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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  B


By the time of the Constitutional Convention, the aristocratic-democratic leaders had suffered a relapse from the shock of Revolutionary enthusiasm. Everywhere they looked they saw evidences of anarchism, leveling of classes, contempt for wealth and tradition.[17] The representatives whom they thought would be well-instructed, once the encroachments of Crown and Governor were ended, now seemed unconversant with their problems and disposed to listen to backwoods farmers and home-owning tradesmen. The electorates were becoming larger, even with the maintenance of property requirements for the franchise, and it was clear that limitations of the suffrage would decrease. As Charles E. Merriam stated the situation: "In the formation of state governments, the doctrine of delegated powers was everywhere not the master, nor even the partner of the people, but their agent or servant; it acts in the name of and in behalf of someone else and not for itself."[18]

The answer of the conservative democrats was not only nationalism. It was also a variation in the old concept of representation. For the results of ever-increasing individualism and the spreading belief that self-interest was a social virtue were producing narrow local legislation and administration in the states. The idea of majority rule would forever rebound to the disadvantage of creditors, large owners, and traders. Certain doctrines that complemented the doctrine of economic liberalism were doing as much damage to vested interests as was the increasing electorate.

Therefore, the conservatives proposed in definite terms that the best government for the United States was a government wherein representation would consist only partially of mass direction of the government and reflection in the government. In the first place, the aristocratic-democratic theorists felt, there was no point in insisting on the direct agent relationship between representative and constituent. The representative should speak for the whole constituency and the whole nation - the interests of the whole are greater than the sum of the parts.

In addition, there was a positive danger in reducing the government to a mere reflex of the will of the majority. The stabilizing influences of the executive, the judiciary, and the second house should be increased in proportion to the popular elements. Rather than being the voice of the people, they should be the control over the people, restraining excesses peculiar to the nature of democracy. Most of government is rightfully a more permanent process which is best conducted by stable, competent judges and executives.

Madison, in discussing the term of office of the second branch, gave a remarkable and prescient speech in the Convention on the problem of thwarting certain popular aims.[19] He stated that both the people and their representatives are liable to fits of passion and intemperance that may jeopardize the rights of minorities:

In all civilized Countries the people fall into different classes havg a real or supposed difference of interests. There will be creditors & debtors, farmers, merchts, & manufacturers. There will be particularly the distinction of rich & poor...An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence.

Class war, he says, will emerge from simple government by a broad suffrage.

According to the equal laws of suffrage, the power will slide into the hands of the former. No Agrarian attempts have yet been made in this Country, but symptoms of a leveling spirit, as we have understood, have sufficiently appeared in certain quarters to give notice of the future danger. How is this danger to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the Govt. sufficiently respectable for its wisdom & virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.[20]

Pessimism with regard to the bulk of humanity pervaded the thoughts of many. John Adams, the dauntless revolutionary, wrote that "All projects of government, formed upon a supposition of continual vigilance, sagacity, virtue and firmness of the people, when possessed of supreme power, are cheats and delusions."[21] So strong had the resentment against populism in government become by the time of the convention in Philadelphia that some men would have been happy to eliminate entirely any direct participation of the people in the new government. Roger Sherman of Connecticut opposed the election of members of the first branch of the national legislature by the people, insisting that it should be elected by the State legislatures. The people, he stated, lacked information and were likely to be misled.[22]

Gerry of Massachusetts agreed, and stated:

"The evils we experience flow from the excess of democracy. The people do not want virtue; but are the dupes of pretended patriots... Experience [he said] had shewn that the State Legislatures drawn immediately from the people did not always possess their confidence."[23]

On the vote to allow popular election of the first branch, six states voted for the proposal, two against, and two were divided.[24] A second attempt to defeat the proposal was also defeated, eight to three.[25] Madison sided with the majority on both occasions, declaring that he

"...considered the popular election of one branch of the National Legislature as essential to every plan of free Government...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; and the necessary sympathy between them and their rulers and officers, too little felt."[26]

When discussion of the qualifications of electors to the lower branch of the legislature came up, the Convention delegates struck the rock of the existing suffrage requirements of the states. If they tried to set uniform suffrage requirements for the whole nation, they would encounter strenuous opposition in getting the Constitution national officers in the new Constitution would fight against its approval. On the other hand, since the delegates did not believe generally that existing limitations on suffrage in the states were excessive, they would not be inclined to set the sort of uniform lower requirements that might have received popular approval.

