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The strongest supporter of old democracy at the
Constitutional Convention, and the strongest opponent of new democracy was
Elbridge Gerry. This combination is
baffling if one does not understand the distinction.
Gerry
arrived from Massachusetts, which had just experienced Shays’ rebellion, an
uprising by farmers facing dispossession from debts and taxes. The experience had clearly shaken Gerry’s
confidence in the common people and democracy.
He explained his position clearly.
The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Masst it had been daily confirmed by experience that they are daily misled into the most baneful measures and opinions . . . He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levilling (sic.) spirit.
Gerry’s statement that he was still a republican was no mere
empty declaration, as it would turn out, but it was not immediately apparently. He opposed popular election to the House of
Representatives, wanting them to be nominated by the people with the final
decision made by the state legislatures. He also opposed the lifting of property
restriction on the vote. In England, he
said, the people would lose their liberty from the smallness of their suffrage;
in America the danger was from too broad a suffrage. (Massachusetts required 60 pounds property to
vote; the highest requirement in the country).
In the Massachusetts legislature, he said, “Men of indigence, ignorance
& baseness, spare no pains, however dirty to carry their point agst men who
are superior to such artifices.” Likewise, he opposed popular
election of the Senate, saying that among the people the landed interest (i.e.,
farmers) formed the majority and would oppress the commercial interest
(merchants) unless election went through a “refining” process in the state
legislatures. And he feared having the Constitution ratified by conventions instead of legislatures,
apparently regarding the process as too new democratic, saying that the people
of Massachusetts had “the wildest ideas of government in the world” such
abolishing the state senate and having a unicameral legislature.
In all
these opinions, he showed himself opposed to democracy, but specifically to new
democracy. When old democracy began to
come under attack, he took quite a different tone. When a three-year term was proposed for the
House of Representatives, Gerry called for annual elections as the only defense
against tyranny. The people of New
England, he said, would never give up annual elections, knowing that in England
elections had been moved from every three years to every seven. “He was as much agst a triennial House as
agst a hereditary Executive.” Gerry’s sudden switch from
opposing popular elections to proclaiming himself the champion of the people is
enough to give some people whiplash. And, indeed, from then on Gerry begins
sounding more and more like a democrat, but specifically like an old democrat.
He
continued to oppose new democratic positions.
He regarded popular election of the President as “the worst mode,”
saying that popularly elected governors who did their duty, like Governor
Bowdoin of Massachusetts, who suppressed Shays’ Rebellion, would be turned out
for it. He favored excluding public debtors and pensioners from office, on the grounds that “[I]f
property be one object of Government, provisions for securing it cannot be
improper”and
would exclude all immigrants from office. He also opposed admitting the Western states
on an equal basis, but favored guarantying a permanent majority to the original
13 states or the Western states would oppress commerce. On the subject of property representation, he
had mixed opinions, at one point opposing property representation because it
would include slaves, another time saying that both
population and wealth should be included in representation.
On the
whole, however, once Gerry called for annual elections, his overall tone was as
an old democrat championing and showing confidence in the common people. He opposed a long term for the Senate, saying
that no more than one person in a thousand would tolerate any approach to
monarchy. (Presumably he did not include
himself as the one in a thousand). He
even said that, although the majority will violate justice when it is in their
interest, he did not think there was any such temptation here, and that he
believed there was a sufficient sense of justice and virtue. A far cry from his earlier
statement that the people were “daily led into the most baleful measures”! He also favored enlarging the House of
Representatives because the people are “accustomed to & fond of a numerous
representation, and will consider their rights better secured by it.” This was an opinion he
shared, saying that liberty was not as safe in the hands of eight to a hundred
men taken from the whole continent as in the hands of two or three hundred from
a single state. He
also opposed allowing the Senate to originate money bills because the House was
more immediately the representatives of the people and the people should
control the purse strings. He also had an old democrat’s
distrust of standing armies, which he considered dangerous in times of peace
(as well as thinking the people were jealous on the subject) and called for a
ceiling to the size of army that the United States could keep up in time of
peace, personally favoring two or three thousand troops, although he would keep
an open mind on the number. At a bare minimum, he wanted to restrict all
military appropriations to one year, instead of the two years the Constitution
ultimately allowed. Gerry was also one of the few members of the Convention to favor a bill
of rights. He began by calling for a
prohibition on bills of attainder (bills finding a person guilty of a crime
without a trial) and ex post facto laws (laws punishing acts before the law was
passed), saying that Congress was dangerous because of its few members. He also proposed a
bill of rights, a guarantee of freedom of the press and especially a guarantee of trial by jury in civil cases (it was
already guarantied in all criminal cases).
