Mixed Government: Alexander Hamilton

Of all the advocates of mixed government, Alexander Hamilton presented the most systematic program.  As we have seen, Hamilton presented a systematic program for extreme centralization.  That same proposal was also a system of true mixed government on as near as possible to the British system.  As Hamilton knew very well, his views were extreme and likely to be rejected by the others.  “In his private opinion he had no scruple in declaring . . . that the British Gov’t was the best in the world: and he doubted very much whether any thing short of it would do in America.”  State senates, even the Maryland Senate that served for five years and was chosen by an electoral college instead of the people directly, were too weak to stand against the popular branches of the state legislatures.  He favored something more like the House of Lords. 

Having nothing to hope for by a change, and a sufficient interest by means of their property, in being faithful to the national interest, they form a permanent barriers agst every pernicious innovation, whether attempted on the part of the Crown or of the Commons. 

Nor was he much impressed with state governors:

As to the Executive, it seemed to be admitted that no good one could be established on Republican principles.  Was not this giving up the merits of the question: for can there be a good Gov’t without a good Executive.*

What Hamilton proposed was as near an approximation of the British system of a King, Lords and Commons as could be done without hereditary offices.  The lower house would be elected by the people to three year terms, the upper house would be chosen by electors chosen by the people and serve for good behavior, and the chief executive would be chosen by electors and also serve for good behavior.  “Good behavior” meant for life, unless impeached; he would allow impeachment for misconduct.  The executive would have an absolute veto, absolute power of appointment of the heads of the departments of war, finance and foreign affairs, and the authority to pardon all crimes except treason.  The Senate would have to approve all other appointments and all pardons for treason and would have the authority to declare war and approve treaties. 

Furthermore, Hamilton not only favored an executive and Senate for life, just like in Great Britain, he also defended the British practice of executive influence in the legislature by offering offices to legislators, widely seen as a form of corruption.  He defended “influence,” defined as “a dispensation of those regular honors & emoluments, which produce an attachment to the Gov’t” as an alternative to government by force.  Likewise, he opposed making members of the national legislature ineligible to executive office, saying that influence by the crown through dispensation of offices was not corruption, but “an essential part of the weight which maintained the equilibrium of the Constitution.”  He thus went on record, not only as defending the British system of government, but what were widely seen as the worst corruptions and abuses in the system.

Yet there is another side of Hamilton’s vision of mixed government that needs to be pointed out.  Hamilton favored true mixed government.  This meant that although he wanted the President to be as near as possible to a monarch and the Senate to be as near as possible to House of Lords, he also believed that the lower house should be genuinely democratic.  As he put it, “Give all power to the many, they will oppress the few.  Give all power to the few, they will oppress the many.  Both therefore ought to have power, that each may defend itself agst the other.”  Interestingly, his conceptions of democracy were almost entirely new democratic. 

Hamilton was a firm supporter of direct popular election of the House; when General Pinckney proposed allowing each state to choose how to elect its own Representatives as an attempt to transfer the election from the people to the state legislature.  (Admittedly, this was probably more an expression of nationalism that democracy; Hamilton wanted to limit the power of states).  He was also a strong advocate of representation by population in both houses.  He moved for representation by free population rather than quotas a contribution and favored representation on the same principle in the Senate.  It was in opposition to giving each state equal representation in the Senate that Hamilton made his democratic pronouncement, “[A]s states or a collection of individual me which ought we to respect most, the rights of the people composing them, or the artificial beings resulting from the composition” and argued that it was no loss of liberty for each citizen of Delaware to have an equal vote to a citizen of Pennsylvania.  Giving equal representation to states of unequal population “shocks too much the ideas of Justice, and every human feeling.”  Hamilton was absent when the delegates debated who should be allowed to vote.  He did make a short speech on suffrage, saying that different states had different standards, some states allowing it where others did not, some having different qualifications to vote for different branches of the legislature and all disqualifying some people altogether because they lacked sufficient property.  Hamilton’s point is not altogether clear, but he appears to have been accepting each state’s right to set its own voting qualification.  As we have seen, this was the new democratic position at the Convention; the undemocratic position being to set federal restrictions on the vote.  Hamilton was also absent during debates on property qualifications for office, but he took the “liberal” position on immigrants.  Himself an immigrant from the Caribbean, he opposed requiring any number of years’ citizenship to hold office; citizenship should be sufficient since Congress could set any number of years’ residence to qualify for citizenship. 

