James Wilson: The Outstanding New Democrat

The outstanding advocate of new democracy at the Constitutional Convention, many these days would say the only true new democrat, was James Wilson.  Wilson supported new democracy on almost all points, sometimes even going beyond the Constitution we have today. 

He began by favoring popular election of the House, saying that he wanted to raise a high federal “pyramid,” and for that reason needed a broad base.  He also favored popular election to minimize the influence of states.  Government should possess not only the force, but the mind or sense of the people, and, indeed, representation was only necessary because it was impossible for the people to act directly as a legislature; a legislature should therefore be “the most exact transcript of the whole Society.”  Popular election of the House was the “foundation of the fabric” of the new government.  He also favored popular election of the Senate, the only delegate at the convention to do so, instead of election either by state legislatures or by the lower house.  In accordance with new democratic principles, favored dividing the states into districts of roughly equal population.  Election by state legislatures would introduce too many local interests and prejudices compared to election by the people in large districts.  If direct popular election was not practical, he proposed election of senators by special electors chosen for that purpose.  When the other delegates agreed on election by state legislatures, he opposed having state executives filling up unexpected vacancies.  Since many state executives were not chosen by the people, allowing them to fill up vacancies in the Senate removed appointment too far from the people. 

As for election of the executive, Wilson said he was “almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical,” but he wanted that, too, to be done by the people.  Why should it be “chimerical” (fanciful) for the President to be elected by the people directly?  Keep in mind that at the time of the Constitutional Convention, no one anticipated the two party system, or foresaw that the election of the President would be anything as simple as a choice between two candidates.  Any prominent figure would be a candidate, and under those circumstances direct popular election would be a hopelessly confusing hodgepodge.  Furthermore, the whole concept of tabulating votes from numerous electoral districts was a fairly new one at the time and not well established.  Considering direct popular election of the executive impractical, he proposed election by special electors chosen by the people.  Throughout the Convention, Wilson continued to call for popular election of the executive as a matter of principle, or at least for some alternative to election by the national legislature, which he believed would lead to intrigue and conspiracy.  As a desperate last resort, he was even willing to have fifteen members of the legislature chosen by lot to immediately adjourn and choose a President.  He made clear that he did not like this mode of election and preferred election by the people, but anything was better than election by the national legislature.

Wilson took the new democratic position on other positions as well. He opposed restricting the vote to freeholders, saying that people who were not freeholders might be allowed to vote in state elections but not national elections and would resent it.  He would also have given anyone qualified to vote for the legislature to vote for presidential electors as well.  Although he expressed his opposition to federal restrictions on the vote simply because it would be unpopular rather than on the merits, but he also appears to have opposed such restrictions on the merits, saying that he was, “agst abridging the right of election in any shape.  It was the same thing whether this were done by disqualifying the objects of the choice, or the persons chusing.”  Wilson also opposed most restrictions on who could hold office.  At times, he went even farther than we have gone today, as he opposed requiring members of the House to be over 25 (a provision eventually adopted), opposing disqualifying people with unsettled public accounts from office], and proposing that they drop a section allowing Congress to set property qualifications for members.*  When the issue immigrants came up, and how many years’ citizenship should be required to hold office, I was confident that I knew Wilson well enough to predict that he would favor an openness to immigrants, as, indeed he did.  What I did not foresee was how strongly he felt on the subject or the reason – he himself was an immigrant (from Scotland), so the matter had personal importance to him.  Besides, requiring too long a residence was “illiberal” and might exclude worthy immigrants.  He favored four instead of seven years’ citizenship for the House, seven instead of nine years’ citizenship for the Senate and the eligibility of all immigrants currently naturalized to office.  As an alternative he supported a proposal by Alexander Hamilton (another immigrant) simply to allow citizenship because Congress could require any number of years’ residence to become a citizen.

Finally, Wilson also took the new democratic position on representation by population and equal representation for the west.  In this regard, too, as we have seen, he pushed the new democracy farther than we have today in pushing for making the Senate proportional to population, favoring one Senator for every 100,000 people, and considering that to be essential to the principle of majority rule.  Representation should be by population rather than by wealth, partly because wealth was impractical to measure and numbers were the best measure of wealth.  Besides:

He could not agree that property was the sole or the primary object of Govern’t & society.  The cultivation & improvement of the human mind was the most noble object.  With respect to this and other personal rights, numbers were surely the natural & precise measure of Representation.  And with respect to property, they could not very much from the precise measure. 

This made Wilson the only delegate to actually dispute that property was the primary object of government, or to distinguish between personal rights and property.  As for the west, he said that since all men everywhere had equal rights and are equally entitled to confidence, the majority should rule wherever it might be.  If the Atlantic states denied the western states their fair share of representation, then just as the Atlantic states had rebelled against their colonial status, the west would rebel against its semi-colonial status.  On only one issue did Wilson differ from a perfect new democratic record.  When the Virginians and some others were calling for specific rule of regular reapportionment, Wilson said he had no object to leaving the legislature at liberty.