The one
regard in which Gerry was not a complete old democrat was his eagerness to keep
the executive independent of the legislature.
He opposed election of the executive by the legislature (or by the
people), favoring election by the state executives. If the
legislature did choose the executive, Gerry would guarantee his independence by
giving him a single, very long term of ten, fifteen or even twenty years. He also favored a
single, instead of triple executive, saying that a three-man panel would be
like “a general with three heads.”
On the
other hand, he generally wanted to limit executive power. The President should be impeachable. “[T]he maxim should never be adopted here
that the chief magistrate could do no wrong.” He also seconded a motion making “maladministration”
as well as bribery or treason grounds for impeachment. He agreed to an executive veto, but believed
that its purpose was for the executive to protect his office, not to allow him
to veto bad laws in general. He opposed including judges in the veto for fear
it would make the veto too strong and preferred to allow 2/3
of the legislature, rather than ¾ to overrule the veto. He also favored having the Senate, rather
than the executive, appoint judges and was shocked at a
proposal to allow the President to declare war alone. And he favored making legislators ineligible
to executive office to prevent executive influence over the legislature by
patronage. Indeed, the
prospect horrified him and inspired him to say, “If men will not serve in the
Legislature without the prospect of such offices, our situation is deplorable
indeed. If our best Citizens are
actuated by such mercenary views, we had better chuse (sic.) a single
despot at once.” At this point, he even
said that whatever evils existed in our current government were the fault of
those in office, not the people. Gerry apparently had more confidence in the
people than his original remarks seemed to indicate.
As the
Convention abandoned one old democratic principle after another, Gerry became
more and more alarmed by it. At one
point, he denounced the Senate as “as compleat (sic.) aristocracy as
ever was framed.” The aristocratic
feature of the Senate was not that it was elected by state legislatures
instead of the people directly which, as we have seen, Gerry favored. No one at the time was likely to be alarmed
by that feature; after all, the Continental Congress were also elected by state
legislatures. The traits of the Senate
that Gerry objected to were the ways in which it differed from the
Continental Congress. The Senate served six years and the
Continental Congress served one; the Senate could not be recalled and the
Continental Congress could; each state could have only two Senators while
states could have up to seven representatives in the old Congress; and in the
old Continental Congress major issues required the concurrence of nine states,
while in the Senate a quorum was fourteen, so a mere eight* members could
prevail. “Is it to be presumed that the
people will ever agree to such a system?”
Presumably Gerry is saluting the people’s wisdom here. He also warned, “The People who have been so lately in arms agst G.B. for
their liberties, will not easily give them up.”
Gerry
ultimately refused to sign the Constitution, citing as his reasons:
(1) The duration and reeligibility of the
Senate;
(2) The power of the House to conceal their
journals;
(3) The power of Congress over their places
of election;
(4) The unlimited power of Congress over
their pay;
(5) Insufficient representation for
Massachusetts;
(6) Slave representation;
(7) Under the power over commerce,
monopolies could be established;
(8) The Vice President as president of the
Senate, which he considered to violate the separation of powers.
But these were minor objections; his biggest objections were
Congress’s authority to make all laws “necessary and proper,” its authority to
raise money and armies without limit, and to provide for civil trials without
juries. These are all old democratic objections. Gerry sounded even more democratic when he
publicly told the Massachusetts legislature of his reasons for refusing to
sign; he gave as his reasons inadequate provision for representation of the
people (presumably meaning too few representatives), no security for the right
of election (presumably referring to Congress’ authority to regulate its own
elections), some powers of the Legislature are ambiguous and some dangerous,
too much power to the executive, oppressiveness of the judicial system (perhaps
the absence of a guaranty of a jury trial in civil cases?), treaties that can
be made by two-thirds of a quorum of the Senate, and the absence of a bill of
rights.
Yet there
was also a strong tone of distrust in the people remaining. His constant invocation of popular opinion
may not just have been saluting the people’s wisdom, but also fearing their
displeasure. He warned that in Massachusetts there were
two parties, on devoted to democracy “the worst of all political evils” and one
in the opposite extreme and feared that controversy over the Constitution could
lead to civil war.
Gerry is a
puzzling figure today if one assumes the delegates were debating merely the
degree and not the definition of democracy.
His tone of concern for the people’s liberty seems totally at odds with
his fear of popular elections. But if
one keeps in mind the distinction between old and new democracy, Gerry makes
perfect sense. It was because Gerry was
so staunch an old democrat that he felt threatened by any increase in new
democracy. Or, perhaps more accurately,
because Gerry considered old democratic institutions necessary to preserve
liberty, yet had been frightened by Shays’ Rebellion and convinced that
democracy could be taken too far, that he constantly tried to limit it by
resisting new democracy.
