The Founders' Constitution
Volume 1, Chapter 2, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch2I.html
The University of Chicago Press
2
Popular Basis of Political Authority
CHAPTER 2
Introduction
If all men are by nature perfectly free and equal, there can then be no claim grounded in nature of one to rule another. To be sure, there may be attributes of superiority--age, looks, name, connections--that endow some individuals with political influence. And, as John Locke noted, "Excellency of Parts and Merit may place others above the Common Level." Yet these differences among human beings cannot outweigh the politically decisive corollary of original freedom and equality: it is consent and consent alone that makes a member of any commonwealth, and accordingly no one has a right to govern another without his consent. Whether that consent is explicit or implicit, Locke explained (no. 1), does not affect the basic principle, and in either case the consent given is necessarily conditional. An individual can no more agree to eschew measures of self-help for preservation than a community can agree to forgo measures to save itself "from the attempts and designs of any Body, even of their Legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the Liberties and Properties of the Subject." The powers of governors are fiduciary in character; the trustees are necessarily and properly accountable to those who have vested trust in them.
David Hume (no. 4), however, points to the obvious. "Almost all the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest or both, without any pretense of a fair consent or voluntary subjection of the people." Similarly, subjects everywhere acknowledge their prince's rights "and suppose themselves born under obligations of obedience to a certain sovereign." Is it, then, not absurd to posit a contractual arrangement "so much unknown to all of them that over the face of the whole earth there scarcely remain any traces or memory of it?" This was an objection Locke had anticipated. He attempted to answer it by showing that his compact theory might be reconciled with the history of political origins. Hume clearly thought his the better argument, though the appeal to common practice proved less persuasive than he might have wished. Indeed, James Otis thought this no refutation at all of the consensual basis of political life (no. 5). In the last analysis, he said, it was not compact but "the necessity of our natures" that made us associate. Government might be considered an expression of the laws of nature and of nature's god. But here on earth, the indispensable "original supreme Sovereign, absolute, and uncontroulable," is the people. Those on whom they confer sovereignty hold it in trust and on condition that the trustee "shall incessantly consult their good." If practice deviates from right, so much the worse for practice: "if every prince since Nimrod had been a tyrant, it would not prove a right to tyranize."
Locke's argument sat especially well with advocates of popular government; the argument of 1689 became the premise of 1776. But the reach of the argument goes far beyond the ordinary forms of unmixed popular government, as every reader of the Declaration of Independence can recall. For it is "governments"--without restriction--that are there said to derive their just powers from the consent of the governed, and it is "any form of government" that is held accountable if it becomes destructive of the ends for which governments are instituted in the first place. As a statement of right, then, the principle is a universal: all forms of government derive their legitimacy from the consent of the governed; all forms of government claiming legitimacy are subject to the master principle of popular sovereignty and hence are accountable to the governed for the faithful performance of their charge.
Governance as Trusteeship
This statement of right was argued by Locke and by Thomas Gordon in Cato's Letters (no. 2), and assumed by Otis. For James Burgh (no. 6), this was the old doctrine; it was those who denied that governors are responsible to their constituents who were the innovators. For the inhabitants of Mecklenburg County, North Carolina, the right was reducible to "maxims" that no longer needed argument, only acknowledgment "in the Bills of Rights" (no. 8). And if the representatives of Berkshire County, Massachusetts, retraced this reasoning, it was principally to reach a necessary conclusion: those to whom legislative power had been entrusted could not themselves prescribe "the foundation upon which the Legislature stands" (no. 9). To suppose that the sovereign people would or could delegate their right to give life to "the fundamental Constitution of a free state" was absurd; to argue in this way imported "if not impiety, yet real popery in politicks."
