In the last two essays we investigated the understanding of and the educational prejudices of government possessed by the Enlightened men that assembled in Philadelphia in May of 1787 for the Constitutional Convention. If we, nowadays, were to be as cognizant of the idiosyncrasies of comparative government that they were, I fear that we would have to study more than a couple of essays. Our founders were true students of government and of the essentials of human freedom. For them it was a lifetime avocation. Each of them and their fellow compatriots had personally suffered though oppression and tyranny to emerge into the light of freedom. They had used their intelligence and reason to understand the issues at stake and the actions necessary in order to gain their freedom. They had risked their own flesh and blood, sometimes unto death, on real battlefields to wrest it from their oppressors.
The reason for the poignant silence postulated by the metaphor of the dropping pin in the last essay when Madison and Randolph presented the “Virginia Plan” can now be understood. Not only were many of the delegates leery of purely popular democracy, they were equally leery of the “tyranny of the majority. ” The rhetorical question, “why would small States like New Hampshire, Rhode Island, Connecticut, or New Jersey or for that matter, the Georgia of those days, have any interest in participating in a popular democracy with likes of Massachusetts, New York, Pennsylvania or South Carolina?” The fact is that America was nearly as urban then as now; Boston, New York City, Philadelphia and Charleston were the four largest cities and residents of those states could have out-voted everyone else. The fear of the adoption of a popular democracy was so endemic throughout the country that many luminaries of the movement for Independence and the leadership of the Revolutionary War such as Samuel Adams, John Hancock, Patrick Henry, Richard Henry Lee and George Clinton refused to attend. Many were absent for personal reasons, but others for matters of conscience … they distrusted powerful central authority. Patrick Henry said that he “smelled a rat.” (Interestingly, Rhode Island, possibly fearing the “tyranny of the large,” never sent any delegates to the Convention.) In the end, many of these prominent leaders were not convinced and became anti-federalists, either fearful of or opposing adoption of the proposed Constitution, and were, in retrospect, certainly correct. Those with anti-federalist feelings, most notably, but among many others, Richard Henry Lee and Patrick Henry, were undoubtedly responsible for the “Bill of Rights,” without which, the document would have never been adopted or if adopted, successful. The Federalists (those in favor of the new Constitution) argued that the Rights of Man were inherently protected by the wording in the document; the Anti-Federalists argued that they were not. At this distance, it is easy to see who was right. The Constitution, for us today, without the Bill of Rights would be unimaginable. The Anti-Federalists did not trust those in positions of power to do Right. They felt, correctly, that the Rights should be written down.
It must be remembered that the States were, then and as now, sovereign entities, very different one from another, just as Wyoming of today has little in common with Connecticut. The original colonies had been founded for divergent reasons, and were quite different, one from another. Massachusetts, Rhode Island, Maryland, and Pennsylvania were founded by people fleeing religious persecution. New York was founded as a trade center by the Dutch. Georgia was a British penal colony. The governments of these States, for the most part republican in form and democratically elected, were very different in nature, reflecting their individual populace, idiosyncrasies and economy. Each had its own industries, commerce and agenda. The only reason for national government, in the view of most of the interested parties, was the need for protection from common enemies (both foreign and domestic); and their need to freely communicate and trade with each other. Beyond that they wanted, like their fellow citizens, to be left alone, away from interference by outsiders both foreign and domestic. Having first hand knowledge of the tyrannical tendencies of powerful central governments and bureaucrats, many were extremely dubious of man’s ability to control central governments. In fact, there were almost no examples of a government for free men having been established satisfactorily before and certainly none in a manner meriting imitation. And finally, just behind their fear for their freedom was the need for their property to be protected. They knew that no man could be free unless he was secure in his property. So, what did they do?
On June 11, 1787, a few days after the “Virginia Plan” was presented, Roger Sherman of Connecticut rose in the body and said, “… suffrage in the first branch (of the legislature) should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each state should have one vote and no more … As the states should remain possessed of certain individual rights, each state ought to be able to protect itself; otherwise a few large states will rule the rest.” He had articulated the idea, which in a modified form became known as the Connecticut Compromise. This idea coupled with the “New Jersey Plan” presented by William Patterson on June 15, threw the Convention into turmoil.
