The Founders Decide Who Gets To Decide

The Founders Decide Who Gets to Decide

Brace yourself.  The Founders were not Democrats.

But before you join the conga-line led by Justice Scalia and spend too much time thinking that they were Republicans, brace yourself a second time.  They weren’t Republicans either.  There were no political parties at the time of the American Revolution, and there were none at the time of the Constitutional Convention. If there are rightful heirs to the Founders' intellectual tradition, they don’t wear easily identifiable team jerseys. 

One of the problems in looking at history, even our own, is that it is very difficult to contextualize judgments made generations ago while using the lens of contemporary views.  This is even more difficult in a country such as ours, which is comparatively quite young and somehow seems to have emerged, whole, from the British Empire as the Moon broke away from the Earth billions of years ago.  With one glaring exception, that of slavery and race, that Moon carried with it a fully formed government that stands, essentially untouched, more than two centuries later.  To this way of thinking, we can see a Declaration of Independence, Constitution and Bill of Rights, defining the permanent contract we made with each other. That initial compact is followed by a Civil War, that surgically excises the one unpleasant issue, a raft of Amendments done in accordance with the Constitution, all leaving a more perfect, democratic, union.

It’s a lovely idea, and an elegant solution to almost every problem.  What would the Founders do?  Go to the text, and you will find out what they meant.  Democracy expresses itself though elections, election results provide us with leadership to enact and carry out the law, and a judiciary serves as brake against government overreach.   That’s what we all think—the voter, ultimately, rules, except in cases where the voter takes too much from the individual. 

Look through the structure ultimately settled on, and you will find a great deal of evidence that is exactly what was intended by the Founders.  With one exception—the “Democratic” part.  As Joseph Ellis points out in his new book “The Quartet” the Founders did not have a conception of democracy as a governing theory—if anything, they were fearful of “mob rule.” 

They did have a very good idea of who should be ruling the newly independent nation (if it were to be a nation) and the answer turned out to be rather familiar. Leadership should be well-educated.  Leadership should have property.  Leadership should be trained in managing men.  Leadership should be enlightened and with a sense of public duty informed by responsibilities in their personal lives.  Leadership, in short, could be found amongst the assembled delegates.   

But, even before we get to the question of who is fit to serve in a leadership role, we have to examine a more seminal issue—who gets to decide who is fit to serve, and who gets to pick the people who get to decide.  It’s an answer that seems obvious to those of us who live in the 21^st Century—the voters choose.  

But the Founders were a little less enthusiastic about that—they worried about heated passions, they worried about factionalism, they worried about majority overreach, and, quite honestly, they worried about a broader electorate selecting someone they wouldn’t have picked.  Checks and balances were fine, but the hands on those checks and balances should belong to planters and businessmen and Generals.

Take a look at the first governing structure proposed at the Constitutional Convention.  On May 29^th, 1787, Edmund Randolph of Virginia introduced the James Madison-authored Virginia Plan.  It included a new National Legislature with a lower legislative house with members elected for three year terms by “the People”, an upper house (“Second branch”) with members selected for terms of seven years by individual state legislatures, and a National Executive—appointed by the  National Legislature, for a single term of seven years.  As for a judiciary, a “Supreme Tribunal” appointed by the upper house of the National Legislature, with lower courts appointed by the entire National Legislature.

Not a tremendous amount of “Democracy” in that.  The Virginia Plan is radical as compared to the old Articles of Confederation, in that it gives a tremendous amount of authority to a centralized government.  But, it is actually quite conservative when you consider who actually gets to pick the “deciders.”  Nothing really happens without the consent of the Second Branch—the group selected by the individual state legislatures, presumably from a pool of the most influential, best educated, most Washington/Jefferson/Hamilton/Adams/Madison-like.

The most interesting aspect of the differences between the scheme proposed in the Virginia Plan and that ultimately adopted in the Constitution: It was all reshuffling of authority amongst the already powerful and influential.  The new Constitution rejiggered the relative strengths of the two Houses, enhanced the power of the National Executive, including appointment power regarding the Judiciary, and changed the manner of selecting the National Executive.   But Democracy, as in the power of the average citizen to select his leaders, didn’t gain an inch. 