Nevertheless, Governor Morris, one of the more reckless of the delegates, moved to establish a provision in the Constitution that would concede the right of suffrage only to landowners.[27] Williamson and Dickinson supported him, the latter stating that "He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defense agt. the dangerous influence of those multitudes without property & without principle, with which our Country like all others, will in time abound."[28]

Emsworth of Connecticut protested that every man who pays a tax should be eligible to vote for the representative who is to levy and dispose of the money. "Shall the wealthy merchants and manufacturers, who will bear a full share of the public burdens be not allowed a voice in the imposition of them -- (taxation and representation ought to go together)."[29]

Morris replied:

"Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them.... The time is not distant when this country will abound with mechanics & manufacturers who will receive their bread from their employers.... Will they be the impregnable barrier agt. aristocracy?" - He was as little duped by the association of the words," taxation & Representation" -- "The man who does not give his vote freely is not represented. It is the man who dictates the vote."[30]

Madison was moved to state his faith in the freeholders as well; but, despite considerable sentiment favorable to the motive behind Morris's move, the change was rejected, seven states to one, with one divided and another absent.[[31]

It might be expected that such contempt of the hallowed Revolutionary slogan," No taxation without representation," would cause some rebuttal. The contrary was the case. The idea that taxation and representation were inextricable no longer held the minds of the Convention leaders. Rather, the slogan was diverted into the narrowest possible channel. "No taxation without representation" was becoming merely "no taxation without representation in whatever popular element of the government corresponds to the House of Commons."

Now that the excitement of the Revolution had subsided, the ruling group were of a mind to point out that the objectives of the Revolution were limited. Once taxation was given to a representative body, the balance of the governmental structure could be composed of more traditional bodies. The Revolution, they felt, did not introduce the principle that all parts of the government should be filled by popular representation. It so happened that the example of the imaginative Montesquieu was before them. He gave a pleasing analysis of the English government which incidentally interposed a compartmentalization of powers ill-befitting any radical theory of representation.

Consequently, when the controversy began over the power of initiating bills for appropriating money, with the large states placing the power in the House and the small states reserving at least equal powers to the Senate, the doctrine of no taxation without representation received great deference but little enthusiasm. Mason argued that

"The Senate did not represent the people, but the States in their political character. It was improper therefore that it should tax the people.... The House of Lords does not represent nor tax the people, because not elected by the people."[32]

Gerry felt that "Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses."[33]

Madison, relentlessly pursuing his theory of checks and balances, saw little good in allowing the popular house first chance at the public purse, with some probability of unpleasant conflict between the two houses as a result.

John Dickinson, however, reminded the delegates that

"... all the prejudices of the people would be offended by refusing this exclusive privilege to the H. of Repres. and these prejudices shd. never be disregarded by us when no essential purpose was to be served. When this plan goes forth, it will be attacked by the popular leaders. Aristocracy will be the watchword; the Shibboleth among its adversaries."

Eight states allowed the popular branch exclusively to initiate money bills, though most allowed the second branch the power to amend, and this last procedure Dickinson thought proper.[34]

Randolph added more details of the popular reasoning:

"When the people behold in the Senate, the countenance of an aristocracy; and in the president, the form at least of a little monarch, will not their alarms be sufficiently raised without taking from their immediate representatives, a right which has been so long appropriated to them." [35]

Rutledge of South Carolina told the others that the people would feel that such other damage had been done to their ideas that they would hardly be pacified by this flattery of their rights. "Will not the people say that this restriction is but a mere tub to the whale?" The proviso would have come to naught if it had not been incorporated in a later compromise. Pleased with their equality of representation in the Senate, the small states joined in approving the power of initiating money bills in the House.[37]

The tone of the discussion throughout reveals that taxation is no longer the key to the substance of representation for the propertied leaders. With Madison leading them, they were finding less elusive methods of assuring national stability and economic progress. A nonpopular Senate, judiciary, and indirectly popular executive, checking each other, were their new securities. It is true that the Convention accepted with little challenge the coupling of taxation and representation in the first article - "Representatives and direct taxes shall be apportioned among the several States ... according to their respective numbers." But their connection in this case was an anomaly. It was made "to lessen the eagerness on one side & the opposition on the other, to the share of representation claimed by the S. [southern] States on account of the Negroes."[38] Gouverneur Morris

... hoped the Committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a bridge to assist us over a certain gulph; having passed the gulph the bridge may be removed. He thought the principle laid down with so much strictness, liable to strong objections.[39]

But the bridge remained to the end, although the difficulties involved in levying such taxes have prevented their wide usage. On the basis of it, the Supreme Court blocked an income-tax act and occasioned the Sixteenth Amendment.[40]

The foregoing analysis does not mean to deny that wealth and representation were tied up inextricably in the mind of the convention delegates and most leaders of those times. The doctrine of "no taxation without representation," however, must always be considered separately as a means of approaching the methods of representation, as a statement of a specific principle to be used in implementing the representative idea. Its course in American history, and to a large extent in English history, parallels the struggle over the fate of the House of Commons and popular chambers generally. And therefore its decline parallels the decline of the idea of propertied leaders that the popular chamber was to be used for the exposition of their ideas of representation.