Impressive as Wilson’s record is in support of new democratic principles, he is almost as consistent in his rejection of old democracy.  He accepted a few old democratic ideas, favoring annual elections to the House to ensure “effectual representation of the people at large” and a three-year term for the executive.  With regard to a bill of rights, he opppose a prohibition on ex post facto laws, apparently fearing they would be too difficult to define and apparently saw not need ever to allow the suspension of habeas corpus, believing that it would be sufficient if judges were allowed to deny bail.  On the other hand, he never spoke in favor of a bill of rights, and during the ratification debates he was the first to offer what became the standard argument against a bill of rights – since the federal government had only the powers specifically given to it, there was no need to identify what powers it did not have.

In all other regards, Wilson opposed old democracy, sometimes even going too far by today’s standards.  He favored a nine-year term for the Senate, saying that the long term would give sufficient stability and wisdom to allow it to conduct foreign affairs.  Having one-third of the Senate up for election every three years would prevent them from serving for life or becoming hereditary.  He never worried that representation was too small to properly know that interests and wishes or its constituents; quite the contrary, he argued that large districts were the best way to avoid corruption and intrigue.  He saw no reason to give the House the sole authority to originate money bills, since both houses would ultimately have to approve them.  Nor did he see any reason to make legislators ineligible to executive office; the desire for such offices was an incentive to excel and an honorable form of ambition, not a dishonest or corrupt one.  Corruption could be prevented by making legislators ineligible to offices they create and by excluding them from any role in appointment to offices.

 But above all, Wilson opposed old democracy in favoring executive power.  Indeed, he considered the greatest risk of tyranny under a republic to be from excessive power and a strong executive as an essential protection for legislative tyranny.  He was the first to propose as single executive, a proposal controversial enough to lead to a “considerable pause” and opposed an executive counsel which he said “oftener serves to cover, than prevent malpractices,” although he did believe the executive should be impeachable, but not removable upon the request of the majority of state legislatures.  He even favored an absolute executive veto which he believed would be rarely used, the mere threat of a veto being sufficient to prevent improper laws, although he would add the federal judiciary to the veto.  He also favored executive appointment of judges, preferably without requiring the advice and consent of the Senate.  Indeed, Wilson appears to have favored giving the President complete, unilateral authority in appointments, with no check except the knowledge that he would be solely responsible for bad appointments, and impeachment of any truly scandalous appointees.  Indeed, he considered giving the Senate a role in appointments to be giving an improper executive power to the legislature and preferred a council of appointment, although he believed its advice should not be binding on the President.

Clearly Wilson was a democrat, indeed, to us he may appear the only true democrat in the Convention.  Yet Wilson belonged to the “conservative” party in Pennsylvania politics, which opposed Pennsylvania’s extreme old democratic constitution.  To much of the Pennsylvania “left,” the bare fact that Wilson supported the Constitution was reason enough to damn it as undemocratic.**  Wilson was a puzzling figure to his contemporaries, just as Gerry is a puzzling figure to us.  Just as Gerry’s tone sounds democratic, yet his positions seem undemocratic to us because we are used to thinking in new democratic terms, Wilson’s contemporaries could not recognize him as a genuine democrat because they were used to defining democracy in old democratic terms.

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*On the other hand, one of the reasons he gave for opposing such restrictions in the Constitution or in the hands of Congress was that it would exclude anyone else from placing restrictions on who could serve in Congress.

**Cf An Officer in the Late Continental Army:   "Mr. W[ilson] is a man of sense, learning and exten—sive information; unfortunately for him he has never sought the more solid fame of patriotism. . . . The whole tenor of his political conduct has always been strongly tainted with the spirit of high aristocracy;West or Peale, or the pen of a Valerius.And yet that speech, weak and insidious as it is, is the only attempt that has been made to support by argument that political monster THE PROPOSED CONSTITUTION."  One wonders what Wilson’s opponents would have said if they had known his actual role in the convention.

Old Democrats: Hugh Williamson of North Carolina

Another leading but not total old democrat with some openness to new democracy was Hugh Williamson.  His main departure from old democratic principles was that he lacked the New Englanders’ fetish with very frequent elections.  He did not speak up on length of term for the House and favored a six year term for the Senate over seven years simply because six years were easier to stagger at two-year intervals.  In particular, he did not favor a very short term for the executive.  He proposed a six-year term, saying that too frequent elections were too expensive and discouraged the best characters. With a limit to a single term, he would even agree to ten or twelve years.  When the other delegates agreed to a four-year term, Williamson preferred six or seven years.

