Mixed Government: How Much Democracy Do We Want?

None of this is to deny that the delegates at the Constitutional Convention disagreed only on the definition of democracy.  They also disagreed on the degree of democracy they wanted in their new government.  No one wanted to exclude it altogether.  Everyone agreed that there needed to be a “democratic” branch of the legislature.  Most of them agreed that there should be another branch that was at least somewhat “aristocratic.”  But these were definitely relative terms.

Ever since Aristotle’s time, people have been classifying governments as being by the many, the few or the one.  England’s government in the eighteenth century defied such classification.  It was a “mixed” government, combining government by the one (the king), the few (the House of Lords) and the many (the House of Commons).  Very few delegates disputed that the United States should have a single chief executive (a few wanted a three-man executive) and few disputed that there should be an upper house at least somewhat removed from the people.  But should the President be, in any real sense, a monarch?  Should the Senate resemble a true aristocracy? 

In England at the time, the House of Commons, which supposed represented the many, was elected to seven-year terms by the distinct minority of adult males who met the property requirements to vote.  Property qualifications to hold office were even higher, and members of Parliament did not receive a salary, which excluded all but the rich even without property requirements.  England was divided into boroughs, each of which sent two representatives to Parliament.  At the time the boroughs were originally formed, each had a roughly equal population, but they had never been readjusted, although major population shifts had taken place.  Large cities had grown up that send only two representatives to Parliament.  At the same time, some “rotten boroughs” had very few voters, sometimes one or two, sometimes a few dozen, who were easily bribed.  Some boroughs had no eligible voters at all and a rich man would simply buy the seat.  (No wonder the theory of “virtual” representation was so common; a representative who bought his seat certainly had no other claim to legitimacy!) 

By comparison, every branch of the United States government had better claim to be government of the many.  But was this desirable?  Should the President and Senate check the democratic tendencies of the House by being somewhat less democratic, but still of the people?  Or should we try to create as near to a monarch and a nobility as republican institutions would allow?  Did we want a “mixed” government along the lines of England?

Evaluating delegates on mixed government

One sure sign that a delegate favored mixed government was that he said openly that he wanted to imitate the British system.  Specific positions such a delegate might take would be to favor an executive for life, a Senate for life, Senators appointed by the executive or an absolute executive veto.  Wanting the Senate to represent the nation’s wealth and therefore be apportioned by wealth, or to be required to be wealthy was another sign of favoring mixed government, although many old democrats agreed that the lower house of the legislature should represent people and be apportioned by population, while the upper house should represent property and be apportioned by wealth.

Finally, there is the issue of ineligibility to office.  In England, the King often bribed Parliament by offering appointment to offices.  As noted above, old democrats wanted to bar members of Congress from being appointed to executive office to prevent such bribery.  Favoring an absolute ineligibility was the old democratic position.  Trying to prevent abuses by barring legislators only from offices they create or increase in pay, or by requiring them to vacate their legislative seats upon appointment was a moderate position.  Opposing ineligibility to office was potentially the position of an advocate of mixed government.  And, finally, defending this form of bribery as an appropriate exercise of executive influence marked a delegate as an extreme advocate of mixed government.  To defend this form of executive influence was to defend not only the British government, but its worst and most corrupt feature that was deplored by many Englishmen.  Subsequent events would prove that this kind of executive patronage and corruption could take a democratic, as well as aristocratic form, but the delegates to the Constitutional Convention did not know that at the time.

Democracy in Action

So what did government in the states look like at the time?  How democratic was it?  Let us begin with the issue that people today find most disturbing, the vote. Everywhere, the vote was limited to free males over 21.*  The vote was not necessarily limited to white males; only Virginia, South Carolina and Georgia had explicit racial restrictions on the vote.  Other states allowed black men to vote subject to the same property restrictions as white men, but their actual numbers were few.  New Hampshire had no property restrictions on the vote, but extended it to all adult male taxpayers, and Pennsylvania even allowed non-tax-paying sons of freeholders to vote, if over 21.  Georgia’s property requirements were so low as to be almost meaningless – 10 pounds of property or membership in a mechanical trade.  Nor did other states necessarily require land ownership to vote; all states except Virginia and Rhode Island accepted other forms of property as well, and, significantly, both these restrictions dated back to colonial times.  Property ownership was widespread in most states. 