The Founders just weren’t Democrats.  But they were interested in having and exercising power, and they realized that a core flaw of the original Articles of Confederation was that it treated every state, regardless of its size, location, resources, and population, exactly the same—it gave them all a veto power.  They had to devise a way to apportion power that reflected those differences, and yet gave some guarantees to smaller states that they wouldn’t just be overwhelmed.   They found that, in part, through the very democracy that made them uncomfortable.  While the Senate would continue to be appointed, the House of Representatives would reflect population, and the President would be selected by Electors whose number would be equal to the sum of Senators and Representatives from each State. 

In short, the richest and most powerful in the several states would derived some of their power from the numbers of people in their states.  Individually, the people can only vote for a Member of the House of Representatives.  As a group, they enhance the influence of those who run and represent their States.

Size matters.  As expressed in the Virginia Plan:“T”hat the right of suffrage in the first branch of the national Legislature ought not to be according to the rule established in the articles of confederation: but according to some equitable ratio of representation — namely, in proportion to the whole number of white and other free citizens and inhabitants of every age, sex, and condition including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes in each State.”

And, Article I, Section 2 of the Constitution:  “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

For many decades, we have always focused on the Three-Fifths clause as an embarrassment and a betrayal of founding principles stated in the Declaration of Independence and re-expressed by Lincoln at Gettysburg.  We haven’t really thought about what proportional representation actually means in a representative democracy, and what “one man, one vote” means as it relates to actual population.  Perhaps that’s because most of us think the answer is pretty obvious—it is right there in Article I, Section 2.    

Apparently, that is not the case. The Supreme Court has never ruled on it.  But they will—they have just accepted for certification a new case, Evenwel v. Abbott, No. 14-940, which ostensibly concerns state and local voting districts, but will undoubtedly impact congressional redistricting as well.  The two plaintiffs in that case, conservative activists from Texas, want voting districts to be drawn based on the number of voters, not the number of inhabitants.  If the Court agrees with them, the power of rural and elderly voters will be enhanced at the expense of those living in cities with higher birthrates, a lower average age, and more immigrants. 

This is an extraordinary assertion—and, in my opinion, a disturbing one. Watch this case. It has vast implications.  The ruling is expected next June, just in time for the 2016 elections.  Ask yourself, what would the Founders do?  Then, read the text of for yourself, and see what they did do. 

Let’s see if the Supreme Court agrees. 

May 28^th, 2015

Michael Liss (Moderate Moderator)

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The Founders Head For The Kitchen

The Founders Head For The Kitchen

There is a great story about George Washington’s taste in food. He, and Martha, were apparently fond of English-style cooking, and particularly meat pies.  For Christmas one year, their kitchen turned out a favorite—a savory delicacy made of a bushel of flour for crust, stuffed with five different types of boiled fowl—pigeon, partridge, duck, goose, turkey, all baked on high heat for four hours.

When you think about how the Founders actually came to create the elegant mechanism known as the Constitution, you should disavail yourself of the notion that it emerged, somehow whole, as a product of a few men’s transcendent genius, arrived at after erudite discussion at the very  highest plane of thinking.  Rather, think of George and Martha’s groaning table, and all the grinding, steaming, and plucking that brought them holiday cheer. 

It is Spring, 1788, and George Washington has left Mount Vernon and arrived in Philadelphia for the Constitutional Convention.  He is, as always, punctual in the extreme, and so is one of the first people to get there.  Ultimately, nearly eighty delegates join him, and when they are not eating, drinking, dancing, and otherwise entertaining themselves (Philadelphia being a party town) they get down to the business at hand, conceptualizing the framework of a new government.  While much of the work is being done in the kitchen below, Washington is the center of attention, and the elephant in the room.     

It is hard for any of us to fully grasp the esteem in which Washington was held.  As a frame of reference, in 1788 there were no political parties, so we didn’t have 2/3 of the country immediately forming a fixed, partisan opinion.  There were no trails of emails or text messages, no inappropriate tweets, no votes on obscure riders that could be held against them, and no primary voters demanding fealty to a long set of articles of faith.  People judged Washington on his service to the fledgling nation, which was considered unsurpassed.   They saw him as incorruptible man, honor-bound to duty first.   Poems and songs were written about him, in the very best of 18^th Century fulsomeness.  

