Mixed Old and New Democrats: Benjamin Franklin

Benjamin Franklin did not express his opinion on as many positions as Randolph or Mason, but to the extent that he did, he also showed some openness to both old and new democracy.  In one regard at least, Franklin was the most radical old democrat present; at least theoretically he saw no  need for an upper house in the legislature. However, since no one else in the Convention supported his position, Franklin did not press the point.  Franklin was second only to Sherman in his distrust of the executive.  He shared
Randolph’s fear that a single executive as the “foetus” of a monarchy, ever trying to accumulate more power.  He also opposed an executive veto, fearing that the executive would be constantly abusing his veto to extort more money and power, until accumulated all the prerogatives of the British monarch and could have his way by bribes without having to use his veto.  He would agree to allow the executive to suspend, rather than veto, objectionable laws.  He also favored joining a council to the executive in making appointments fearing that “caprice, the intrigues of favorites & mistresses & c” would have sway Presidents, just as they swayed kings.  He also said, only half-jokingly, that it was favorable to executive to be impeachable because if the executive betrays the people’s trust, if he cannot be impeached, the only way to get rid of him was by assassination!  Although he did not directly address the issue of ineligibility to office, he certainly appeared to favor it, saying that it was the prospect of office that made the British government so “tempestuous” and, as we have seen, feared the executive influence that would arise from that sort of patronage.  It was apparently Franklin who first proposed  to link giving each state equal representation in the Senate to giving the House the sole authority to originate money bills and made it clear that these two proposals to be dependent on each other.  As he explained, “It was a maxim that those who feel, can bust judge.  This would, he thought, be best attained, if money affairs were to be confined to the immediate representatives of the people.” Franklin’s only position that was not old democratic was that he proposed having one representative to every 40,000 people, which many others believed was inadequate.

 Franklin also supported new democracy in the sense of opposing property restrictions, either on the vote or on office holding.  If Madison did not seem to recognize that the propertyless nonetheless had legitimate interests they needed to protect, Franklin did.  In England, he said, after denying the vote to the propertyless, Parliament subjected them to “peculiar labors and hardships.”  Above all, restricting the vote to freeholders would “depress the virtue & public spirit of our common people.” Likewise, property restrictions on office holding would also “debase the spirit of the common people.”

If honesty was often the companion of wealth and poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property.  Some of the greatest rogues he had ever acquainted with, were the richest rogues.  

He likewise opposed requiring a long period of citizenship for Senators as “illiberal” and hostile to friends in Europe and to potential immigrants.  He also made one at least potentially radical new democratic proposal for choosing judges.  Instead of giving their appointment to the executive or legislature, why not adopt the method used in Scotland, where judges were elected by the lawyers, who always chose the best lawyer around in order to eliminate a rival and divide his practice among themselves!  It is not clear how serious he was in this proposal, but it at least leaves the door open to semi-popular election of judges.  On the other hand, Franklin did not take the new democratic position on representation.  As we have seen, he proposed that each state have an equal number of representatives, to vote as individuals, with each state to have an equal vote on matters regarding the sovereignty of states and votes on money to be proportional to each state’s contribution.  Franklin apparently did not understand just how important a matter of principle representation by population was to new democrats.

Benjamin Franklin, alone among the delegates, occasionally had seemingly utopian or visionary ideas of government.  He urged that the chief executive not receive a salary, saying that to the Presidency an office of both honor and profit would be too tempting to the greedy.  Even if only a modest salary were set at first, there would always be reasons to increase it, and eventually the President would use the wealth of the office to set himself up as a monarch.  Surely there were men who would be willing to serve out of pure public spirit and not for money.  Franklin did not seem to recognize that denying a salary to the President would be just as effective as setting actual property restrictions in limiting the office to the rich.  He also seconded a motion by Charles Cotesworth Pinckney not to pay Senators, even though General Pinckney made clear that this was to ensure Senators would be rich, something Franklin presumably did not favor.  His proposal, discussed in the section on centralization, of financing the federal government by voluntary contributions from the states also seems visionary and was not taken seriously by any of the other delegates.

