The Founders' Constitution
Volume 1, Chapter 13, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch13I.html
The University of Chicago Press
13
Representation
CHAPTER 13
Introduction
None of the great constitutional themes is more complex and extensive than that of representation. It necessarily touches on popular consent, republicanism, constitutional limits, federalism, majority rule, minority rights, property, and equality. Furthermore, any investigation of the meaning of representation for the Founders is complicated by the fact that, for all or most, representative government was a foregone conclusion. To recover their reasonings about representation, one would need to consider how they were informed by a long experience with representative and not so representative institutions at home and in Britain. But beyond that one would need to reconsider the no longer argued case for the alternatives to representative government, alternatives that the Founders rejected outright. A statement of that case, however brief and oversimple, is indispensable to an understanding of their intention.
The Founders were driven, as it were, to representative government because the alternatives in their eyes were practically impossible, politically unacceptable, or both. On the one hand there was the simple direct democracy of an assembled citizenry. Whatever its merits at the level of a hamlet or township, it clearly was out of the question for a state or a large nation. On the other hand there was rule over the people. The representative government that the Americans pronounced good borrowed but a trace from the latter notion, a good deal from the notion of government by the people, but most of all concentrated on avoiding the errors and dangers associated with each. The result was something quite distinctive, truly a modern refinement of popular government.
The Modern Alternative
The modern notion of representation was developed in response to the ancient notion of rule. This distinction is evident in the fact that the heads of nontyrannical states are today called leaders, not rulers. Ruling rests on a claim by a part of a body politic to govern the whole according to that part's distinctive opinion of what is just. Each such opinion implies a comprehensive view of the good of the entire society. Thus each such claim to rule implies the fitness of that part to best serve the greater good of some political whole. According to this premodern notion every regime can be characterized by some such opinion, and every regime takes its distinctive character from its ruling part or parts, democratic, oligarchic, aristocratic, monarchic, or whatever. A change in rulers, so understood, is then indeed a revolutionary change. Even though the people remain so to speak the same (minus an indeterminate number of executed, exiles, and refugees), it is a different country, a different Athens, France, Russia, Cuba, Iran.
Except where the standard is that might makes right, the necessarily partisan claim to a right to rule presupposes some standard by which rival claims can be judged and rival notions of justice compared and weighed. Typically, however, partisans leave it at assertion; political life is not conducted as a seminar in political theory. Hence the claim to rule based on a superior (or the correct) notion of justice frequently is attended by intemperance both by the asserters of the claim and by those who find it unpersuasive. In practice, the unmitigated rule of the rich, the poor, the wise, the holy, or the pure has reduced the sum of human happiness. In practice, the properly mixed or balanced rule of partisans has seldom if ever appeared outside the pages of Aristotle. Whatever approximations to such a mixture existed among historical regimes were sure to command the close attention of men like Adams, Jefferson, and Madison.
Representative government seeks to reduce the risks of intemperate single-mindedness by changing the objects of political life. If the grander claim is also the riskier, a more modest political stance might conduce better to peace and prosperity. Rather than swing between mutually exclusive claims, society ought to address itself to adjusting the interests of men. Once people are disabused of, or denied the means to realize, their exclusive pretensions--to rule, to glory, to saintliness, to wisdom--they come to see their common vulnerability and their common concern for survival, well-being, and domestic tranquillity. Representation is a mode of giving voice to their common concerns as refracted by their particular interests. Conflicting interests issue forth in conflicting opinions. Representation gives voice to those opinions--in assemblies rather than on barricades. While men still wish to have their way, they no longer insist upon it at all costs. They are content to have a say and a fair share of the benefits of government (at the price of a fair share of the burdens). Modern representatives are thus quite unlike premodern worthies who let the ruler know how they felt. Rather, they stand in relation to a constituency whose interests and opinions they express and seek to further. If "the regulation of these various and interfering interests forms the principal task of modern legislation" (see ch. 4, no. 19), it is noteworthy that, according to this same view, it is the representatives themselves who are to regulate those interests. This premise of modern representation is common (to some extent) to all of the eighteenth-century writers included here. Their debate is over how best to secure that objective.
