America Political 010W Writing

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The Federalist, Paper Number 10 James Madison

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OVERVIEW James Madison, Alexander Hamilton, and John Jay wrote 85 anonymous articles for the New York Journal in 1787 and 1788, with the aim of persuading the people of New York to ratify the proposed Constitution. These articles are known as The Federalist Papers. In this paper, Madison comments on the checks and balances of competing factions in American politics and signs it "Publius."

GUIDED READING As you read, consider the following questions: • What are the differences between a pure democracy and a republic, according to Madison? • What does Madison say is the advantage of a republic over a democracy?

mong the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break

and control the violence of faction. . . . By a faction, I understand a number of citizens, whether amounting to a

majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. . . .

There are . . . two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. . . .

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. . . . But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors and those who are debtors fall

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under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed 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 the government. . . .

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is that the causes of faction cannot be removed and that relief is only to be sought in the means of controlling its effects.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored and be recommended to the esteem and adoption of mankind. . . .

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. . . .

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of

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citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. . . . The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. . . .

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried and, the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local, and particular to the state legislatures.

The other point of difference is the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it. . . . Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other. . . .

Hence, it clearly appears that the same advantage which a republic has over a democracy, in controlling the effects of factions, is enjoyed by a large over a small republic—is enjoyed by the Union over the states composing it. . . .

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In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

Publius

THE

CONSTITUTION oftheUnitedStates

NATIONAL CONSTITUTION CENTER

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article.I. SECTION. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Sen- ate and House of Representatives.

SECTION. 2.

The House of Representatives shall be composed of Mem- bers chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifi – cations requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty fi ve Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

[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 fi fths of all other Persons.]* The actual Enumeration shall be made

within three Years after the fi rst Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut fi ve, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina fi ve, South Carolina fi ve, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fi ll such Vacancies.

The House of Representatives shall chuse their Speaker and other Offi cers; and shall have the sole Power of Impeachment.

SECTION. 3.

The Senate of the United States shall be composed of two Senators from each State, [chosen by the Legislature there- of,]* for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the fi rst Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the fi rst Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacan- cies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fi ll such Vacancies.]*

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No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Offi cers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Offi ce of President of the United States.

The Senate shall have the sole Power to try all Impeach- ments. When sitting for that Purpose, they shall be on Oath or Affi rmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Offi ce, and disqualifi cation to hold and enjoy any Offi ce of honor, Trust or Profi t under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

SECTION. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be [on the fi rst Monday in December,]* unless they shall by Law appoint a different Day.

SECTION. 5.

Each House shall be the Judge of the Elections, Returns and Qualifi cations of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fi fth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, with- out the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

SECTION. 6.

The Senators and Representatives shall receive a Compen- sation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Ses- sion of their respective Houses, and in going to and return- ing from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Offi ce under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Offi ce under the United States, shall be a Member of either House during his Continuance in Offi ce.

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SECTION. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Represen- tatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he ap- prove he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively, If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournament prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concur- rence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or be- ing disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

SECTION. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uni- form Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fi x the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securi- ties and current Coin of the United States;

To establish Post Offi ces and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To defi ne and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Offi cers, and the Authority of training the Militia according to the discipline prescribed by Congress;

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To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Maga- zines, Arsenals, dock-Yards and other needful Buildings; -And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Offi cer thereof.

SECTION. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

[No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.]*

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Com- merce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Con- sequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Offi ce of Profi t or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Offi ce, or Title, of any kind whatever, from any King, Prince, or foreign State.

SECTION. 10.

No State shall enter into any Treaty, Alliance, or Confedera- tion; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of At- tainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

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Article.II. SECTION. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Offi ce during the Term of four Years, and, together with the Vice Presi- dent, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Offi ce of Trust or Prof- it under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Govern- ment of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certifi cates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the fi ve highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Bal- lot the Vice President.]*

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Offi ce of President; neither shall any person be eligible to that Offi ce who shall not have attained to the Age of thirty fi ve Years, and been fourteen Years a Resident within the United States.