Patterson asserted that the mission of the delegates was to revise the Articles of Confederation so that the national government could levy taxes upon imported goods in order to support itself and to give it power to regulate trade and commerce between the states. He was a staunch federalist, believing, as did most others from the small states, that in matters of national concern, each state should have an equal voice as then existed under the Articles. Madison and his supporters of a supreme national government were appalled. The Convention came to an impasse arguing about these seemingly divergent ideas for more than two weeks. Finally, they recessed to observe the 4th of July, but before doing so, appointed a “Grand Committee,” with one member from each state to meet in the interim to see if there could be a compromise.
The venerable Benjamin Franklin, who was deeply involved, took it upon himself to entertain these gentlemen after their meetings at convivial dinners, and as was his wont, with good food and ample liquor, in order to deepen the chances for harmony. From these discussions, over a long weekend, the committee adopted, reluctantly, Franklin’s proposal. He suggested that the Congress be composed of a Senate, which represented the States and a House made up of a membership proportional to the population. His specific proposal was for one member of the House for each 40,000 inhabitants. The “Grand Committee,” with some trepidation, reported this suggestion to the re-convened convention, which ultimately narrowly adopted it. This was a terrible blow to Madison and is supporters, but it quickly became apparent to him and his friends that there would be no Constitution that did not include the “divided sovereignty” of the States and the National Government, which in fact was the final resolution, with the States the master and the Union the servant.
It was the Madison group that compromised the most, finally recognizing that it was indeed to be a union of diverse States. In the end, the brilliant Madison, after much reflection, became the most ardent supporter of the concept, writing eloquently of it in the Federalist Paper #39.
Once the form that the document would take was established, the Convention then took up the methods to empower the Federal Union in its mission to provide a viable national government, while preserving the autonomy of the States and most importantly preserving the Rights of the individual common man. The result was the vaunted “checks and balances” of our Constitution.
The bald eagle, with 13 arrows symbolizing power and 13 olive branches symbolizing peace in its talons, manifest in the National Seal symbolizes the ideal of the American Republic. The three co-equal branches of the same entity, serving the recently liberated States, stood ready to meet all nations on any terms. The delegates, to gain that end, had crafted an incredible system to protect those aims. They devised a system whereby every level of government delineated in the Constitution was, each in its turn, constrained first by internal limitations on its own power, and was then constrained by the power of the two other co-equal branches. The entire document was written with the view of the ultimate supremacy of the States over the Federal, and with all government subservient to the will of a free People.
We are familiar with many of the checks and balances. The President was to be elected for a 4-year term of office by emissaries of the States, the Electors of the Electoral College. The Electors were to be elected State by State by the People from their particular state. The House of Representatives was to be elected once every two years from districts of equal population nation-wide with the exception that each state was to have at least one Representative. The Senators were to be elected for 6 year terms, a third of the Senate every two years, by their respective Legislatures. The President, with the advice and consent of the Senate, would appoint the Justices of the Supreme Court and of inferior courts for life terms. Either the President or any of the judges, high or low, could be impeached in the House of Representatives for treason, high crimes or misdemeanors and removed from office upon conviction by trial in the Senate. There were many other powers and duties spelled out in the document. For one subtle instance, the reason for two Senators from each state instead of one was to preclude the ability of a single man to vote the will of his State. If there were two, there could be disagreement between the Senators. The will of a State in a vote in the Senate in a particular instance could be a unanimous yes or no on the question or a simple non-decision … a pairing if you will, but a protection for disparate state constituencies. Other interesting tenants were the provisions for the currency to be only gold or silver and for national administration of bankruptcy law. The Fathers were experts on paper money and people going broke.
The new Federal government was founded to promote harmony of intercourse between the States and their inhabitants. The Constitution is basically a list of the things that the President, the Congress and the Supreme Court can do. But, above all, if read fairly, it is a list of prohibitions on the powers of the central government, setting down strict limits on those powers. Things that are Federal in nature and in the purview of the national government are specifically set forth, leaving all other governmental responsibility to the States. The rights of the states are guaranteed and are not to be infringed. And of course, that was not enough. Before ratification could be obtained, the States required that the first Ten Amendments, the delineation of the Rights of Man, The Bill of Rights, be included by the first Congress, which met in 1789.
This Constitution, an experiment in divided sovereignty and limited power and of maximum human freedom, has been the most successful governmental experiment of all time. But of late, things seem to be going amiss and the malady is hard to diagnose. What has gone wrong and what to do about it is the subject of the next paper in this series.