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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  A


The ideas of Jefferson and the activity of Jackson are symbolic of the process which first fired the imagination of the common man in America and then carried into practice as many of the ideas as have ever been actuated in a government. In 1806 a Maryland pamphleteer complimented the state on progressing toward the pure and simple form of republican government by allowing universal suffrage. Now, he went on, the state ought to abolish all qualifications for election to office and ought to provide for the popular election of the governor as well. Then he quoted with favor the adage of the times that "every remove from the voice of the people is a departure from the principles of Republicanism."[6]

Once the dam was opened, the flood was loosed. The traditional popular machinery of representation was expanded throughout all the states, and, where the popular forces felt rebuffed for the moment by existing constitutional barriers, they were likely to become bitter and unmanageable. The struggle between Jackson and the Senate and the Supreme Court are cases in point.

Listing those situations whose development is of interest from the standpoint of representation, we would have (1) the widening suffrage, (2) the spread of direct as against indirect elections, (3) multiple administrative responsibility, (4) short tenure and rotation in office, and (5) the doctrine of instructions.

In one after another of the many state conventions called to draw up new constitutions in the period following the adoption of the federal Constitution, the matter of suffrage was brought up. It was met by a tide of democratic sentiment in favor of liberalizing the provisions for voting.[7] Within two generations a majority of the states required no other qualification of its white males than that they be of the legal age (usually twenty-one) and reside in the state for a given short period varying from three months to two years. Another eight states required payment of some small state or country tax, and four required a freehold of their voters. Only Rhode Island and New Jersey carried their Revolutionary constitutional provisions intact through this period, with the moderate requirement which the general run of Revolutionary constitutions provided. In the former state, the wisdom of such conservatism was doubtful inasmuch as it led directly to Dorr's rebellion, which precipitated the reform of the suffrage.

James Kent could say of this process that "the progress and impulse of popular opinion is rapidly destroying every constitutional check, every conservative element intended by the sages who framed the earliest American constitutions, as safeguards against the abuses of popular suffrage."[8] He knew from bitter personal experience the extent of the movement for a free suffrage based on the person, without considerations of property or class. He had been one of the principal targets of the Democrats in the New York Constitutional Convention of 1821 and one of the leaders in opposition to them. One of the important acts of that Convention was to do away with the Council of Revision to which Kent belonged and which hitherto had had the right to veto legislation. The institution had been particularly inflexible, since the Council could muster a majority in its ranks against the elective Governor, who was also a member.

Another important debate arose over the suffrage. It was proposed that the suffrage requirements be made very liberal in both the Senate and the Assembly; until this time, a freehold had been required of voters for candidates to both houses. In the face of the clamorous demand, Kent admitted that the Assembly might be thrown open to the large body of people, but he fought hard to preserve the Senate for the landowners. The stability of the state, he felt, rested on the freehold property of the state. He painted an evil picture of things to come if the motley crowds of the city occupied the seats of the assembly. "The tendency of universal suffrage is to jeopardize the rights of property and the principles of liberty."[9]

But the view of Tomkins, who represented the democratic groups at the convention, prevailed. Life, liberty, and the pursuit of happiness were still the objects of American civil society, he pointed out. Property, in relation to these rights stipulated in the Declaration of Independence, was of secondary consequence.[10]

What was said in the New York Convention of 1821 was similar to what was being said in most of the conventions held during the period.[11] On the one hand, a competent, though small, number of conservatives repeated over and over that land ownership was the basis for the survival of freedom. This ownership should at least be used as a qualification for the vote. If real property were not to be required as a basis for representation in the "people's assembly," the "lower house," it should be a requirement for representation in the Senate or for the election of Governor (though the conservatives were unable to grasp why the Governor should be popularly elected at all).

A true measure of the strength of the democratic temper was the fact that few proposals were advanced to construct the state governments on a rigid class-constituency basis.[12] There was no question of providing for permanent representative bodies not subject to elections at all or to very infrequent elections. Such a proposal would have had hardly a chance of surviving popular discussion. The most that the real-propertied classes could obtain would be a partial recognition of real property in the election of the upper body, and in fact even that qualification was compromised by the equal recognition of movable property, which they accepted in order to achieve a minimum success.