Mixed Old and New Democrats: George Mason

George Mason’s views were similar to his fellow Virginias'.  His fame as a democrat no doubt owes much to his eloquence in arguing for popular election of the House:

[The House] was to be the grand depository of the democratic principle  of the Govt.  It was, so to speak, to be our House of Commons – It ought to know & sympathize with every part of different parts of the whole republic . . .  He admitted that we had been too democratic but was afraid we sd incautiously run into the opposite extreme.  We ought to attend to the rights of every class of the people.

The people will be represented; they ought therefore to choose the Representatives.  The requisites in actual representation are that the Rep. Should sympathize with their constituents; shd think as they think, & feel as they feel . . . Much he sd had been alledged agst deomocratic elections. . . . But compare these with the advantage of this Form in favor of the rights of the people, in favor of human nature.

Although the primary author of the Virginia constitution whose property restrictions on the vote Jefferson found so undemocratic, Mason opposed restricting the vote to freeholders, saying that the vote should go to anyone with “evidence of attachment to & permanent common interest with Society.”  “Does no other kind of property but land evidence a common interest in the proprietor?  Does nothing besides property mark a permanent attachment.”  

 Like all Virginians, Mason championed the western states.  He favored representation by population, saying that it was a good enough measure of wealth for “every substantial purpose,” which removed any reason for denying full representation to the Western states because they would not be able to make equal contributions to the treasury.  Since representation was to be by population and the north had the majority of the population, he would agree they had the right to preponderate.  But they should not preponderate if they were not longer in the majority.  Since it would obviously not be in the interest of current majority to become the legislative minority, periodic reapportionment should be required or it would never happen.  Mason made it clear that he expected the South to increase in population faster than the north.  His principles, therefore, are certainly democratic, but there is a certain measure of self-interest to them.  As for the western states:

Ought we to sacrifice what we know to be right in itself, lest it should  prove favorable to States which are not yet in existence.  If the Western States are to be admitted into the Union, as they arise, they must, he wd repeat, be treated as equals and subjected to no degrading discriminations. They will have the same pride & other passions which we have, and will either not unite with us or will speedily revolt from the Union, if they are not in all respects placed on an equal footing with their brethren.

Mason was not so new democratic on the issue of qualifications to office.  He was the one who proposed a minimum age of 25 for the House, favored requiring seven, rather than three years’ citizenship for Representatives and fourteen years’ citizenship for Senators, saying that he would have barred immigrants from the Senate altogether, if so many immigrants had not distinguished themselves during the Revolution, nor did he see any reason to make an exception for immigrants currently naturalized by the states.  But more disturbing from today’s perspective were his views on property qualifications:

One important object in constituting the Senate was to secure the rights of property.  To give them weight & firmness for the purpose, a considerable duration in office was thought necessary.  But a longer term than 6 years, would be of no avail in this respect, if need person should be appointed.  He suggested therefore the propriety of annexing to the office a qualification of property.

He later moved for setting qualifications in landed property for the national legislature and disqualifying public debtors and persons with unsettled accounts.  As we have seen, Madison opposed this requirement as unjust to the urban population, and, we shall see, the altogether undemocratic Gouverneur Morris resisted the ban on public debtors and persons with unsettled accounts as barring importing all merchants from office, since merchants regularly posted bond for the tax on the goods they imported and only gradually paid it off as they sold their goods.  He therefore considered Mason’s proposed qualifications “a scheme of the landed agst the monied interest.”  Morris was probably right; Mason probably was trying to promote rural over urban interest.  He probably did not consider this undemocratic, be merely a protecting of the majority of farmers against a merchant aristocracy.

