The Founding of the American Republic 17; C. Carson

CLARENCE B. CARSON THE FOUNDING OF THE AMERICAN REPUBLIC 17 Principles of the Constitution 734 THE QUESTIONSat issue in the con stitutional convention were rarely, if ever, philosophical in nature. The men gathered at Philadelphia in 1787 were practical men, by and large, going about the practical business of proposing how power would be disposed, arrayed, and distributed in the United States. Nor is the Constitution a treatise on philosophy; except for the pre amble, the document deals exclu sively with the practical and the mundane. Nonetheless, the debates were informed by principles, as remarks and occasional flights of oratory indicate, and the Consti tution is based on high principles, which we may know both from analysis and an examination of the apologies for it. These principles follow, if not inevitably then naturally enough, from the Founders' understanding of human nature. The same human nature which made government necessary, they thought, made cer tain principles appropriate to it and essential if it was to endure for any extended time. Govern ment is made necessary because man is not perfect. James Madison put the matter succinctly: If men were angels, no government Dr. Carson recently has joined the faculty of Hillsdale College in Michigan as Chairman of the Department of History. He is a noted lec turer and author, his latest book entitled Throttling the Railroads.

1972 PRINCIPLES OF THE CONSTITUTION 735 would be necessary. If angels were to govern men, neither external nor in ternal controls on government would be necessary,! Obviously, Madison thought men are not angels; on the contrary, man is a flawed being, needing restraints whether he belongs among the governed or the gov ernors at any particular time. Human Nature Is Suspect There is no indication that any of the other Founders thought otherwise. Alexander Hamilton de clared that "men are ambitious, vindictive, and rapacious." 0) Nor could he see that human ~ature was more dependable because the beings involved lived in republics rather than under monarchs: Has it not ... invariably been found that momentary passions, and immediate interests, have a more ac tive and imperious control over hu man conduct than general or remote considerations of policy, utility, or justice? Have republics in practice been less addicted to war than mon archies? Are not the former admin istered by men as well as the latter?

Are there not aversions, predilec tions, rivalships, and desires of un just acquisitions that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jeal ousy, avarice, and of other irregular and violent propensities?3 Hamilton's low estimate of human nature is well known, but the gentle spoken Benj amin Franklin did not rate it much higher. He declared that when you "assemble a number of men to have the ad vantage of their joint wisdom, you inevitably assemble with those men, all their prej udices, their passions, their errors of opinion, their local interests, and their selfish views." He predicted that the government they were provid ing for in the convention "can only end in Despotism, as other forms have done before it, when the peo ple shall become so corrupted as to need despotic Government being incapable of any other."4 A fair interpretation of this latter statement would be that man has an ingrained downward bent. The political implications were spelled out by Madison in this way: "In framing a government which is to be administered by men over men the great difficulty lies in this: YO~ must first enable the government to control the governed; and in the next place oblige it to control itself.";' Capable of Reason It does not do j llstice to the Founders' conception of human nature simply to emphasize the flawed side. Man is a rational ani mal, they thought, i. e., capable of 736 THE FREEMAN December reason. He loves liberty, and needs it for the fulfillment of his pos sibilities. He is self-interested a trait that can be turned to good use - but he is also capable of conceiving a general interest which embraces others as well as himself. He is an active, responsi ble being, capable of invention, construction, concern, and what goes by the name now of crea tivity. Put power in his hands over others, however, and he must be carefully watched .. This was the cornerstone of their political faith.

With these views of human na ture, the Founders combined an unusual mixture of hope and resig nation about the government they were contemplating, hope that they could contrive a system that would be lasting but resigned to the likelihood that it would founder sooner or later on the· shoals of the lust for power of those who governed and the bent to corrup tion of the governed. Many of the debates of the convention hovered around the question of whether too much or two little power was being conferred and whether those who would exercise it would have sufficient leeway to act energeti cally or be sufficiently restrained to prevent arbitrary and despotic action. The debates reflected these concerns; the Constitution em bodied their conclusions. The con vention was the forge; the Constitution was the finished and tem pered metal. The following are its most salient principles: ) . federal System of Government The federal system of govern ment, as we know it, was invented at Philadelphia in 1787. Diction aries, encyclopedias, and textbooks now define a "federal government"