Whether the popular opinion of Washington as a kind of a demi-god was entirely reality-based was irrelevant.  It existed, and was pervasive.  The strength of that belief had a profound effect on not just the ordinary citizen, but also the assembled delegates at the Constitutional Convention.  

To start with, his presence there gave legitimacy to the entire undertaking. If Washington attended, the population would assume that the results of the Convention would align with their needs—people assumed he would act as a sort of a tribune, in the old Roman sense of the word, a person who literally had the responsibility of protecting the plebeian citizen from arbitrary action by the patricians.  To those who had previously been subjects of a distant King, subject to his whims, his soldiers, and his taxes, this was a critical point.  

Second, Washington, was the obvious person to fill the role of chief Executive—if that role was actually agreed to by the Convention—there was none under the Articles of Confederation.  But that created a different set of stresses for the participants, because they hadn’t defined exactly what they wanted an Executive to do—or if they even wanted one.  There were really three points of view represented at the Convention and in the thirteen states.  Some believed the Articles were perfectly fine, except perhaps for a little tweaking.  Others accepted the idea that a new government was needed, with an executive office, but not a new strong Executive—whatever powers the head of state might have would be substantially circumscribed by a Legislature that would dominate. The third group conceive an Executive closer to the type of Presidency we have today.

All three of these points of view had their passionate, and eloquent adherents.  Roger Sherman of Connecticut (one of only two delegates—Franklin was the other—from a working class background) was profoundly skeptical of a centralized form of government.  John Dickenson of Delaware (who had opposed Independence initially in the Continental Congress) argued that the defects in the Articles should be fixed—by amending the Articles, not replacing them.  A majority of the Virginian and Pennsylvanian delegations supported what was known as the “Virginia Plan”  (mostly drafted by Madison) to establish a national government consisting of legislative, judicial and executive branches.  Within the group of supporters of an Executive, there was a split on actual authority, because the Virginia Plan seemed to take a considerable amount of what we think of as Executive power (war and peace, foreign affairs, pardons, etc.) from Congress and move it into the Executive branch, and, not surprisingly, not every future Congressman and Senator was all that enthusiastic about that. 

Figuratively, and literally in the middle of this, sat Washington himself.  Literally, because he was the (silent) Speaker of the convention.  Figuratively, because the Executive powers that the delegates were debating were going to be his to use.  Not to stretch a metaphor, but elephant in the room was particularly large.

This created an enormous stress, perhaps even creative stress.  Washington wasn’t going to take a sinecure, and everyone knew that.  Franklin had made that mistake by accepting the (toothless) Governorship of Pennsylvania, and a good General learns from history.  To get Washington to leave Mount Vernon and his personal interests and responsibilities, they would have to give him a real job.  And to give the Executive, and perhaps, by extension, the entire new form of government the intellectual and emotional heft and legitimacy it needed, they had to have Washington’s blessing—and that would be best represented by his heading it.  An unhappy,  taciturn Washington returning to his figs and vines wouldn’t really do.

But, the delegates were also faced with another issue—while the people (and most of them) trusted Washington personally to carry out his duties with responsibility, with restraint, and with honor, they had no idea who his successor would be.  Making the job big enough for Washington to accept might mean giving it more power than they would have been willing to give to a lesser man—and literally everyone who would succeed him was going to be thought of as a lesser man. 

Worse, they had to debate this right in front of Washington, under, if you will excuse the expression, his imperial glare.  Arguing against Executive power was essentially an argument against Washington, or at least against Washington taking the job.  So, when it came to discussing the actual nuts and bolts of the Executive power that might be implied in the Virginia Plan, there was initial hesitation in the room, until Franklin, of all people, encouraged people to speak up and framed the argument. It wasn't Washington who was the issue.  It was the office—and the expectation (or the fear) that the reach of the office would grow as future Executives sought and received more and more power, until eventually you would have a monarchy in all but name. 

