Thursday, May 28, 2015

The Founders Decide Who Gets To Decide

The Founders Decide Who Gets to Decide

Brace yourself.  The Founders were not Democrats.

But before you join the conga-line led by Justice Scalia and spend too much time thinking that they were Republicans, brace yourself a second time.  They weren’t Republicans either.  There were no political parties at the time of the American Revolution, and there were none at the time of the Constitutional Convention. If there are rightful heirs to the Founders' intellectual tradition, they don’t wear easily identifiable team jerseys. 

One of the problems in looking at history, even our own, is that it is very difficult to contextualize judgments made generations ago while using the lens of contemporary views.  This is even more difficult in a country such as ours, which is comparatively quite young and somehow seems to have emerged, whole, from the British Empire as the Moon broke away from the Earth billions of years ago.  With one glaring exception, that of slavery and race, that Moon carried with it a fully formed government that stands, essentially untouched, more than two centuries later.  To this way of thinking, we can see a Declaration of Independence, Constitution and Bill of Rights, defining the permanent contract we made with each other. That initial compact is followed by a Civil War, that surgically excises the one unpleasant issue, a raft of Amendments done in accordance with the Constitution, all leaving a more perfect, democratic, union.

It’s a lovely idea, and an elegant solution to almost every problem.  What would the Founders do?  Go to the text, and you will find out what they meant.  Democracy expresses itself though elections, election results provide us with leadership to enact and carry out the law, and a judiciary serves as brake against government overreach.   That’s what we all think—the voter, ultimately, rules, except in cases where the voter takes too much from the individual. 

Look through the structure ultimately settled on, and you will find a great deal of evidence that is exactly what was intended by the Founders.  With one exception—the “Democratic” part.  As Joseph Ellis points out in his new book “The Quartet” the Founders did not have a conception of democracy as a governing theory—if anything, they were fearful of “mob rule.” 

They did have a very good idea of who should be ruling the newly independent nation (if it were to be a nation) and the answer turned out to be rather familiar. Leadership should be well-educated.  Leadership should have property.  Leadership should be trained in managing men.  Leadership should be enlightened and with a sense of public duty informed by responsibilities in their personal lives.  Leadership, in short, could be found amongst the assembled delegates.   

But, even before we get to the question of who is fit to serve in a leadership role, we have to examine a more seminal issue—who gets to decide who is fit to serve, and who gets to pick the people who get to decide.  It’s an answer that seems obvious to those of us who live in the 21st Century—the voters choose.  

But the Founders were a little less enthusiastic about that—they worried about heated passions, they worried about factionalism, they worried about majority overreach, and, quite honestly, they worried about a broader electorate selecting someone they wouldn’t have picked.  Checks and balances were fine, but the hands on those checks and balances should belong to planters and businessmen and Generals.

Take a look at the first governing structure proposed at the Constitutional Convention.  On May 29th, 1787, Edmund Randolph of Virginia introduced the James Madison-authored Virginia Plan.  It included a new National Legislature with a lower legislative house with members elected for three year terms by “the People”, an upper house (“Second branch”) with members selected for terms of seven years by individual state legislatures, and a National Executive—appointed by the  National Legislature, for a single term of seven years.  As for a judiciary, a “Supreme Tribunal” appointed by the upper house of the National Legislature, with lower courts appointed by the entire National Legislature.

Not a tremendous amount of “Democracy” in that.  The Virginia Plan is radical as compared to the old Articles of Confederation, in that it gives a tremendous amount of authority to a centralized government.  But, it is actually quite conservative when you consider who actually gets to pick the “deciders.”  Nothing really happens without the consent of the Second Branch—the group selected by the individual state legislatures, presumably from a pool of the most influential, best educated, most Washington/Jefferson/Hamilton/Adams/Madison-like.

The most interesting aspect of the differences between the scheme proposed in the Virginia Plan and that ultimately adopted in the Constitution: It was all reshuffling of authority amongst the already powerful and influential.  The new Constitution rejiggered the relative strengths of the two Houses, enhanced the power of the National Executive, including appointment power regarding the Judiciary, and changed the manner of selecting the National Executive.   But Democracy, as in the power of the average citizen to select his leaders, didn’t gain an inch. 

The Founders just weren’t Democrats.  But they were interested in having and exercising power, and they realized that a core flaw of the original Articles of Confederation was that it treated every state, regardless of its size, location, resources, and population, exactly the same—it gave them all a veto power.  They had to devise a way to apportion power that reflected those differences, and yet gave some guarantees to smaller states that they wouldn’t just be overwhelmed.   They found that, in part, through the very democracy that made them uncomfortable.  While the Senate would continue to be appointed, the House of Representatives would reflect population, and the President would be selected by Electors whose number would be equal to the sum of Senators and Representatives from each State. 

In short, the richest and most powerful in the several states would derived some of their power from the numbers of people in their states.  Individually, the people can only vote for a Member of the House of Representatives.  As a group, they enhance the influence of those who run and represent their States.

Size matters.  As expressed in the Virginia Plan:“T”hat the right of suffrage in the first branch of the national Legislature ought not to be according to the rule established in the articles of confederation: but according to some equitable ratio of representation — namely, in proportion to the whole number of white and other free citizens and inhabitants of every age, sex, and condition including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes in each State.”

And, Article I, Section 2 of the Constitution:  “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

For many decades, we have always focused on the Three-Fifths clause as an embarrassment and a betrayal of founding principles stated in the Declaration of Independence and re-expressed by Lincoln at Gettysburg.  We haven’t really thought about what proportional representation actually means in a representative democracy, and what “one man, one vote” means as it relates to actual population.  Perhaps that’s because most of us think the answer is pretty obvious—it is right there in Article I, Section 2.    

Apparently, that is not the case. The Supreme Court has never ruled on it.  But they will—they have just accepted for certification a new case, Evenwel v. Abbott, No. 14-940, which ostensibly concerns state and local voting districts, but will undoubtedly impact congressional redistricting as well.  The two plaintiffs in that case, conservative activists from Texas, want voting districts to be drawn based on the number of voters, not the number of inhabitants.  If the Court agrees with them, the power of rural and elderly voters will be enhanced at the expense of those living in cities with higher birthrates, a lower average age, and more immigrants. 

This is an extraordinary assertion—and, in my opinion, a disturbing one. Watch this case. It has vast implications.  The ruling is expected next June, just in time for the 2016 elections.  Ask yourself, what would the Founders do?  Then, read the text of for yourself, and see what they did do. 

Let’s see if the Supreme Court agrees. 

May 28th, 2015

Michael Liss (Moderate Moderator)

Please join us on Twitter.