As for old democracy, Mason, like Randolph, was an old democrat on all issues except length of terms.  He favored doubling the House from 65 members to 130, considering 65 members to be too small in absolute numbers and too small to know local interests and have the confidence of the people.   Even 130 members was almost too few.  He favored allowing only the House to originate money bills because only they were “immediate representatives” of the people, because the Senate’s long terms and small numbers made it too “aristocratic” and because the Senate represented the states instead of the people.  He also strongly favored making legislators ineligible to executive office in order to prevent the sort of corruption so prevalent in England, which he regarded as creating an aristocracy, sarcastically commenting that “In the present state of American morals & manners, few friends it may be thought will be lost to the plan, by the opportunity of giving premiums to a mercenary & depraved ambition.”  Mason also feared a standing army.  It was he who first proposed to give the federal government the authority to regulate the militia in order to strengthen it and proposed that this section be preceded with the words, “And that the liberties of the people may be better secured against the danger of standing armies in time of peace.”  He also called for a bill of rights, although he also believed that the prohibition on ex post facto laws should apply only to criminal and not civil cases.

            Mason also had an old democrat’s general distrust of the executive.  He favored election of the executive by the national legislature rather than by the people, believing that the people would not know enough about eminent characters outside of their own state and that a designing conspiracy could control the election.  Indeed, “[I]t would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man.”  He originally opposed the creation of a single executive and later came out in favor of a privy council for the President, chosen by the Senate, with two members for the New England, two from the Mid Atlantic, and two from the Southern states.  This counsel, and not the Senate, should assist the President in making appointment.  “[I]n rejecting a Council to the President we were about to try an experiment on which the most despotic Governments had never ventured.  The Grand Signor [Turkish sultan] himself had his Divan.”  He firmly favored making the President impeachable, since no man should be above justice and believed that “maladministration” or at least “high crimes & misdemeanors” should be impeachable, as well as bribery or treason.  He opposed executive appointment of judges as potentially giving the President an improper influence over the judiciary, favored legislative appointment of the treasurer since money belongs to the people and the legislature, as the peoples’ representative, should appoint the keepers of it and opposed allowing the President to pardon treason.  He was of mixed opinions about the executive veto.  Originally he opposed the executive veto, especially in the hands of a single executive, fearing the executive would abuse his veto to extort greater power, until he had the same influence through appointments as the British monarch and would become, in effect, a monarch in all but name.  On the other hand, he favored joining the judiciary with the executive veto to give the executive “confidence” to use his veto, which he believed should be used not only to prevent legislative encroachments on executive power, but to strike down bad laws in general.  He also believed that only two-thirds, not three-quarters of the legislature should be needed to override a veto.

            Mason was less old democratic on length of terms.  He favored a two-year term for the House, saying that one year was inconvenient for states more distant from the capital and two years would synchronize with South Carolina’s electoral cycle.  He did not specify what term he favored for the Senate, but made clear that he favored the relatively long (six-year) term, although he thought it made it dangerous for the Senate to originate money bills.  He also favored two, rather than three Senators from each state to keep the Senate from being too numerous, and, as we have seen, believed that the Senate should secure property and should therefore have property requirements for office.  He favored a seven-year term "at least" for the President with no re-eligibility to ensure his independence from the legislature, although he emphatically opposed an executive for “good behavior” as prelude to a monarchy.

            Mason ultimately refused to sign the Constitution.  Unlike Gerry or Randolph, he did not list his reasons during the Convention.  After the Convention, however, he published a list of his objections that he had apparently written down during the Convention:

            (1)        No bill of rights

            (2)        Insufficient representation in the House (although he considered the last-minute change in ratio of representation from 40,000 to 1 to 30,000 to 1 a significant improvement)

            (3)        The Senate’s power to alter money bills

            (4)        The Senate’s role in appointments and other powers he considered executive

            (5)        The federal judiciary will tend to absorb all state judiciaries and make law too remote, tedious and expensive

            (6)        The absence of a council for the President

            (7)        The Vice President as President of the Senate gives the executive legislative powers

            (8)        The President’s power to pardon treason

            (9)        Making treaties supreme law of the land without requiring concurrence of the House

            (10)      Permitting commercial regulations by a simple majority

            (11)      The power of Congress to make all laws “necessary and proper”

            (12)      No protection for freedom of the press or against standing armies
            (13)      States may not tax their own exports

            (14)      Protection of slave importation

            (15)      Prohibition on ex post facto laws applies to civil as well as criminal laws.