Wealth was continuously considered in the constitutional convention as a valid basis for apportioning representation -- wealth and numbers together generally. Many complications naturally arose when the time came to compute wealth. One aspect of the problem was the controversy over the place of slaves in the system of representation. They were on the one hand wealth and on the other hand persons. The problem was finally resolved by denominating a slave as two-thirds of a person for the purpose of representation in the House of Representatives.

But when they came to the generic term "wealth," the delegates were more willing than able to consider it in apportioning representatives. If the elaborate Census Bureau organization of today had then been considered possible, the delegates probably would have debated strenuously the value of property over numbers. Instead, they decided that wealth was measurable by numbers and therefore voted to strike out the word "wealth" in the clause apportioning representation in the House.

"Mr. Sherman," Madison writes," thought the number of people alone the best rule for measuring wealth as well as representation; and that if the legislature were to be governed by wealth, they would be obliged to estimate it by numbers."[41] Gorham agreed. "He said that in Massts. estimates had been taken in the different towns, and that persons had been curious enough to compare these estimates with the respective numbers of people; and it had been found even, including Boston, that the most exact proportion prevailed between numbers & property."[42]

Because no national census was then available, the apportionment of representatives for the first Congress was taken up in Committee, first of five members, then of one delegate from each state. There is no doubt that the report of the committee of five considered wealth as a supplementary consideration to numbers. It is unknown whether this consideration entered into the second committee report, which was adopted.[43]

A political axiom holds that men tend to view society in terms of their experience and desires. James Wilson declared in the convention that "with regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved, were commonly mistaken for the general voice."[44] It is true of Wilson himself that he inclined to view individuals as constituted alike and equal, with dispositions and interests that could be resolved on a simple level of political cooperation. It is likewise true that Madison, Hamilton, Gouverneur Morris, and others in the Convention were inclined to view men less as unique individuals than as repositories of types of interests and motives.

The difference between the two frames of thought is manifested in an attitude toward government. Whereas Wilson regarded government as a mouthpiece or collecting point for individual opinions, the others saw in government the restraining, balancing, and accommodating machinery for processing interests. Thence, representation for the latter becomes a matter of weights, of which number is simply one weight, property another, the national good another, power-drives another, and so forth. The various weights are adjusted on the scales of government to balance the whole affair in a mechanical equilibrium. On the whole, the aristo-democrats are more concerned with the potentialities for security, that is,"balance," in a measure, than they are with the justice or enlightenment the measures will bring about.

Pinckney [45] divided the people of the United States into the three

classes of

"... professional men who must from their particular pursuits always have a considerable weight in the government while it remains popular. -- Commercial men, who may or may not have a weight as a wise or injudicious commercial policy is pursued. -- if that commercial policy is pursued which I conceive to be the true one, the merchants of this country will not or ought not for a considerable time to have much weight in the political scale.

The third is the landed interest, the owners of & cultivators of the soil who are & ought ever to be the governing principle in the system --

But since in America, unlike England, the great body of people are equal in wealth, there is no need to follow English models slavishly. The "representation and protection" of wealth is unnecessary.

All we have to do then is to distribute the powers of government in such a manner & for such limited period as while it gives a proper degree of permanency to the Magistrate, it will reserve to the people the right of election."

Thus the grand classes exist but occasion no concern in America so long as there is a limited democracy. On the other hand, Gouverneur Morris believed that "property was the main object of society," man in a natural state possessing enough of life and liberty and only renouncing his natural state to protect his property. Therefore, he believed that property should be a great factor in apportioning representation. He looked uneasily at the formation of new states in the West and urged a predominant fixed representation of the Atlantic states.[46]

Backed by Rutledge, Butler, and Gerry, he pushed through the adoption of a report allowing the Congress to regulate the number of representatives in any new states on the principles of wealth and numbers. Afterwards, however, Wilson, Mason, and others managed to strike out the specific empowering provisions of the clause.