[In Case of the Removal of the President from Offi ce, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Offi ce, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Offi cer shall then act as President, and such Offi cer shall act ac- cordingly, until the Disability be removed, or a President shall be elected.]*

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Offi ce, he shall take the following Oath or Affi rmation:- “I do solemnly swear (or affi rm) that I will faithfully execute the Offi ce of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

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SECTION. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Offi cer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offi ces, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Offi cers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such in- ferior Offi cers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fi ll up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

SECTION. 3.

He shall from time to time give to the Congress Informa- tion of the State of the Union, and recommend to their Consideration such Measures as he shall judge neces- sary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faith- fully executed, and shall Commission all the Offi cers of the United States.

SECTION. 4.

The President, Vice President and all civil Offi cers of the United States, shall be removed from Offi ce on Impeach- ment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

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Article.III. SECTION. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offi ces during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Offi ce.

SECTION. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassa- dors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – [between a State and Citizens of another State;-]* between Citizens of different States, – between Citizens of the same State claiming Lands under Grants of different States, [and between a State, or the Citi- zens thereof;- and foreign States, Citizens or Subjects.]*

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Con- gress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

SECTION. 3.

Treason against the United States, shall consist only in levy- ing War against them, or in adhering to their Enemies, giv- ing them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corrup- tion of Blood, or Forfeiture except during the Life of the Person attainted.

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Article.IV. SECTION. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every oth- er State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

SECTION. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall fl ee from Justice, and be found in another State, shall on Demand of the executive Author- ity of the State from which he fl ed, be delivered up, to be removed to the State having Jurisdiction of the Crime.

[No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Conse- quence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.]*

SECTION. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States con- cerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

SECTION. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Article.V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Con- stitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for pro- posing Amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratifi ed by the Legislatures of three-fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratifi cation may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the fi rst and fourth Clauses in the Ninth Section of the fi rst Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

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Article.VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all execu- tive and judicial Offi cers, both of the United States and of the several States, shall be bound by Oath or Affi rmation, to support this Constitution; but no religious Test shall ever be required as a Qualifi cation to any Offi ce or public Trust under the United States.

Article.VII. The Ratifi cation of the Conventions of nine States, shall be suffi cient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names,

Go. Washington–Presidt: and deputy from Virginia

NEW HAMPSHIRE

John Langdon Nicholas Gilman

MASSACHUSETTS

Nathaniel Gorham Rufus King

CONNECTICUT

Wm. Saml. Johnson Roger Sherman

NEW YORK

Alexander Hamilton

NEW JERSEY

Wil: Livingston David Brearley Wm. Paterson Jona: Dayton

PENNSYLVANIA

B Franklin Thomas Miffl in Robt Morris Geo. Clymer Thos. FitzSimons Jared Ingersoll James Wilson Gouv Morris

9

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

DELAWARE

Geo: Read Gunning Bedford jun John Dickinson Richard Bassett Jaco: Broom

MARYLAND

James McHenry Dan of St. Thos. Jenifer Danl Carroll

VIRGINIA

John Blair- James Madison Jr.

NORTH CAROLINA

Wm. Blount Richd. Dobbs Spaight Hu Williamson

SOUTH CAROLINA

J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler

GEORGIA

William Few Abr Baldwin

Attest William Jackson Secretary

In Convention Monday September 17th, 1787. Present The States of New Hampshire, Massachusetts, Connecticut, Mr. Ham- ilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

Resolved, That the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legisla- ture, for their Assent and Ratifi cation; and that each Con- vention assenting to, and ratifying the Same, should give Notice thereof to the United States in Congress assembled. Resolved, That it is the Opinion of this Convention, that as soon as the Conventions of nine States shall have ratifi ed this Constitution, the United States in Congress assembled should fi x a Day on which Electors should be appointed by the States which shall have ratifi ed the same, and a Day on which the Electors should assemble to vote for the Presi- dent, and the Time and Place for commencing Proceedings under this Constitution.

That after such Publication the Electors should be ap- pointed, and the Senators and Representatives elected: That the Electors should meet on the Day fi xed for the Election of the President, and should transmit their Votes certifi ed, signed, sealed and directed, as the Constitution requires, to the Secretary of the United States in Congress assembled, that the Senators and Representatives should convene at the Time and Place assigned; that the Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President; and, that after he shall be chosen, the Congress, together with the President, should, without Delay, proceed to execute this Constitution.

