by Ray Raphael
Through the founding era, Americans across the political spectrum held these convictions in common. The Declaration of Independence stated that “governments are instituted among Men” to “secure” the rights of “Life, Liberty, and the Pursuit of Happiness.” According to the Articles of Confederation, the states needed to form “a firm league of friendship … for their common defense, the security of their liberties, and their mutual and general welfare.” In both the Articles and the Constitution, note the proximity of three terms: common defense, liberties, and general welfare. These were all of a piece, reinforcing one another.
In colonial times, before the major incursions of British imperial authority in the mid-1760s, liberty and authority on the local level were not antagonists, but coupled. American colonials enjoyed a degree of home rule unparalleled in Europe at the time and scarcely imaginable to us today. Particularly in the New England colonies, where citizens gathered to make decisions as a corporate body, government was perceived not as an external force exerting authority and endangering liberties but as a vehicle for promoting the common good. People could better secure their liberties by coming together than by trying to do so separately.
Local governments enacted regulations that restricted individual behavior but protected the public, which included everybody. The “blessings of liberty”—being safe from a fire started by one’s neighbor, for instance—were more secure with regulations than without them. Consider these ordinances adopted in Albany, New York, in 1773. As in other late colonial towns and cities, Albany required houses to be inspected by “viewers of hearths” and leather buckets to be kept at the ready, and it also placed a limit of twenty-eight pounds on gunpowder that could stored in a private building. All powder in excess of that amount needed to be stored at the community magazine, for a price. The city also imposed traffic laws: “Any horse or horses with coaches, chairs, waggons, carts, sleds, or other carriages” found to be driving “immoderate or fast” was fined three shillings. Beyond promoting safety, regulations prompted responsible behavior, thereby reducing day-to-day apprehensions and making life more pleasant. Property owners were required to pave the streets in front of their houses with “good and sufficient stones.” A baker needed to “plainly mark the two initial letters of his Christian name and sirname upon every loaf of bread he shall expose to sale within the said city, upon pain of forfeiting all such bread … to be distributed to the poor.” Meat prices were controlled, and meat from sick or injured animals “so poor and emaciated as to be unfit for eating” could not be sold. Other health regulations included prohibitions against throwing “any carrion, garbage, oyster shells, ashes, ordure, rubbish, or any other kinds of filth or dirt whatsoever” or dumping “any tubs or pots of ordure any where but in the river.” Although most medical practices were unregulated, there was one notable exception. Any “midwife or man-midwife” needed to take this oath: “That you will be diligent, faithful and ready, to help every woman labouring of child, as well the poor as the rich, and that, in time of necessity you will not forsake or leave one woman to go to another…. That as often as you shall perceive any peril or danger, either in the woman or child, and you shall be in doubt, you shall thenceforth, in due time, send for other midwives, or except [accept] women in that family, and use their advice, counsel, and assistance, in that behalf.”17
In the colonists’ fight against British imperial policies, the public good often trumped concerns for individual rights. Patriots boycotted British goods, but that ban could succeed only if merchants went along. When some didn’t, claiming that they were at liberty to buy and sell as they pleased, Samuel Adams responded: “Have you not a right if you please, to set fire to your own houses, because they are your own, tho in probability it will destroy a whole neighborhood, perhaps a whole city! Where did you learn that in a state or society you had a right to do as you please? And that it was an infringement of that right to restrain you?”18
Individual rights were sacrificed again when resistance turned to warfare. Citizens were drafted and prices were regulated. Merchants complained that they should be able to sell food and goods at whatever price the market would bear, but others insisted that the needs of society forced limitations on personal liberty, as often happens in times of war or scarcity.19
For more than a decade following independence, from 1776 to the Federal Convention in 1787, states legislatures tried to codify all aspects of public life, regulating the activities of individuals for the betterment of society. In colonial times, many laws had been enforced at the discretion of unaccountable officials such as customs inspectors; now, in reaction, laws were written in such exactitude as to eliminate discretion and thereby corruption. By 1787, in a private memorandum titled “Vices of the Political System of the United States,” James Madison argued that “the multiplicity of laws in several states” had progressed too far, but he did not mean that he was against legal regulation per se. Instead, he complained about the “want of concert in matters where common interest requires it.” Regulations for the common good were not bad, but piecemeal legislation, often pandering to special interests, rendered more meaningful federal measures “abortive.”20
Concern for the common good was foremost in the minds of the framers when they gathered in the late spring and summer of 1787. On June 11, Benjamin Franklin implored his colleagues to display less rancor in their disagreements over representation in Congress, which was interfering with their larger goal, “promoting & securing the common good.” On June 22, speaking against multiple office holding for sitting members of Congress, Alexander Hamilton warned that the “prevailing passions” of “ambition and interest” driving human behavior should be made “subservient to the public good.” On August 24, when considering whether the president should be selected by a joint meeting of Congress or by separate ballots of the House and Senate, Nathaniel Gorham urged delegates to forget their concerns for political gain in making their decision; “the public good,” he said, “was the true object to be kept in view.” And so it went. Even Luther Martin, the Convention’s most vocal opponent of strong central authority, tempered his preference for individual rights. Whereas the “first principle of government is founded on the natural rights of individuals,” he said, “I am willing to give up private interest for the public good—but I must be satisfied first, that it is the public interest—and who can decide this point? A majority only of the union.” Like politicians today who habitually appeal to the “will of the American people,” the framers alluded to the “public good” to affirm whatever point they happened to be making. The term had universal appeal.21
Within the Constitution, the term “general welfare,” connoting the public good, appears twice. In the Preamble, “promote the general Welfare” immediately precedes “secure the Blessings of Liberty”; there is no hint of conflict between the two. The second mention comes in the first clause of Article I, Section 8, the hard-hitting passage that gives Congress the power to tax (see chapter 2). Taxes, the framers said, would be used to “provide for the common defence and general Welfare of the United States.” When this positive grant of power was proposed by the Committee of Eleven on September 4, not a single delegate objected. “General Welfare” was not a contentious concept, nor was it placed in opposition to liberty or seen as a threat to individual rights.