The Purposes of Representation
The slogan "No taxation without representation" is a response to offended notions of rights, equity, and good sense: rights, because no part of any man's property can be taken without his or his representative's consent, or if taken without consent, only at the price of impoverishing the people and robbing men of an essential support of liberty (see ch. 17, no. 5); equity, because those who bear a burden ought to have a voice; good sense, because governors needlessly deprive themselves of a valuable source of information by excluding those who best know their situation (nos. 4, 8). Given this line of reasoning, why ought there to be representation at all? The obvious answer is that the people in a numerous and extensive commonwealth cannot conveniently assemble as a whole. To stand for the people, a representative body should then be a representation of the people or (more strictly) of the citizenry (no. 12; see also ch. 17, no. 9).
Beyond that there is the need for the people to have some control or check on their governors, and in that capacity representatives act as "attorneys" for the people, to be chosen, retained, or dismissed as the latter see fit (see ch. 17, no. 12). Burke (no. 6) put the point more dramatically: The singularity of the House of Commons lies not in its being the representative of the people, for this holds as well for King, Lords, Commons, and judges: "They all are trustees for the people." Rather, what makes the House of Commons singular is that it "was supposed originally to be no part of the standing government" of England. Far from being "a control upon the people," Burke argued, "it was designed as a control for the people." That it was not acting as such at the time John Adams and Burke wrote was for both authors a measure of that body's corruption.
Madison, writing as Publius, took a more guarded view in Federalist, nos. 10 and 63. Representation might indeed have a further advantage. By refining and enlarging the public views, representation might promote the public good better than would be the case were "the people themselves convened for the purpose. On the other hand, the effect may be inverted." It is not so much, then, the principle of representation that tempers popular prejudice and partiality, for the people may be flattered equally by representatives who would serve them ill as well. Rather, it is the principle of representation operating in an extended republic that makes all the difference (see ch. 4, nos. 19, 27). "For it cannot be believed that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece." The expansive circumstances of the American republic would work equally and effectively against two forms of corruption: against representatives using their popularity to exploit and ultimately dominate the people, and against representatives becoming mere tools of those popular passions and immediate interests that might be intent on serving unjust objects, violating private rights, or defeating the permanent and aggregate interests of the community.
Whose Representative?
With different emphases on the purposes of representation, the several authors differed naturally enough in characterizing what was to be represented. James Burgh's short answer was: "the general sense of the people" (no. 8). A fuller and clearer answer was offered by the Federal Farmer (no. 20): "a full and equal representation is that in which the interests, feelings, opinions, and views of the people are collected, in such manner as they would be were the people all assembled." Only through such a representation of the citizenry as a whole could there be the desired sympathy and confidence between constituents and their representatives. Toward that end the Founders' Constitution would establish a lower house elected every two years directly by the people. Remarkably it would impose no restrictions of its own on the exercise of the ballot. Nor with regard to holding federal office does it set any property requirements (unlike many of the state constitutions of the time), or any religious test (unlike some of the state constitutions of the time), or any residence requirement beyond the representative's being an inhabitant of the state "when elected."
While no one denied the importance of sympathetic understanding, there was powerful resistance to what were perceived as parochial implications. Ought the several orders of men in the community to be guaranteed "a share in the business of legislation," as the Federal Farmer would have it, or should the emphasis be upon the nation as a whole and its broad overriding interests? Burke (no. 7) had no doubt that "Parliament is not a congress of ambassadors from different and hostile interests" but rather "a deliberative assembly of one nation, with one interest, that of the whole." Though chosen by Bristol, he was "a member of parliament." Analogously, although each Senator is from a state and chosen by a state, none is a Senator of a state (no. 16; see also Webster, "On Government," 1788).
In his revolutionary ardor John Adams looked for a representative assembly that "should be in miniature an exact portrait of the people at large" (see ch. 4, no. 5); but he was concerned equally that the correct principle, "the only moral foundation of government"--popular consent--not be pushed so far in practice as "to confound and destroy all distinctions, and prostrate all ranks to one common level" (no. 10). Adams held fast to the notion that "the perfection of the portrait consists in the likeness." But what was to be portrayed? "Numbers, or property, or both" (no. 17). The Essex Result (no. 12) was more emphatic. It too called for representatives who would be "an exact miniature of their constituents," but that process of miniaturization had to represent both numbers and property on the grounds that a law affecting both requires the consent of two majorities. Women were another matter (nos. 10, 11, 12).