By the unanimous Order of the Convention

Go. Washington-Presidt: W. JACKSON Secretary.

* Language in brackets has been changed by amendment.

10

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

Preambletothe BillofRights Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confi dence in the Government, will best ensure the benefi cent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratifi ed by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratifi ed by the Legislatures of the several States, pursuant to the fi fth Article of the original Constitution.

(Note: The fi rst 10 amendments to the Constitution were ratifi ed December 15, 1791, and form what is known as the “Bill of Rights.”)

AmendmentI. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridg- ing the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

AmendmentII. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AmendmentIII. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

AmendmentIV. The right of the people to be secure in their persons, hous- es, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affi rma- tion, and particularly describing the place to be searched, and the persons or things to be seized.

AmendmentV. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

THE AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AS RATIFIED BY THE STATES

11

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentVI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining wit- nesses in his favor, and to have the Assistance of Counsel for his defence.

AmendmentVII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re- examined in any Court of the United States, than according to the rules of the common law.

AmendmentVIII. Excessive bail shall not be required, nor excessive fi nes imposed, nor cruel and unusual punishments infl icted.

AmendmentIX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AmendmentX. The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENTS 11-27

AmendmentXI. Passed by Congress March 4, 1794. Ratifi ed February 7, 1795.

(Note: A portion of Article III, Section 2 of the Constitution was modifi ed by the 11th Amendment.) th Amendment.) th

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or pros- ecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

AmendmentXII. Passed by Congress December 9, 1803. Ratifi ed June 15, 1804.

(Note: A portion of Article II, Section 1 of the Constitution was changed by the 12th Amendment.)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-the President of the Senate shall, in the presence of the Senate and House of Represen- tatives, open all the certifi cates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choos- ing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representa- tives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.-]* The person having the greatest number of votes as Vice-President, shall be the Vice-Presi- dent, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the offi ce of President shall be eligible to that of Vice-President of the United States.

*Superseded by Section 3 of the 20th Amendment.

12

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentXIII. Passed by Congress January 31, 1865. Ratifi ed December 6,

1865.

(Note: A portion of Article IV, Section 2 of the Constitution was changed by the 13th Amendment.)

SECTION 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2.

Congress shall have power to enforce this article by appropriate legislation.

AmendmentXIV. Passed by Congress June 13, 1866. Ratifi ed July 9, 1868.

(Note: Article I, Section 2 of the Constitution was modifi ed by Section 2 of the 14th Amendment.)

SECTION 1.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SECTION 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Execu- tive and Judicial offi cers of a State, or the members of the Legislature thereof, is denied to any of the male inhabit- ants of such State, [being twenty-one years of age,]* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 3.

No person shall be a Senator or Representative in Con- gress, or elector of President and Vice President, or hold any offi ce, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an offi cer of the United States, or as a member of any State legislature, or as an executive or judicial offi cer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SECTION 4.

The validity of the public debt of the United States, au- thorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrec- tion or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or eman- cipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SECTION 5.

The Congress shall have the power to enforce, by appropri- ate legislation, the provisions of this article.

*Changed by Section 1 of the 26th Amendment.

13

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentXV. Passed by Congress February 26, 1869. Ratifi ed February 3, 1870.

SECTION 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

SECTION 2.

The Congress shall have the power to enforce this article by appropriate legislation.

AmendmentXVI. Passed by Congress July 2, 1909. Ratifi ed February 3, 1913.

(Note: Article I, Section 9 of the Constitution was modifi ed by the 16ththe 16ththe 16 Amendment.) th Amendment.) th

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportion- ment among the several States, and without regard to any census or enumeration.

AmendmentXVII. Passed by Congress May 13, 1912. Ratifi ed April 8, 1913.

(Note: Article I, Section 3 of the Constitution was modifi ed by the 17th Amendment.)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifi cations requisite for elec- tors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fi ll such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fi ll the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AmendmentXVIII. Passed by Congress December 18, 1917. Ratifi ed January 16,

1919. Repealed by the 21st Amendment, December 5, 1933.

SECTION 1.