as one in which there is a division of powers between a general gov ernment, on the one hand, and local (or state) governments, on the other, both governments hav ing jurisdictions over the citizenry within their bounds. A confedera tion is now held to differ from this arrangement in that under it the individual states retain the sole authority to use force on individ uals. No such distinction appears to have existed in 1787. The only percei vahle distinction was a grammatical one. "Confederation" was the noun form used to de scribe the organization of the states into a unit. "Federal" was the adjective form of the word "confederation." For example, Richard Henry Lee, who was op posing ratification of the Consti tution, said that the "object has been all along to reform our fed eral system. ~ . ."6 He could only have been referring to the system under the Articles of Confedera tion as "federal." In adjoining sentences, Hamilton employed the 1972 PRINCIPLES OF THE CONSTITUTION 737 words as if interchangeable in meaning. 7 Initially in the conven tion, those who favored a general government with sanctions re ferred to it as "national." They did not, however, get the system they had .. concei ved, and in the course of the debates "national"

had odium attached to it. Those who favored adoption of the Con stitution referred to themselves as "federalists," and to the govern ment as a "federal" one, 8 in part, one suspects, to minimize the ex tent. of the innovation. Clearly, what they had wrought was not a confederation, and it came to be called a :'federal" government. It made sense, once the Amer ican system had been devised, to use the words "federal" and "con federation" to call attention to structural differences in systems, but this development in language has tended to obscure the inven tion that took place. Occasionally, however, it has been pointed out. A present-day writer notes that the "United States is regarded by many students as the archetype of a federal system. . . . Even gen eral definitions of the term seem to derive from the American model."o James Madison wrote one passage, too, in which he called attention to the new char acter of what they. had devised: The proposed Constitution ... is, in strictness, neither a national nor a federal Constitution, but a composi tion of both. In its foundation it is federal, not· national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national not federal; in the extent of them, again, it is fed eral, not national; and, finally in the authoritative mode of introduc ing amendments, it is neither wholly federal nor wholly nationa1.10 It is a brilliant description of the complex arrangements in the Con stitution, but, unfortunately, Madison is speaking in an un known tongue so far as present day Americans are concerned. Not only did the distinction between "federal" and "confederation" take place, but in contemporary usage "federal" is employed almost ex clusively to refer to the general government and has, thus, become a synonym of "national." Whereas, Madison used "federal" to refer to those things in the Constitu tion in which the states retained their force and vigor.

At any rate, the main feature of the federal system of government is that the power of government was divided between the general government and the state govern ments. Such a division has the appearance of being a division of sovereignty, something which poli tical theorists have said could not 738 THE FREEMAN December be done. The Founders disposed of the theoretical problem by ignoring it in that they did not vest any such absolute authority as is described by sovereignty in any government. A political scien tist has put the matter correctly in this discussion of the American government: "Sovereignty, in the classic sense, has no meaning; divided as power is, the element of absoluteness which is essential to the concept of sovereignty is not present."ll The Constitution acknowledges the existence of the states and vests some of the powers of government in the United States. Power is dispersed rather than concentrated, and each of the coordinate (not levels of) governments has its own jurisdic tion.

The Role of the States Both the general and the state governments are independent of each other to a degree but are also dependent on one another. These relationships are provided for by intricate arrangements. All elec tions take place within states and under their auspices. The Consti tution was only to go into effect after the ratification by conven tions held state by state. The se lection of the personnel for the branches of the general govern ment involved the states to greater or lesser degree depending upon the office involved. The House of Representatives was to be com posed of members chosen from districts within states, and the number allotted to each state was to be based on population. Each state, on the other hand, has two Senators, providing for an equal ity of the representation of states in the upper house. This was worked out in what is sometimes called the Great Compromise of the convention, or the Connecticut Compromise. The President is selected by an electoral college, each state having as many electors as it has Representatives and Sen ators. The members of the courts were to be appointed by the Presi dent with the advice and consent of the Senate. The Senate was also given major powers in the ap proval of other appointments and in treaty making. The states re tained a large role both because of the preeminence of the Senate and that everything having to do with popular election is done by and within states.

The general government was clearly given control over the mas sive use of force and the states were left with the preponderant authority to use force ordinarily. The general government is author ized to raise and maintain armed forces and may call into action un der its authority any state mili tary force. Laws made in pursu1972 PRINCIPLES OF THE CONSTITUTION 739 ance of the Constitution are de dared to be the supreme law of the land. The states retained most police powers, courts dealing with most civil and criminal matters, and much that has to do with the protection of life, liberty, and property. The general government is charged with protecting the states from foreign invasion and from one another. The line be tween the powers of the states and those of the general government was not marked by great detail; it was, no doubt, expected that they would contend with one an other over various jurisdictions and thus limit one another. Such contentions were expected to coun terbalance the extensive use of power by any government.