One might presume a neat correspondence between the several views of what is to be represented and of who is to represent it. One might presume--rightly--that an Ames (no. 28), who held that "the representation of the people is something more than the people," would look askance at those who (in Hamilton's characterization of them) called for "an actual representation of all classes of the people by persons of each class." Similarly, those who wanted representatives to be "a true picture of the people," sympathizing "in all their distresses," able and disposed to "feel for the poor and middling class" (Smith, no. 37), would not find persuasive the argument of Hamilton in Federalist, no. 35 (no. 25), and take cold comfort indeed from his remark to the New York Ratifying Convention that the vices of the wealthy--those most likely to be prominent in government--"are probably more favorable to the prosperity of the state, than those of the indigent" (no. 38; see also no. 19). Yet it would be a mistake to assume that only the Federalists were hankering for representation by the natural aristoi, or that the Anti-Federalists believed simply that only one's own kind could be fully representative.
All could agree that a representative ought to sympathize with his constituents' situation, that he ought in all cases to prefer their interest to his own. Most could agree that the representative assembly ought to mirror the society as a whole. And even if some were willing to agree with John Adams that "the first necessary step [was] to depute power from the many to a few of the most wise and good," there was no consensus about where those aristoi were to be found (see ch. 4, no. 5). James Otis (no. 4) looked to "persons of the first reputation among their countrymen." Burke (no. 7) looked for assiduous men of fiercely independent judgment. Adams (no. 17) held that the people would choose whomever they thought knew more and were better disposed--"very often even than themselves." None of this explicitly located the likely social stratum of the representatives, whatever these men may have thought privately or have written elsewhere. The debate over the Constitution, however, brought this matter to the fore. Hamilton's day-long speech to the Philadelphia Convention made no secret of his dissatisfaction with both the Virginia and New Jersey plans in this respect as in others. He wished representation to be in the hands of "gentlemen of fortune and abilities," not in those of the "middling politician" (Yates's notes, no. 19). The more public argument of Federalist, no. 35, is largely a politic restatement of the same conclusion. "Discerning citizens" in the nonagricultural working class know that "their habits in life have not been such as to give them those acquired endowments, without which in a deliberative assembly the greatest natural abilities are for the most part useless."
Critics of the Constitution were prepared to grant part of this argument without (as Hamilton was very content to do) settling for a legislature composed of wealthy merchants, landlords, and men of the learned professions. In part, the Federal Farmer (no. 22) thought Hamilton's confidence was misplaced. "It is an observation, I believe, well founded, that the schools produce but few advocates for republican forms of government." But beyond that, something more was needed; he looked for "every order of men in the community . . . professional men, merchants, traders, farmers, mechanics, etc. to bring a just proportion of their best informed men respectively into the legislature." That in turn would require a much augmented representation to "let in a due proportion" of those numerous, valuable, but generally silent men, "the substantial and respectable part of the democracy." Here Anti-Federalists thought the Constitution's provision for periodic enlargement of the House of Representatives and for reapportionment among the states inadequate. Doubting that a sufficient augmentation could take place at the national level, George Mason saw no alternative but "to give power with a sparing hand to a Government thus imperfectly constructed" (no. 35).
Not only was Melancton Smith wary of the great powers authorized by the Constitution, but he would not concede the point of representation. "The knowledge necessary for the representation of a free people" went beyond what men of refined education could or would care to acquire: "acquaintance with the common concerns and occupations of the people, which men of the middling class of life are in general much better competent to, than those of a superior class." No representation of a free people would be adequate if it did not make room for "the substantial yeomanry of the country," men whose interests, tastes, and situation were not remote from those of the general public (no. 37). This impressive argument elicited a memorable response from Hamilton. Why, he wondered, should the people not elect "their most meritorious men"? But the question was ill put. It was not a case of the virtuous against the vicious. In time, the increasingly unequal distribution of wealth would lead inevitably to virtue's being "considered as only a graceful appendage of wealth." The choice would be between different kinds of vice, and the people presumably would prefer their interests to their prejudices (no. 38). Madison offered Virginians more hope. We ought not to rely on the virtue of rulers; depend rather on the "great republican principle, that the people will have [enough] virtue and intelligence to select men of virtue and wisdom" (no. 36). Like Montesquieu he held an irredeemably neglectful or corrupt people not fit for self-government. (See also ch. 18.)