Otherwise, Williamson was generally an across-the-board old democrat, especially on the issues that did not greatly interest Sherman.  He spoke three times on behalf of enlarging the House.  He also strongly opposed allowing the Senate to originate money bills, saying that requiring someone in the House to propose them would allow the people to mark him.  He said that he agreed to equality in the Senate only in exchange for requiring the House to originate money bills,* seconded a motion forbidding the Senate from altering any bill for raising revenue, and urged people who considered the issue unimportant to “indulge” ones who did consider it important, adding that he could not agree to give the Senate any additional powers if it could originate money bills.  Closely related, in Williamson’s mind, was the issue of ineligibility to office.  At a time when the Senate was allowed to originate money bills, he likened it to a House of Lords that could originate money bills and said that ending ineligibility to office would allow legislators to cut out offices for each other.  “Bad as the Constitution has been made by expunging the restriction on the Senate concerning money bills, he did not make it worse by expunging the present Section [on ineligibility].”  Yet he later seconded a motion to make legislators ineligible only to offices they create.  

His record on a variety of other measures is mixed.  He did not support did not  a ceiling on the size of the army, saying that restrictions on the length of appropriations was the best safeguard and favored a ban on ex post facto laws and a guarantee of trial by jury in civil cases.

 With regard to the executive, Williamson favored election by the national legislature.  He considered the difference between election by the legislature and by the people to be like the difference between appointment by lot and by choice.  The people would not know eminent characters outside of their states and the winner would come from the largest state.  The independence of the executive could be protected by allowing him only one term.  If election was to be by the people, he favored requiring everyone to vote for three candidates because at least some of the three would be from another state.  Although he ultimately agreed to the Electoral College, he considered it too "aristocratic" for the Senate to break electoral deadlocks.  Williamson also generally seemed to distrust executive power.  He preferred a three-man executive to one-man, saying that different sections of the country had different interests that needed to be represented, and besides, a single executive would be too much like a king, and would try to remain in office for life and pass the office on to his children.  He also favored making the executive impeachable for “mal-practice or neglect of duty.” He originally opposed the executive veto, preferring to require a two-thirds vote of the legislature on all laws, although he later became reconciled to an executive veto and for a time even favored requiring a three-quarters vote to override a veto, although he later changed his mind back to two-thirds to avoid giving the President too much power.

            On new democratic issues, Williamson had a more mixed record.  He opposed restricting the vote to freeholders.  The national legislature should not be allowed to set its own qualifications, or they might limit membership to a “particular description” of men, such as lawyers, but he favored requiring nine, rather than seven, years’ citizenship to serve in the Senate.  He was also more ambivalent toward the West than Sherman.  He favored representation by population rather than by wealth, except for the Western states, which he would represent on an equal basis only if their property was equal to the Atlantic states.  He firmly favored requiring Congress to make periodic reapportionments, saying that he “was for making it the duty of the Legislature to do what was right & not leaving it at liberty to do or not do it.”  Yet he distrusted the West, saying that western states would be poor and unable to pay their share and should therefore be limited in power or they would try to shift too much of the tax burden onto commerce.  Williamson, by the way, though he represented North Carolina, was a native of Pennsylvania, who lived for some time in New England and ended his life in New York, and a merchant by trade.  He may therefore have been closer to the views of the commercial elite on the Western states than to the views of most of his follow Southerners.

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*Interestingly enough, when the proposal was originally made, Williamson dismissed requiring money bills to originate with the House as insignificant, saying that it would be better to require money bills to originate in the Senate, which would be more closely watched.

Old Democrats: Roger Sherman of Connecticu

Roger Sherman (who Madison sometimes spells "Sharman") was another leading old democrat, although not so completely across-the-board as Gerry, and also more open to at least some new democratic ideas, especially with regard to the western states.  

He opened by opposing one important new democratic principle; he wanted election to the House of Representative to be by state legislatures instead of by the people, with the comment, “The people . . . immediately should have as little to do as may be about the Government.  They want [lack] information and are constantly liable to be misled.”   His concern was not just distrust of the people, but fear for the future of states, which he believed would be weakened if not allowed to participate in the new government.  He also favored election of the Senate by state legislatures.  At the same time, he acted as an old democrat, calling for the House to serve annual terms, since “Representatives ought to return home and mix with the people.  By remaining at the seat of Gov’t they would acquire habits of the place which might differ from those of their Constituents.”  Given that it was also around the same time that Sherman was arguing that there was no need for “another” branch of the legislature, to be elected by the people, it is clear that there was nothing contradictory or paradoxical in Sherman’s position.  He favored a one-house legislature, elected to one-year terms by the state legislatures, with each state having an equal vote, in other words, he wanted to keep the same system as the articles of Confederation.  Yet, just as Sherman was one of the leading proponents of the Great Compromise, he also acceeded to popular election of the House and two-year terms so readily as to leave one wondering if he was showing statesmanship or spinelessness.

