates with vested interests in the outcomes. They argued, cajoled, and bluffed, just as politicians do now, and in the end no delegate received all of what he wanted.

  A few delegates left before the end. Maryland’s Luther Martin and John Francis Mercer and New York’s Robert Yates and John Lansing Jr. had wanted only to perfect the Confederation, leaving the states still in charge. Once they realized that other delegates would not bend their way, they returned to their home states to whip up opposition amongst the populace.

  George Mason, Elbridge Gerry, and Edmund Randolph stayed to the end but refused to sign the document, and Mason and Gerry, like Martin, Mercer, Yates, and Lansing, actively opposed its ratification. For these men, missing or destructive elements undermined the entire project. Even before the Federal Convention had adjourned, Mason determined to push for changes among the people “out-of-doors”—a common contemporary term. On the back of his copy of the Constitution’s almost-final draft, he “drew up some general Objections … by way of protest,” as he reported to Thomas Jefferson. Mason was “discouraged” from reading his objections on the floor “by the precipitate, & intemperate, not to say indecent Manner, in which the Business was conducted, during the last Week of the Convention, after the Patrons of this new plan found they had a decided Majority in their Favour.” Instead, he sent copies to friends and allies, those recipients sent them on to others, and Mason’s list of “Objections to the Constitution” became a core document for the Constitution’s opponents.42

  Mason’s opposition, it is generally said, stemmed from a principled concern: he bemoaned the absence of a “Declaration of Rights.” This is partly correct, yet he also listed more than a dozen other faults of the proposed new plan, including the Constitution’s failure to require a congressional supermajority to enact “commercial and navigation laws”:

  By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose produce and circumstances are totally different from that of the eight Northern and Eastern States, may be ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern and Eastern States not only to demand an exhorbitant freight, but to monopolize the purchase of the commodities at their own price, for many years, to the great injury of the landed interest, and impoverishment of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the other.

  As at the Federal Convention, such avowedly regional interests would influence the ratification debates. This rankled George Washington, Mason’s neighbor and, for most of their lives, a good friend and trusted political ally. Mason, he said, was one of those who refused “to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrifice their individual advantages to the interest of the community.”43

  Randolph, the other nonsigner from Virginia, shared Mason’s concern. Toward the end of the Convention, he had declared there were “features so odious in the constitution as it now stands, that he doubted whether he should be able to agree to it,” and failure to require a supermajority for navigation laws “would compleat the deformity of the system.” Randolph was not above compromise, but he had been left out of this one, which had been struck in committee between New Englanders, who opposed a supermajority for navigation acts, and delegates from the Deep South, who wanted to continue slave importation. Each side granted the other its desire, while Virginia, which opposed both measures, had been left out entirely. How could Randolph affix his name to a document so deformed that it did not even consider the interests of the largest state in the union?44

  All other delegates still present at the end of the Convention signed the document. Despite the cantankerous debates that characterized the summer, they accepted the compromises that were forged and agreed to support the entire package, including measures with which they still disagreed. On the very last day, shortly before the Convention adjourned, Alexander Hamilton attempted to persuade the last handful of wavering and reluctant colleagues. Although “no man’s ideas were more remote from the plan” than his own, he declared, the choice “between anarchy and Convulsion on one side, and the chance of good to be expected from the plan on the other,” was obvious.45

  In a similar vein, Gouverneur Morris said that he continued to have “objections,” but “considering the present plan as the best that was to be attained,” he would “take it with all its faults.” The majority of delegates, he concluded, “had determined in its favor and by that determination he should abide. The moment this plan goes forth all other considerations will be laid aside, and the great question will be, shall there be a national Government or not?”

  Benjamin Franklin, with characteristic modesty and shrewdness, wrote an elegant, inspiring, and sometimes humorous speech that he asked James Wilson to read: “Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good.” He freely acknowledged the inevitable self-interest of the delegates, but ever the optimist, he managed to give even that a positive spin: “When you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does.”

