Political Onus – 4. The American Constitution

The bonds having worn from neglect, America was ripe for revolution when Britain decided to up its tax on the colonies in the mid-1760s. British interference on colonial land claims on the western frontier a decade later was the breaking point. America revolted.

The American Revolutionary War formally ended with the Treaty of Paris, signed in September 1783. By then, the colonies had transformed into states, each with their own constitution and a loose national confederation. To refine the 1781 Articles of Confederation, delegates from states convened in Philadelphia on 25 May 1787, in proceedings that were to last nearly 4 months.

The majority of delegates had only grudgingly agreed to a convention, and then proceeded to make every effort to limit the drafting of any document granting a federal government effective power. These conservatives were outmaneuvered by Federalists, led by Virginian James Madison.

Madison had a plan for a strong federal government. His plan was a tripartite division of autonomous authority, with built-in checks and balances: a bicameral legislature, an executive, and a judiciary.

By this time, the aversion to an independent executive had been overcome, as states with governors beholden to the legislature were widely seen as a source of political paralysis.

The potential power of a president remained a concern. Many wished to diffuse executive power by dividing it among 3 men.

The potential problems with a 3-man executive, in addition to the supposition that the esteemed George Washington would be the 1st president, soothed enough delegates for a single executive to be a foregone conclusion.

The division of the legislature into 2 houses was uncontroversial. There was ample historical antecedent, in both Britain and colonial state legislatures, and experience had convinced delegates that an upper house was necessary to check the passions of populism.

To say that the founding fathers’ faith in democracy was alloyed would be understatement. While most every delegate would have counted himself a “republican,” which meant against monarchy and for representative government, few advocated unmediated democracy. They feared mob rule more than they distained limiting suffrage along aristocratic lines.

A major dispute arose as to how to apportion the lower house of the legislature. Most delegates wanted a mixture that reflected property ownership as a proxy for wealth and population. The issue of property was dropped only owing to the difficulty in calculating its value and correlating it to representation.

Concerned about corruption, delegates overwhelmingly favored finding some way to keep “bad men” out of office. Once more, the proposed proxy for solvency was owning property, but the concern came to naught when it came to erecting an economic bar to running for office.

Delegates generally accepted the desire of states with large numbers of slaves to somehow include them in the population count. A compromise was reached that a slave constituted 3/5ths of a person; not altogether because African slaves were considered subhuman, but as a rough guess to their supposed contribution to the economy of their state.

Racism is a strong taboo in 21st century America, even as it still runs rampant as a societal current. The culture of 18th-century Europeans and their counterparts in the New World was nowhere near as circumspect. The conviction that non-white races were inferior was widespread.

There was no dispute that the lower house should be directly elected. The upper house was a different matter.

Few agreed with Madison that the upper house should be selected by the lower house, but neither did they like the idea of the upper house elected by popular vote.

The reluctance to popularly elect the upper house (the senate) was not altogether about voters’ weak-mindedness. There was also a concern about a paucity of timely information.

News disseminated slowly in the 18th century. Delegates noted that newspaper coverage of current events was typically sparse and often outdated.

The decision was made for senators to be selected by state legislatures, as it had been with delegates to national conventions.

Then there was the prickly issue of how to apportion representatives in the upper house. A committee formed to hammer out various details recommended equal representation among the states.

The larger states balked at giving equal power to smaller states. Appeasement came with 2 measures.

The 1st was the requirement that revenue bills had to originate in the lower house and were not subject to modification by the senate. This origination clause was later edited such that revenue bills could be amended in the upper house.

The 2nd measure was to make senators free agents: by giving each senator a vote, rather than each state delegation, and by having 2 senators from each state. Through these measures, senators would presumably act on behalf of their state as a whole, rather than be mere agents of their state legislatures.

The federal senate has long been a strong stroke against democratic representation, as sparsely populated states are as powerful as the most populous ones. In effect, 12% of the population has majority power in the senate.

The federal House of Representatives has also evolved to be unrepresentative. A failure to constitutionally select representatives on a state-wide basis has allowed congressional districts to be bizarrely carved by partisans seeking to undemocratically retain power. This practice, called “gerrymandering,” effectively negates the expressed will of the people.

While executive power was a worry going into the convention, granting too much power to the legislature became a concern as the convention wore on. Madison suggested that the federal legislature (Congress) should be able to invalidate state laws. The idea found few takers, and so was dropped.

Most delegates thought that there should be some mechanism to invalidate lousy laws passed by the Congress. The settled solution was to provide veto power to the president. Many also considered that there be a decent guard against the executive becoming beholden to an imperial legislature.

How a president should be elected was one of the last major issues to be resolved. Direct election was favored by few, including Madison. Besides the slow news dissemination issue, there was concern that people would only vote for candidates from their state or region. A vocal minority thought that state governors choosing the president was a good idea.

Delegates from a majority of the states approved of having Congress elect the president. The committee ruminating over the issue recommended instead an electoral college, apportioned among the states as in the lower house, but chosen by each state “in such manner as its legislature may direct.”

The committee explained that it feared “intrigue” if the president was selected by a small group of men who regularly met and were concerned about the independence of the executive if elected by the Congress. Thus, the electoral college was born – out of fear of direct democracy and as a hedge against official corruption.

In the English tradition, judges had been agents of the King, who represented his interests throughout the realm. Madison believed that a direct link between state executives and the judiciary was a source of corruption via patronage, so he opted for judges to be picked by the legislature.

The general idea was to create an independent judiciary, despite there being no historical precedent for it. At the convention, the agreed-upon compromise was that the president should choose judges, and the senate confirm them.

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There was a glaring omission in the constitution: it had no bill of rights. The remedy was ratified in 1788 and came into force the next year.

At the convention, a bill of rights was suggested by Virginian delegate George Mason, who favored explicit natural rights for both states and individuals. Yet not a single state delegation at the convention supported the idea.

Representative James Madison proposed 39 amendments to the constitution during the 1st session of Congress in 1789. Among them were provisions that became ratified as a bill of rights: guaranteeing certain personal freedoms, reserving some powers to the states and public, and placing certain limits on the power of the central government in judicial and other proceedings.

The bill of rights was largely eviscerated in time, as the national government shucked federalism and trampled on citizens’ constitutional rights. The clarion epistle of the American constitution was that the founding fathers believed neither in democracy nor a right of all people to be free.

There can be no legitimacy to a constitution that allows injustice to be institutionalized, nor to a government which denies basic human rights. This summarizes both the American constitution and the government which it spawned. The dysfunctionality and corruption in national politics today stems from the poorly devised political machinery which the constitution bequeathed and the ease with which money buys power.