Hamilton took a decidedly un-old democratic position on the term of the House; he favored three years, saying that “there ought to be neither too much nor too little dependence, on the popular spirit,” and that if elections were too frequent people lost interest in them.  On the other hand, he supported at least one old democratic principle; he favored enlarging the House from 65 members “with great earnestness and anxiety” or the popular branch of the government would be on so narrow a scale as to be dangerous to liberty.  He also appeared to believe that enlarging the House would prevent improper combinations between the President and Senate.

Hamilton was absent from the Convention between June 29 and August 13.  During that time, he developed his plan in greater detail, which, although he did not discuss in the Convention, he did privately show to Madison.  His more detailed version of the plan added a number of democratic features, old and new.  Realizing that his proposal to give the national legislature authority to pass “all laws whatsoever,” he included at least a partial bill of rights in his plan.  Since his Senate would serve for life and be almost a House of Lords, he gave the lower house sole authority to initiate money bills.  He would assign 100 members to the House and 40 to the Senate (both of which would reassure people who feared too small a legislature) and have both apportioned by population.  No property qualifications to office were specified.  Most significantly, however, were the qualifications he proposed for voting.  He would allow all free males over 21 to vote for the House, with no requirements for race, property or even taxpaying, a broader suffrage than even Pennsylvania.  He would require land ownership to vote for Senatorial electors and fairly stiff property requirements to vote for Presidential electors.**  His lower house, in other words, is elected by universal manhood suffrage, proportional to population, large enough to be on a broad base, and with sole authority to originate money bills.  Yet it might not seem as democratic to his contemporaries as it does to us because of that old bugaboo, three-year terms.

Hamilton is generally considered an opponent of democracy and, as we have seen, this reputation is largely accurate.  But this reputation is, perhaps, exaggerated by his opponents who opposed not only his aristocratic outlook, but also his nationalism, and assumed that every increase in centralization could only mean oppression.  Hamilton, on the other hand, recognized the creative and, yes, democratic possibilities of an increase in centralization.

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*Compare this with Hamilton’s comment for public consumption in Federalist Paper No. 70.. “There is an idea which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since the can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the executive is a leading character in the definition of good government.” Compare also to John Lansing's quote from his own notes, "It is admitted that you cannot have a good executive upon a democratic plan."

**Hamilton: Writing, Copyright 1993 by Literary Classics of the United States, Inc., New York, New York, pp. 1062-1063.

Guess Who Favored a Federal Expansion in Suffrage (Hint: This is a Trick Question)

Here I must acknowledge a debt to Alexander Keyssar's The Right to Vote, a history the right to vote and its restrictions throughout our country's history.  On page 23 he discusses the right to vote as it came up during the Constitutional Convention.  Gouverneur Morris proposed to limit the vote to freeholders.  In this he met strong opposition from many delegates who said that non-freeholders were allowed to vote in many state elections and would be angered at being denied a vote in federal elections.  The proposal was defeated and instead the rule was set that whoever could vote in the least restrictive elections in a state could also vote for the House of Representatives.  In other words, the federal government would restrict the vote no further than the states.  At the same time, Keyssar points out, no one proposed a suffrage broader than the states.

Keyssar attributes this outcome to the absence of some of the revolution's most democratic leaders such as Thomas Jefferson, Samuel Adams, Patrick Henry, and Thomas Paine.  We can make short work of Jefferson and Henry.  Both men were southern slave holders.  They feared federal power in general, and a federal expansion of the vote in particular lest it give greater power to black people (slave or free).  So much for the Virginians.  Samuel Adams would have had no such fear, but he shared the basic Anti-Federalist viewpoint that all expansion of federal power was inherently oppressive.  He thus seems like an unlikely candidate to press for a federal broadening of the suffrage.  That leaves Thomas Paine as one of those rare leaders of the day who was both a nationalist and a democrat, favoring both a stronger and a more democratic federal government.  He also came out against the Constitution.  (Cannot find link, alas!)  However, his main objections were to a single executive and a six-year Senate.  If he had any objections to the Constitution leaving in place existing restrictions on the vote, he did not say so.