Popular consent and responsibility had become a truth that dripped from everyone's lips--and yet no simple truth. Repeated crises in constitution making had disclosed some of the complexities and ambiguities inherent in the Americans' common premise. Arguing against those who doubted the legitimacy of reallocating governmental powers while living under the Articles of Confederation, James Wilson turned to the highest written authorities to support the assertion that "the supreme, absolute and uncontrollable authority, remains with the people" (no. 14). "The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth," but it was the Americans, acting on the language of the second paragraph of the Declaration of Independence, who had and would continue to put that truth into effect. But under what circumstances, and how? American experience would refine the theory.
The People: Uncertain Guardians
John Adams (no. 12) argued that the people, far from being (as Marchamont Nedham would have it) "the best keepers of their own liberties," are in fact "the worst conceivable; they are no keepers at all." Yet Adams also held it indisputable that "the original and fountain of all power and government" is in this very people who have a clear right to erect any form of government they deem fit to secure their liberty, their happiness, and their prosperity. Being neither forgetful nor thoughtless, Adams was acknowledging what most of the Founders recognized: that the sole--the indisputable--source of legitimacy was seriously vulnerable to seduction, corruption, error, impetuosity, and worse. The principle of popular consent and responsibility was unchallenged; only its application was problematic.
To steer the argument around the shoals and snags took a sharp eye and a steady hand. Madison, in Federalist, no. 49 (no. 19), showed both of these (along with his usual finesse) when publicly correcting the "original, comprehensive and accurate" turn of thinking of his closest friend. In his Notes on the State of Virginia (1784), Thomas Jefferson had proposed recurring to a constitutional convention not only when altering the constitution, but also when countering unconstitutional exercises of power by the more domineering branches of government. To be sure, Madison agreed, "a constitutional road to the decision of the people" was a requirement of republican theory. But Jefferson's proposed resort to that original authority in order to correct breaches of the constitution promised difficulties likely to be as numerous as the breaches themselves. American successes in founding new governments argued against more of the same; "it must be confessed, that the experiments are of too ticklish a nature to be unnecessarily multiplied." Resort to the people in their authoritative capacity ought to be reserved for "certain great and extraordinary occasions." Madison's coauthor, Hamilton, pushed the matter further in, Federalist, no. 78 (no. 22). Even if the judges knew that public sentiment opposed some provision of the Constitution, they should be obliged to resist any departure from it, whatever the clamor, "until the people have by some solemn and authoritative act annulled or changed the established form." Again, while the right of the people to alter or abolish governments was unquestionable, the occasions of its exercise demanded the closest scrutiny.
Jefferson's commitment to popular control continued to lead him down some ways where Madison would not follow. In his remarkable essay of 6 September 1789 (no. 23), Jefferson produced what in form was a letter to his fellow Virginian, but in fact perhaps a position paper for his French friends in whose daily revolutionary activities he was then taking a barely concealed part. In it the American minister to the French court argued that it was "self evident" that "the earth belongs always to the living generation." No generation could bind its successors either to its debts or to what it might please to call a perpetual constitution. Once a generation had ceased to form the majority of the entire living population of a country--a moment calculated easily enough by means of actuarial tables--the new majority could do as it pleased. And what it pleased was to be determined by what it expressly declared, not by any presumed tacit consent. The practical applications of this principle were indeed "very extensive ... and most especially in France." It was largely those practical applications that Madison addressed in his artful reply (no. 24). (He could have said with Hume that the case with men is not "as is the case with silkworms and butterflies" [no. 4].) Many things might be said for a constitution being up for grabs every eighteen years, eight months, or whatever, but stability was not one of them. Further, to Madison there seemed to be "a foundation in the nature of things, in the relation which one generation bears to another, for the descent of obligations from one to another." Consider the capital investments of one generation in such long-term projects as a system of roads or safe water; consider the crushing debt assumed by one generation in repelling a conqueror so that future generations might not have to live under a tyrant's heel. Indeed, was not their own situation, the situation of those who had succeeded in making a revolution, the telling case in point? Finally, could one conceive of property rights where no stable expectations were possible? Could one, indeed, even have majority rule without the assumption that every newly maturing member of the society had given his tacit assent to the principle that the voice of the majority binds the minority?