In some of the states, a property qualification was required for election to office, but was hardly of consequence in checking the assumption of office by representatives of the majority of the population. In the South, the growth of a class system on top of the already existing caste system limited some of the egalitarian provisions of the state constitutions. The most telling indication of this trend was the marked slowness with which the elective offices circulated among different men.

On the other hand, the views of Governor Daniel Tomkins reflected the sentiments of the democrats as they were expressed in the conventions of other states. Lack of respect for tradition, a firm dogma of the natural rights of all men, a refusal to value property above persons, an attack against class distinctions - these were the slogans repeated time after time whenever the issue of suffrage arose. It is accurate to say that, so far as American political history to this time is concerned, the early nineteenth century decided for its own time and for the future that the problem of representation would have to be examined with the fact of universal white manhood suffrage as a premise.

The psychology of direct representation demands that there be as little interference as possible between the execution of the responsibilities of the government and the active hand of the citizen. Consequently, the period under discussion is marked by a trend toward the direct elections of officers hitherto chosen by indirect means. The primary case in point is that of the manner of electing the President.[13]

The original arrangement had been provided for in the Constitution. It required that the election of the President be consigned to a body of electors in each state who were to be chosen in a manner decided upon by the state legislature. The number of electors would correspond in each state to the number of members of Congress which the state was allotted.

During the first part of the nineteenth century some states chose their electors by means of their legislatures, but an increasingly larger number chose them by popular election. In both cases the intent of the drafters of the Constitution was circumvented by the growth of the political party, which settled on candidates for the two principal offices of the nation long before the electors were chosen and campaigned directly for its candidates among the people and among the state legislators. The electors were thus chosen solely on the basis of their support of one of the presidential candidates. entirely apart from their other qualifications. The Constitutional provision remained of import only when a close election allowed the number of electors for a state to reflect inaccurately the division of popular opinion in the state or nation as a whole. With this exception, the President and Vice-President were elected by the direct, popular method.[14]

In the states, where fundamental changes could be wrought more easily, the reduction of executive offices to popular control by direct election was a continuous process. The choice of the governor, which had been made by the legislature in most cases, was given to the people as a whole, as were the choice of the treasurer, the auditor, and other state officials. The office of clerks of court, sheriffs, justices of the peace, and many minor officials, especially in the New England townships, were also made elective.

Judges came under fire for being remote from popular influence, and the common law was threatened as it has never been threatened since. For the people could sense the judicial conservatism and its unresponsiveness to popular demands, and were mystified by the complicated process of the common law. They were as enamored of the power of legislation and as angered at the inflexibility of the common law as the Radical Bentham, who was working in his instructed manner just as they were in their innocence. In the period from 1846 to 1853, thirteen states brought the elective principle to bear on the choice of the highest state judiciary.[15]

The creation of new offices merely extended the elective principle. When the demand for free education grew strong, for example, the superintendents became candidates for public office, along with the other officials of the government.[16]

Administrative centralization is of two kinds. One has to do with the number of separate jurisdictions performing functions on an equal level which are not responsible each to the other but only directly to the final source of authority. The second has to do with the quantity of final jurisdiction possessed by each of several agencies arranged vertically, and was not an important factor in this period of simple governmental tasks. The first kind of centralization, when offices are numerous and official responsibility is only to the people, reveals more of the psychology of direct democracy. First, it express a belief and a wish that government be as simple and controllable as possible. In the second place, it reduces all administration to politics by making offices of all kinds elective. Third, it expresses a belief that the office is nothing when dissociated from the people, with no specialized concerns of its own, no abilities required to perform it, and no excuse for trappings, insignia, rituals, or secrets of its own. Finally, in essence, it regards government as a transient arrangement, temporarily conducted by representatives chosen almost at random from out of the body of people.

The purest manifestation of this state of mind was to be found in the New England township system as it developed in the new communities of the west.

"In the American townships power has been distributed with remarkable skill, for the purpose of interesting the greatest possible number of persons in the common weal. Independently of the voters, who are from time to time called into action, the power is divided among innumerable functionaries and officers, who all, in their several spheres, represent the powerful community in whose name they act."

