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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part  B


The first part of the nineteenth century, in addition to pushing representation toward the ideal of the direct democrats, brought about political changes which were instrumental in bringing new ideas of representation. The new practices themselves were in part motivated by efforts to bring about a great correspondence in thought and action between elected officials and the large body of people. The caucus as the general mode of deciding on candidacies declined, and the nominating convention took its place. The straight party list, in which a number of candidates appeared on the same ballot for election at the same time, came into use. The legislatures, pressed by the rural areas, began to provide polling places below the level of the county or township.

In addition, certain seemingly anomalous developments of the period give new slants to the established representation. They are the growing custom of drawing up lengthy constitutions filled with minute prescriptions, the abandonment of unicameralism in certain states, and the most important theory of representation to come out of the South, that of Calhoun.

In a time when the Federalist Party was fast dying out, the caucus system, considered by a large pat of the people to be the hidden, subversive, aristocratic element working beneath the republican edifice, fell into disrepute. The growth of the West had a great deal to do with the monopolization of the political field for a time by the Democratic-Republican Party.[36] Agrarian protest against the commercial and fiscal policies of the Federalists accelerated the transition from one type of party system to another.

For our purposes, the new political forces differed from the Federalist Party in one important respect. They were not as readily available for organizational purposes as the township and urban populations of the East upon whom the Federalists depended for much of their strength. Under such circumstances, the new forces adopted a mode of party organization foreign in conception to the theory of the caucus.

Upon the outbreak of the revolution in France, a number of Democratic societies were formed in the United States, Jeffersonian in philosophy and with a program calculated to disquiet the Federalist administration.[37] Unlike the political caucuses, which had been conducted in an informal manner, these societies regarded their own organization as a serious matter, justifying an elaborate set of regulations. They organized in the cities and in the counties, electing officers for no more than one year. And sometimes they regarded officers as only a necessary evil. Set up to support "the rational and equal rights of men," they were active in the last decade of the eighteenth century in offering opposition to Federalist candidates. Difficulties of communication made the larger tasks of the societies impossible until a national party arose which could gather them up and give them direction, and until a representative system was established to interrelate the various bodies.

This was the function of the convention, developing first on the county level and then on the level of the state.[38] In both cases, the process of development was Democratic-Republican in origin and was bitterly contested by the Federalists. The later, however, could offer little legal objection and no substitute. They charged the early conventions of the Democrats were usurpations of popular powers, secret associations against the common good, and an attempt to dictate to free men. But Hamilton realized as early as 1800 that the Federalists were relying too much on measures and not enough on properly organized electioneering. He proposed that organization through the country be as widespread as possible. Clubs were to be formed, issues were to be discussed, various social functions were to be carried out. Already he thought in terms of "societies for the relief of immigrants." The plan was abandoned when Hamilton could not find Federalist support for it. As a group, the Federalists were opposed to the principle of extralegal political machinery.

The development of the convention system of nominating candidates to office, projected later onto the national scene by the Anti-Masonic Party and the National Republicans in 1831, has two connotations of interest to the problem of representation. One is that the convention, in theory, more closely approximated the direct democracy which men were seeking than did the older forms of self-nomination, nomination by friends, or nomination by caucus. The convention was set up in a democratic stereotype; the appeals of the candidates went directly to the people rather than to a socially select group, as under the old methods; and the "people" had to approve the candidates.

It seems likely that additional prestige accrued to the nominating convention from the well-established practice of holding constitutional conventions in the states. Popular conventions had for some time taken constitution-making in hand. Legislatures had framed the larger part of the Revolutionary constitutions, but colonial and post-colonial examples were not wanting. The popular developments in constitutional legislation through this period were threefold:[39]

1. The Elected convention became the exclusive agency for he drafting of constitutions. Even the courts generally regarded the contemplated drafting of new constitutions by the legislatures as legislative usurpation.

2. Popular ratification of the drafted constitutions became almost a necessity. The first twenty-six constitutions which were ratified included twenty without the people's direct intervention, and six with a direct ratification by popular vote. The next six constitutions (1821-31) were divided three and three on popular ratification, but in the large number of constitutional ratifications of the period from 1831 to the end of the Reconstruction period, only two were not popularly ratified.