To say that federalism was an American invention is not to im ply that it sprang from the head of Zeus fully clothed at Philadel phia in that summer. Actually, the Founders were encompassing a tradition when they devised the federal system. There were ele ments of federalism in the British colonial system. Each colony had its own government to deal with local matters. The British govern ment exercised the type of powers over the colonies that were now to be vested in the general govern ment. Moreover, the Congress un der the Articles of Confederation had much of the authority which was now vested in the general government, even if it lacked the power for the full exercise of it. Most of the innovation was in the wresting of a pattern from an im perial system and installing it in a republican setting. 2. Republican Form of Government There are two basic require ments which must be met if a government is to be styled a re public: (1) it must be popular in origin, Le., draw its authority from an extensive electorate; and (2) power must be exercised by representatives. It is distinguished from an· heredi tary monarchy in that it is based on popular elec tion and from democracy in that power is wielded by representa tives. Those who favored the new Constitution took pains to show that the government it provided for was republican in character.

James Madison showed that its powers were derived from the peo ple by this explanation: The House of Representatives, like tha t of one branch at least of all the State legislatures, is elected immedi ately by the great body of the people. The Senate, like the. Present Con gress and the Senate of Maryland, derives its appointment indirectly from the people. [The Senate was chosen by state legislatures until the ratification of the 17th Amendment.] The President is indirectly derived from the choice of the people, accord740 THE FREEMAN December ing to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people them selves. 12 As they understood the differ ence between a republic and a de mocracy, it was a republic, not a democracy. Though it was based on the people, the people acted through representatives. Popular decision went through a series of filtrations, as Madison put it, be fore it became government action.

The United States was not a monarchy, and safeguards were introduced to prevent its becom ing one, as Madison said: Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the fed eral and State governments; and in its express guaranty of the republi can to each of the latter.l 3 3. Separation and Balance 01 Powers If there was one principle upon which the Founders were agreed more than any other it was that of the separation of powers. Mon tesquieu had taught them that it was a requisite of good govern ment. Both they and Montesquieu knew the separation of powers in principle from the British ex ample. State governments already incorporated the principle, how ever imperfectly. Once it was de cided that the power to coerce individuals would be lodged in the United States government there was little doubt that a system of checks and balances must be lq cated in the system. If the indi vidual could be coerced by it then the government must be re strained by checks and balances.

For this to be done, there must be several branches to limit one another. The branches, as con stituted, made it a mixed govern ment.· This idea is not so well known anymore, for it comes from classical theory, which no longer is the basis of our studies as it was for the Founders. The idea is that there are three possible pure modes of rule: they are, monarchy, aristocracy, and democ racy. In this sense, neither the United States nor the states have a pure form of government; they are, instead, mixed. In the United States government, the President is based on the monarchical prin ciple, the Senate the aristocratic, and the House the democratic (both because it has more members and is directly elected). It was not monarchy,aristocracy, or democracy, but rather drawn from 1972 PRINCIPLES OF THE CONSTITUTION 741 principles of each of them as a form, Le., from rule by one, rule by a few, and rule by the many.

The Founders had considerable difficulty devising a mixed gov ernment from a constituency which contained no fixed classes. As they saw it, it was very im portant that each of the branches be distinct from the other in the manner of its selection. A mixed government was desirable, in the first place, because there were dif fering functions of government which could best be entrusted to one, to a few, or to many. But, if the functions were best performed in this way, the division should not be watered down by having all the branches chosen by the same electorate. Perhaps it would be most accurate to say that they partially solved the problem. The members of the House were di rectly elected, and the number of them apportioned according to population. The Senate was to be elected by the state legislatures. This was natural enough and did base the choice on two different realities. But they never hit upon any comparable reality from which the President could be chosen.

Having him elected by an electoral college was an artificial expedient which, while it did give him an independent basis of selection, did not provide him with one that was organic to the country . Three Branches of Government There was much talk in the convention of making each of the branches independent of the other, and much was done to achieve this principle. The branches were· not only given different sources of election but also were provided protections from one another. The houses of Congress make their own rules, are judges of the elec tions of their members, and joint ly set their pay. They have a con stitutionally established regular time of meeting, and may adjourn by agreement one house with the other. The President can protect himself by the use of the veto and by his powers of patronage. More over, he is commander-in-chief of the armed forces as well as having at his disposal the Federal con stabulary. The members of the courts are to be paid according to a regular schedule, their salaries not to be reduced during their tenure, which is for life or during good behavior.