Thus wrote de Tocqueville, [17] and he went on to describe how the officers were little legal islands unto themselves, if the people be excepted, even collecting their own salaries in the form of fees.

The belief that the people are the best judge of what concerns themselves and the communal spirit of local administration cause

"...all the magistrates to be chosen either by the inhabitants or at least from among them. As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a hierarchy of authorities; there are almost as many independent functionaries as there are functions, and the executive power is disseminated in a multitude of hands."[18]

The demand for the dispersion of administrative functions is to be distinguished from that of rotation in office. The latter has to do primarily with the tenure of office. It is the belief that permanent appointment to administrative office is harmful to the commonwealth. Historically, of course, it has been associated with the use of offices for party or personal gain along the lines of the slogan that "to the victors belong the spoils." However, its relevance in these pages lies in its connection with the psychology of direct representation.

During the administration of the Federalist party, it came to be the common belief in the country that public offices in the federal government were being distributed among Federalist favorites, with regard to party and person. In addition, as the sentiments of direct democracy spread through the land, it came to be widely understood that an administration of government was not necessarily responsive to the conditions that could bring about changes in elective officers.

A new theory of rotation in office arose and was presented to the country by Jackson in his first annual message to Congress. "There are, perhaps, few men who can for any great length of time enjoy office and power without being more or less under the influence of feelings unfavorable to the faithful discharge of their public duties." The duties of public office, he stated, need not be so complex that ordinary men of intelligence may not readily qualify for them. A law limiting appointments to four years may well be in order, he suggested; intrinsic right to office is healthful. He also requested the abolition of the electoral college.[19]

Jackson was following the wave of direct democracy into the federal government. Many of the state governments had already inserted provisions in their constitutions providing for shortened terms of office, in some cases prohibiting reappointment or re-election to office as well. Charles Merriam wrote that on the Senate floor in 1835 it was predicted that opportunities would be expanded "till it shall become a matter of course that each individual shall strive to qualify himself to discharge the duties of any office to which he may be called.[20]" Rotation in office was another victory for the idea "that as few impediments as possible should exist to the free operation of the public will."[21]

It is interesting to observe that Jackson's first annual message to Congress inspired Jeremy Bentham, then eighty-two years old but still hard at work, to write a congratulatory note to the President, accompanied by a series of documents entitled "Anti-Senatica";[22] These have been gathered together and commented on by Professor C. W. Everett. "'Tis not without a mixture of surprise and pleasure," wrote Bentham," that I observe the coincidence between your ideas and my own on the field of legislation."[23] The "Anti-Senatica" is a collection of documents attacking principally the unrepresentative character of the American Senate. In reference to the House of Representatives, Bentham support sits representative quality and compares it favorably to that of the Senate. The House is so framed

"...that in respect of unity of interests ad affections with the body of its constituents, members of the Supreme Constitutive - in a word in respect of appropriate moral aptitude - its aptitude is regarded as being at a maximum. To this consummately apt body another is now linked on a body so framed that whatsoever be the degree of its appropriate moral aptitude it can on no principle be considered as standing at so high a part of the scale as the one first mentioned. Yet to this less apt body a power is given of reducing to nothing on every occasion the power of the more of body." [24]

The result is useless complication of legislation, he stated, and irresponsibility, confusion in the minds of the people, and waste of public money to support superfluous aristocratic functionaries. It is doubtful that Jackson could have taken the time to digest Bentham's plan. Moreover, Bentham's writing was scarcely legible. But Jackson's "rational" approach to legislation was basically similar to that of Bentham. His great faith in the majority principle as the peremptory command to political action is quite comparable to Bentham's conception of the greatest happiness of the greatest number, a similarity of approach noted by Edward Livingston, Jackson's Secretary of State, who was also a disciple of Bentham. In such fashion can we perceive that thread of ideas which joined together the English Radicals and the American direct democrats.[25]

The doctrine of instructions, which maintains that, at any time, a clear expression of the will of the majority of constituents is binding on the action of their representative, appears with the very beginning of parliamentary representation in England. As long as the constituency was small, legislation was simple, and the power of Parliament was not a general power of legislation and sovereignty, the doctrine was not questioned. When Parliament grew into a sovereign oligarchy, and the electorate became relatively insignificant as an organized power, the doctrine of instruction declined. It was revived in the Enlightenment as part of the context of individualism and the contractual psychology of the rational democrats, and it became a subject of dispute between Burke and the Radicals, each representing a different theory of society.