Fair Representation
Various devices suggested themselves to those who pondered the question of how to achieve fair representation. The scandal of Britain's notorious rotten boroughs made it a commonplace that a fair representation had in some sense to be an equal representation. For Locke (no. 2) the reluctance of a malapportioned legislature to reform itself could very properly be overcome by an executive prerogative guided "not by old custom, but true reason." James Burgh's vehemence in denouncing the mildness of Blackstone's strictures against what the former called "the monstrous irregularity of parliamentary representation" (no. 8) displays the frustration of waiting for what showed no signs of arriving. In its regulation of federal elections the Founders' Constitution requires decennial reapportionment of the House of Representatives among the states according to their populations (Art. 1, sec. 2, cl. 3); but beyond that the electoral details are left to the states unless Congress chooses to act on the matter (Art. 1, sec. 4, cl. 1).
What, however, was to be equal? Northampton's critique of the Massachusetts Constitution of 1780 (see ch. 15, no. 26) argued that representation should take account of "the principle of personal equality" as well as of "corporation equality." Both were matters of contention. In the Massachusetts historical context (and down into the nineteenth century), the representation of towns as such tended to be defended as a popular principle. On the other hand, the more conservative spokesmen for the larger towns and the more densely settled seaboard areas called for an apportionment weighted by population and/or property (treated as rough equivalents). Thus, curiously enough, places that were overrepresented by the population standard claimed to represent the people in their natural character as members of political communities. The perspective from which local township government is central to the development of American democracy might well consider the states in a similar way. In this sense the intense efforts of the delegates from small states at the Philadelphia Convention to secure the equal representation of states as political bodies (see ch. 12) may be viewed as a more democratic appeal than the representation of numbers alone (see Art. 1, sec. 3, cl. 1). (For the difficulties of trying to give every town, however small, some representation without ending up with an utterly ungainly assembly, see Handlin 42--46.)
The inequalities of representation in the Virginia Constitution of 1776 were, for Jefferson, among its "very capital defects" (no. 15). Generously, he traced the disproportion between the minority of enfranchised freeholders and the majority of those "who pay and fight," and the disproportion between land, fighting men, and representation in tidewater, piedmont, and backcountry, to the revolutionary Virginians' inexperience in the science of government. But now, some years later, there was no excuse for delaying remedy. Nor was there any excuse, Republicus thought (no. 31), for the Constitution's failure to provide that "every member of the union have a freedom of suffrage and that every equal number of people have an equal number of representatives." He only found it strange that anyone should contest "so plain a case."
Also open to question were the kinds of qualifications for electors that would best promote the purposes of representation. Jefferson saw no sense in Virginia's bicameralism given the homogeneity of the electorates for the two houses. His implied remedy was to vary the qualifications, not to abolish the senate (no. 15). Adams was inclined to let matters rest as they were, not opening a Pandora's box of endless controversy--and all the more so since "our people have never been very rigid in scrutinizing into the qualifications of voters" (no. 10). Others in Massachusetts were less accepting. The returns of Northampton (see ch. 15, no. 26) and Mansfield (6 June 1780) protested with somewhat rustic spelling, but well-schooled rhetoric and reasoning, against the injustice of excluding any "polls" (i.e., taxed adult males) from the electorate. For them, as for Paine (no. 40), a man without a vote was, in a manner of speaking, in slavery. Even so, the most democratic franchise proposals still included restrictions beyond sex and age. Extending suffrage to all taxpayers ruled but those who owned no taxable property. Residency requirements distinguished settled members of the community from "man" in the abstract. In one fashion or another the states sought to extend (and limit) the franchise to those giving evidence of their permanent attachment to the community. (George Mason would have had Virginia extend the right of suffrage "to every housekeeper who hath resided for one year last past in the country, and hath been the father of three children in this country." See Jefferson Papers 1:366.) The Founders' Constitution solved the question by leaving the franchise open-ended, in that it adopts as its own for the electors of the lower house the least restrictive requirements of the respective states. (See also ch. 16, no. 26; and Art. 1, sec. 2, cl. 1.)
Effective Representation
Eclipsing all these controversies and concerns was the issue of an adequate representation as expressed in the size of the proposed House of Representatives. (nos. 20, 22; see Art. 1, sec. 2, cl. 3.) The volume and intensity of criticism increased steadily through the deliberations of the Philadelphia Convention, the ratification debates, and beyond. "Scarce any article indeed in the whole constitution seems to be rendered more worthy of attention, by the weight of character and the apparent force of argument, with which it has been assailed." Madison's argument in Federalist, no. 55, deals less with Anti-Federalist notions of what is to be represented than with what it takes to have an effective representative assembly. His answer--large enough, but not too large--distills the understanding of one who had observed closely both "the cabals of a few" and "the confusion of a multitude" (see ch. 4, no. 19). No one knew better than Madison that enlargement beyond some optimal point may make "the countenance of the government . . . more democratic; but the soul that animates it will become more oligarchic" (no. 32).