Today liberty, like so much else, has been privatized. It frequently translates to a person doing as he or she pleases without regulation—a blasphemous word in the mouths of many—or without regard for the common good. Much of what the framers intended, hoped, or expected is lost in that distorted translation. In those times, government did not necessarily drive a wedge between liberty and authority. A monarchical government might do so, an imperial government might do so, or too weak a government might do so, but a republican government, carefully conceived and rooted in the collective will of the people, could protect liberty by exerting authority. People were safest under the management of a vigorous a
nd effective government, imbued with sufficient powers to keep the ambitious few or the mindless many from trampling their rights.22
Popular Sovereignty, Representation, and Filtration
We generally assume that the phrase “popular sovereignty,” like “individual rights,” connotes limited government; if governmental authority ultimately rests with the people, the people, it seems, will want to circumscribe the powers their government has over them. That’s not exactly how the framers treated the idea, however. They did believe that governments derive “their just powers from the consent of the governed,” as the Declaration of Independence succinctly proclaimed. To get a seat at the table in Revolutionary and post-Revolutionary America, a political figure had to subscribe to that principle, and to the last man, each of the framers did. Yet the framers used popular sovereignty to strengthen government as well as to limit it. To imbue the new government with sufficient energy to lead the nation from the brink—in their minds, their fundamental object—they needed to base that government firmly on the people’s consent. Popular sovereignty was a prerequisite for strong government. Without it, critics would be correct: only coercion could keep the nation together.23
Yet the learned delegates gathered at the Federal Convention did not believe the people could be trusted with the actual operations of government, and some trusted the people far less than others. “The people,” Roger Sherman contended, “immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.” Elbridge Gerry agreed. “The evils we experience flow from the excess of democracy,” he famously pronounced. While not all delegates were so blunt, most were wary of democratic forms in which the people either rule directly or control the acts of their representatives. Had they not seen state legislatures succumb to popular pressures for paper money and debtor relief? And wasn’t that a major cause for their coming together?24
The framers faced a quandary. Their commitment to popular sovereignty suggested they should let the people rule, but if the people actually ran the government, the framers could not vest that government with much power. Democracy was a fearful concept and a powerful democracy even more so.