In America, the colonists for the most part looked favorably upon the doctrine, and it was not until the post-Revolutionary period that it was challenged by men like Madison and Hamilton. In the First Congress, a proposal was made to include in the Bill of Rights the right to instruct representatives, but the proposal was voted down by a large majority.[26] Most members felt that the provision would be inapplicable to real circumstances, while others believed that the representative must be allowed his independent judgment in deciding on political affairs. The right to petition Congress, declared Madison, gave substantially the power of instructing to the people, without the difficulty of determining the momentary attitude of the majority. If more than advice was intended by the proposal, he stated, the amendment was undesirable.

Two ways of looking at the doctrine are suggested by the debate in Congress. One regards the doctrine in constitutional form as a law to be observed, and therefore the practical objections to be insuperable, for even a representative of the First Congress, with 30, 000 constituents, could not know most of the time the sentiments of a majority of his constituents. The second way of approaching the doctrine of instructions is philosophical. Just as several provisions of the various bills of rights being adopted at the time were already covered by existing constitutional safeguards or might better have been covered in their proper place in the constitutions, so might the doctrine of instructions be handled. But, as with the Bill of Rights, more than a law was being stated. An attitude toward political life was being promulgated in sacred form. The doctrine of instructions was to be an ideal.

The ideal would state: "A representative ought to act at all times as if he were consulting the majority will and acting only in accordance with its decision, abolishing all other interests from his mind." Or, as Parke Godwin angrily put it in his Political Essays: "A representative is but the mouthpiece and organ of his constituents. What we want in legislation as in other trusts, are honest fiduciaries, men who will perform their duties according to our wishes."[27] The doctrine was a counterpoise to ideas of checks and balances and of minority protection. It reflected a great popular confidence in the majority and a desire to see the wishes of the majority transformed directly into political action, without benefit of constitutional and legal barriers and without interference from minor interests.

As such, the doctrine was rejected by the leaders of national constitutional opinion. It was to be found in some state constitutions, despite the difficulty of conceiving the actual working of the idea. Pennsylvania, in its Constitution of 1776, first declared explicitly the right of instructions.[28] North Carolina [29] and Vermont followed the example. Massachusetts in 1780 stated the principle in even stronger words, and, strangely enough, it was John Adams, the foremost exponent of class government who was principally responsible for its insertion in the Massachusetts document.[30] New Hampshire followed suit, as did the new states of the Northwest Territory. During the debates in the state conventions over the ratification of the Constitution, the matter was brought up in Virginia and Massachusetts in connection with the instruction of Senators by the legislatures. Both conventions seem to have felt that the states would have that security and so they let the matter pass.

In practice, the judgments of the conventions were vindicated. Although from time to time various opinions were expressed against the practice by which the state legislatures instructed their senators on matters pending on the Senate floor, the instructions of the states were carried out.[31] From the beginning the Massachusetts legislature followed the practice of "instructing" senators and "requesting" representatives; Virginia did the same. Representatives, deriving their authority from direct elections, could not be commanded by the legislature, it was felt. It is notable that, in 1808, when the Massachusetts legislature gave John Quincy Adams instructions against the embargo, he considered himself unable to follow the instructions and resigned his seat. His action was the common one whenever the legislature did not see eye to eye with the senators on an issue and the senators thought the matter too important for them to act in opposition to their convictions.

In several cases, notably those of Pickering of Massachusetts in 1811 and Benton of Missouri in 1848, instructions were disregarded. Reversing the position which he had held during the Senate fight over expunging the Senate censure of Jackson in 1834, Benton declined to accept instructions favoring the admission of slavery in the new state. He claimed that he would appeal to the whole constituency for an opinion on the instructions, and thus postponed the issue until the next election. He was duly defeated.[32]

Most of the time, the practice of instructions met with little opposition. In 1812, however, after Senators Giles and Brent of Virginia had refused to obey the instructions of the legislature, the legislature issued a lengthy resolution upholding instructions.[33] The line of reasoning was as follows:

1. The giving of instructions to representatives had been a legal practice in the House of Commons in England since time immemorial.