3. In the dispute over the theory of popular ratification, a distinction was made between representation embodied in the members of a legislature and that embodied in the members of a constitutional convention. The classic case here involved the Virginia Constitution of 1776. Jefferson held that the proposed constitution would be only a bill unless popularly ratified. His objections were passed over, but the constitution was later challenged in court. The court held against Jefferson's theory by distinguishing between delegation and representation. The representative government required all the various organs to participate in the making of laws, the court stated. The convention delegates were actually the people themselves, undifferentiated in any manner, called for a specific task and not a part of the government. Therefore the consent of the convention was the consent of the people.[40] Quite explicitly here, the court held that representation in representative government was a specialized function that differed from the simple substitution of delegates for people at large. Though other courts claimed later that popular ratification was legally necessary, their comments were presented as obiter dicta, and in a real situation a popular vote would probably not be held necessary unless specifically provided.

The second cause for comment is that the convention seemed to be a mechanical answer to the problem of nominations. Ostrogorski mentions here and there in his writings the term "formalism" with regard to political parties.[41] By it, he means the conversion of the party system into a meaningless mechanical process. It is most suggestive in discussing the rise of the convention, which soon turned into a political farce so far as the body of ordinary people was concerned.

Through the convention, the sanction of the people was given to the acts of the few. The important consideration often was not really to designate a popular candidate, but rather to designate a particular candidate under a set of conditions and with a ritual which would give the impression even to persons not attending the convention that justice had been done to the cause of direct democracy. One might go so far as to say that a new representative device was called for by the times, even though, by the nature of political conditions then existing, no results would be forthcoming.[42] It is hardly correct to say that an existing need was being filled, unless by that is meant a psychological need "to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians."[43]

The conventions, it may now be agreed, put some constraint on the imagination of the voter. Without party backing, a candidate was unlikely to win, and therefore the voter was prone to accept the judgment of a convention even if he himself did not participate directly or indirectly. The straight party list was another restraint on his actions. The result of increasing the number of officers to be elected was that on even a single level of government, local, state, or federal, an election of a number of officers had to occur simultaneously. In addition, the frequency of elections and the difficulties of transportation in many localities made the union of all levels for election purposes seem plausible and helpful. As a result, the independent voter must enter a welter of names and offices on his ballot for election day. Here the party stepped forward, offering the voter a ready-made list with a proper candidate for every office. The gift was generally accepted and thus the election was tied up in neat bundle for the voter and the voters were tied up in neat divisions for the party managers.[44] It may be added, as an aside, that the party list later displayed aspects of proportional representation through the idea of the "balanced ticket." Names of candidates were chosen with an eye to the size and strength of the groups they represented.

The process of decentralizing polling places to permit electors from the rural areas a more ready execution of their electoral function began immediately after the Revolution in the states outside of New England (which had small town units), and was carried over into the early nineteenth century.[45] This process accompanied a greater decentralization of party organization, because the basic electioneering unit is the voting district.

The federal government, meanwhile, had to deal with the problem of decentralization of election districts. The Constitution had prescribed no intrastate scheme of apportionment, and some states elected representatives at large. Considerable inconvenience was encountered in canvassing whole state constituencies in the six states that provided no decentralization. Also, rapid growth in population made whole-state constituencies too populous. Most important, domination of such states by the majority party resulted from the necessity of electing all members from only one district without a limited vote. Objections by minorities abounded.

The result was the appointment act of 1842 in which Congress declared that there should be as many districts in a state as the state possessed representatives. Objections to the act's constitutionality were raised; four states refused compliance, but their representatives were admitted anyhow. Without a final test of strength, the four states soon came over to the district idea.[46] A variation on elections by districts vs. "at-large" was provided by North Carolina, which, in 1835, allowed voters to vote for members of a constitutional convention regardless of the district in which the member presented himself. Similarly, Maryland originally provided for electing Congressmen at large but required that they be qualified with residence in a particular district. Men from the same party quickly united on a common state list (1788-90).

Of the several situations it can be said, first, that the natural tendency of a large election or polling district is to place political affairs in the hands of a caucus whose members could afford the time and expense of meeting together and traveling on public business. Second, the denomination of many election or polling districts fostered representative machinery as a method of tying all the districts together for electioneering purposes.

Related to the increase in electoral districts was the growth of the "common law" requirement that candidates for Congress reside in the districts they plan to represent. The Constitution requires no such residence, but the early English electoral system had required residence. Several states divided their territory into districts for the election of electors in the first Presidential election. Several states also originally required residence in the district of candidacy.[47]

Voting participation during the period was not high. Luetscher, who studied the available records, stated that participation (ratio of voters to population) increased slightly over three per cent between 1788 and 1802 - roughly, from five to somewhat over eight per cent - and that for several decades afterward there was scarcely an increase.[48] He explains the increase in terms of the growth of Democratic societies during the period. The decentralization of the polling places, as far as can be judged from the figures available, had little effect on the participation.