Sherman also opposed long terms for the Senate, regarding either seven years or nine as too long, although he would agree to four, five or six years.  It was in response to a proposal for a nine-year term that Sherman made his comment that, “Frequent elections are necessary to preserve the good behavior of rulers,” and adding that if rulers behaved well, they would be reelected and the government would be stable.  Connecticut was stable, and look how frequent elections were there!   He favored making members of the national legislature ineligible to executive offices as a source of corruption and undue executive influence.  He also showed at least some distrust of standing armies, with the comment that “He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace.”  Yet he considered it safe to limit military appropriations to two years instead of one, since a legislature serving two-year terms might only meet every two years.  At the same time he considered “frequent” meetings of the legislature essential to liberty, presumably to keep the executive from becoming too powerful.

But above all else, Sherman showed himself an old democrat in his fear of executive power.  He went further than any other delegate in wishing to subordinate the executive to the legislature:  

MR. SHERMAN was for the appointment by the Legislature, and for making him [the chief executive] absolutely dependent on that body, as it ws the will  of that which was to be executed.  An independence of the Executive on the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing.*

Nor did Sherman originally even see the reason to specify how many members the chief executive should have.  Since the executive was “nothing more than an institution for carrying out the will of the Legislature,” the legislature should have the discretion to decide how many members there would be.  When James Wilson pointed out that all states had a single executive, Sherman agreed that a single executive was, after all, the proper choice, but that, just as every state had an executive council, and the national executive should have a council as well.  He favored a three-year term for the executive, with indefinite re-eligibility and giving the legislature authority to remove the executive at will.  He strongly opposed an executive for “good behavior,” saying that being reeligible was the best guaranty of the executive’s good behavior.  Significantly, almost everyone else at the Convention believed that if the executive were to be elected by the legislature, then he should be ineligible to a second term to ensure his independence from the legislature.  Although Sherman gave as his reason for making the President reeligible that we should not get rid of the best man for the job.  It seems likely that Sherman wanted to make the President reeligible in order to destroy his independence from the legislature.  He also opposed or at least a absolute veto.  “No one man could be found so far above all the rest in wisdom.”  He also opposed involving judges in the veto and opposed requiring the President to sign “every order, resolution or vote” except for votes to spend money.  He definitely preferred a two-third vote to a three-quarters to override a veto:

[T]he States would not like to see so small a minority and the President, prevailing over the general voice.  In making laws regard should be had to the sense of the people, who are to be bound by them, and it was  more probable that a single man should mistake or betray this sense then the Legislature. 

Sherman also wanted the legislature, not the executive to appoint judges, feared allowing the President to appoint military officers lest he use them to create a military dictatorship, and favored requiring the consent of the Senate for the President to issue pardons, as well as having the legislature instead of the executive appoint the treasurer.

            Unlike Gerry, however, Sherman did not support all old democratic principles.  He saw no need to increase the size of the House, preferring 50 to 65 members.  He also saw no need to prohibit the Senate from originating money bills, saying that the Senate was not a House of Lords, and that the Connecticut Senate to originate money bills without harm.  He saw no need for a bill of rights, regarding the state bills of rights as sufficient, no need to guaranty freedom of the press, since the power of Congress did not reach the press, and no need to forbid religious tests for office holding. 

            Sherman had mixed opinions on new democracy.  As we have seen, he opposed popular election of the House, Senate, or President.  He also opposed making currently naturalized foreigners eligible to federal offices, saying that it was the states, not the federal government, that had offered them citizenship.  On the other hand, he held a new democratic opinion toward the western states.  To the suggestion that the western states should not be represented on the same scale as the Atlantic states, Sherman said that the number of people was the proper basis for representation, and that if representation was to be by wealth, it would be measured by population.  Sherman favored treating the western states as equals at least in part because he believed they would never have more population than the Atlantic states or, if they did, it was too far in the future to consider.  But he also said that they were preparing a Constitution for posterity, who were as likely to live in the west as the old states and should therefore not be discriminated against.  Originally, Sherman opposed requiring Congress to make periodic reapportionments to match population shifts, but after listening to the arguments of the Virginians, he agreed that specific rules needed to be laid down.  This was a statesmanlike position for a New Englander to take, considering that they expected their region to be the loser from it.

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*This was very much a minority view.  The general view followed Montesquieu, that separation of powers was essential for liberty, and that combining executive and legislative powers was tyranny.