Yet voters made up a distinct minority of the total population.   The Constitution set a maximum of one representative for every 30,000 inhabitants.  Madison, writing in New York, estimated the 30,000 people would include about 6,000 voters, while the dissenting minority of the Pennsylvania Convention estimated that Pennsylvania had approximately 70,000 voters out of a population of 400,000.  Why so few, in two states with few slaves?  One reason, obviously, is that denying the vote to women excluded half the population.  If women could vote on the same basis as men, instead of 5,000 to 6,000 voters out of 30,000 people, there would be 10,000 to 12,000.  But even that is only between a third and 40% of the population.  Where is everyone else?  One possible explanation is that the the United States had a high birth rate and a higher death rate among children than today, which made for a very young population.  If, in fact the median age at the time has been estimated at 16. This excludes over half  of the population on the basis of age alone.  The Right to Vote  estimates that no more than 6-70% of all adult white males could vote, although the proportion varied greatly in different state.**  New York presumably had a somewhat lower proportion of voters in its population than Pennsylvania because of property restrictions.  

In other regards, states differed widely in their degree of democracy.***  South Carolina was easily the least democratic state.  It was the only one that abandoned the old democratic principle of annual elections; elections for both houses of the legislature and the governor were held every two years.  The coastal swamps of South Carolina had the rice plantations that were the largest anywhere in the United States.  Black slaves made up an absolute majority of the population, several times larger than free whites.  In particular, the overwhelming majority of people in rural areas were slaves, with whites, including planters, clustered mostly in cities.  Yet South Carolina required ownership of 50 acres or the equivalent value in other taxable property to vote, which must have disenfranchised many urban whites, to say nothing of the slave majority, and given planters political domination in coastal areas.  Above the swamplands were mountainous areas populated by small farmers with few or no slaves.  These small farmers did vote, but, although they made up the great majority of South Carolina’s free population, the coastal areas held majorities in both houses.  South Carolina also required at 2,000 pound freehold to serve in the Senate and a 10,000 pound freehold to serve in the executive council, the highest property requirements in the country.

Pennsylvania, on the other hand, was radically democratic.  All free male taxpayers over 21 or sons of freeholders over 21 could vote, with no property restrictions even on office holding.  There were few slaves in Pennsylvania, and slavery was in the process of being phased out.  Pennsylvania had a unicameral legislature elected to one-year terms with no “aristocratic” upper house.  All non-emergency laws were to be held over to the next session of the legislature and published in order for the public to consider them (and presumably instruct their legislators although, as we have seen, Pennsylvania’s large electoral districts made this difficult).  In short, the Pennsylvania legislature could be considered the upper house, with the people at large acting as the lower house.  Instead of a single governor, Pennsylvania had an executive counsel with one member elected from each county.  Supreme court judges served for seven-year terms instead of for life.

Rhode Island was also radically democratic, in a mostly old democracy sense.  Rhode Island had property restrictions on the vote, but property ownership was widespread.***  Local government was by town meeting, and town meetings, “bound their representatives by strict instructions, initiated legislation, and ratified or negated legislation by frequent use of the referendum.  All significant matters were effectively decided not by the two-house legislature but by the entire voting population in their town meetings.”  Georgia also had minimal property restrictions on the vote, a unicameral legislature elected annual, and a chief justice who served a one-year term.  However, Georgia was decidedly undemocratic insofar as it had large numbers of slaves.

---

*Not quite true.  New Jersey allowed unmarried women who were property holders to vote.  Alexander Keyssar:  The Right to Vote: The Contested History of Democracy in the United State, copyright 2000 by Basic Books, Table A.1, pp. 340-341.  All references to voting qualifications refer to the same source unless otherwise states

**Keyssar, p. 24.

***Once again, see The Debate on the Constitution, Notes on State Constitutions.  This is my source unless otherwise stated.

***Keyssar estimates that 75% of all adult males met the property requirements, p. 71.

Old Democracy and New Democracy in Conflict and Harmony

Conflict

Old and new democracy can conflict in many ways.  For instance, the old democratic practice of having voters assemble to vote and instruct their representative becomes increasingly difficult the more voters participate.  One way keep assemblies of voters to a manageable size, of course, if to have each legislator represent a small district, but this can only be carried so far before the legislature becomes too large to be manageable.  Another way to restrict the size of voting assemblies is to restrict the number of voters, by setting high qualifications. 