As with Edmund Randolph, some of these objections are to the extent of federal powers, some are attempts to uphold Virginia’s specific interests, and some are old democratic.  Like Randolph, he did not object to the Constitution on new democratic grounds.

Mixed Old and New Democrats: Edmund Randolph

Some of the delegates showed considerable openness to both old and new democracy.  Significantly, these especially included Virginians, who were particularly devoted to the new democratic principles of admitting Western states on an equal basis and regular reapportionment to match shifts in population.

Edmund Randolph favored popular election of the House of Representatives, partly because only by making them popularly elected could they be trusted with increased power, and partly because having them elected by state legislatures reduced them to mere ambassadors with no will of their own.  As seen before, he also wanted representation to be proportional to population and firmly resisted giving each state equal representation in the Senate.  He was the foremost advocate of requiring regular reapportionment of the House to match shifts in population, perhaps because he was conscious of the injustice of his native Virginia’s system of representation by counties.  It was Randolph who first proposed requiring reapportionment to be regulated by a periodic census instead of leaving it to the discretion of the nation legislature, originally proposing to require reapportionment by population and wealth, but then changing to agree the rule of representation to all free inhabitants and three-fifths of all slaves.  He favored requiring periodic reapportionment for the same reason that he opposed equality in the Senate:

If equality between great & small States be inadmissible, because in that case unequal numbers of Constituents wd be represented by equal number of votes; was it not equally inadmissible that a larger & more populous district of America should hereafter have less representation, than a smaller & less populous district.  If a fair representation of the people be not secured, the injustice of the Gov’t will shake to its foundations.

Reapportionment could not be left to the discretion of the legislature, or they would always be looking for excuses to postpone alterations to keep power in the hands of those who possessed it.  Setting a strict rule of reapportionment was also the best way to prevent new states from using some other crisis to force a reapportionment.  He also opposed allowing reapportionment by wealth instead of population (with the three-fifths rule) for fear the legislature would set a rule of wealth that would serve the advantage of the people who controlled the legislature.  Randolph also wanted to admit the western states on an equal basis, saying that Congress had pledged faith to admit them on an equal basis, and they neither will nor should accept any other.  Randolph was also generally open to immigrants holding office, favoring seven or at most nine years citizenship rather than fourteen years for membership in the Senate and four, rather than seven, years’ citizenship to serve in the House.  A longer term of citizenship would violate the government’s faith to immigrants. 

Randolph favored many old democratic principles as well.  He considered giving the House sole authority to originate money bills important enough to make it a condition of giving each state equal representation in the Senate.  If the Senate were to be proportional to population, he said, he would not insist on this condition, but giving the House sole authority to originate money bills was a condition of giving states equal representation in the Senate.  Besides, the plan would be more acceptable to the people if the “aristocratic” Senate were denied the power of the purse.  He would also deny the Senate authority to alter or amend money bills.  In response to objections that many economic regulations also involved money, he proposed to give the House sole authority to originate money bills for the purpose of raising revenue.  He believed the people would see the Senate as an aristocracy and the President as little less than a monarch and therefore take alarm if anyone except their immediate representative could originate money bills. The Senate was also more likely to be corrupt or unduly influenced by the executive.  He also wanted to make legislators ineligible to non-military office, for fear of corruption or influence and seconded a motion to preface federal authority to regulate the militia with the words, “And, that the liberties of the people may be better secured against the danger of standing armies in time of peace.”