Old Democracy: The Baffling Elbridge Gerry

The strongest supporter of old democracy at the Constitutional Convention, and the strongest opponent of new democracy was Elbridge Gerry.  This combination is baffling if one does not understand the distinction. To understand Gerry’s position, imagine yourself in a convention drawing up a new constitution for a state or, better yet, an independent country.  Naturally you would arrive convinced of the need for universal suffrage, direct elections to major offices, representation by population and the other new democratic principles we consider essential to liberty.  Imagine further that other delegates started proposing old democratic features in the constitution – very short terms, annual elections for at least the lower house of the legislature, numerous representation pushed as far as it could be born, and a weak executive bound by a council not of his own choosing.  You would consider such proposals folly.  Add to them (in independent country) a proposal to forego standing armies and be defended by a citizen’s militia with officer elected by the rank and file and you would probably consider it madness.  You might take a somewhat undemocratic tone in opposing these features.  If the other delegates agreed that these features were dangerous combined with new democratic features, but proposed that they could be more easily born if the constitution adopted property restrictions on the vote and office holding, had the executive and perhaps the upper house elected by the legislature, and had one house of the legislature apportioned by wealth instead of population, you would denounce the system as a plutocracy and intolerable threat to liberty.   Gerry might be considered the reverse of such viewpoint.

 Gerry arrived from Massachusetts, which had just experienced Shays’ rebellion, an uprising by farmers facing dispossession from debts and taxes.  The experience had clearly shaken Gerry’s confidence in the common people and democracy.  He explained his position clearly.

The evils we experience flow from the excess of democracy.  The people do not want virtue, but are the dupes of pretended patriots. In Masst it had been daily confirmed by experience that they are daily misled into the most baneful measures and opinions . . . He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levilling (sic.) spirit.  

Gerry’s statement that he was still a republican was no mere empty declaration, as it would turn out, but it was not immediately apparently.  He opposed popular election to the House of Representatives, wanting them to be nominated by the people with the final decision made by the state legislatures.  He also opposed the lifting of property restriction on the vote.  In England, he said, the people would lose their liberty from the smallness of their suffrage; in America the danger was from too broad a suffrage.  (Massachusetts required 60 pounds property to vote; the highest requirement in the country).  In the Massachusetts legislature, he said, “Men of indigence, ignorance & baseness, spare no pains, however dirty to carry their point agst men who are superior to such artifices.”    Likewise, he opposed popular election of the Senate, saying that among the people the landed interest (i.e., farmers) formed the majority and would oppress the commercial interest (merchants) unless election went through a “refining” process in the state legislatures.  And he feared having the Constitution ratified by conventions instead of legislatures, apparently regarding the process as too new democratic, saying that the people of Massachusetts had “the wildest ideas of government in the world” such abolishing the state senate and having a unicameral legislature.

 In all these opinions, he showed himself opposed to democracy, but specifically to new democracy.  When old democracy began to come under attack, he took quite a different tone.  When a three-year term was proposed for the House of Representatives, Gerry called for annual elections as the only defense against tyranny.  The people of New England, he said, would never give up annual elections, knowing that in England elections had been moved from every three years to every seven.  “He was as much agst a triennial House as agst a hereditary Executive.”  Gerry’s sudden switch from opposing popular elections to proclaiming himself the champion of the people is enough to give some people whiplash.  And, indeed, from then on Gerry begins sounding more and more like a democrat, but specifically like an old democrat.

 He continued to oppose new democratic positions.  He regarded popular election of the President as “the worst mode,” saying that popularly elected governors who did their duty, like Governor Bowdoin of Massachusetts, who suppressed Shays’ Rebellion, would be turned out for it.  He favored excluding public debtors and pensioners from office, on the grounds that “[I]f property be one object of Government, provisions for securing it cannot be improper”and would exclude all immigrants from office.  He also opposed admitting the Western states on an equal basis, but favored guarantying a permanent majority to the original 13 states or the Western states would oppress commerce.  On the subject of property representation, he had mixed opinions, at one point opposing property representation because it would include slaves, another time saying that both population and wealth should be included in representation.

On the whole, however, once Gerry called for annual elections, his overall tone was as an old democrat championing and showing confidence in the common people.  He opposed a long term for the Senate, saying that no more than one person in a thousand would tolerate any approach to monarchy.  (Presumably he did not include himself as the one in a thousand).  He even said that, although the majority will violate justice when it is in their interest, he did not think there was any such temptation here, and that he believed there was a sufficient sense of justice and virtue.  A far cry from his earlier statement that the people were “daily led into the most baleful measures”!  He also favored enlarging the House of Representatives because the people are “accustomed to & fond of a numerous representation, and will consider their rights better secured by it.” This was an opinion he shared, saying that liberty was not as safe in the hands of eight to a hundred men taken from the whole continent as in the hands of two or three hundred from a single state.  He also opposed allowing the Senate to originate money bills because the House was more immediately the representatives of the people and the people should control the purse strings.  He also had an old democrat’s distrust of standing armies, which he considered dangerous in times of peace (as well as thinking the people were jealous on the subject) and called for a ceiling to the size of army that the United States could keep up in time of peace, personally favoring two or three thousand troops, although he would keep an open mind on the number.  At a bare minimum, he wanted to restrict all military appropriations to one year, instead of the two years the Constitution ultimately allowed.   Gerry was also one of the few members of the Convention to favor a bill of rights.  He began by calling for a prohibition on bills of attainder (bills finding a person guilty of a crime without a trial) and ex post facto laws (laws punishing acts before the law was passed), saying that Congress was dangerous because of its few members.  He also proposed a bill of rights, a guarantee of freedom of the press and especially a guarantee of trial by jury in civil cases (it was already guarantied in all criminal cases). 

