Mixed Government: Gouverneur Morris, the cynic

Gouverneur Morris played a larger part in the Convention than Hamilton.  Like Hamilton, he may be considered an advocate of mixed government insofar as he favored semi-monarchical executive and a Senate as near as possible to the House of Lords, but, unlike Hamilton, he showed no interest in making sure the House was genuinely democratic.  He also expressed himself in cynical terms Hamilton never used.  While Hamilton, as we have seen, argued for an aristocratic Senate by saying that the few and the many should have a veto over each other to prevent either from oppressing the other, Morris said:

[The Senate] must have great personal property, it must have the aristocratic spirit; it must love to lord it thro’ pride, pride is indeed the great principle that actuates both the poor & the rich.  It is this principle which in the former resists, in the latter abuses authority. . . . If the 2^nd branch is to be dependent, we are better off without it.  To make it independent, it should be for life.  It will then do wrong, it will be said.  He believed so: He hoped so.  The Rich will strive to establish their dominion & enslave the rest.  They always did.  They always will.  The proper security agst them is to form a separate interest.  The two forces will then controul each other. . . . [To persuade state officer holders to support the Constitution] [L]oaves & fishes must bribe the Demagogues.  They must be made to expect higher offices under the general than the State Gov’t.  A Senate for life will be a noble bait. 

Morris’s specific proposals for the Senate were a great deal more aristocratic than Hamilton’s.  Like Hamilton, he favored a Senate for life.  Unlike Hamilton, he would have them appointed by the executive.  Furthermore, while Hamilton favored making the Senate, like the house, come from districts based on population, Morris pointed out that if they served for life, Senators would probably move several times and could not truly be said to represent anywhere.  He also said Senators should not be paid to ensure they were rich.

Morris’s views on the executive are interesting and somewhat contradictory.  He sounds almost democratic on the subject at times.  On the new democratic side, he favored popular election of the President.  “If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.”   To fears that the people of large states would combine to elect one of their own, he replied that legislators from large states could combine, but election by the people made such conspiracies impossible.  Nor were the people too uninformed to choose their own President; they would be uninformed of what happened in a legislative conclave, but they were not uninformed of the most illustrious characters in the country  
Morris’s real goal, however, was not the new democratic objective of popular election of the President, but the very un-old democratic objective of strengthening the executive by protecting him as much as possible from the legislature.  That became apparently when someone ironically proposed an executive for life.  Morris supported the motion, saying that he had only advocated popular election of the executive because he though an executive for life would not go over.  “He was indifferent how the Executive should be chosen, provided he held his place by this tenure.” When that proposal was defeated, he went to the opposite (and old democratic) extreme of proposing a two-year term for the executive, with election by the people and indefinite reeligibility.  At the time, he opposed even making the executive impeachable, lest it give the legislature too much power over the executive.  The very short term was to make it possible to get rid of an executive who misbehaved without making him impeachable.  At first he argued against making the President impeachable, saying that it should be sufficient to impeach his co-conspirators, but after being reminded of some of the worse betrayals by executives in other countries, he changed his mind.  But above all, he opposed limiting the President to a single term.  An executive eligible to only one term would destroy the motive to behave well; it would lead to instability of measures and destroy the President’s incentive to protect his office and encourage him to court favor with the legislature in hopes of joining them.  But above all, he feared that denying the executive the possibility of being legally returned to office would encourage him to seek power illegally, including by military force.

Not too surprisingly, Morris also favored a strong executive.  He favored an absolute executive veto as necessary to protect the executive from encroachments by the legislature, particularly the popular branch and, when that was rejected, preferred requiring a three-quarters to a two-thirds vote to overrule the veto.  Similarly, he favored executive appointment of judges and the treasurer and executive pardon of treason.  He did propose an executive council, consisting of the Chief Justice of the Supreme Court and the department heads, but these would be appointed by the President and serve during his pleasure and would have the power to advise the President only and not to bind him.  A council with the authority to bind the President would merely serve as a shield to allow him to escape blame for misconduct.  He opposed making legislators ineligible to executive office, arguing that the executive could exercise influence anyhow by appointing friends or relatives of legislators to office, but also hinting that appointments to office were an appropriate form of executive influence.  On the whole Morris disagreed with the old democratic view that the legislature was most nearly the voice of the people and the executive was dangerous; he saw the greatest danger as legislative tyranny and the executive as the representative of the people as the whole.  “It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, agst Legislative tyranny.”  Furthermore, unlike Hamilton, Morris did not consider himself a monarch.  “This Magistrate [the President] is not the King but the prime-Minister.  The people are the King.” 

If Morris differed from Hamilton in not considering himself a monarchist, he also differed from Hamilton in not seeing any need for measures to ensure that the lower house was genuinely democratic.  Presumably he would say the lower house’s democratic tendencies would be so overwhelming that there was no need to preserve them, but only to restrain them.  Nonetheless, his vision of the lower house is not a democratic one.  He was not present during debates on whether the House would be chosen by the people or the state legislatures, although given Morris’s distrust of state power, he would presumably have favored the people.  Nor was he present when the term of the House was chosen.