The only other real democratic nationalist of the day was present at the Convention.  I refer, of course, to Benjamin Franklin.  Franklin opposed the restriction of the vote to freeholders and appears to have been the only one at the Convention to recognize that non-property holders nonetheless had legitimate interests and needed the means to protect them.  But not even Franklin who, in addition to being a democratic nationalist, showed a utopian tendency lacking in any other delegate, never proposed a federally-mandated expansion in suffrage.

Reading over Bernard Bailyn's collection of some 2000 pages of debate on ratification,* not once does anyone propose anything so radical as a federal expansion in the right to vote, although the issue was a hotly contested one at the state level.  Yet, although I have not seen any evidence that anyone proposed anything so radical in public debate, at least one person appears to have privately favored such a thing -- ALEXANDER HAMILTON!

The next post will explore how so odd a result could have come about.

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*The largest compilation of debate on the Constitution runs to some 50,000 pages, making Bailyn's collection a mere 4% of what is extant.  However, the same talking points get repeated often enough to give the impression that it accurately shows the mainstream views at the time, and a few oddball ones as well.

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.

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*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.  

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* 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.

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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.  

"New" Democracy, or Democracy as We See it Today

If there is one thing almost everyone takes for granted these days, it is that America at the time the Constitution was written was much less democratic than today, and that our story has overall been one of the growth of democracy.  First Presidential electors stopped using their own judgment in choosing a candidate and began pledging to certain party.  Next, they began to be chosen by the people directly instead of by state legislatures.  The right to vote became broader, as first property, then racial barriers were removed, then the vote was extended to women, and finally the voting age was lowered to 18.  Senators came to be elected by the people directly instead of by state legislatures.  At the state level, more and more offices became elective (Attorney General, Board of Education, numerous other executive officers, judges, etc.) and initiative, referendum and recall were instituted.  A few people may remember the invention of the secret ballot and Supreme Court requirements that both houses of state legislatures by apportioned by population as part of the general growth of democracy.

Yet what we have witnessed is not so much the growth of democracy as the growth of one definition of democracy that is familiar to us today.  If our system is much more democratic in many ways that it was in 1787, in other ways is it less democratic.  If our history has been the history of the rise of one form of democracy, it is also the history of the decline of another form.  But it is the growth of what I call new democracy, not the decline of old democracy, that people notice these days and we mistake the changing definition of democracy for a rise in democracy.*

But how, one may ask, could governments be more democratic in 1878 than they are now?  Slavery was legal (as we have seen) in all states but Massachusetts.  Women were excluded from the vote, and even among white men most states put property restrictions on who could vote.  Still more state put property and religious restrictions on who could hold office.  In most states, the governor was elected by the state legislature instead of by the people directly.  And, not as well remembered, but still significant, most states slanted representation to favor the eastern parts of the state (where the dominant elites, whether planters or merchants) lived, and to deny western farmers their fair share of representation.  Many states had an upper house of their legislature based on wealth instead of population.  Where is the democracy here?

So far as slavery goes, it clearly violates any principle of democracy, old or new and constituted an intolerable blemish on the system.  Contemporaries admitted as much.  But the other criticisms of the system at the time the Constitution was drafted simply reflect our own viewpoints of what democracy is, viewpoints not necessarily shared in 1787.

Our definition of democracy

Probably the best single defining slogan of new democracy is “one man, one vote.”  This slogan implies two things: that everyone should vote and that everyone’s vote should carry equal weight.  This slogan, and the criticisms mentioned above, indicate some of the other elements we consider essential to today’s definition of democracy.

Universal suffrage:  It is considered basic to our definition of democracy that every citizen who is of age should have the vote.  Some people would make an exception for convicted felons, but other than that any restriction on who can vote is assumed to be an intolerable violation of democratic principles, because anyone who is affected by a government should have a voice in it.  The principle of universal suffrage is pushed further in programs such as motor voter laws (laws allowing people to register to vote when they register their cars) or other laws to facilitate voting.