The one regard in which Gerry was not a complete old democrat was his eagerness to keep the executive independent of the legislature.  He opposed election of the executive by the legislature (or by the people), favoring election by the state executives.  If the legislature did choose the executive, Gerry would guarantee his independence by giving him a single, very long term of ten, fifteen or even twenty years.  He also favored a single, instead of triple executive, saying that a three-man panel would be like “a general with three heads.”    

            On the other hand, he generally wanted to limit executive power.  The President should be impeachable.  “[T]he maxim should never be adopted here that the chief magistrate could do no wrong.”  He also seconded a motion making “maladministration” as well as bribery or treason grounds for impeachment.  He agreed to an executive veto, but believed that its purpose was for the executive to protect his office, not to allow him to veto bad laws in general. He opposed including judges in the veto for fear it would make the veto too strong and preferred to allow 2/3 of the legislature, rather than ¾ to overrule the veto.  He also favored having the Senate, rather than the executive, appoint judges and was shocked at a proposal to allow the President to declare war alone.   And he favored making legislators ineligible to executive office to prevent executive influence over the legislature by patronage.  Indeed, the prospect horrified him and inspired him to say, “If men will not serve in the Legislature without the prospect of such offices, our situation is deplorable indeed.  If our best Citizens are actuated by such mercenary views, we had better chuse (sic.) a single despot at once.”  At this point, he even said that whatever evils existed in our current government were the fault of those in office, not the people.  Gerry apparently had more confidence in the people than his original remarks seemed to indicate.

 As the Convention abandoned one old democratic principle after another, Gerry became more and more alarmed by it.  At one point, he denounced the Senate as “as compleat (sic.) aristocracy as ever was framed.”  The aristocratic feature of the Senate was not that it was elected by state legislatures instead of the people directly which, as we have seen, Gerry favored.  No one at the time was likely to be alarmed by that feature; after all, the Continental Congress were also elected by state legislatures.  The traits of the Senate that Gerry objected to were the ways in which it differed from the Continental  Congress.  The Senate served six years and the Continental Congress served one; the Senate could not be recalled and the Continental Congress could; each state could have only two Senators while states could have up to seven representatives in the old Congress; and in the old Continental Congress major issues required the concurrence of nine states, while in the Senate a quorum was fourteen, so a mere eight* members could prevail.  “Is it to be presumed that the people will ever agree to such a system?”  Presumably Gerry is saluting the people’s wisdom here.  He also warned, “The People  who have been so lately in arms agst G.B. for their liberties, will not easily give them up.”  

            Gerry ultimately refused to sign the Constitution, citing as his reasons:

            (1)        The duration and reeligibility of the Senate;

            (2)        The power of the House to conceal their journals;

            (3)        The power of Congress over their places of election;

            (4)        The unlimited power of Congress over their pay;

            (5)        Insufficient representation for Massachusetts;

            (6)        Slave representation;

            (7)        Under the power over commerce, monopolies could be established;

            (8)        The Vice President as president of the Senate, which he considered to violate the separation of powers.

But these were minor objections; his biggest objections were Congress’s authority to make all laws “necessary and proper,” its authority to raise money and armies without limit, and to provide for civil trials without juries.  These are all old democratic objections.  Gerry sounded even more democratic when he publicly told the Massachusetts legislature of his reasons for refusing to sign; he gave as his reasons inadequate provision for representation of the people (presumably meaning too few representatives), no security for the right of election (presumably referring to Congress’ authority to regulate its own elections), some powers of the Legislature are ambiguous and some dangerous, too much power to the executive, oppressiveness of the judicial system (perhaps the absence of a guaranty of a jury trial in civil cases?), treaties that can be made by two-thirds of a quorum of the Senate, and the absence of a bill of rights.

            Yet there was also a strong tone of distrust in the people remaining.  His constant invocation of popular opinion may not just have been saluting the people’s wisdom, but also fearing their displeasure.  He warned that in Massachusetts there were two parties, on devoted to democracy “the worst of all political evils” and one in the opposite extreme and feared that controversy over the Constitution could lead to civil war.

