Not So Democratic: The Caution of the Framers

It has been my pleasure for the past several months to read through the written remains of the Framers of our form of government and to live by an act of will and imagination in something like the intellectual atmosphere which enveloped their deliberations in Philadelphia and in the state ratification conventions called for by the results of the Great Convention.

On two occasions in recent years I have had the opportunity to visit the City of Brotherly Love and to examine what survives there of the charming provincial Capital, known to John Dickinson, Robert Morris, and Benjamin Franklin as their home.. This experience helped me a good deal in penetrating the barriers created by the two intervening centuries in our history as a people. Even so, I am in this work constantly made aware of the danger of anachronism—of the size of the gulf that separates us from the serenity and reasonableness and anti-ideological caution of the Fathers. But in one respect I believe I have identified a feature of their thought visible in particular during the Constitutional Convention that is hidden from us by the accepted myth of our national beginnings: a feature which we might do well to recover and apply in restoring the Republic to its original character.

It is important for us to remember when we examine the Constitution made in Philadelphia that it was written before the French .Revolution occurred and that the education of its authors was English and classical: principally an education in history, Roman literature, and law.

The upper reaches of metaphysical speculation concerning the nature of man and the possibility of creating a perfect Commonwealth for him to inhabit was not an important element in the political deliberations of the English Old Whigs or their progeny, the original American republicans. True enough, a few of them had read Hobbes and Locke and, more importantly, Montesquieu and David Hume. But what they learned from these authorities was in most cases understood to be only a gloss upon the historic rights of Englishmen and the history of English liberty out of which they had made a Revolution. The most important evidence in support of this understanding of their habits of mind comes from the way in which they treated the hypothetical imperative to what James Wilson of Pennsylvania, in speaking for the radical minority in the Convention, referred to as the “inherent, indisputable, and unalienable rights of men,” to a kind of equality in political rights.^[1]

It is true, of course, that the Framers often conceded that men were equal in a “state of nature”: equally ungoverned and equally unprotected. But some of them also maintained, as did Calhoun later, that the unpleasant and hypothetical condition thus described was a mischievous abstraction and that the truly natural state for man, as opposed to that of beasts, was social: art being, as Burke taught, man’s nature. What signifies in the reaction of the Framers to the appeals by Wilson and, to a certain extent, Madison, to a doctrine specifying the political equality of citizens in the Republic they were shaping from the raw materials of the Articles of Confederation and the extant and stubborn identities of the states is that they ignored them altogether.

Departures from Equality

I invite you to consider with me the many ways in which the “rights of man” are violated in the document agreed to in Philadelphia. The most important of these has to do with the “great compromise,” so called: the provision that one house of the national legislature should give an equal vote to each of the states, regardless of its size or population; and the attendant provision that every state should have at least one Congressman, regardless of its population. Not every delegate who opposed the insistence of the small states on this formula was a serious devotee of “natural rights.” Some were interested simply in the political influence of their own states. But the delegates from the smaller commonwealths made it quite clear that they were going home if they were not given their own way in this particular.

The prudence of such compromising spirits as Benjamin Franklin, who was ideological about almost nothing, intruded at this point. The old freethinker, always ready to make it up as he went along, called upon his colleagues to invite a minister to come and pray over their deliberations. The larger states continued to grumble, but recognized necessity. Later, another violation of equal rights—in this case of the rights of posterity—was added to confirm the compromise over legislative representation. I refer here to the provision of the Constitution which precludes any amendment at some future date that would deprive any state of its equal voice in the United States Senate.

Of course, the provision for state equality in the Senate goes against the sacrosanct doctrine of majority rule. But that is precisely what the Framers wished it to do. And they followed the same principle in most of the important sections of the Constitution. The rule requiring a 2/3 vote of both Houses of Congress and a ¾ vote of the states to amend the Constitution (the rule which has thus far prevented the adoption of the ERA, and which will, without doubt, prevent the conversion of the District of Columbia into a state by giving it seats in the Senate) gives an unequal weight to the vote of the first generation of Americans who accepted the Constitution, and to opponents of such changes in the succeeding generations.

The same holds true for the 2/3 rule with regard to the overriding of a Presidential veto, the 2/3 rule for the confirmation of ambassadors, justices of the Supreme Court and “of all other officers of the United States, whose appointments are not . . . otherwise provided for”^[2]; and the 2/3 rule in cases of impeachment, expulsion of members in the House or Senate, and the validation of treaties.

Voting Power

Allowing the House of Representatives and the Senate to make their own rules concerning the limitation of debate has, as we all know, been another restriction upon the will of the simple majority in the operation of our political system—and, I might add, a good one. So was the provi sion in the original Constitution which allowed for the election of United States Senators by the state legislatures or in any other fashion the states thought proper.