He favored election of the executive by the legislature and particularly thought it dangerously "aristocratic" to allow the Senate to break deadlocks in the Electoral College. Randolph also had an old democrat’s distrust of the executive.  He originally even wanted a three-man executive, considering a single executive as an embryonic monarchy (the “foetus” of a monarchy were his words.  He believed the people were adverse to the very semblance of a monarchy and would never give a single executive their confidence, and that “felt an opposition to it that he believed he should continue to feel as long as he lived.”  In fact, he appears to have gotten past his opposition to a single executive and even to have supported an executive veto as preventing large states from combining against the small ones.  Although he favored election of the executive by the legislature, Randolph believed that the executive should be eligible for only one term to ensure his independence and particularly to ensure that he would be firm enough to use his veto.  He even favored allowing the President to veto “every order, resolution or vote” to prevent evading his veto. On the other hand, he originally favored appointment of judges by the Senate instead of the executive (later changing his mind to favor appointment by the executive with the advice and consent of the Senate) and opposed allowing the President to pardon treason.

Edmund Randolph’s main rejection of old democracy was in his not sharing the New England fetish with very frequent elections; his main rejection of democracy in general was his view of the Senate.  He was ambivalent about the term of the House, ultimately coming out in favor of a two-year term.  Annual elections were “a source of mischief” in the states, but only because there were not enough other restraints on popular intemperance.  His only reason ultimately for favoring a longer term was one-year terms were inconvenient in so large a country.  His feelings about the Senate were less mixed.  He favored a seven-year term:

The democratic licentiousness of the State Legislatures proved the necessity the necessity of a firm Senate.  The object of this 2^nd branch is to control the democratic branch of the Nat’l Legislature.  If it be not a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it.  The Senate of Maryland constituted on like principles had scarcely been able to stem the popular torrent.

He also believed that the Senate should be much smaller than the House to protect it from the “passionate proceedings to which numerous assemblies are liable” and check the “turbulence and follies of democracy.”  Nor did he see any danger in having state executives appoint temporary replacements if a Senate seat unexpectedly fell vacant.  He did oppose Gouverneur Morris’ proposal for a Senate for life appointed by the executive, saying that it could never co-exist with a popular branch.

In the end, as stated before, Randolph refused to sign the Constitution, saying that offering the Constitution on an all-or-nothing basis would be too controversial and might lead to “confusion” and “anarchy & civil convulsions.”  The reasons* Randolph gave for opposing the Constitution were:

(1)        The Senate as a court for trying impeachment of the executive

(2)        The smallness of the House of Representatives

(3)        The lack of limitation on a standing army

(4)        The vague authorization of Congress to make “necessary and proper” laws

(5)        The authority of Congress to pass navigation acts by a simple majority

(6)        The authority of the federal government to intervene in state rebellions upon the application of the state executive as well as the legislature

(7)        The need for a more definite boundary between the general and state legislatures and judiciaries

(8)        The unqualified power of the President to pardon treason

(9)        Congress’s power to set its own pay.

Many of the objections, particularly the smallness of the House, the lack of limitations on standing army, and the President’s unlimited authority to pardon treason are old democratic objections.  Some are objections to the extent of federal power and some are southern (particularly Virginian).  None are new democratic.

Finally, it should be noted that although Randolph refused to sign the Constitution, he later reversed himself again and came out in favor of it at the Virginia ratifying convention.

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*He also listed as reasons the authority of Congress to tax exports and the need for a ¾ majority to override executive vetoes when he would have preferred 2/3.  These two objectionable provisions were changed.

New Democrats: James Madison

James Madison was also, on the whole, a new democrat, although less completely or enthusiastically so than Wilson.  He favored popular election of the House instead of election by state legislatures, but his reasons are revealing:

He observed that in some of the states on branch of the Legislature was composed of men already removed from the people by an intervening body of electors. [Actually, only Maryland had such a system]. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first, -- the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether, an the necessary sympathy between them and their rulers and officer, too little felt. He was an advocate for the policy of refining the popular appointment by successive filtrations, but though it might be pushed too far.