Franklin opened the door, and the unspoken (or perhaps not publicly spoken) doubts and fears began to spill out.  In an foreshadowing of the battles later with regard to representation, some of the delegates worried that a single Executive would favor the region he came from to the detriment of the other states’ interests. Two of Washington’s fellow Virginians, Edmund Randolph and George Mason, perhaps mindful of disputes about slavery, wanted a triumvirate—a three person executive office, one chosen by each region.  That would have been a deal-killer for him.  There was no way he would have accepted any type of sharing, and there was no one remotely of his stature.  The success of the Convention hung in the balance, and perhaps mindful of that, the triumvirate proposal was ultimately rejected by a 7-3 state margin.    

So, after all that plucking, boiling and baking, it would be a single Executive. Washington could exhale after the iffy appetizer, but just how substantial a meal were the cooks really willing to give him? 

Back to the kitchen.

May 20th, 2015

Michael Liss

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The Founders Flee to Philadelphia

The Founders Flee to Philadelphia

In early May, 1787, George Washington, well tailored and well appointed, stepped into a fine coach, bid a farewell to his beloved Mount Vernon, and, attended by three men, headed for Philadelphia for a Convention that would change the course of American history.

We are at a moment in time where the viability of the new American nation is at risk.  The War for Independence has been won, but the British are not exactly rushing to get out of town (or country).  The government envisioned by the original Articles of the Confederation really doesn’t work, and the major movers in the country (Washington, Franklin, Jefferson, Hamilton, Madison, John Jay, etc.) all know it.  The national currency, such as there is one, is basically worthless script.  There is no ability as a nation to do much of anything collectively, because each state guards its own priorities and privileges—and those priorities do not include giving up much power to a central government.

Not everyone agrees that something has to be done.  It has taken many months to even get people to come to a convention—and the word “Constitutional” is so fraught for some states that it can’t really be used.  But, eventually, enough of them buy into the idea that they are willing to send representatives—if for no other reason to make sure that not one iota of their authority is in any way abridged.

Washington’s trip is filled with irony from the start.  The three men escorting him north are not really whole men at all, at least in the eyes of the law.  All three are slaves—his personal manservant, a coachman, and a groom.  One wonders what thoughts might have been going through their minds, or how they might have felt when they learned that the leading men of the country had assigned their lives a 3/5 value. 

But this one moment, with Washington being helped into his coach by his liveried servants, bidding farewell to his plantation, with its more than 300 slaves, on his way to help define the way that you and I, our cities and states and national government interact with each other, tells you some absolutely critical things about the very people we ascribe mystical powers to, “The Founders.” 

First,  a majority of them were slaveholders.  Franklin, who formed an anti-slavery society earlier in the eighteenth century, notably was not.  But owning slaves was the norm, and it was not just the planter class—in no place in America were slaves barred, and the economic value of slavery extended beyond the Southern States to the great port cities of the Mid-Atlantic and North . We New Yorkers like to think of ourselves as enlightened—but it wasn’t until 1799 (after, if you are counting, both the Revolution and the Constitution) when we adopted a gradual emancipation plan—to be completely effective by 1827.  And New Yorkers did reasonably well.  New Hampshire and New Jersey didn’t formally outlaw it until 1865.  Salary and the slave economy was pervasive.  And, the very idea of equality among races (political, economic, or social) was unthinkable.

Second, they were men.  Women didn’t always have full property rights, much less voting rights.  At Mount Vernon itself, over half the staff were “dower-slaves” that were owned by Martha Washington’s first husband, who died without a Will.  Washington freed his slaves on his death.  When Martha passed, her 200 or so dower souls reverted back to the Custis Estate, to be distributed amongst his heirs.  The political rights they would be arguing over had little application to women. 

Third, and perhaps most importantly, they were largely aristocrats and men of wealth, and certainly men of power.  Whatever our mythology about the Revolution leading to democracy and the rise of the individual as a citizen with equal rights, with marvelous pictures of great orators rising in defense of the common man, our form of government was negotiated by people who were largely deciding how to allocate power amongst themselves and their states. 

This wasn’t necessarily a bad thing, because self-interest largely became a proxy for the general welfare.  Even the most aristocratic among them recognized that the rights they were negotiating for themselves would also apply to a broad swathe of the citizenry—not all of it, not Africans, not women, but certainly free white men. 