After one year from the ratifi cation of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

SECTION 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

SECTION 3.

This article shall be inoperative unless it shall have been ratifi ed as an amendment to the Constitution by the legisla- tures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AmendmentXIX. Passed by Congress June 4, 1919. Ratifi ed August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appro- priate legislation.

14

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentXX. Passed by Congress March 2, 1932. Ratifi ed January 23, 1933.

(Note: Article I, Section 4 of the Constitution was modifi ed by Section 2 of this Amendment. In addition, a portion of the 12th Amendment was superseded by Section 3.)

SECTION 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Sena- tors and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratifi ed; and the terms of their succes- sors shall then begin.

SECTION 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

SECTION 3.

If, at the time fi xed for the beginning of the term of the President, the President elect shall have died, the Vice Presi- dent elect shall become President. If a President shall not have been chosen before the time fi xed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualifi ed; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualifi ed, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualifi ed.

SECTION 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representa- tives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

SECTION 5.

Sections 1 and 2 shall take effect on the 15th day of Octo- ber following the ratifi cation of this article.

SECTION 6.

This article shall be inoperative unless it shall have been ratifi ed as an amendment to the Constitution by the leg- islatures of three-fourths of the several States within seven years from the date of its submission.

AmendmentXXI. Passed by Congress February 20, 1933. Ratifi ed December 5,

1933.

SECTION 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

SECTION 2.

The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

SECTION 3.

This article shall be inoperative unless it shall have been ratifi ed as an amendment to the Constitution by conven- tions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

15

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentXXII. Passed by Congress March 21, 1947. Ratifi ed February 27,

1951.

SECTION 1.

No person shall be elected to the offi ce of the President more than twice, and no person who has held the offi ce of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the offi ce of President more than once. But this Article shall not apply to any person holding the offi ce of President when this Article was proposed by Con- gress, and shall not prevent any person who may be holding the offi ce of President, or acting as President, during the term within which this Article becomes operative from holding the offi ce of President or acting as President during the remainder of such term.

SECTION 2.

This article shall be inoperative unless it shall have been ratifi ed as an amendment to the Constitution by the leg- islatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

AmendmentXXIII. Passed by Congress June 16, 1960. Ratifi ed March 29, 1961.

SECTION 1.

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

AmendmentXXIV. Passed by Congress August 27, 1962. Ratifi ed January 23, 1964.

SECTION 1.

The right of citizens of the United States to vote in any pri- mary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

16

C O N S T I T U T I O N O F T H E U N I T E D S T A T E S

AmendmentXXV. Passed by Congress July 6, 1965. Ratifi ed February 10, 1967.

(Note: Article II, Section 1 of the Constitution was modifi ed by the 25th Amendment.)

SECTION 1.

In case of the removal of the President from offi ce or of his death or resignation, the Vice President shall become President.

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SECTION 2.

Whenever there is a vacancy in the offi ce of the Vice Presi- dent, the President shall nominate a Vice President who shall take offi ce upon confi rmation by a majority vote of both Houses of Congress.

SECTION 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his offi ce, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

SECTION 4.

Whenever the Vice President and a majority of either the principal offi cers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his offi ce, the Vice President shall immediately assume the powers and duties of the offi ce as Acting President.

17

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability ex- ists, he shall resume the powers and duties of his offi ce un- less the Vice President and a majority of either the principal offi cers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his offi ce. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his offi ce, the Vice President shall continue to discharge the same as Acting President; otherwise, the Presi- dent shall resume the powers and duties of his offi ce.

AmendmentXXVI. Passed by Congress March 23, 1971. Ratifi ed July 1, 1971.

(Note: Amendment 14, Section 2 of the Constitution was modifi ed by Section 1 of the 26th Amendment.)

SECTION 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

SECTION 2.

The Congress shall have power to enforce this article by appropriate legislation.

AmendmentXXVII. Originally proposed Sept. 25, 1789. Ratifi ed May 7, 1992.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an elec- tion of representatives shall have intervened.

T he NCC is an independent, non-partisan, nonprofi t organization that was established

in 1988 under the Constitution Heritage Act. The Center’s mission is to increase awareness and understanding of the Constitution, the Constitution’s history and its relevance to people’s daily lives.