He later declared that direct popular election of “at least one branch of the Legislature” necessary to free government, as well as useful to avoid to great agency of state governments.  In short, he favored popular election of the lower house, but probably not to other offices.  As we have previously seen,  his original Virginia Plan called for election of the upper house by the lower house.  He resisted  election of the Senate by state legislatures, mostly because it gave to great agency in the federal government to states and because he opposed giving each state equal representation in the Senate and therefore believed that guarantying each state at least one Senator would make the Senate too large.  He preferred election “by the people, or thro’ some other channel than the State Legislatures.”  This would seem to suggest that he his favored mode of election of the Senate was by the lower house, but he preferred election by the people directly to election by state legislatures.  Madison also leaned toward popular election of the chief executive.  Wanting the executive to be independent of the legislature and fearing corruption and intrigue if election were by the legislature, he favored popular election on the merits:

The people at large was in his opinion the fittest in itself.  It would be as likely as any that could be devised to produce and Executive Magistrate of distinguished Character.  The people generally would only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.

The only problem with such a system was that the southern states would be at a disadvantage, since much of their population consisted of non-voting slaves.  Madison therefore proposed the substitution of electors to overcome the difficulty.  When his proposal for electors was rejected, Madison said that with all its imperfections, he preferred this mode.  Even though it was disadvantageous to the South, local considerations must give way to the general interest.  “As an individual from the S. States he was willing to make the sacrifice.”

Like all Virginians at the Convention, Madison was a leading champion of the West.  “No unfavorable distinctions were admissible either in point of justice of policy.”  The whole principle of just representation would be subverted by denying Western states their fair share.  When Gouverneur Morris unblushingly stated that Pennsylvania was better off for making sure power stayed in the eastern parts of the state, Madison denounced this as an injustice, just like England, which gave each borough equal representation despite their very unequal population.  He even acknowledged that Virginia, which had two representatives for each county regardless of population, was guilty of the same injustice.  Madison was particularly outraged by Morris’ cynicism in assuring the South (which was expected to gain population relative to the North) that Congress did not need to be required to make periodic reapportionments because it could be trusted, while at the same time calling on all existing states to band together to deny the West its fair share.  “To reconcile the gentle[man] with himself, it must be imagined that he determined the human character by points on a compass.”   Madison seemed to have mixed opinions about property representation.  As we have seen, he proposed a north-south compromise which would have the lower house be the guardian of persons and be apportioned by free population and the upper house be the guardian of property and be apportioned by total population, slave and free.  With regard to the west, however, he argued that population alone was the proper basis of representation, and that population was a near enough measure of wealth to be a good measure of a state’s ability to contribute to public burdens 

Madison was also generally a new democrat in his attitude toward voting qualifications.  He considered it dangerous to allow Congress to set either qualifications for office or for voting, as these were fundamental articles in a republic and should be guarantied by the Constitution.  Giving such a power to Congress was begging for it to be abused; either one faction would manipulate qualifications to keep out another faction, or they could narrow qualifications in order to subvert the republic and create an aristocracy. He did not consider it necessary to require any number of years’ citizenship to serve in the either the Senate or the House because Congress could set any number of years’ residency for citizenship.  Such a restriction was "illiberal" and would discourage immigration from Europeans who loved liberty and wanted to share it.  He opposed requiring land ownership as a qualification for office:

Every class of citizens should have an opportunity of making their rights be felt & understood in the public Councils.  The principle classes into which our citizens were divisible, were the landed the commercial, & the manufacturing.  The 2^nd & 3^rd class yet bear a small proportion to the first.  The proportion however will daily increase. . . . It is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care, or the impartiality of the third 

Yet Madison had a very severe shortcoming as a new democrat, one that many people today might regard as disqualifying him as a new democrat altogether, and one that is all the more surprising in the light of the foregoing statement.  He wanted to restrict the vote to freeholders.  Acknowledging that such a restriction might meet too much popular resistance to pass, and that too narrow a suffrage could create an aristocracy, he nonetheless said:

In future times a great majority of the people will not only be without landed, but any other sort of, property.  These will either combine under the influence of their common situation; in which case the rights of property & the public liberty, will not be secure in their hands: or which is the more probable, they wil become the tools of opulence & ambition, in which case there will be equal danger on another side. 