Direct popular elections:  In today’s ideology, it is assumed that more direct elections equals more democracy.  (Hence the criticism of the original Constitution for having a Electoral College and having Senators elected by state legislatures instead of by the people directly).  Direct popular election of both houses of the legislature and the chief executive is the minimum we would consider safe for democracy.  Many states have taken the principle further, with election of the Attorney General, Secretary of State, Treasurer, Board of Education and numerous other executive officials, a well as state judges.  Counties often take this principle to the point of absurdity and have elective positions such as assessor, surveyor, coroner and county clerk.  Many states and localities take the principle of direct elections further still and have the people vote directly on laws and policies.  On the state level, this may take the form of the referendum, in which the legislature passes a proposed constitutional amendment and then refers it to the people for their approval, or the initiative, in which citizens circulate positions to place a proposed law on the ballot to be enacted or rejected by a popular vote.  On the local level, it can take the form of a local option (a state law in which each county is allowed to vote on whether or not it wants to allow something), a vote on a local issue, or, especially a tax or bond election, on whether to pass a certain local tax or issue of bonds.  Incidentally, certain property tax elections violate the general theory of universal suffrage by restricting the vote to property owners, on the theory that non-property owners are not affected by a property tax.  This principle can be pushed too far, as ballots get loaded with so many candidates and laws that most people cannot keep them all straight.

Representation by population:  This is what most people mean when they say “one man [person], one vote.”  They mean that each election district should have an equal number of inhabitants.  This requires periodic reapportionment of all districts with each ten-year census to insure equal representation.  And “all districts” means Congressional districts, both houses of all state legislatures, any other state officials elected from districts, and districts electing city councilors and county commissioners.  Ensuring equal population often means electoral districts that cut across political divisions such as county and city lines.   Periodic reapportionment can also lead to the practice of “gerrymandering” (named after Convention member Elbridge Gerry) as district boundaries are manipulated to affect political outcomes.

No privileges based on wealth:  This may seem repetitious of the other new democratic principles, but it needs to be emphasized.  It is partly included in the principle of universal suffrage because property restrictions on the vote are repugnant to new democracy.  It is partly included in the concept of representation by population, because the practice, common in 1787, of having representation in at least one house based on property is also repugnant to new democracy.  It is also opposed to the practice, used in almost all states when the Constitution was adopted, of placing property restrictions on office holding.

But opposition to privileges based on wealth goes beyond these things.  Obviously, money talks and no one can prevent money from talking, but new democracy believes that money should not talk.  This was not the general assumption when the Constitution was adopted; it was generally assumed that since government was instituted at least partly to protect property, money should talk.  Giving a rich man extra votes in proportion to his wealth, everyone agreed, would be monstrous, but for a rich man to influence his neighbors was widely accepted.  Madison was not condemning a defect when he said:**

If the law allows an opulent citizen but a single vote in the choice of his representative, the respect and consequence which he derives from his fortunate situation very frequently guide to votes of other to the objects of his choice; and through this imperceptible channel the rights of property are conveyed into the public representation.

He was simply explaining normal, perfectly acceptable facts of life.  Today’s practice of the secret ballot was adopted to prevent the intimidation of voters by their employers or other people with economic power over them.  And, of course, all today’s proposals for campaign finance reform are intended, in one way or another, to prevent money from talking.

Evaluating the delegates on new democracy 

Although new democracy was (for the most part) new at the time of the Constitutional Convention, most of the issues involved did exist at the time, and many were debated.  The most obvious new democracy issues raised at the Convention are direct popular election of House, Senate and President.  Another major issue is the qualifications for office, meaning not only property qualification but qualifications in age and citizenship as well.  Qualification to vote is another important issue that deserves some comment.  There were two basic positions on the qualification to vote.  The new democratic position was that whoever was qualified to vote for the lower house of the legislature in each state should be allowed to vote for the United States House of Representatives.  The less democratic-minded favored additional federal restrictions on the vote that would be uniform throughout the country.  No one proposed a federal expansion in the right to vote, and no one, with one surprising exception, even seems to have thought of such a thing.

            I anticipated these issues from the beginning.  There were a few other new democracy issues that I did not anticipate when reading the Convention notes.  One was whether representation would be by population or by wealth, which has been addressed above.  Another was whether to require reapportionment of the house on regular intervals, or to leave it to the discretion of Congress.  A final new democratic issue, closely related to the issue of reapportionment, was whether to admit the Western (i.e., west of the Appalachians) on an equal basis or whether to guaranty the Atlantic states a majority of representatives in all cases.

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*Here I must acknowledge my debt to Gary Wills in A Necessary Evil: A History of American Distrust of Government, Copyright 1999 by Simon & Schuster as the first description I have read of the working of old democracy and explaining how it can be a thoroughly democratic system.

**It should be noted, though, that he was proposing a hypothetical defense of slave representation.