He was present when the Convention debates qualifications for voting and was the first to propose restricting the vote to freeholders:

Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them.  We should not confine our attention to the present moment.  The time is not distant when this Country will abound the mechanic & manufacturers who will receive their bread from their employers.  Will they be the impregnable barrier agst aristocracy? . . . The man who does not give his vote freely is not represented.  It is the man who dictates the vote.  Children do not vote.  Why? Because they want prudence, because they have no will of their own.  The ignorant & dependent can be as little trusted with the public interest.

He wanted property to be at least taken into account in apportionment of representation:

Life & liberty were generally said to be of more value, than property.  An accurate view would nevertheless prove that property was the main object of Society.  The savage State was more favorable to liberty than the Civilized; and sufficiently so to life.  It was preferred by all men who had not acquired a taste for property; it was only for the sake of property which could only be secured by the restraints of regular Government.

On the other hand,, if representation by property was to favor the South, property “ought to have its weight, but not all the weight.”  Nor did he see any reason to restrict money bills to the lower house .  He also opposed giving equal representation to the West or requiring periodic reapportionments.  Western states would not know the “public interest” and would try impose wars and burdens on the Atlantic states.  Westerners would not be “enlightened,” would be “adverse to the best measures” and try to ruin the Atlantic states.  “The Busy haunts of men not the remote wilderness, was the proper school of political Talents.”  As for requiring periodic reapportionments, if the mode were to be fixed, he believed it would put to much restraint on the legislature; if unfixed, new states might take advantage of some crisis and block vital legislation until Congress made a reapportionment in their favor.  As for the danger that Congress might not reapportion, he said with a presumably straight face, he thought this was very unlikely unless there was some important reason not to reapportion and besides, surely Congress could be trusted to do their duty, if bound by their oaths and honor. (In response, Madison said it was strange to hear one so cynical show such a sudden faith in human nature exactly when it was in his interest to do so).

Morris was slightly new democratic in opposing Mason’s proposal for requirements of landed property for office holders and an exclusion of public debtors and people with unsettled accounts. 

If qualifications are proper, he wd prefer to see them in the electors rather than the elected. . . . It was a precept of great antiquity that we should not be righteous overmuch.  He thought we ought to be equally on our guard agst being wise overmuch.  

But this was not so much a democratic fear as a fear that the provision would discriminate against merchants, who owned little land and regularly posted bond for import taxes and, as a result, were regularly public debtors or had unsettled public accounts.  He favored 14 years’ citizenship for Senators, not altogether trusting immigrants and 7 years for Representatives, although he would make an exception for any immigrant currently nationalized, as the states had pledged their faith to such immigrants.

Morris showed some openness to a bill of rights, favoring a prohibition on bills of attainder, a guarantee of habeas corpus except in emergencies, a specific definition of treason, and a ban on religious tests for office.  On the whole, however, he was the least democratic of the delegates, considerably less democratic than Hamilton. 

A revealing episode showing the difference between Morris and Hamilton occurred when the Committee of Remaining Matters, which included Morris, proposed the Electoral College to choose the President.  The Committee consisted of one member from each state, which naturally gave the advantage to the small states.  Two representatives of large states on the Committee, Gouverneur Morris and Rufus King, favored a “high mounted” government (Madison’s words) and therefore agreed with the small state representatives to have the Senate break ties in the Electoral College.  This led to great cries of alarm that if the Senate could choose the President, it would become too powerful and become an aristocracy.  Old democrat Hugh Williamson, new democrat James Wilson, old and new democrats Edmund Randolph and George Mason, and the eternally moderate John Dickinson all took alarm. Morris defended the Senate’s role in choosing a President.  Hamilton, on the other hand, joined the alarm.  “Here then is a mutual connection & influence, that will perpetuate the President, and aggrandize both him & the Senate.”  He proposed, instead, to allow whoever had the most electoral votes be declared the winner.  Granted, this might have been a proposal for an even more “high mounted” government, by keeping the legislature out the election altogether, but he did express fears at another time of an improper combination between the President and Senate.  Incidentally, Roger Sherman, as usual, provided the compromise.  The House, instead of the Senate, would break electoral deadlocks (this comforted people who feared an aristocracy), but they would vote by states (this reassured small states).*
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*This provision has only been used twice, in 1801 to decide between Thomas Jefferson and Aaron Burr and in 1825, to decide between four candidates.  (John Quincy Adams, who had the second most votes was chosen over Andrew Jackson, who had the most).  It proved to be a disastrously bad system both time, leading to deadlocks, delays, and corrupt bargains.  Some people believe the Supreme Court decided Bush v. Gore in part to spare the country a repeat performance.

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.