National Constitution Center 525 Arch Street Independence Mall Philadelphia, PA 19106

(215) 409-6600 www.constitutioncenter.org

chapter 1

Introduction: Fundamental Questions

M Y AIM IN THIS BRIEF BOOK IS NOT TO PROPOSE

changes in the American Constitution but to suggest changes in the way we think about

our constitution. In that spirit, I’ll begin by posing a simple question: Why should we Americans uphold our Constitution?

Well, an American citizen might reply, it has been our constitution ever since it was written in 1787 by a group of exceptionally wise men and was then ratified by conventions in all the states.1 But this answer only leads to a further question.

To understand what lies behind that next question, I want to recall how the Constitutional Convention that met in Philadelphia during the summer of 1787 was made up. Although we tend to assume that all thirteen

01dahl.001_006 11/27/01 4:38 PM Page 1

states sent delegates, in fact Rhode Island refused to attend, and the delegates from New Hampshire didn’t arrive until some weeks after the Convention opened. As a result, several crucial votes in June and July were taken with only eleven state delegations in attendance. Moreover, the votes were counted by states, and al- though most of the time most state delegations agreed on a single position, on occasion they were too divided internally to cast a vote.

My question, then, is this: Why should we feel bound today by a document produced more than two centuries ago by a group of fifty-five mortal men, actu- ally signed by only thirty-nine, a fair number of whom were slaveholders, and adopted in only thirteen states by the votes of fewer than two thousand men, all of whom are long since dead and mainly forgotten? 2

Our citizen might respond that we Americans are free, after all, to alter our constitution by amendment and have often done so. Therefore our present consti- tution is ultimately based on the consent of those of us living today.

But before we accept this reply, let me pose an- other question: Have we Americans ever had an op- portunity to express our considered will on our consti- tutional system? For example, how many readers of these lines have ever participated in a referendum that asked them whether they wished to continue to be governed under the existing constitution? The answer, of course, is: none.

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Our citizen might now fall back on another line of argument: Why should we change a constitution that has served and continues to serve us well?

Although this is surely a reasonable line of argu- ment, it does suggest still another question: By what standards does our constitution serve us well? In par- ticular, how well does our constitutional system meet democratic standards of the present day? I’ll turn to this question in the next chapter.

And if our constitution is as good as most Ameri- cans seem to think it is, why haven’t other democratic countries copied it? As we’ll see in Chapter 3, every other advanced democratic country has adopted a con- stitutional system very different from ours. Why?

If our constitutional system turns out to be unique among the constitutions of other advanced democratic countries, is it any better for its differences, or is it worse? Or don’t the differences matter? I’ll explore this difficult question in the fourth chapter.

Suppose we find little or no evidence to support the view that our constitutional system is superior to the systems of other comparable democratic countries, and that in some respects it may actually perform rather worse. What should we conclude?

As one part of an answer, I am going to suggest that we begin to view our American Constitution as nothing more or less than a set of basic institutions and practices designed to the best of our abilities for the purpose of attaining democratic values. But if an

i n t r o d u c t i o n 3

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important democratic value is political equality, won’t political equality threaten the rights and liberties we prize? In Chapter 5, I’ll argue that this view—fa- mously defended by Tocqueville, among others—is based on a misunderstanding of the relationship be- tween democracy and fundamental rights.

Yet the question remains: if our constitution is in some important ways defective by democratic stan- dards, should we change it, and how? As I said, my aim here is not so much to suggest changes in the ex- isting constitution as to encourage us to change the way we think about it, whether it be the existing one, an amended version of it, or a new and more demo- cratic constitution. That said, in my final chapter I’ll comment briefly on some possible changes and on the obstacles to achieving them.

! ! !

BEFORE TURNING TO THESE QUESTIONS, I NEED TO DIS- pose of two matters. One is purely terminological. In discussing the formation of the constitution at the Convention in 1787, I shall refer to the delegates as the Framers, not, as is more common, the Founding Fathers. I do so because many of the men who reason- ably might be listed among the Founding Fathers— including such notables as John Adams, Samuel Adams, Tom Paine, and Thomas Jefferson—were not at the Convention. (By my count, only eight of the fifty-five

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delegates to the Convention had also signed the Dec- laration of Independence.)