The much abused Electoral College works to the same effect and has, we should remember, produced several minority Presidents. If New York or California decide by one vote to send electors in favor of Candidate X, and Texas and Pennsylvania decide by the margin of, shall we say, a million to commit their representatives in the Electoral College to Candidate Y, the results of such disparity will not be reflected in the number of votes given in the only election that counts to the respective candidates. Our Presidents are elected by the people of the states, acting separately, but in unison. Simple plebiscitary democracy as proposed in some suggestions that we abolish the College goes against the tenor of the United States Constitution as a whole, and makes this mistake precisely because its proponents imagine that equality of individual political rights was the regnant abstraction in the political lexicon of the Fathers.

Other Departures from the Doctrine of Majority Rule

Four other examples of the indifference of the Framers to the doctrine of majority rule are (1) the provision in the Constitution for the election of the President by the House of Representatives with each state casting one vote in the case of a deadlock in the Electoral College; (2) the process by which the Constitutional Convention itself was called; (3) the manner in which the Convention voted, with each state having one vote; and (4) the way in which the Constitution was adopted, the equivalent of the way in which it may be modified today.

But there are often overlooked and more serious contradictions of the gospel of equality buried in the Constitution that go beyond mere restraints upon the will of the majority. Some of these are obvious, such as the protections for the institution of Negro slavery in the Fugitive Slave clause, the twenty-year extension of the slave trade, and the % formula for the representation of slaves in determining the voting strength of the South in the House of Representatives. It is noteworthy that no member of the Convention entertained any idea that the institution of slavery, as it stood within the various states, could be affected or threatened by the instrument of government that they hoped to create.

Slavery Condoned

A majority of the fifty-five members of the Constitutional Convention owned slaves. Farrand tells us that slavery was “accepted” by the Framers “as part of the established order,”^[3] and that they did not provide any procedure for its eventual extinction. On the contrary, some Northern members of the Convention complained (and perhaps rightfully) that the % formula allowed the South to increase its political power by the mere expedient of purchasing slaves. Twenty years was thought enough time to facilitate the importation of all the Negroes the South could possibly need, and almost suggests that such purchases were to be encouraged.

In the specific exclusion of Indians from the calculation of the census, equality is once again contradicted. And in the provisions requiring a certain age or status as citizen as a precondition for holding office, a political onus is attached to youth and foreign birth.

But far more important are the inequalities left to the discretion of the states. Qualification for the franchise, as was agreed by the members of the Convention after much debate, was to be determined in the several commonwealths and was not to be meddled with by any component of the national power. One is fully a citizen of the United States by being a citizen of one of its member states.

No less a Federalist than James Madison developed this distinction when serving as a Congressman from Virginia during Washington’s administration. The discussion concerned the right of one William L. Smith of South Carolina to hold the seat as Representative from South Carolina to which he had been elected. The dispute arose because he had been overseas during the years of the Revolution. Madison’s argument was uncomplicated. Representative Smith had never ceased to be a member of the society into which he had been born. Therefore, he became a citizen of the United States when South Carolina came into the Union.

Let the States Decide

That American citizens living in territories and possessions of the Republic and in the District of Columbia do not vote in Federal elections (except, according to a recent change, for President in the District) unless they vote by absentee ballot in one of the states, is evidence to the same effect. Political citizenship for representation in Congress is not within the gift of the government of the United States, or so the Framers intended. Indeed, the states were left by the original Constitution with the authority to impose a religious test for office. The First Amendment did not alter this prerogative, as it left untouched the state-supported religious establishments surviving in such places as Massachusetts and Connecticut. All that the amendment provided was that there should be no federally established church for the entire Union. This situation was modified with the Fourteenth Amendment. But Indians were still exempted from its protection. And Prof. Raoul Ber-ger, in his Government by Judiciary, has taught us to read even that innovation in our fundamental law as less drastic than some of our advanced thinkers would imagine.^[4]

Most of the Framers, including even such generous spirits as George Mason, expected the states to provide for a property qualification as a condition of the franchise. The one mentioned most often is drawn from English law, that of the “50 shilling freeholder.” For it was their consensus that a man (and we all know the Constitution gave no political rights to women) should have a stake in the society before he was given the right to have an influence over its future.

What propertyless men might do with their votes was the nightmare before the house ‘when the Great Convention assembled in Philadelphia. They called this nightmare by a simple name—democracy. And they connected that term of pejoration, an anathema with over half of the fifty- five members there gathered, with the rebellion in western Massachusetts led in the previous year by one Captain Daniel Shays. The overtly anti-democratic spirit of the Framers is to the uninitiated reader of the records of their proceedings the greatest possible surprise.

Fear of Democracy

In one sense, the fear of democracy and of the despotism that was likely to come after it is the “given” of the Great Convention. Almost as soon as the meeting convened and the Virginia delegation got control of the chair and then placed its plan of government before the house as its first order of business, Elbridge Gerry of Massachusetts (at this point in his career, as vigorous a republican as could be found) asserted that “the evils we experience flow from the excess of democracy,” and urged his colleagues to be “taught by experience the danger of the leveling spirit.” Governor Edmund Randolph, the spokesman for the Virginia Plan, picked up Gerry’s theme and urged the adoption of his resolutions as a counter to the “turbulence and follies of democracy” in which every “evil” of government under the Articles found its “origin.”^[5] And more of the same is to be heard throughout these debates.

