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 21st 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 29th, 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
28th, 2015
Michael
Liss (Moderate Moderator)
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