All these Madisonian objections, like those expressed in the Federalist, bespoke a prudential concern for the complications of popular sovereignty. Jefferson surely was not blind to these. He came to see and mourn over the fatal errors of honest French patriots--"but closet politicians merely, unpractised in the knowledge of men." He came to see how a people unprepared for liberty had fallen victim first to "the unprincipled and bloody tyranny of Robespierre" and then to "the equally unprincipled and maniac tyranny of Bonaparte" (no. 27). But the right of nations to self-government being his "pole star," Jefferson confessed in a burst of hyperbole, "my partialities are steered by it, without asking whether it is a Bonaparte or an Alexander towards whom the helm is directed" (Letter to Correa de Serra, 28 June 1815).
Although this was a late word of Jefferson's, it was not his last word. For all his singular formulations, he was not that far removed from the other Founders and their predecessors in limning the conditions and limits of popular consent. All could agree with Thomas Gordon's Cato (no. 2) that the distinguishing feature of a free nation lay principally in its magistrates having to "consult the Voice and Interest of the People." But while it was incontestable that "every Man ought to know what it concerns All to know," that did not necessarily imply direct governance by the people. Samuel Adams (no. 11) saw continued value in township democracy and acknowledged the revolutionary utility of county conventions and popular committees. But "as we now have constitutional & regular Governments and all our Men in Authority depend upon the annual & free Elections of the People, we are safe without them." Madison agreed: it was sufficient for a government derived from the great body of the people that its administering officials be appointed directly or indirectly by the people (see ch. 4, no. 24). The "American Governments"--i.e., those organized under the state constitutions and the Articles of Confederation, as well as the proposed new federal Constitution--were distinguished by "the total exclusion of the people in their collective capacity from any share" in governance (see ch. 4, no. 27).
Similarly, all might agree with the mechanics of New York City (14 June 1776) that everyone has enough Godgiven sense to judge of his safety, advantages, and interest. This was a version of Hobbes's assertion in the Leviathan 125 years earlier that "a plain husbandman is more prudent in affairs of his own house, than a privy-councillor in the affairs of another man." In neither case was direct democracy the intended political conclusion. The mechanics' claim on behalf of the people's good sense was compatible with Montesquieu's distinction between what the people could know and hence do for themselves and what the people could not know and hence have to depute to their ministers. Although Montesquieu (no. 3) thought the people "extremely well qualified for choosing those whom they are to intrust with part of their authority," some American founders were impressed with how hard even that primary choice was for them. Arguing in defense of a two-level election of a senate for Virginia, Jefferson (no. 7) said he had "ever observed that a choice by the people themselves is not generally distinguished for its wisdom. The first secretion from them is usually crude and heterogeneous." That argued not only for the indirect election of senators, but more fundamentally for legislative plans "to illuminate, as far as practicable, the minds of the people at large" and to render "those persons, whom nature hath endowed with genius and virtue," worthy and effective guardians of "the sacred deposit of the rights and liberties of their fellow citizens" (see ch. 18, no. 11).
The sheer ungainliness of the whole body of a great nation meant for John Adams (no. 12) that the people could not "act, judge, think, or will, as a body politic or corporation." Even at the level of municipal self-governance, it was necessary, he thought, to "temper their authority in legislation with the maturer counsels of the one and the few." The pseudonymous Caesar, an early proponent of the Constitution, pushed the matter further (no. 13). Using confessedly "blunt and ungracious reasoning," he thought the people "very ill qualified to judge for themselves what government will best suit their peculiar situations." Where even experts disagreed, how could it be otherwise? And yet Caesar was careful not to impugn the people's "inherent rights" to accept or reject a proposed new form of government. Still it remained a puzzle. "How are the people to profit by this inherent right?" How could they best discover their interests? Caesar's nonhumble answer: "As I humbly conceive, by a tractable and docile disposition, and by honest men endeavoring to keep their minds easy, while others, of the same disposition, with the advantages of genius and learning, are constructing the bark that may, by the blessing of Heaven, carry them to the port of rest and happiness, if they will embark without diffidence and proceed without mutiny." But the popular case for restraints on popular sovereignty had yet to be made. Hamilton, speaking as Publius, found a way of explaining in public why the people would reject "servile pliancy" in an executive, why they would "despise the adulator, who should pretend that they always reason right about the means of promoting" the common good that they "commonly intend" (no. 21). The people, when they were honest with themselves, knew that sometimes they must be protected from themselves.