But there is no denying that the branches are also interdependent and entwined in their operation. All legislation must pass both houses of Congress on the way to becoming law. Even appropria tions, which must originate in the House, must still pass the Senate before they can go into effect. The President can veto acts of the Congress; in which case, such an 742 THE FREEMAN December act can only become law by being passed by at least two-thirds ma jorities in each of the houses. The President and the Senate are par ticularly entwined in the appoin tive and treaty making powe'lts,., Amendments to the: Constitution not only regularly involve both houses of the Congress but the state legislatures as well. The ef fect of all thi.s interdependence is to require government by a con sensus of the branches and, in the case of constitutional amend ments, of the states also. The more important the decision, the broader the base for its approval must be for it to be put into effect.

4. Limited Government The crowning principle of the Constitution is limited govern ment, for all the other principles tend toward and are caught up in this one. The federal system of government, the republican form of government, the principle of separation all place procedural lim its on the powers of the govern ments. The independence of the branches, one of another, and of the state and general governments provides them with a base from which to check and limit one another. Their interdependence makes the concurrence of branch es and governments necessary for action to be taken. The Constitution provided not only for procedural limits on gov ernments but for substantive ones as well. One way in which the gen eral government is substantively limited is by enumerating its pow ers. This is done most directly in setting forth the legislative pow ers of the government, which pow ers are all vested in the Congress.

They are contained in Section 8 of Article I, and read, in part, as follows: The Congress shall have Power to lay and collect Taxes .... To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization . To coin money . To establish Post Offices and post Roads; .... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water .... To have placed all legislative au thority in the Congress was a limitation on the other branches. To have enumerated the powers implied that those not listed were not included. Discussions within the convention bear this out. For example, the question was raised as to whether or not the general 1972 PRINCIPLES OF THE CONSTITUTION 743 government ought to be granted the authority to construct canals.

The idea was rejected on the ground that this would involve the general government in projects which would be mainly beneficial to the people of particular states. The point, however, is that they were operating on the assumption there that if the power were not listed it was not granted. But it is not necessary to con clude only from the enumerated powers that the general govern ment is limited by the Constitu tion. There are specific limitations contained in it. The Constitution required that all direct taxes be apportioned on the basis of popu lation. (This prohibition was later removed by the 16th Amendment.) Other taxes must be levied uni formly throughout the United States. All taxation must be for the common defense and general welfare of the United States, which should be conceived as a major limitation. Specific restric tions on the general government are listed in Section 9 of Article I, of which the following is a partial list: The Privilege of the Writ of Ha beas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may re quire it.

NoBill of Attainder or ex post facto Law shall be passed .... No Tax or Duty shall be laid on Articles exported from any State .... No Money shall be drawn from the Treasury, but in Consequence of Ap propriations made by Law.... No Title of Nobility shall be granted by the United States. State governments were also limited in the Constitution in sev eral ways (Section 10, Article I). The following is an example: No State shall enter into any Treaty, Alliance, or Confederation, grant Letters of Marque and Re prisal; coin Money, emit Bills of Credit; make any thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder or ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. Some delegates to the conven tion were heartily in favor of a specific prohibition being placed in the Constitution against the United States government emit ting bills of credit (Le., issuing paper money). Others said that occasions might arise, such as during the late war, when the is suance of paper money might be necessary. The upshot was a silent compromise. Congress is not au thorized to emit bills of credit, but neither is it specifically prohibited to do so. (The going assumption, however, was that if it was not granted it was prohibited.) 744 THE FREEMAN December Curbing the Majority The other main limitation in the Constitution was the tacit limitation on the powers of the people. There was much concern expressed both in the constitu tional convention and in the state ratifying conventions about limits on the people. The Founders per ceived that a majority may be tyrannical; it may work its way so as to intrude on the rights of individuals, which rights were considered to be the premier ones.

Alexander Hamilton said: "The voice of the people has been said to be the voice of God; and, how ever generally this· maxim has been quoted and believed, it is not true to fact. The people are turbu lent and changing; they seldom judge or determine right."14 Moses Ames, speaking in the Massa chusetts convention which was considering the ratification of the Constitution, said: "It has been said that a pure democracy is the best government for a small peo ple who assemble in person .... It may be of some use in this argu ment ... to consider, that it would be very burdensome, subject to fac tion and violence; decisions would often be made by surprise, in the precipitancy of passion, by men who either understand nothing or care nothing about the subject; or by interested· men, or those who vote for their own indemnity. It would be a government not by laws, but by men."15 James Madi son declared that "on a candid examination of history. we shall find that turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in repub lics, have more frequently than any other cause, produced despo tism."16 The people were limited by the original Constitution in that they could act only through represent atives, that except for the House of Representatives the branches were indirectly chosen, and that the courts were most remote from popular control. Both the govern ment and the people are limited by the vesting of effective negative powers on any legislation in each of the houses, of a veto in the President, and the establishment of a Supreme Court which, it was understood, would have a final negative. Positive action requires a concurrence of the branches; while several of them have the power of negation. The direct power of the people is also limited' by the staggering of the terms of offices. The House of Representa tives is chosen every two years.