  George Washington knew all too well how imperfect the proposed Constitution was and how it had been shaped by “local interests” and “selfish views,” but he endorsed it nonetheless. One week after the Convention adjourned, he wrote to three former governors of Virginia, appealing for their support: “I wish the Constitution which is offered had been made more perfect, but I sincerely believe it is the best that could be obtained at this time; and, as a Constitutional door is opened for amendment hereafter, the adoption of it under the present circumstances of the Union is in my opinion desirable.”46

  Not perfect but workable, that was the tone—and it was also the strongest argument for ratification. A national government was needed, and here were the outlines for one. The Constitution could be fine-tuned later. Even the official letter the Federal Convention sent to the Confederation Congress, which transmitted the proposed Constitution, struck that chord. The “consolidation of our Union,” the letter stated, was so “seriously and deeply impressed on our minds” that each state delegation was “less rigid on points
of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”47

  Many Americans today find it difficult to treat the so-called Constitutional Convention (a name applied with historical hindsight) as a rough-and-tumble political affair. Such honesty, they fear, would undermine the participants’ credibility and the almost scriptural sanctity of the resulting document. We need not be so timid. By altering our perspective only slightly, we might even view the contentious proceedings, and the eventual compromises, as a fitting model for the interest-driven constitutional democracy that soon emerged and flourished with time.

  Downplaying the political nature of our government’s creation is well meant but misguided. It creates too much distance between our world and that of the framers. If we see the men who wrote the Constitution as above politics, we cannot see them as models for how we might resolve our differences today. They become less relevant, not more so.

  Historically, if we fail to acknowledge the dynamic politics of the Federal Convention, we are left with myth and fabrication. On the word of Franklin, Washington, and others, we know that interest played its part, and thanks to the fastidious work of James Madison, we see it in practice. Whereas the gentlemen who gathered in the Pennsylvania State House in 1787 fully understood the historic nature of their enterprise and did their best to ground the overall structure of their plan on solid republican theory, their philosophical arguments were thoroughly entwined with push-and-pull politics, as such arguments always are in real historical circumstances. There is no reason this should surprise us.

  4

  PRINCIPLES

  Myth: The framers were guided by clear principles of limited government.

  Analyze how the U.S. Constitution reflects the principles of limited government, republicanism, checks and balances, federalism, separation of powers, popular sovereignty, and individual rights.

  —Texas History Standards, grade 81

  The 7 principles of the US constitution are: Popular Sovereignty … Separation of Powers … Checks and Balances … Limited Government … Republicanism … Federalism … Individual Rights.

  —Answers.com/WikiAnswers2

  Kernel of Truth

  The men who wrote the Constitution thought deeply about the nature of government and did their best to base the document on what they called first principles. As avid students of and participants in the transatlantic Enlightenment, they found no shortage of principles to choose from: the social contract theory of government, associated most often with the British philosopher John Locke; separation of powers, a core feature of Britain’s unwritten constitution; and so on. They cited often Montesquieu’s The Spirit of the Laws, which noted that laws should be adapted to the conditions of each country—its people, customs, religion, and geographic characteristics. Of the varieties of government Montesquieu outlined, they all believed that the United States was better suited to a purely republican form in which the people are sovereign than to an aristocratic, monarchical, or despotic government. They were also steeped in the British Whig tradition, which viewed concentrated governmental power as the eternal enemy of liberty.

  The framers embraced the opportunity to embody these ideas in a real-life national republic. To prevent Old World tyranny from being replicated here in America, they based their new plan on republican ideals that delineated governmental authority. The enduring power of the Constitution stems in no small measure from the ability of the framers to fashion rules that defined the reach of the new central government and its relationship to the existing states.

  But …

  The lists of principles we learn to memorize in civics classes, like those in the quotations above, focus on restraining government, and the matter-of-fact presentation implies that the principles are clear and the lists are exclusive. In fact, the principles the framers embraced were not so simple and concise, and these men, though wary of governmental power, did not focus solely or even principally on limiting it.

  What’s missing from these tidy lists of founding principles is the motive force, the reason the framers decided to tackle the difficult task of forming new rules in the first place. If all they cared about was restraining power, they would have stuck with the Articles of Confederation, which restrained government quite effectively by never really creating one. Instead, they tossed out the old agreement and started from scratch.