Furthermore, when votes are openly taken in public assemblies, non-property holders who depend on others for a living are vulnerable to economic coercion.  Some people at the time defended property restrictions on the vote as a way of limiting the influence of the rich and aristocracies.   Hence, Gouverneur Morris could say, “The man who does not give his vote freely is not represented.  It is the man who dictated the vote.” or Noah Webster, “A master of a vessel may put votes in the hands of his crew, for the purpose of carrying an election for a party.”*  In other words, it was assumed that landless tenants would necessarily support their landlord, or wage earners their employer, and thus increase the power of the rich at the expense of the large middle class of small property owners.  This was no idle fear before the invention of the secret ballot.  Voting in public assemblies has other disadvantages from a new democratic viewpoint.  Not only are non-property owners vulnerable to economic coercion, but the most prominent citizens can have an excessive influence on their neighbors, or particularly good public speakers can have undue influence on the debate, or good writers can exercise and undue influence by preparing instructions for the representative.**  If an election district is too small, a few rich and influential residents can even conspire to influence the outcome.  England provided an extreme example; some districts had as few as one or two eligible voters, who were easily bribed in choosing their representative.

New democracy calls for representatives to be elected from districts of equal population, even if this means cutting election districts across city and county lines.  Old democracy calls for representatives to be elected from towns and counties because these organized political bodies are best at controlling and instructing their representatives.  New democracy calls for direct elections of the executive and national representatives.  Old democracy may consider it better to have the state legislature elect both the governor and national representatives because, as a more structured body, it is better able to control them.

Conflict and harmony

None of this is to suggest that new democratic concepts were unknown at the time to Constitution was framed, nor, for that matter, that old democratic concepts are unknown today.  Today, for instance, most people would agree that frequent elections are more democratic than infrequent elections, and that if elections become too infrequent, liberty is in danger.  But there no consensus what too infrequent means, and certainly no sense that annual elections are necessary to preserve liberty.  Likewise, in 1787 most people agreed that the broader the suffrage, the more democratic the government and that too narrow a suffrage was a danger to liberty, but there was no consensus on how narrow was too narrow.  Most people of the time agreed that representation should be at least somewhat proportional to population and allowed a town or county with a larger population to elect a greater number of representatives.  When Jefferson, in his Notes on the State of Virginia, criticized the Virginia constitution as undemocratic, he did not see danger in a four-year Senate, and he actually thought the executive need to be strengthened.  His criticisms were new democratic criticisms – Virginia’s property restrictions excluded nearly half of all white males from the vote; its system of representation by counties denied the western portion of the state its due voice.

In a few places, new democracy was even edging out old democracy.  Pennslyvania, which had the broadest suffrage, also had the highest ratio of people to representatives at 5,000 to one and in large counties had the people meet in several different places to choose their representatives, a practice which must have interfered with their instruction.  In Connecticut and Rhode Island, delegates to the Continental Congress were elected by the people instead of by state legislatures, which, again, must have made it difficult to instruct them.  (Maybe the people elected representatives but the legislature did the instructing).  In Massachusetts and New York, as we have seen, the governor was elected by the people directly instead of by the legislature.  

---

* This comment is in a footnote that, alas, is not included in the link I have supplied.  See, however, Noah Webster, “A Citizen of America,” “An Examination Into the Leading Principles of the Federal Constitution,” The Debate on the Constitution, Volume One, p. 143.

** On the other hand, in our present system the expense of running a campaign can keep out good candidates, and a well-crafted but misleading 30 second commercial can determine the whole outcome.

Aspects of Old Democracy

It is obvious to us the ways that United States has become more democratic since 1787.  In what ways has it become less?  Or, put differently, what did old democrats in 1787 see as necessary for popular government?

Although most people regard the United States as much less democratic in 1787 than today, in one respect at least it is recognized as being more democratic – small New England towns practiced direct democracy through town meetings, assemblies of the voters (meaning, adult male property holders) in the town who made major the town’s major decisions. This is a good place to start discussing concepts of democracy at the time.