The terms of Senators are for six years, and approximately one-third of them are chosen every two yearS. The President's term is for 1972 PRINCIPLES OF THE CONSTITUTION 745 four years, and the members of the courts serve during good be havior. This provided both for stability in the government and a safeguard against the people's working their will over the gov ernment while they were under the sway of some temporary passion. 5. The Transformation of Empire. One of the least appreciated principles of the Constitution is that contained in the provision which makes it possible to dis solve an empire periodically by adding new states to the union. The United States had an empire from the beginning; indeed, writ ers and speakers frequently re ferred to the United States as an empire. At the least, however, the United States had a vast territory west of the Appalachians and to the north and west of existing states. It was of considerable in terest at the convention what pro vision should be made for the future of this territory. Should it be carved into provinces which, when anyone of them became populous enough,_ would be ad.,.

mitted on equal terms with the older states. Gouverneur Morris, among others, argued vigorously that this should not be the case. He feared that in time the west ern states would outnumber the eastern states; "he wished therefore to put it in the power of the latter to keep a majority of votes in their own hands." He summed up his case in this way: "The busy haunts of men not the remote wilderness are the proper school of political talents. If the Western people get the power into their hands, they will ruin the Atlantic interests. The back members are always averse to the best meas ures."17 On this occasion, however, Mor ris was outpointed by the leaders of the Virginia delegation. George Mason said: "If the Western States are to be admitted into the Union, they must be treated as equals and subjected to no degrad ing discriminations. They will have the same pride and other passions which we have, and will either' not unite with or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethern." Edmund Randolph de clared that it was entirely "inad missible that a larger and more populous district of America should hereafter have less repre sentation than a smaller and less populous district." Madison joined in the colloquy by saying that "with regard to the Western States he was clear that no un favorable distinctions were admis sible, either in point of justice or policy."IS 746 THE FREEMAN December The Constitution simply states that "New States may be admit ted by the Congress into this Un ion ...", followed by some protec tions of the territory within exist ing states. The manner of provid ing for representation, however, assured that new states would be on a par with the original thirteen when they came into the union.

The effect of this has been the dissolution of empire by the ad mission of new states. In short, the Constitution provided for the transformation of empire into states which joined the union as fullfledged members of an expand ing United States. The state delegations present and voting in the convention at its close gave unanimous approval to the Constitution. Only a very few individuals refused to sign the handiwork of the convention. The document was submitted to the Congress, from whom it was to go to the states which were asked to hold ratifyingconven tions. As the signing was taking place, Benj amin Franklin made the last public remarks recorded for the convention. James Madi son. described them this way: Whilst the last members were sign ing it Doctor Franklin looking toward the President's Chair, at the back of which a ... sun happened to be paint ed, observed to a few members near him, that Painters had found it difficult to distinguish in their art a ris ing fron1 a setting sun. I have, said he, often and often in the course of the Session, and the vicisitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether is was ris ing or setting: But now at length I have the happiness to know that it is a rising and not a setting sun.!D All who would having signed, the convention adjourned sine die.

~ Next: The Bill of Rights. • FOOTNOTES • 1 James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (New Rochelle: Arlington House, n. d.), p. 322. Hereinafter referred to as The Federalist. :! Ibid., p. 54. :{ Ibid., p. 56. 4, James Madison, Notes of Debates in the Federal Convention of 1787, Adrienne Koch, intro. (Athens, Ohio: Ohio Univer sity Press, 1966), p. 653. 3 The Federalist, p. 322. 6 Richard W. Leopold, et al, eds., ProbleTfLs in American History (Engle wood Cliffs: Prentice-Hall, 1966), p. 134. 7 The Federalist, p. 114. 8 See Hamilton's argument in The Fed·· eralist #9, for example. n Richard H. Leach, American Federalism (New York: Norton, 1970), p. 2. 10 The Federalist, p. 246. 11 Leach, op. cit., p. l. I~ The Federalist, p. 242. 13 Ibid. 14 Elliot's Debates, Bk. I, Vol. 1, p. 422. 13 Ibid., Vol. 2, p. 8. Hi Ibid., Vol. 3, p. 87. 17 Charles Warren, The Making of the Constitution (New York: Barnes and Noble, 1937), p. 594.

18 Ibid., pp. 594-95. In Madison, Notes, p. 659.