Madison did not seem to realize denying the vote to “a great majority of the people” was the very definition of aristocracy, nor did it apparently occur to him that the propertyless nonetheless had legitimate interests that might need to be protected against property holders.  It is stranger still that he recognized non-land-holders had legitimate interests that needed representation and therefore would not require land ownership as a qualification to holding office.  Apparently he would allow the landless to hold office to represent the interest of non-land-holders, yet disallow those same non-land-holders from voting!  Nor is this an isolated remark.  He worried about the danger of internal insurrections, at least in part because a majority of qualified voters might be a minority of the total population and the disenfranchised “for obvious reasons may be more ready to joint the standard of sedition.”*   Likewise, one of the purposes he saw for the Senate was to resist “those who will labour under all the hardships of life & secretly sigh for a more equal distribution of its blessings” who might some day become a majority of the population. 

Madison favored at least one old democratic principle; he favored doubling the size of the House, both because 65 members was too small in absolute numbers, since a quorum would be a dangerously small 38 and because 65 members would be too thinly taken from the people to have adequate knowledge of local conditions.  He favored a three year term for the House, saying that too frequent elections would make an unstable legislature, keep members too busy traveling home to run for reelection, and would not give them time to learn about matters outside their states.  He also favored a long term for the Senate, seven or nine years, to give more stability to the government and allow it to resist unwise popular pressure as the result of temporary passions or poorly informed opinions, and to protect the minority from the oppressions of the majority.  He also favored a small Senate, which would have more “coolness” and “wisdom” than the popular branch. 

Madison favored a strong, independent executive; this was why he opposed election of the executive by the legislature.  The greatest danger was of the legislature drawing all powers into its vortex; hence the executive needed to be protected from legislative usurpations.  He therefore supported an executive veto.  He opposed an absolute veto as “obnoxious to the temper of this Country” and so drastic the President would hesitate to use it, but favored joining the judiciary to the executive veto, both to strengthen his firmness in using it and to prevent him from abusing it (for instance, from being bribed by a foreign power), favored allowing the President to veto “resolutions” and “votes” as well as bills, and preferred a three-fourths, rather than a two-thirds vote to overrule a veto.  On the other hand, he believed that the executive should be impeachable to protect against possible “incapacity, negligence or perfidy” on the part of the executive.  Waiting until his term expired would not be could enough if the problem was serious.  He also preferred either to have judges appointed by the Senate or at least to allow the Senate to block Presidential appointment of judges.  He took a moderate position on making legislators ineligible to office.  Legislators should be ineligible to offices they create or raise the pay for in order to prevent corruption, but should not be excluded from office altogether, which would discourage worthy citizens from running for the legislature.  He favored prefacing federal authority to regulate the militia with the words, “And that the liberties of the people might be better secured against the dangers of standing armies in time of peace,” saying that it acknowledged standing armies as an evil, but did not prevent them when needed.

Finally, and from today’s perspective most important, Madison said nothing in the convention about a bill of rights.  After the Constitution was adopted, however, he was the driving factor in adopting a bill of rights.  Madison at this time was noted for his theory that the majority, given the opportunity, will oppress the minority, and that the only remedy is to enlarge the society so much that it takes in so many interests that no one interest can dominate and the majority cannot oppress the majority. Madison tended to express this in terms of debtors defrauding creditors, or some other popular minority oppressing an elite minority and has therefore been criticized as a champion of elites over the common people.  As we have seen above, there is some justice to this criticism.  But Madison’s view was broader than that.  One of the greatest champions of religious liberty, he was well aware of the dangers of a religious majority oppressing a religious minority.  This Virginia slave holder even acknowledged that “We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man.”

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*He also emphasized this point in the Federalist Papers.

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.