But, what did they really want?  The best way to think about what went on in the Convention, and afterwards, is to think about our political system as roughly a capital I, with power flowing both horizontally and vertically

The vertical axis is defined by the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

The top horizontal bar contains the three branches of Federal government, the Executive, the Congress and the Judiciary.  The bottom bar consists of “the people” with certain enumerated rights, that have largely come to be defined by the Bill of Rights, Amendments 1-10.  In those Amendments are expressed the ones we tend to revere--things like freedom of religion, freedom of speech, prohibitions against unlawful search a seizures, rights to a fair trial, gun rights.  

But, at the moment the Convention began, these rights, these power, and these interlocking duties didn’t really exist in a single document, nor was there any agreement on even basic principles.  Americans had a general sense of what they wanted as people, which roughly translated to what they thought were the rights of Englishmen, without the monarchy. And they had a basic idea of what they expected in government. As to lawmaking, they had a vague idea of a legislature, drawing from their own state legislatures, and from the English tradition of bicameralism, but even there, how much power each house should have, where bills should originate, what type of representation there should be, who should choose those representatives, and the ratio of representatives to states was the source of both confusion and real debate.  Finally, most thought there was some need for an executive of some type, but what kind of Executive, how much power he should have (or even whether there should be a single one) was hotly debated.  They had just rid themselves of a despotic King.  They weren’t about to embrace another.

And yet, enough people knew there to be change.  The potential for a great nation, even a new empire (bear in mind that we had barely gone as far as Ohio) was there—enormous tracts of land that gave opportunity for those without a lot, but willing to work hard.  Tremendous natural resources, water, timber, furs, fish.  It was all there, as was the remarkable energy and ambition of a restless population.  It needed structure and infrastructure, and a government ready to deliver on it. 

The time was ripe for a Constitutional Convention—enough people knew they had to move forward and take a chance.  But could the representatives put aside their own ambitions, and parochial concerns?

That was the unanswered question when Washington arrived in Philadelphia on May 15, 1787, in his fine clothes, his manly bearing, his perfect manners, his slaves in tow.

He was greeted, and feted and praised and clucked over. 

The bickering soon followed.

May 15, 2015

Michael Liss (Moderate Moderator)

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Mike Huckabee Wants to Kiss Your Grandchild

Mike Huckabee, the former Governor of Arkansas, Fox News pundit, author, minister, guitar-strummer, Baptist Minister, and all-round nice guy wants to kiss your grandchild.  He loves babies, as all good politicians do.  But he really loves grandparents, especially senior grandparents, because…well, let’s be honest, without grandparents, there never could have been grandchildren.  And Huck is just brimming with love and kisses.

Of course, Huck also realizes that when you visit a baby shower, you bring a gift.  The problem is that babies grow up to be terrible-two year olds, and mouthy pre-teens, and impossible adolescents, and…they can’t vote until 2036, when even Joe Biden will have given up.

So, why waste your largess on someone who could be colicky, when you can do something nice for Grandma, and maybe she can crochet you a “Huck in 2016” pillow?

Granny is actually a pretty darn smart lady, well known to have sharp elbows at the weekly church bingo game, and ultra-competitive as well—her pickles took second prize at the County Fair last year.  Grandpa’s slowing down and his knees are shot, but he still carries that black change purse with the clasp at the top, and no coin ever leaves it without protesting first. 

So, with those tough customers, why not distinguish yourself from the other 18 or so Senior-loving Republicans who are running for President and explicitly promise to preserve Social Security and Medicare?

Why would Huckabee do this, and buck established GOP orthodoxy?  After all, Seniors went Mitt 56/44 in the last election, and are turning into one of the most reliable GOP voting blocs.  Why promise people something when they are already firmly in your camp—and you know you might want to take it away from them later?

Part of the reason is purely tactical.  First, the GOP has been rather brilliant in appealing to Seniors.  They have artfully managed to turn the “Third Rail” on the Democrats heads.  Seniors may have a vague thought that the GOP loves tax cuts and hates entitlements, but that’s hasn’t coalesced in their minds.  What they really fear is Democratic spending on schools, infrastructure, and any entitlement that doesn’t directly benefit them—and especially ACA. 

