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.

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*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.