The town meeting was direct democracy, just as today’s initiative and referendum are direct democracy, but it was direct democracy of a very different kind.  In a referendum, a law is proposed by the legislature and the people’s role is limited to anonymously casting a vote for or against it.  In an initiative, activists start the drive to get a issue on the ballot, but most people’s role is limited to signing petitions to get the issue on the ballot and voting for or against it.  In a town meeting, the people did not merely cast ballots, they served as a true legislature, debating issues, adjusting proposals, making compromises, in short, doing just what a legislature does.  But town meetings had another role as well.  They were called whenever there was an important town issue that needed to be decided, but they always met at least once a year to elect the town’s officials and representative(s) to the state legislature and to instruct them on what to do once they got there. 

Assembly, instruction and the voice of the people:  The town meeting was unique to New England, but the system of elections to the state legislature was not.  Throughout all the states, state legislators were elected every year and were elected by an assembly of voters, who gathered together, not only to choose their representatives, but to tell them what to do.  Nor was the voice of the public limited to what was said at elections.  Whenever an important issue came up, the voters, or an important sub-section of voters, in any community might assemble to prepare remonstrances, resolutions, memorials or other expressions of their opinion to send to their legislators.  Unlike instructions, these expressions of opinion were not binding on legislators, but when elections were annual, legislators ignored the people’s will at their peril.  And even people who were excluded from the vote were not denied a voice altogether; anyone could prepare, circulate and sign petitions to the legislature. State legislatures, in turn, elected delegates to the Continental Congress and instructed them.  A few very important issues, such as the decision to declare independence, were considered beyond the authority of the legislature, and legislators would go home and seek authority from their constituents before acting.*  On state-wide issues, this might be considered a primitive form of referendum.  On national issues such as declaring independence, it was a sort of double-layered referendum -- the state legislatures went home to seek instructions from the voters and transformed their instructions from the voters into instructions to their delegates.

True referendum was also known at the time, at least in New England.  The Massachusetts and New Hampshire constitutions were submitted to referenda, and the voters of Massachusetts rejected one constitution, the voters of New Hampshire three constitutions before a constitution was finally adopted.  Rhode Island originally submitted to United States Constitution to a referendum instead of a convention, and it was overwhelmingly defeated.   A referendum in those days was also different from a referendum these days.  Instead of having people anonymously cast a simple yes or no ballot, referenda were submitted to the town meetings, which debated the issue and not only voted yes or no, but gave their reasons why.

The practice of instructing legislators gave the people at least some authority to initiate legislation although it was not of much use if each community initiated something different.  During the years preceding the Revolution, colonists set out to overcome this difficulty by inventing Committees of Correspondence.  The best-known Committees of Correspondence were the Committees of colonial legislators what allowed different colonies to coordinate actions.  But the earliest Committees of Correspondence were Committees of Correspondence between different communities within each colony to permit them to coordinate the instructions they gave to their legislators.  This might be considered a primitive form of initiative.

Annual elections:  If “one man, one vote” is a major slogan of new democracy, a major slogan of old democracy was, “When annual elections end, despotism begins.”  It was generally assumed that at least the lower house of the legislature should be elected to one-years terms, so that they would show up each legislative session fresh from the people, freshly chosen and freshly instructed.  In all but two of the thirteen states, elections for the lower house were annual.  In South Carolina elections were every two years; in Connecticut they took place every six months!  In most states, governors also served one-year terms; in some states even the upper houses of the legislatures had one-year terms.  The government under the Articles of Confederation followed this old democratic principle as well – each state’s delegation was elected by the state legislature for a one-year term and placed under instructions.  Since state legislators, in turn, were annual elected and instructed and returned home for further instructions on the most important issues, the fact that members of Congress were not directly elected by the people would not violate old democratic principles.

It should also be noted that annual elections were usually associated with annual legislative sessions. Then as now, it was assumed that liberty required the legislature to meet annually to keep the executive from getting out of hand.  But the idea that the legislature could have more than one session between elections and would not necessarily meet newly elected and newly instructed was unfamiliar.

I will also make a note here on judges.  Today’s practice of popularly electing judges for a term of several years was unknown at the time.  Most judges were elected by state legislatures, and in most states they served for “good behavior.”  On the other hand, New Jersey judges were elected by the legislature to “fixed terms,” Pennsylvania supreme court judges served for seven years, and the Georgia chief justice was elected by the legislature for one year.  In Connecticut and Rhode Island, all judges were elected by the state legislatures to one-year terms.**  Whether one favors or opposes subordinating judges to popular opinion, surely making judges annually elective by the state legislature achieves this at least as well as popular election of judges to longer terms.