            Gerry is a puzzling figure today if one assumes the delegates were debating merely the degree and not the definition of democracy.  His tone of concern for the people’s liberty seems totally at odds with his fear of popular elections.  But if one keeps in mind the distinction between old and new democracy, Gerry makes perfect sense.  It was because Gerry was so staunch an old democrat that he felt threatened by any increase in new democracy.  Or, perhaps more accurately, because Gerry considered old democratic institutions necessary to preserve liberty, yet had been frightened by Shays’ Rebellion and convinced that democracy could be taken too far, that he constantly tried to limit it by resisting new democracy. 

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*Since there were originally 13 states, the total Senate membership would have been 26.  A quorum for doing business was declared to be a majority, which for a 26-member body would be 14.  A majority of the quorum was eight (8), so in theory, a mere eight Senators could pass binding legislation.

John Francis Mercer: A Very Strange Delegate

Though a minor participant in the Convention, John Francis Mercer is an interesting example of extreme cynicism, exceeding Gouverneur Morris.  He did not arrive until August 6, long after most of the important decisions had been made.  He opposed popular election of the House, saying “The people can not know & judge of the character of the Candidates.  The worst possible choices will be made.”  He was open to popular election of the House if the people had “guidance,” such have having candidates nominated by state legislatures.  If this seems undemocratic to us, contemporaries would be even more shocked by his comments on ineligibility to office:

It is a first principle in political science, that wherever the rights of property are secured, an aristocracy will grow out of it. Elective Governments also necessarily become aristocratic, because the rulers being few can & will draw emoluments for themselves from the many. The Governments of America will become aristocracies. They are so already. The public measures are calculated for the benefit of the Governors, not of the people. The people are dissatisfied & complain. They change their rulers, and the public measures are changed, but it is only a change of one scheme of emolument to the rulers, for another. The people gain nothing by it, but an addition of instability & uncertainty to their other evils. -- Goverm’ts can only be maintained by force or influence. The Executive has not force, deprive him of influence by rendering the members of the Legislature ineligible to Executive offices, and he will become a mere phantom of authority. The aristocratic part will not even let him in for a share of the plunder. . . . Nothing else can protect the people agst those speculating Legislatures which are now plundering them throughout the U. States.*

John Francis Mercer

Yet Mercer ended up opposing the Constitution as an intolerable threat to liberty.  He was even the only member of the Convention to declare himself in favor of paper money, the position of a radical populist! 

And quite contrary to most radical populists of his day, Mercer favored executive over legislative power in general.  This was less because of enthusiasm for the executive than fear of the legislature. He favored giving the Supreme Court in addition to the President a veto on acts of Congress, giving the executive the sole power of making treaties, and having the executive, not the legislature, appoint a treasurer.  All in all, Mercer’s views were too eccentric to be of much significance.

The incongruity between Mercer’s cynicism about aristocracy and his radical populism on paper money led me to do more research on his opinions.  His Anti-Federalist Writings allow us a clearer insight into his views, which are very strange, indeed.  He was apparently a rare dissenter from the overwhelming consensus in favor of a democratic representative republic.  Central to Mercer’s ideology was a deep hatred of elective, representative legislatures, which are, of course, the very foundation of our system of government.  To overcome the evils of representative government required an executive for life, exempt from impeachment, and a Senate for life.  However, he opposed the British system, regarding these offices as despotic if they ever became hereditary.  This clearly places him on the side of mixed government.  On the other hand, he favored the old democratic practice of binding legislators by strict instructions and recalling anyone who did not obey.

His ideal system of government was direct democracy on the Swiss model, a system everyone agreed was impossible on a scale so large as the United States.  To get around the difficulty Mercer proposed breaking the United States into sub-jurisdictions small enough to rule by direct democracy.  When laws were needed on a national level, he proposed limiting the legislature to suggesting a law and submitting it to referendum (with the vote limited to free holders).**  It is not entirely clear whether Mercer actually considered such a system feasible.  (He himself called it an “illusion”).   Mercer is interesting, not so much for meeting any of the categories of delegates, as for expressing ideas far outside of the mainstream.

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*To this the horrified old democrat Elbridge Gerry said that if we were to have a government of plunder, we might as well stick to a single despot so there would be only one plunder.  Many people today, I suspect, would sadly nod along.

**The term referendum had not been coined at the time, of course, but what he described is immistakable;

But the laws which pass the legislature before they become binding, should be referred to the different counties and cities — printed reasons drawn by committees, might if necessary, accompany each, together with an annual estimate of public wants and a detail of the expenditures of the former sums granted. Let these laws then be submitted to the free deliberation of the freeholders of the counties and cities — the numbers of the yeas and nays be taken on each by the presiding magistrate, and transmitted to the executive, who may then upon comparing the returns from the several counties and corporations, declare what laws are the will of the people. On the appearance of any sudden danger the two houses or indeed a majority of one house, might invest the Executive with that authority, exigency might require for the safety of the republic, until remedy should be provided by law.