The People: Their Own Best Guardians
It was no less true, however, that the people could not do without protection from their governors. On this both defenders and attackers of the new Constitution agreed. The Anti-Federalists were especially exercised over what they took to be the inadequate safeguards for holding the governors to account. Vox Populi (Nov. 1787) had no apologies to make for his republican jealousy and distrust; they lay at the foundations of the very act of political association. Likewise, the minority of the Pennsylvania ratifying convention (no. 15) deplored the likelihood that only "the lordly and high-minded" would find a place in the new Congress, men remote from the concerns of ordinary people and hence neither deserving of, nor able to secure, popular confidence. Much more was needed, the Federal Farmer argued (no. 16), to establish the proper relationships of dependence upon the people. Considering that "we must, after all, trust a vast deal to a few men, who, far removed from their constituents, will administer the federal government," the odds were that they would not be "oppressed with a sense of dependance and responsibility." Legislators ought to be subject to recall. Much evil would be avoided and much good accomplished if there were a compulsory rotation of members of Congress. The Federal Farmer was at least as much interested in producing thereby "attention, activity, and a diffusion of knowledge in the community" as in countering the tendency of "even good men in office, in time, imperceptibly [to] lose sight of the people."
Some of this concern was present in James Wilson's mind as expressed in his lectures on law (no. 25). Why might not republican government, too, receive the "beautiful and solid form" of a pyramid, with broad, strong, deep foundations in "the authority, the interests, and the affections of the people at large," and with a superstructure "raised to a dignified altitude"? Wilson sought for some golden mean between utter preoccupation with private affairs and quixotic political enthusiasm: "must the bow of honest industry be always bent?" A properly directed "relaxation" would lead to citizens conversing, reading, deliberating, and so exercising their right of suffrage as to form among them "the most rational, the most improving, and the most endearing connexion." The correlative to self-government would be an informed and dignified obedience to themselves.
American experience showed that there was more to consent than the bare decision of the people to accept or reject. At its best, consent involved a rational judgment of what had been proposed, nothing less than a second debate. When the towns of Massachusetts first rejected and then accepted the proposed state constitutions of 1778 and 1780 (see the returns in ch. 4, no. 8; ch. 14, nos. 16 and 17; and ch. 15, nos. 22 and 26), and when the several state ratifying conventions of 1787--88 accepted the Philadelphia Convention's handiwork with varying degrees of enthusiasm, they gave voice to more than a shout of yea or nay. Leading up to the global vote--and informing it--was an articulated judgment of what the proposed measure meant, and (where consent was indeed obtained) a more or less explicit injunction to pursue that judgment under the new regime. Far from being the hoarse cry of an orchestrated mob, the delight of tyrants ancient and modern, consent was rather "a key" by which later generations might discover "the legitimate meaning of the Instrument" (Madison, no. 28).
In the last analysis, the effectiveness of consent and responsibility depended on the quality and vigor of public opinion--and not only in the original instance when measures were first pending. Madison's very brief, understated, newspaper essay (no. 26) touched on most of the important points: the reciprocal effects of public opinion and government; the tension between governmental authority and liberty; the effects of a large territory upon each; and the varied means available for supporting liberty. The premise of the day was not to be effected by the labor of an hour.
The Founders' Constitution
Volume 1, Chapter 2, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch2I.html
The University of Chicago Press