The second is that Seniors, as a group, are more culturally conservative than the rest of the nation.  But using “cultural conservative” is inaccurate shorthand, because we aren’t necessarily talking about Bible-belt cultural conservatism.  Rather, it is a conservatism that is rooted in time and in place, almost a nostalgia for the way things were when they were growing up, the way they were when they first got married and had kids, and started to build their adult lives.  They want those times back. 

If you were born in 1940, the only gay people you knew about or suspected was the “confirmed bachelor” who lived down the block and the hairdresser.  Add male ballet dancers and Liberace and that was about the spectrum. The idea that gays would live openly gay lives was ridiculous.  And marry was a complete absurdity.  As for yourself, you got married early, and the wife would stay home—first as a housewife and then as a mother. Married couples, even unhappy ones, stayed together.  Married couples had kids, unmarried ones didn’t. As to your community, it was homogeneous, which made sense, because in the 1940 Census, 90% of Americans identified as themselves as white.  The predominant minority were blacks, who largely lived in segregated areas, away from sight and sound, except for domestics and manual labor.   Latinos were less than 5% of the population, and as they were concentrated in a few geographic areas, they were essentially non-existent in much of the country. 

That world, of social and demographic mores, is gone, and gone forever.  It’s more than just anecdotal.  Every metric shows it. Unmarried births are over 40%--a doubling since just 1980.  The divorce rate was 20% in 1940, it was 33% in 1970, when the oldest boomers were getting married, and it’s over 50% now.  Nearly 60% of adult women are in the work force, and while progress has come more slowly in some fields, they are prominent in the professions.  As for population and community—31% in the 2010 Census identify themselves as a minority—16% as Latinos. 

These are gigantic changes in just a couple of generations.  They are scary to a lot of people—not just nativists and ideologues, but to many seniors, who just want to live out their golden years in the security of the place they thought of as home. 

Mike Huckabee gets that. And he’s very smart—smart in a way that few politicians, in either party, really are.  He both politically savvy and has great emotional intelligence.  He knows that the values he’s pitching from his pulpit resonate with seniors, particularly because he’s not a hellfire and damnation type.  And he understands that the pastoral message for a congregant has to throw a little sugar in there as well. When you go to church, you are offered comfort, tradition, order, community, and a little support when you need it. Feed the soul, but feed the stomach as well. 

This last part is what distinguishes Huck from the rest of the pack.  Democrats are so busy offering help without rules that they just don’t seem to respect their elders.  But, ask a good Republican aspirant for higher office what his true religion is, and, after he mouths a few pieties about faith and family, he will tell you what really moves him—tax cuts, and the elimination of entitlement programs.

Huck bridges the two sides.  Huckabee tells older people that the conservative-life-the-way-it-used-to-be message isn’t one of anger, but rather one of regret and yearning.  And, he tells them more—that their virtue and hard work has earned them their share of the post-working afterlife.  That’s Social Security and Medicare, and those promises are an unbreakable covenant.    

Expect to see that in the coming months, as the GOP begins its informal and formal debates.  That isn’t going to make the party elders very happy, because most of people who have either announced or are expected to announce have embraced Paul Ryan’s plan to shift Medicare to a premium support system.

The GOP is going to pitch those changes as a positive good for Seniors—more choice, more security.  But they aren’t, and every single candidate who is honest with themselves knows that.  The new GOP budget just passed by the House and Senate shows their priorities—boost military spending, cut more taxes, and pay for it by going after every dollar that isn’t welded to the ground.  And Medicare has a lot of dollars. 

Republicans are gambling that Seniors won’t make the connection, or, if they do, they will place their social values and fears over their pocketbooks.  But what they were really hoping for might not happen.  Don't talk about it.  Win the election, and then get around to tithing the older congregants. 

Will Ryan’s plan be debated aloud, or will it just be whispered?   That’s a tough one for Huck.

Let’s see if he wants to render unto Caesar the things that are Caesar's, or unto Seniors the things that are Seniors. 

One thing is certain, however.  Kissing babies is a lot easier.

May 7, 2015

Michael Liss (Moderate Moderator)

 

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