One development during the period which at first impression seems to contradict the general trend toward direct democracy in representation was the growing practice of including much detail on small matters in the constitutions of the states. Closer scrutiny shows the contradiction to be only apparent. Constitutionalism, the doctrine that the powers of government should be limited by a fundamental law, was in its origins composed of two potentially conflicting states of mind. One held that government had to be restrained on behalf of the individual. The historical perversions of governmental powers required that individual liberties be protected by fundamental statutes. The Levellers were constitutionalists in this sense, and their "Agreements of the People" were directed at abuses of parliamentary authority. They expected that the oligarchic tendencies of authority would be repressed in favor of the free working of the will of the mass of individuals if a constitution were to be established.

On the other hand, constitutionalism contained the elements of conservatism as well, for the present is limited by fundamental statutes which represent the past. The American Constitution involved this fixed representation of pat principle, and it is notable that John Adams, Madison, Marshall, and other conservatives emphasized this reasoning of constitutionalism, while Jefferson, when confronted with the problem of the fixed constitution, set a limit, worked out down to years and months, to the theoretical duration of a constitution. His belief that the constitution should not burden the present generation with the legal conceptions of the past generation exhibits the internal conflict in the minds of direct democrats between the idea of direct representation and the practice of constitutionalism.

Robert Luce, from a study of the state constitutions, [49] found that the fourteen constitutions drawn up in the first decade of constitution-writing averaged about ten and one-half pages each. The thirteen drawn up in the next three decades averaged twelve pages each. Kentucky adopted the longest, containing fifteen pages. "Ordinary" laws were beginning to appear in the constitutions. South Carolina specified the salaries of various officials, Pennsylvania defined hunting and fishing privileges, and Massachusetts regulated Harvard College in detail. From 1815 to 1845 the average rose to sixteen pages. From 1845 to the Civil War, the sixteen constitutions which were drafted averaged nearly twenty-three pages. Since then, each new period has seen an increase in the length of constitutions. The growth has resulted not only from the constitution drafted by states upon entering the union, but also from those drafted by the older states. Pennsylvania increased her constitution from eleven to thirty-one pages, Delaware from six to thirty-six.

A sampling of the laws which entered into the constitution with the increase in length shows that most state constitutional conventions considered practically everything within their competence. They legislated on salaries, elections, contracts, torts, prisons, forest preserves, and cities. Although most of the laws do not fall into a clear pattern according to whether they were passed in fear of the state or in fear of the mass of people, the fact that they were incorporated so liberally into the state constitutions, and the constitutions were changed on the average more rapidly than the federal Constitution, indicated that the constitutions were not regarded as aced. The voters felt that basic laws could be changed by a simple exercise of will.

It is notable that many of the extra provisions in the constitutions originated as a result of acts of political corruption. They were designed to take governmental power out of he hands of the legislators. Georgia in 1798, by reason of the exposed Yazoo land frauds, declared void certain types of land purchase by constitutional provision. According to Luce, "There can be no doubt that distrust of Legislatures has been the chief reason for the elongation of Constitutions."[50]

Patrick Henry, who attacked the federal Constitution when it was before the Virginia Convention for adoption, who opposed Madison because he felt that Madison would not take instructions from his constituents, and who otherwise argued and embellished the ideas of direct democracy, declared that the Constitution was not only aristocratic in nature but that it allowed one twentieth of the people to prevent any vital amendment desired by the rest.[51] Such was the sentiment of the direct democrats toward a constitution designed to represent minorities.

The first constitutions of the Revolutionary period were drafted as permanent instruments, and amendment procedures were difficult. But later constitutions of this period adopted much simpler modes of amendment. Several provided that the people be consulted periodically for amendment purposes. Others provided for an amendment through a simple majority vote of a single legislature, followed by ratification by a majority of people voting at the ratifying election. Still later a constitutional initiative was provided by Michigan, Oregon, and Oklahoma.[52]

When granted more liberal amendment procedures, the direct democrats were confident that constitutional provisions would never become untouchable. It was the present power of the government that had to be limited so that the makers of the constitution could go about their daily affairs knowing that a law, not an assembly of men, was running the country.[53] Consequently, in 1845, Hurlbut, who believed that the people should vote for every office from President to constable and who proposed other direct democratic ideas, praised the tendency of constitutions to challenge the authority of rulers. Human rights, he felt, received service of value from written limitations of government. The limitations could be much more inclusive than they were. Many details should be set forth and "every years of a nation's experience will enlarge its specification of abuses which ought to be carefully named and provided against."[54]

While the direct democrats were opposed on their radical side to the preservation of interests against popular assault, on their anarchic, antigovernmental side they were loading down constitutions with detailed provisions hitherto left to the legislative sessions.