  The indispensable question is: Why?

  Whereas the framers believed that government without restraint would inevitably lead to tyranny, they also thought that government without strength would lead to chaos and anarchy—a fair description, in their view, of what was happening to the United States. To turn the nation around, they needed to fashion a strong central government, and to justify that brazen move, they would have to base their new government on sound civic principles.

  Government, the framers held, was necessary both to promote the common good and to keep people from reverting to a state of nature, where neither life nor property is secure. (The English philosopher Thomas Hobbes had espoused this philosophy in the mid-seventeenth century, and the framers, though adhering to the Whig view of liberty, did not dispute Hobbes’s central claim.) For a government to possess sufficient “vigor” or “energy” to promote these worthy goals, it must be granted the powers to levy taxes, to raise an army, and to regulate commerce. Further, at the risk of becoming inconsequential and even of falling apart, a central government must be able to operate directly on its citizens, without intervention from state governments, and its actions must be respected as the law of the land. These principles of strong and effective government deserve equal billing with others that guard against government overreach; in fact, they should be listed side by side.

  Finding the proper balance between competing principles—between grants of power and restraints on power—was a major challenge facing the framers. Each of these principles, on inspection, is more complex than it seems. Is liberty hindered or helped by a government strong enough to protect the weak from the strong? How can state and federal governments both be sovereign when only one is ultimately “supreme”? Does popular sovereignty imply that the people should have a direct role in their government? If one branch of government checks another, how can those two branches really be considered separate?

  None of these quandaries can be resolved by sloganeering, yet they all need to be examined if we wish to fathom the framers’ daring attempt to devise workable rules that did justice to their principles.

  The Full Story

  The framers’ thinking about government was shaped in part by the signature events of seventeenth-century English history: the midcentury civil wars and the so-called Glorious Revolution of 1688, which firmly established the role of Parliament within a mixed monarchical republic. In the wake of that revolution, and continuing through the American Revolution nearly a century later, British Whigs, whose first principle was liberty, tussled politically with British Tories, who emphasized the need for stability. Most eighteenth-century Americans, including the framers in their formative years, considered themselves Whigs—but Whigs whose ideas soon took on a peculiarly American flavor. They grew up with liberty on their minds, ever suspicious of monarchical prerogatives, the abuses of royal governors and judges, and even the overreach of Parliament, generally regarded in England as the ultimate Whig political institution. In Americans’ eyes, imperial government was always suspect, and in the years leading up to independence, Americans concluded that the British Empire was so unredeemably corrupted as to spell the end of English liberty.

  Locally, though, American colonials saw government as a positive force. Because citizens elected their representatives annually, the colonial legislatures expressed what could be viewed as the people’s will. Save for governors appointed by the Crown and the officials they appo
inted, American colonies functioned like small republics.

  After declaring independence, when Americans formalized those republics by framing and adopting new state constitutions, constitution writers in each state studied how best to effectuate republican principles. Most argued that power should be assigned to separated branches. Pennsylvania chose instead to keep all power within one branch, the legislative branch, but it instituted a host of democratic safeguards to keep the people in charge of their government; all bills, for instance, could not be voted on until after the following election, giving the people an opportunity to weigh in. In either case, that the people now owned their government undermined, or at least transformed, the central axiom of Whig thought: government is the natural antagonist of the people’s liberty. Such writers as Thomas Paine declared that when government is a creature of the people, people cannot be their own enemies—at least in theory, and at least for small governments.

  What about a federal government with authority extending throughout the nation? Would such a government be a natural friend of the people or an ever-present threat to their liberty?

  Americans in 1787 differed on this. Some said that “no government formed on the principles of freedom can pervade all North America.” Because “it is impossible for one code of laws to suit Georgia and Massachusetts,” enforcement of the law would have to rely on “military coercion.”3

  The men who wrote the Constitution and their supporters in the ratification controversy thought otherwise. If they grounded the federal government, like the state governments, on frequent popular elections, that government, like the state governments, would be an embodiment of the people. Because rulers and the people would no longer be “contending interests,” there would be “no quarrel between government and liberty.” Government, in fact, would be the “shield and protector” of liberty.4