General Washington had come to the Convention expressing the hope that New England would eschew those “leveling principles” that had made her men so difficult to command. Madison said the same in his letters. We have all heard what Hamilton called the people—“that great beast.” Gouverneur Morris described them as a “reptile,” and had added, “he who wishes to enjoy natural Rights must establish himself where natural Rights are admitted. He must live alone.”^[6] And Rufus King of Massachusetts announced the opinion that “the unnatural Genius of Equality [is] the arch Enemy of the moral world.”^[7]

If these sayings of our political forefathers do not sound like what the myth has taught us to expect, the text of the Constitution should persuade us that the statements were in character and are reflected in the most significant kind of action, the drafting of a fundamental law.

A Religious Restraint

The Framers were, again contrary to the myth, a body of religious men, sceptical concerning human nature, particularly of its collective manifestations. Only four or five of the Framers were Deists, and even they, as for instance Franklin, were undogmatic about politics, devoted to no vast, a priori scheme. The caution of David Hume and the pessimism of St. Paul can have the same political results. Experience, as gathered in history and prescription, was, in the eyes of the Framers, the proper guide in political questions, as in most others. At the end of the Convention with the finished document on the table before them, the venerable Franklin bespoke the caution of the entire Assembly when he asked each of his colleagues to “doubt a little of his own infallibility.”^[8]

It was a fine thing to tinker with a stove or even to invent a city, and especially so if the stove and the city were what people wanted, and what circumstances either required or allowed. But the secular religion of an ideology, the mindset which we associate with a Robespierre or a Marx, would not have been well received in Independence Hall during those hot late spring and summer months of 1787. The very physical appearance of the place and of the buildings surviving from the community which then surrounded it should tell us that. What they say iconically is that extremists are not in the proper style.

No Sudden Shifts of Power

The culture of the English Enlightenment shared by the authors of our Constitution was essentially anti-rationalistic, anti-metaphysical. “Enthusiasm” was the opposite of what they meant by philosophy. And large-scale theories of human rights are “enthusiastic.” They threaten property and the going social order, opening the way to a situation in which men like Captain Shays might replace the natural leaders, the men of virtue; confiscate and distribute everything in sight. Such a prospect frightened the Framers into altering the form of government established in the Articles, providing for an authority to check all such rebellions, even if they were peaceful and political. And certainly if they offered violence.

However, since our country crossed the Great Divide of the War Between the States, it has been more and more the habit of our historians, jurists, and political scientists to read the Continental Enlightenment, and the Age of Revolution that was its political consequence, back into the record of our national beginnings by way of an anachronistic gloss upon the Declaration of Independence.

I will not here belabor the vexed question of how we might best interpret the Declaration, as I have already said enough on that subject in another context.^[9] But my argument on this occasion does demonstrate that whatever the Declaration meant to Thomas Jefferson or later to Abraham Lincoln, the “political religion” of equality got short shrift from the men who wrote our Constitution. And the Constitution, not the Declaration, is law. It provides that our government follow the deliberate sense of the American people. As the South has always recognized, concern for minority rights is not the major explanation for its anti-egalitarian features, but rather a determination that the majorities with power to change the law be very large indeed.

The Constitution makes it difficult or even impossible for us to alter our political identity on whim or when momentarily carried away by the adjuration of demagogues. But it allows, indeed requires, that we hammer out a consensus on the important things affecting a very limited public sphere, working under the shadow and from the example of those judicious men who first set the great engine of our government in motion. To keep it running, we must remember how and why it was made.

1.   James Madison, Notes of Debates in the Federal Convention of 1787 (Athens: Ohio University Press, 1966), p. 221.

2.   U.S. Constitution, Article I, Section 2.

3.   Max Farrand, The Fathers of the Constitution: A Chronicle of the Establishment of the Union (New Haven: Yale University Press, 1912), p. 130.

4.   Suffrage for the freedman is not contemplated in the Fourteenth Amendment, which explains subsequent Republican enthusiasm for the Fifteenth Amendment—once the party began to lose its white support.

5.   Madison, Notes, pp. 39 and 42. See also p. 658, where Gerry calls democracy “the worst . . . of all political evils.”

6.   Max M. Mintz, Gouverneur Morris and the American Revolution (Norman: University of Oklahoma Press, 1970), p. 73.

7.   Robert Ernst, Rufus King: American Federalist (Chapel Hill: University of North Carolina Press, 1968), p. 299.

8.   Madison, Notes, p. 654.

9.   M. E. Bradford, “The Heresy of Equality: A Reply to Harry Jaffa,” on pp. 29-57 of A Better Guide Than Reason (La Salle, Ill.: Sherwood Sugden & Co., 1979).