A fair representation, once achieved, had still to be kept safe. An array of devices suggested themselves, of which the most controversial was the people's instructing their representatives. Adams saw this as a part of the check upon government that would help keep it popular (see ch. 17, no. 12). In this he perhaps had in mind the kind of instructions sent by Pittsfield (no. 13) to their delegates to the Massachusetts constitutional convention of 1779: detailed statements of principles and preoccupations, ending with an injunction that the delegates use their heads, "any instructions herein contained to the contrary notwithstanding." Hamilton, surprisingly enough, seemed to assume an unqualified popular power of instruction (no. 38).
The classic attack on instructions was delivered by Burke in his postelection speech at Bristol (no. 7). The opinion of constituents ought to have great weight with a representative, but ought never to overwhelm "his unbiassed opinion, his mature judgment, his enlightened conscience." The sacrifice of these to popular opinion was, in Burke's eyes, nothing less than a dereliction of duty. Washington (no. 16), like Adams, took no exception to instructions on the local level; but if such instructions were to bind at the federal level, they would preclude any real deliberation in Congress and jeopardize the interests of the nation as a whole. Noah Webster ("On Government," 1788) traced most of the legislative ills of the times to this source. The assumed right to instruct representatives frequently amounted to "a right of doing infinite mischief, with the best intentions." It was in direct contradiction with the "design" of representation, which is to "collect the wisdom of the State," not merely to mouth predetermined opinions.
Although The Federalist does not speak directly to the matter of instructions, the tendency of its argument is to oppose them strongly. Fundamental to Madison's judgment of political arrangements is the principle that "it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by the government" (see ch. 2, no. 19). From this standpoint the very responsiveness of a legislative body may paradoxically diminish "a due responsibility in the government to the people." If a regard for long-term plans to serve long-term interests argues against annual elections and a numerous assembly, so too would it argue against binding instructions. And all the more if one is mindful that the people need "a defence against their own temporary errors and delusions," or (as Hamilton put it) if one realizes that there will always be occasions when "the interests of the people are at variance with their inclinations." (See Madison, ch. 4, no. 27; and Hamilton, ch. 2, no. 21.)
The issue was joined again in the First Congress (no. 39) during a discussion of what was to become the First Amendment. Once more those who thought instructions and representative government inseparable contended with those who thought them incompatible. The issue reemerged in the lame-duck session of a chastened Fourteenth Congress; see Annals 30:576--78, 585, 616--20, 625--35, 674--79 (1817).
Most but not all of the other safeguards were noncontroversial. The most powerful, of course, were the people's right to deny reelection (see ch. 17, no. 12) and the fact that representatives themselves would be subject to the laws they enacted (nos. 11, 25). The Founders' Constitution forbids the plural office-holding that had so offended the colonists as well as the cozy device of legislators voting themselves an office (Art. 1, sec. 6, cl. 2). But some thought more was needed. Republicus (no. 31) called for a rotation of officeholders enforced by "temporary intervals of ineligibility." The fear of a gulf between capital and hometown was present at the creation. (See Articles of Confederation, art. 5. For rotation in office as stipulated in state constitutions from 1776 to 1780 see the summary in W. P. Adams, The First American Constitutions 308--11 [1980].) In detailing what was missing in the provisions for the proposed Senate, Luther Martin (no. 27) indicated what he took to be necessary safeguards for a due dependency of representatives upon their constituents: frequent elections, popular recall, and no independent power to pay themselves. Although representation might be kept safe through the operations of bicameralism (no. 15) and federalism (no. 20), the relative homogeneity of those likely to succeed in political life continued to be troubling. Adams's early reliance on a broad distribution of landed property (no. 10) gave way to more elaborate and less sanguine proposals in later life (see Letter to John Taylor, Apr. 1814). Whether Melancton Smith's reliance on a "middling class" to check the excesses of the great and corrupt (no. 37) was a surer safeguard than Hamilton's reliance on shared interest (no. 38) was a continuing problem not amenable to a controlled experiment.
The Founders' Constitution
Volume 1, Chapter 13, Introduction
http://press-pubs.uchicago.edu/founders/documents/v1ch13I.html
The University of Chicago Press