For the best exposition of the balance of interests theory of representation, we must leave Morris and move on to Madison and Hamilton. As indicated previously the conception of human nature held by the aristo-democrats differed from that of the direct democrats. The former are less happy about man's ability to maintain society without passion and corruption. Madison declared in the convention that

" ... A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals; In large numbers, little is to be expected from it." [47]

The smaller the group, he stated, the more likely one faction or interest would achieve control. Hamilton declared that since human nature cannot be changed, one must work with the currents of selfishness to divert them to the public interest, [48] and Madison wrote in the Federalist:

"A landed interest, a manufacturing interest, a mercantile interest, a money interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government." [49]

The technique had already been described by Madison at the convention:

"The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d. place, that in case they shd. have such an interest, they may not be apt to unite in the pursuit of it." [50]

It is important to realize that this is more than a plan or wish. It is a factual judgment, a view of society. Thus Madison wrote Jefferson on October 24, 1787: "In a large society, the people are broken into many interests and parties, so that a common sentiment is less likely to be felt, and the requisite concert likely to be formed, by a majority of the whole."[51]

When they speak of representation (and they often discuss it), Madison and Hamilton have in mind the spirit, drive, and demands behind these interests. They realize that direct, popular election is a formidable weapon in the hands of the electors. They detail at length the powers of the House of Representatives and ascribe such potency in large part to the numbers behind it. Yet they are unwilling to allow to the constituency the power of immediately directing representatives. The First Congress debated the proposal to amend the Constitution so as to permit the constituency to instruct its representatives. Madison opposed any forced obedience as "dangerous." The motion lost. This was consistent with his position during the Convention.

And one or the other wrote in the Federalist that "It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents" on a general level.[53] Duty, gratitude, interest, ambition itself, are the cords by which they will be bound to fidelity and sympathy with the great mass of the people.[54]

A kind of shifting, ad hoc representation seems to be more in keeping with their ideas -- not conservative, particularly, as with Burke, nor a mirror-like reflection as with the English Radicals or Jefferson, but rather a balancing relationship which bargains with one interest against another. Discussing the Presidency in the New York Convention, Hamilton predicted that "the President of the United States will be himself the representative of the people. From the competition which ever subsists between the branches of the government, the President will be induced to protect their rights whenever they are invaded by either branch." [55]

Opposing themselves to the belief that representation is the accurate transcription to the hall of the legislature of a political consensus, Madison and Hamilton set up a well-defined theory of a general interest to which no voice of any particular representation can be ascribed. There are many voices and, although wealth is admittedly their favorite voice, no single one should prevail. Representation is a full choir. It is neither the great and full voice of the people nor the authoritative voice of the organic state.

The chief consideration in the idea of representation which we have called direct democracy is the collectivity of the people stating their case explicitly and with supreme power. The collectivists tend to ignore interests for the sake of "unity." In marked contrast to this idea, Madison tends to multiply interests for the sake of stability. Disclaiming the right of the majority to demand the fruits of their represented power, he declares in the Federalist:

"No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many. of the most important acts of legislation, but so many judicial determinations ... concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the cause which they determine?" [56]

Since the causes of faction cannot be removed, its effects must be controlled.

It is apparent in many places that Madison, Hamilton, and their adherents were not quite resolved one way or another about a final theory of representation. Although they may have wanted certain interests in society to be finally and definitely represented in the structure of the government, they either could not imagine how that would be possible in the prevailing mood of the land, or they could not manage such an arrangement in the face of other compromises and adjustments which were necessary. The current idea of a Senate representing property had to give way to a representation of the states. Lack of uniform suffrage requirements in the states would not allow the Convention to make a fixed rule. In any event, they realized that the Constitution would have difficult time passing popular scrutiny even as it was written.

On the other hand, it is not at all certain that they did want a final classification of representation by interests in the very structure of government. Hamilton would probably have gone further along these lines than Madison, who seems to have been fairly well committed to the theory of shifting and balancing representation. For Hamilton stated in the Convention:

"Give therefore to the first class (of the rich and well born) a distinct, permanent share in the government.... Can a democratic assembly, who annually revolve in the mass of the people, be supposed steadily to pursue the public good? Nothing but a permanent body can check the imprudence of democracy." [57]

Furthermore, Hamilton's unparalleled fight for a strong executive branch of government emphasizes his belief in a clear administration of a national interest.[58]

"Given the times and the ways of thought, fixed nonpopular representation had to step aside for a negative, minority-protecting attenuation of direct popular representation. But pluralism in representation was already injected in a modern form in the minds of the aristo-democrats.[59] States like Massachusetts and New York indeed adopted class representation in their bicameral constitutions for a period of time. Such pluralism was the midway point between the medieval estates and modern democratic pluralist ideas."

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