How Democratic Is the Constitution

Q1. What was the most important way in which the Constitution was democratic? (1)

Q2. Why was James Wilson’s argument about sovereignty important? (1)

Q3. How do Wood and Amar differ in their interpretation of the motives Founders in creating the Constitution? (1)

How Democratic Is the Constitution

By Gordon S. Wood

The New York Review of Books, 23 February 2006, <http://www.nybooks.com/articles/18717

America's Constitution: A Biography

by Akhil Reed Amar

Random House, 657 pp., $29.95

1.

… Akhil Reed Amar, a professor at Yale Law School, is one of the busiest and the most knowledgeable of constitutional scholars. Amar wrote an important study, The Bill of Rights: Creation and Reconstruction, in 1998. In it he argued that the original Bill of Rights passed in 1791 was concerned less with protecting individual liberties and minority rights and more with imposing limitations on the federal government, as opposed to state governments. Only with the Fourteenth Amendment, passed during Reconstruction, which among other things limited the states' ability to deprive their citizens of their rights, did the Bill of Rights take on its modern significance as a protector of individual liberties against the power of the majority; only then was the way prepared for the judicial "incorporation" of some of the first ten amendments into the Constitution as limitations on state legislative majorities. Now Amar has applied some of the same sort of analytic skill to the Constitution itself.

…His historical discussion of the opening words of the Constitution, "We the People...do ordain and establish this Constitution," sets the tone for much that follows. Amar rightly contends that in 1787 "this was the most democratic deed the world had ever seen." Amar criticizes those today who miss the democratic character of the Constitution and try to pass the framers off either as rich white elitists or as republican opponents of democracy. Whatever the aristocratic intentions of the founders may have been (some of them, including James Madison, the so-called "father of the Constitution," were certainly trying to counter what they regarded as democratic excesses in the states), Amar correctly shows that they never doubted that the people were the source of all authority and that sovereignty, or final, supreme lawmaking power, belonged with them. Those who indict the framers for not creating a more democratic and egalitarian constitution—one more like the one we have today—are committing the grossest kind of anachronism. "True," says Amar, "the act of constitution fell far short of universal suffrage as modern Americans understand the idea, but where had anything close to universal suffrage ever existed prior to 1787?"

Within the setting of its time the Constitution was more democratic than any previous document of the kind; "in fact," writes Amar, "the Constitution infused some form of democracy into each of its seven main Articles." Article I prescribed no property qualifications for voting or service in the government and promised that all members of the new House of Representatives would be elected directly by the people. Even senators had no prescribed property qualifications for service, "thereby breaking with the membership practices of every state upper house in America." Moreover, representation in the House would be adjusted every ten years in accordance with a census. There would be no English rotten boroughs.

Article I also prohibited all titles of nobility, in some respects the most radical break with the Old World. Unlike the monarchies of Europe, declarations of war belonged to the legislature, not the executive, a requirement not followed in practice during the past half-century. Articles II and III provided that the presidency and federal judgeships would be open to men of merit regardless of wealth or lineage. At the same time the Constitution gave common citizens a part to play in government:

Juries of ordinary people would counterbalance professional judges in the judicial branch, as militias of ordinary people would check professional armies in the executive branch.

Article IV guaranteed to each state a "Republican Form of Government"—this at a time when much of the world was made up of monarchies. Article V provided means for the people peacefully to revise and amend their Constitution—something previously unheard of. Article VI banned religious tests for federal officeholders, an extraordinary stipulation in a world that was still dominated by religious hierarchies. And Article VII specified how the new Constitution would be established and ratified by the people. Even the Bill of Rights began and ended with the people, an emphasis, Amar claims, whose full significance has eluded many modern-day interpreters. From the beginning amendments have worked to enlarge, not diminish, the electorate. If this is Whiggish history, he says, make the most of it.

The making of the Constitution itself was "breathtakingly novel." With great skill Amar shows how the new Constitution differed substantially from the Articles of Confederation, America's first national constitution. The Articles, which were adopted by the Continental Congress in 1777 but not finally ratified by all the states until 1781, were not an early version of the Constitution of 1787. They did not set up a government at all, but were a multilateral treaty among thirteen independent states, a "league of friendship" that in some ways resembled the present-day European Union. In setting the Articles aside and establishing an entirely new sort of federal government, Americans in 1787 did not have to show that the regime they were changing was tyrannical; all they had to do was demonstrate that it was outdated or imperfect. Americans even marveled at what they were achieving. "The people may change the constitutions whenever and however they please," declared James Wilson of Pennsylvania, an intellectually important framer who Amar correctly believes has been much neglected.

Wilson was the founder most responsible for deflecting the powerful argument of the opponents of the Constitution that sovereignty—that final, supreme, and indivisible legal authority that William Blackstone said had to exist in every state—would inevitably end up being held by the federal government and create a consolidated system. The inability to divide sovereignty between the Parliament in London and the colonial assemblies had broken apart the British Empire. Now in 1787–1788 the issue of its indivisibility threatened to undermine support for the Constitution. While proponents of the Constitution tried to say that power would be divided between the federal government and the governments of the states, the Constitution's opponents said that since sovereignty was indivisible it could not be divided. The supremacy clause in the Constitution would therefore inevitably lead to sovereignty being lodged in the national government, with the states eventually being reduced simply to laying out roads and measuring the height of fence posts.