Minor Advocates of Mixed Government: George Read and Rufus King

George Read’s role was much smaller than Hamilton’s or Morris’s. He was, however, the only delegate to declare himself in favor of Hamilton’s plan and advocate adopting it (Morris was absent at the time).  It appears that it was the “mixed” nature of Hamilton’s plan as well as its extreme nationalism that appealed to Read.  Independently of Hamilton or Morris, he proposed that the Senate be appointed by the executive out of candidates nominated by state legislatures, a proposal he knew would be controversial.  He also favored a Senate for life and, when no one was interested, proposed nine years as the longest term that could be obtained.  He also favored an absolute executive veto and wanted the executive, not the legislature to appoint the treasurer.  He first favored and was later indifferent to limiting money bills to the House. He opposed “shackling” the legislature too much in requiring reapportionment (a proposal that, not coincidentally, would not favor Delaware).  He did favor one old democratic proposal, to double the size of the 65-member House.  He gave as reasons for enlarging the House that Delaware would only have one representative who might be absent and deprive that state of a vote, that 65 was too small a number to possess the people’s confidence, and that he hoped the national government would have greater objects of legislation and would therefore require a more numerous representation.

Rufus King (Massachusetts):  Rufus King did not go as far as these others in supporting mixed government, but he leaned in that direction.  This particularly applied to his ideas of executive power:

He [the executive] ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised 

The judiciary was impeachable because judges otherwise held their offices for life.  If the executive held power for only a limited term he should not be impeachable lest be too far subordinated to the legislature and become too weak.  If serving for a limited term, his good behavior would periodically be tested.  When the Convention debated the term of the executive if elected by the legislature, various delegates proposed long terms without reeligibility to ensure his independence.  King first spoke on behalf of reeligibility, then proposed, “Twenty years.  This is the medium life of princes.”  Madison believed that King was being ironic and mocking the other proposals, but given what he said on a previous occasion about an executive for life, he may well have been serious.  Certainly, he opposed too short a term.  He opposed joining the judiciary to the executive veto, saying that placing the veto in one man made him more “responsible” and opposed joining a counsel to the President for making appointments on similar grounds, although he apparently favored having the Senate concur in executive appointments.  On the other hand, he favored having the legislature, rather than the executive, appoint the Treasurer, mostly because people would resist executive appointment.

King also opposed making legislators ineligible to executive office as “refining” too much and giving the executive an excuse for bad appointments, since he could always say the best man for the job was a member of the legislature and therefore ineligible.  Besides, all the corrupt effects of eligibility would remain if friends and relatives of legislators could be appointed.  As an alternative, he proposed to make legislators ineligible to offices they create or increase in pay.  (This was the measure ultimately adopted).  He also opposed representation by population on the grounds that numbers were a poor measure of wealth and, even if they were at present a measure of wealth, they might not remain a good measure in the future.  Since property was “the primary object of Society,” it should be included in representation.  He did oppose using actual tax revenue as the basis for representation as unfair to non-importing states, certainly an honorable position for a delegate from Massachusetts and New York, two major importing states.

King appears to have been the only delegate who did not favor any old democratic principles.  He d voted for a three-year term for the House, the only New Englander to do so and a seven-year term for the Senate, one of only two New Englanders to do so.  We have already seen his views on executive power and ineligibility to office.  On only two points could he be said to have taken slightly old democratic positions, he favored legislative appointment of the treasurer and he favored reducing the maximum ratio of representation from 40,000:1 to 30,000:1.

He showed slightly more openness toward new democracy.  He favored popular election of the House of Representatives since state legislatures would choose men subservient to their own views.  He leaned toward popular election of the executive, largely to make him eligible for reelection, but also because “the people at large would chuse wisely.”  However, he doubted that there would be a majority for any candidate, so he preferred special electors.  He also joined with Gouverneur Morris in wanting the Senate, not the House, to break deadlocks in the Electoral College to ensure “high mounted” government.  He also opposed requiring land ownership as a requirement for office, not so much out of democratic principles as to protect the “monied” (merchant) interest.  As we have already seen, King favored representation by wealth instead of population.  He opposed admitting western states on an equal basis and believed it "impolitic" that Congress had already promised to admit much of the west on an equal basis.  Nor did he favor requiring periodic reapportionment of representatives.  He denied wanting to “retain any unjust advantage whatever in one part of the Republic,” but said the Congress could be trusted to reapportion, or the states being denied fair representation would threaten to separate.

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.