The framers’ solution lay in the principle of representation. The people, the ultimate source of authority, would delegate that authority to others for defined amounts of time. Conceptually, representatives linked the people with their government while simultaneously placing them at some remove—often a considerable remove. In the federal edifice the framers constructed, only members of the House of Representatives, or the “first branch” of the legislature, would be elected by the people directly. Senators were to be chosen by state legislatures, the president by a special group of electors, and Supreme Court justices, federal judges, ambassadors, and “other public Ministers and Consuls” by the president, with the consent of the Senate. Through this system of “successive filtrations,” as James Madison called it, a “great fabric” could be raised—but it needed to “rest on the solid foundation of the people themselves,” who would elect representatives to the first branch. James Wilson, too, “was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people.”25
Through representation and filtration, popular sovereignty would be preserved yet popular control prevented. The “federal pyramid”—that is to say, the federal government—would protect minorities from being abused by a democratically elected majority. The particular job of the Senate, or second branch, was to check the popularly elected House. Edmund Randolph, who introduced the Virginia Plan, explained the reasoning: “The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this 2d. branch is to controul the democratic branch of the Natl. Legislature.” Gouverneur Morris echoed this rationale. “The propensity in the 1st. branch to legislate too much [and] to run into projects of paper money & similar expedients,” he said, needed to be countered by the Senate. James Madison was even more direct. The task of the Senate, he pronounced, was “to protect the people agst. the transient impressions into which they themselves might be led.” The existence of the United States Senate was predicated on the notion that people must be protected from their own ill-conceived notions.26
The framers tried not to push their distancing maneuvers too far. At almost every turn, they looked over their shoulders at the people out-of-doors. Eventually, in the state ratifying conventions, delegates chosen by the people would accept or reject the document, and the framers could not overstep boundaries those people drew. It was a delicate balancing act. On the one hand, they treated the document as a contract agreed to by “We the People,” and they insisted that the people of the several states, not the state legislatures, approve that contract. On the other hand, they expected the people to select wise and temperate leaders and then leave the act of governing to them.27
Today, though we point with great pride to the framers’ endorsement of popular sovereignty, our interpretation of that term does not correspond to theirs. We like to emphasize the popular, shade it toward populist, and proclaim that the people own their government, pure and simple. The framers believed the relationship worked both ways. Sometimes, as Madison argued, government needs to protect the people from themselves—and 1787 was one of those times, he and his colleagues believed. The people, and the state legislatures that were responding to popular pressures, had to be reined in, and the Constitution provided a mechanism for doing just that. What the nation needed, they thought, was a strong and stable federal government, rooted in the people but not directly influenced by them, one that could counteract transient popular passions. Their job was to create such an instrument.28
Federalism, republicanism, separation of powers, checks and balances—exploring each of these so-called principles of limited government would reveal similarly nuanced intonations. Understandably, many Americans would prefer not to take that route. That our Constitution is written in plain language hints that its absolute meaning might be easy to comprehend and within our grasp, but history has demonstrated otherwise. If the Constitution were as transparent as ideologues make it out to be, the founding generation would not have haggled incessantly over what it really says.29
Today, Americans on the far ends of the political spectrum proclaim with certainty that they know precisely what the framers intended and the Constitution means. These facile readings mistake the part for the whole. The framers were not nearly so one-dimensional as many of their putative fans make them out to be. Indeed, if we are to locate the plain truth somewhere, it would likely appear not on the extreme edges, where so many claim they find it, but somewhere toward the middle, where the framers preferred to tread. Our founding document did not declare firmly for individual rights over the common good (or vice versa), and it gave plenty of fuel for advocates of both strict and loose constructions of the documents. In each case the framers explored the tensions between extremes and tried to find some balance. The discovery of the “true” principles behind the Constitution lies in the discussion, not on a multiple-choice answer sheet, and this discussion does not end. No simple algorithm can or will determine the Constitution’s meaning. If we pretend that one exists—or even worse, that we know precisely what it is—we transform the multilayered document that forms the basis for our government into a high school text: linear, lifeless, and incomplete.
5
THE FATHER
Myth: James Madison sired the Constitution.
James Madison … is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution.
—Wikipedia biography1
Each time an assembly of citizens gathers to deliberate and make decisions concerning the good of the community, the thinking and dedication of James Madison—“Father of the Constitution,” Secretary of State, and President of the
United States—live again.
—Website of the James Madison Memorial Fellowship Foundation, an independent agency of the executive branch of the federal government2
Kernel of Truth
James Madison played a prominent role in the initial conception, meticulous drafting, and final adoption of the United States Constitution. In 1786 he was a delegate to the Annapolis Convention, where he had hoped to discuss possible changes to the Articles of Confederation. That convention failed to get off the ground because of poor attendance, but it did set the national agenda by recommending a broader convention, to be held in Philadelphia the following summer, to consider ideas for rendering the Articles “adequate to the exigencies of the Union.” In the spring of 1787, as Madison looked forward to that second convention, he outlined his ideas for a new government in a private memorandum and in letters to such men as George Washington. Then, arriving early in Philadelphia, he met with other delegates from Virginia to outline a plan that embodied some of his basic ideas and served as the initial working draft. Although modified over the course of the summer, the Virginia Plan was never abandoned and the Constitution evolved from this initial set of resolutions.
At the Convention Madison spoke fluently and often, second only to the voluble Gouverneur Morris of Pennsylvania. He viewed the document from the broadest possible perspective, based his suggestions on republican principles, and supported them with historical evidence. “Every Person seems to acknowledge his greatness,” wrote William Pierce, from Georgia, in his thumbnail sketches of the Convention’s delegates. “In the management of every great question he evidently took the lead in the Convention, and tho’ he cannot be called an Orator, he is a most agreable, eloquent, and convincing Speaker … [and] he always comes forward the best informed Man of any point in debate.”3