Wilson came to the rescue of the Constitution with a brilliant argument that sovereignty, even final legal sovereignty, would not have to be divided after all; instead of being placed in any of the institutions of the federal or state governments, it would remain always with the people at large. Once grasped, this notion of sovereignty remaining with the people explained all of America's radically new constitutional institutions and achievements—their federalism that allowed two legislatures to deal with the same matters, their constitution-making, which set them apart from ordinary lawmaking, their constitutional conventions distinguished from legislatures, their processes of popular constitutional ratification, and their conception that all governmental officials, even judges, were merely different agents of the people.

But they were also limited agents of the people: none of them or even all of them together, state and federal, fully embodied the sovereign people. Such an insight enabled Alexander Hamilton to observe caustically that "the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves." This denial that the people could be eclipsed by their elected representatives, in the way the British people were eclipsed by the House of Commons, led eventually to the progressive reforms of ballot initiatives, recall of elected officials, and referenda—practices that we know all too well are flourishing today in many parts of the country.

Although Amar admits that fear of too much democracy in the states motivated some of the framers, he contends that it was "geostrategic considerations"—fear of foreign powers— that really lay behind the founders' replacing the Articles with the Constitution. Madison's Federalist No. 10, which dealt with the problems of democratic interest-group politics in the states, is, according to Amar, vastly overrated by present-day scholars. The earlier Federalist papers, especially Nos. 1–6 and 8–9, which dealt with the need for a more perfect union in a hostile world, were far more revealing of the framers' motives. Indeed, in 1787–1788 those particular essays were reprinted much more often than any of the other Federalist papers.

Certainly concerns for a stronger union to stand up to the world were important in accounting for the making of the Constitution. But public arguments and rhetorical strategies are not necessarily fully revealing of actual motives. Compare the nature of the caustic rhetoric about democracy that delegates used in the secret Philadelphia Convention of 1787 with the praises of democracy several months later in the state conventions that ratified the Constitution. As Amar himself concedes, it would have been unwise for the Constitution's supporters to emphasize how much the new Constitution, in Article I, Section 10, limited the powers of the states.

The framers needed arguments—geostrategic arguments—that did not require their listeners or readers "to disown their state legislatures." Virginians did not want to hear that the Constitution would protect them from their own legislature; instead they wanted to hear that it would protect them from foreign nations and the other states. "Each state could tell itself that its sisters were the chief offenders, and everyone could blame tiny Rhode Island most of all," Rhode Island being the only state not to send a delegation to the Philadelphia Convention. Since the framers had to sell their Constitution to the people in the states, they inevitably stressed its popular and democratic character. Amar has taken account of all this democratic rhetoric and made the most of it.

Despite his heavy emphasis on the democratic character of the Constitution, however, Amar does have one great exception—the presence of slavery which he claims infected the entire document. "Slavery was the original sin in the New World garden, and the Constitution did more to feed the serpent than to crush it." Many of the Constitution's clauses, says Amar, specially accommodated or actually strengthened slavery. He particularly emphasizes the clause that apportioned the direct taxes and representation of the states in the House by counting slaves as three fifths of free persons. Along with other clauses, including that in Article IV that obliged free states to send fugitive slaves back to slavery, this three-fifths clause, says Amar, made the Constitution a "proslavery" document. In this respect Amar has adopted the argument of Garry Wills in his recent book, "Negro President": Jefferson and the Slave Power (2003). Both Wills and Amar contend that this three-fifths clause gave the Southern slave states added power not only in their representation in the House but also in the electoral college.

But this argument ignores the most plausible alternative at the time to three-fifths representation, which was five-fifths representation of the slaves. The fact that the slaves could not vote was irrelevant; neither could white women, children, and in most states in 1787 propertyless men, but they were still counted in determining the size of each state's representation. In fact, in the Philadelphia Convention Madison proposed counting the slaves as five fifths in apportioning representation in the House. That, of course, would have given even greater strength to the slaveholding states both in the House and in the electoral college.

In the last book he wrote before his untimely death, The Slaveholding Republic: An Account of the United States Government's Relations to Slavery (2001), the distinguished historian Don E. Fehrenbacher offered a persuasive explanation of the origins and significance of the three-fifths clause. To rebut the "neo-Garrisonians," as he called them, Fehrenbacher contended that the three-fifths ratio was simply a necessary compromise between the North and South. While it obviously assumed the legitimacy of Southern slavery, it had no specific racial meaning. It did not represent a perception of black slaves as three-fifths human. And it was not intended to denote the slave's dual status as both person and property. Since counting the slaves as full persons for representation could be seen, and was seen at the time, as the most plausible alternative, the three-fifths ratio could even be regarded as advantageous for the free states. "Thus," Fehrenbacher concluded,

characterization of the three-fifths clause as a bonus for slaveholders, resting as it does on mere assumption, is not intrinsically sounder than the view (held by Frederick Douglass, for instance) that it was a penalty on slaveholding. One side sees a bottle three-fifths full and the other, a bottle two-fifths empty.[*]

Amar accuses Fehrenbacher of "inexplicably" conflating the slaves with free white women and children. Slaves, Amar contends, were considered to be property and thus their status was very different from the dependency of free women and children. American male voters, Amar says, could claim "with a straight face" to represent the interests of their mothers, sisters, wives, and children. "But," he says, "masters did not as a rule claim to virtually represent the best interests of their slaves." This doesn't seem quite right. Nearly all the slaveholding planters claimed with apparent sincerity (no doubt absurdly in our eyes) to be ruling paternalistically over all their dependents—their wives, children, and slaves. Jefferson was not exceptional in calling his slaves his "family." In this particular instance, as his comment about the voters' "straight face" suggests, Amar doesn't seem to be able to shake off his twenty-first-century beliefs and take that very different past seriously. …