2. "Much more unquestionable is it [the right of instructing] in the United States, where the people are acknowledged to be the only legitimate source of all legislation - where the representative and constituent bodies are more intimately connected by the constitution - where none can be a Representative or Senator who shall not, when elected, be an inhabitant of the state for which he is chosen."

3. Citations from authority in America are few but the practice is universally accepted.

4. The nature of representation demands the right of instruction of the representative by the constituents. It is to avoid turbulence and other mischiefs "that representation is substituted for the direct suffrage of these people in the office of legislation. The representative, therefore, must in the nature of things, represent his own particular constituents only. He must, indeed, look on the general good of the nation; but he must look also, and especially, to the interests of his particular constituents as concerned in the common weal; because the general good is but the aggregate of individual happiness. He must legislate for the whole nation; but laws are expressions of the general will; and the general will is only the result of individual wills fairly collected and compared: in order to which collection and comparison [that is, in order to express the general will, in order to make laws] it is plain, that the representative must express the will, and speak the opinions, of the constituents that depute him."

5. "It is a maxim of all governments founded on contract, that no man be bound by laws to which he has not given his assent, either directly, or mediately by his representative, or virtually through representatives chosen by his fellow-citizen, amongst whom he dwells, having the same general and local interest with himself."

6. A representative is endowed still with much discretion and confidence, but all of that "is grounded on the supposition, that he is charged with the will, acquainted with the opinions, and devoted to the interests of his constituents."

7. The state legislature is just as much a constituency with regard to the senators as the people are in regard to the representatives.

8. The objection that the sense of the constituency is impossible to ascertain is often true, but when it is proffered as an instruction it cannot be denied.

9. The objection that instructions may be refused because they are unconstitutional may be accepted, but such cases are hard to imagine.

10. The objection that where there is no law there exists no punishment applies only to practice of an evil nature. The highest duties of mankind have no legal sanctions. The acceptance of instructions is one of these duties.

The resolution is most enlightening, even if we admit that political motives were behind the sentiments, for here again a political situation is described in terms of a psychology of the state. Representation is contractual. It is direct. The law of the state is the direct will of he majority. The will of the majority is simply a matter of counting individual wills. Try as he may, the representative cannot escape the fact that society is an aggregate and he is an agent.

When Abraham Lincoln was a candidate for re-election to the Illinois assembly in 1836, his platform contained these words:

"If elected, I shall consider the whole people of Sangamon my constituents, as well those that oppose as those that support me. While acting as their representative I shall be governed by their will on all subjects upon which I have the means of knowing what their will is, and upon all others I shall do what my own judgment teaches me will best advance their interests." Here one observes that, While Lincoln declares the majority will to be paramount, he resolves to follow the will through all its changes, regardless of what his set program may be.[34]

Lincoln's views on the relation between the representative and constituents do not conflict with his views on the nature of the union. The latter was a question of sovereignty, of ultimate loyalty. It is true that certain representative provisions in the Constitution favored ideas of secession, because every constituency always carries with it special interests, localism, and therefore a species of sovereignty. It is also true that certain other provisions for representation in the Constitution fostered the idea of unity. But the idea of nationality, of the nation - as described by Daniel Webster, for example - has in it a sacrificial element, a uniting element not subject to the ordinary considerations of representation. The result is that once the controversy became heated, national unity, not representation, was the issue.

Jackson declared, in his proclamation on the South Carolina secession movement in 1832, that the members of the House of Representatives, though selected on the basis of states, are accountable not to the states but only to the nation. "However they may in practice, as it is their duty to do, consult and prefer the interests of their particular or local interest, yet it is their first or highest duty, as representatives of the United States, to promote the general good."[35] He recognizes the local functions of the representatives, but he insists that they are always operating within a larger framework which is national.

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