Numerous representation:  This was one of the most important principles of the American Revolution, going back to the very beginning.  When colonists first began denouncing taxation without representation, the British replied that the colonists were “virtually” represented in Parliament.  Parliament was not supposed to represent only its immediate constituents, but to look at the big picture and represent all British subjects.  Thus the colonists were represented in Parliament even though no members of Parliament were elected by the colonists and the great majority had never been to the colonies and knew nothing about them.  Americans at the time did not accept this argument; neither do we.  Then as now, we insisted the democracy required real and not merely virtual representation. 

But why were the colonists not really represented in Parliament, because they did not vote for Parliament, or because members of Parliament had never been to the colonies?  To our new democratic perspective, the obvious answer is that the colonist could not be represented in Parliament because they did not vote for Parliament.  This becomes an argument for universal suffrage – if I don’t vote for them, they don’t represent me.

At the time of the Revolution, more emphasis was placed on Parliament’s lack of knowledge about America.  After all, most people in England did not meet the qualifications to vote either, but the colonists did not dispute that they were “virtually” represented.  Legislators, it was reasoned, should be close to their constituents and know their local conditions, wishes and interests, but it was not necessary that everyone they represented vote for them.  If a legislator knew his constituents well enough, he would know the wishes and interests of the disenfranchised – women, children and men who did not meet the property requirements to vote – and take them into account.***  States generally considered it essential to have a numerous representation, typically one representative to every thousand to five thousand inhabitants.  Massachusetts had the largest legislature in absolute terms, with over 300 members to a population smaller than present-day Wyoming.  But was Georgia that took the principle of numerous representation truly to the point of absurdity by allowing as many as one representative to every ten voters!

Fear of the executive:  Unlike the legislature, which is a democratic body, the executive is inherently authoritarian, and so old democrats generally feared the power of the executive and tended to subordinate it to the legislature.  The state governors of the time who were elected by the state legislatures instead of by the people directly were much less powerful than governors these days.  Most of them served only one-year terms.  None had a veto over legislative acts.  All except New Jersey had executive councils chosen by the legislature, which could bind the governor.  Pennsylvania took the fear of the executive farthest and did not have a governor at all, but instead had an executive council, with one member elected from each county in the state.  At the time of the Constitution Convention, Pennsylvania’s supreme executive had twenty members!  New York and Massachusetts had popularly elected governors, but the goal in those cases was not to be democratic, but to strengthen the executive by insuring his independence from the legislature, a very undemocratic goal by old democratic standards.  It is no coincidence that the governors of New York and Massachusetts were the only ones with a veto, that the governor of Massachusetts appointed judges, or that the governor of New York served for three years and could sometimes act without his council.

Fear of standing armies:  Full-time, regular troops were widely seen as dangerous, prone to escape civilian control, and probably a military dictatorship waiting to happen.  Instead, each state maintained its militia of all able-bodied white males of military age, who periodically reported for drill and were called into service in emergencies.  And if fewer officials were elected by the people in 1787 than today, there were at least one set of elective officers then that no one would even think of electing now.  In most states, militia officers were elected by the rank and file!

Bills of Rights:  We think of bills of rights as an important part of new democracy, but actually they are an aspect of old democracy that new democracy has adopted.  Bills of rights were an old and well-established English tradition at the time the Constitution was adopted, going back as far as the Magna Carta.  Of more immediate important was the British Bill of Rights of 1688.  At that time, the English overthrew King James II and invited his daughter, Mary and her husband, William of Orange, to take the throne, provided they would agree to a Bill of Rights limiting the powers of the crown.  To many Englishmen, this Bill of Rights was their official social contract, just as the Constitution is our social contract.  Many state constitutions were prefaced by Bills of Rights setting limits on what their governments could do.

---

*Hence, for instance, some protesters objected that the framing of the Constitution was illegal, not only because the Convention members exceeded their instructions from state legislatures, but because state legislators did not seek the permission of their constituents to call a convention at all members exceeded their instructions from state legislatures, but because state legislators did not seek the permission of their constituents to call a convention at all.  

**The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, Bernard Bailyn, ed., Literary Classics of the United States, Inc., copyright 1993.  All descriptions of the form of state governments will from this source unless otherwise specified. 

***Slaves were a problem.  Obviously a legislator did not represent the wishes and interests of the slaves in his district, since a slave’s foremost wish and interest was to be freed.