Another anomalous development of the period was the abandonment of unicameralism in the four states which had previously adopted it.[55] Pennsylvania, Georgia, South Carolina, and Vermont had all, at one time, provided for a unicameral legislature. Benjamin Franklin had been instrumental in the trial of unicameralism in Pennsylvania, and the other states had profited from the example given them by pursuing a similar scheme for their own governments. The influence of Franklin's rationalism and the revolutionary zeal for democracy were both apparent in the discussions preceding the trial in Pennsylvania. But the example of the federal Constitution and the commentaries of the conservative writers of the times gave a general impression that the results of unicameralism tended toward disorders and impulsive legislation.[56]

Little of the evidence adduced to demonstrate the ill effects of unicameralism was of a valid sort. States like Massachusetts, Rhode Island, and New York, working on the bicameral principle, experienced more internal difficulties than any of the unicameral states. It would seem from an examination of the discussion surrounding the changes that the basic motivating factor for the changes was the desire for conformity.[57] In addition, just as the distrust of all government had been working in the states to produce lengthy constitutions, it was also working in them to reduce the amount of responsible power possessed by individuals in the government.

Off the beaten path of direct representation, southern doctrine had been seeking means of reconciling the institution of slavery with the theory of democracy. We have already indicated that the southern position had to abandon the theory of natural rights and the social contract as premises warranting consideration for representative purposes. The theory of majority supremacy was challenged as well, for if the majority were to be as powerful and direct in its operation as was proposed by the direct democrats, the "human property" of the southern slave-holders would sooner or later be freed by majority legislation of the Congress.[58]

John C. Calhoun, in his Disquisition on Government and Discourse on the Constitution and Government of the United States, set forth a defense of the principles of states rights which went beyond the traditional sovereignty arguments. He elaborated in detail a theory of representation, directly democratic in many parts, which cut out the majority principle. He did not accept any theory of the unity of society such as underlies the representative principle of majority omnicompetence. The interests of classes, he declared, were not the same. They are all engaged in a struggle for power and those that succeed use the government for their own ends.

The primary purpose of a scheme of government should be that of preventing the exploitation of the minority. To accomplish the protection of the minority and the limitation of the majority, the classes and interests must be represented separately, and such representation cannot by its very nature concede itself unconditionally to the rule of the majority. Rather, each interest should posses a veto against the acts of the others. The assent of each element should be necessary before any law governing the whole is applicable. When such assent is given, a "concurrent majority" is present and justice has been done to all. Legislation enacted otherwise may be accepted by those who are a party to it, but a state which has used the veto power against it is immune from its operation.

Calhoun goes back to the Constitutional Convention not only to show that the sovereignty of the states was preserved by the Constitution, but also to show that the delegates were unimpressed by the claims of the majority principle. The majority, Calhoun indicates, was only one of the several elements of representation in the Constitution. Strictly speaking, he wrote, the numerical majority was not even an indispensable element in the amendment of the Constitution, for a combination of the small states would be sufficient to amend the Constitution against the will of the majority.[59]

The main force which destroyed the constitutional system of representation, he believed, was the growth of political parties. The parties, by unifying the structure of government under one leadership, nullified the principle of checks and balances. They had brought the government under the control of the numerical majority in violation of the intent of the original Constitution. The recourse of the state, under such conditions, could only be the power of nullification. Beyond the concurrent majority, there was only the possibility of constitutional amendment for the numerical majority. The numerical majority would have to be very considerable to satisfy the difficult amendment procedure, but that situation would be in no way displeasing to Calhoun.

Calhoun's ideas were buried by the Civil War, but we find them recurring with the advocates of proportional representation. Once again they quoted the southerner with approval, for he, like them, was interested in the protection and advancement of a minority constituency. And when the problem of representation of interests arose in the twentieth century, a rereading of Calhoun's plea for the "concurrent majority" became necessity. For again representation was required to reconcile hostile interests, and it was asked whether a sheer majority principle could even come to grips with the problem, much less solve it.

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