The second matter is both terminological and sub- stantive. Some readers may argue that the Founding Fathers (including the Framers) intended to create a republic, not a democracy. From this premise, accord- ing to a not uncommon belief among Americans, it fol- lows that the United States is not a democracy but a republic. Although this belief is sometimes supported on the authority of a principal architect of the Consti- tution, James Madison, it is, for reasons I explain in Appendix A, mistaken.

But even more important, the conclusion does not follow from the premise. Whatever the intentions of the Framers may have been, we would hardly feel bound by them today if we believed that they were morally, politically, and constitutionally wrong. Indeed, more than two centuries of experience demonstrates that whenever a sufficiently large and influential number of Americans conclude that the views of the Framers were wrong, they will change the constitution. Even if the Framers did not intend their constitution to abol- ish slavery, when later generations concluded that slav- ery could no longer be tolerated and must be abol- ished, they changed the constitution to conform with their beliefs.

Even if some of the Framers leaned more toward the idea of an aristocratic republic than a democratic republic, they soon discovered that under the leader-

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ship of James Madison, among others, Americans would rapidly undertake to create a more democratic repub- lic, and in doing so they would begin almost immedi- ately to change the constitutional system the Framers had created.

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chapter 2

What the Framers Couldn’t Know

W ISE AS THE FRAMERS WERE, THEY WERE necessarily limited by their profound igno- rance.

I say this with no disrespect, for like many others I believe that among the Framers were many men of ex- ceptional talent and public virtue. Indeed, I regard James Madison as our greatest political scientist and his generation of political leaders as perhaps our most richly endowed with wisdom, public virtue, and devo- tion to lives of public service. In the months and weeks before the Constitutional Convention assembled “on Monday the 14th of May, A.D. 1787. [sic] and in the eleventh year of the independence of the United States of America, at the State-House in the city of Philadel-

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phia,”1 Madison studied the best sources as carefully as a top student preparing for a major exam.2 But even James Madison could not foresee the future of the American republic, nor could he draw on knowledge that might be gained from later experiences with de- mocracy in America and elsewhere.

It is no detraction from the genius of Leonardo da Vinci to say that given the knowledge available in his time he could not possibly have designed a work- able airplane—much less the spacecraft that now bears his name. Nor, given the knowledge available in 1903, could the Wright brothers have built the Boeing 707. Although like many others I greatly admire Ben- jamin Franklin, I recognize that his knowledge of elec- tricity was infinitesimal compared with that of a first- year student in electrical engineering—or, for that matter, the electrician who takes care of my occasional wiring problems. In fact, on that famous first experi- ment with the kite, Franklin was lucky to have escaped alive. None of us, I expect, would hire an electrician equipped only with Franklin’s knowledge to do our wiring, nor would we propose to make a trip from New York to London in the Wright brothers’ aircraft. Leonardo, Franklin, the Wright brothers were great innovators in their time, but they could not draw on knowledge that was still to be accumulated in the years and centuries to come.

The knowledge of the Framers—some of them, certainly—may well have been the best available in

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1787. But reliable knowledge about constitutions appropriate to a large representative republic was, at best, meager. History had produced no truly relevant models of representative government on the scale the United States had already attained, not to mention the scale it would reach in the years to come. As much as many of the delegates admired the British constitution, it was far from a suitable model. Nor could the Roman Republic provide much of a guide. The famous Venetian Republic, illustrious though it had been, was governed by a hereditary aristocracy of fewer than two thousand men and was already totter- ing: a decade after the Convention an upstart Corsican would knock it over in a featherweight military attack. Whatever knowledge the delegates could gain from historical experience was, then, only marginally rele- vant at best.

Leaping into the Unknown

Among the important aspects of an unforeseeable fu- ture, four broad historical developments would yield some potential knowledge that the Framers necessar- ily lacked and that, had they possessed it, might well have led them to a different constitutional design.

First, a peaceful democratic revolution was soon to alter fundamentally the conditions under which their constitutional system would function.

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Second, partly in response to that continuing revo- lution, new democratic political institutions would fun- damentally alter and reconstruct the framework they had so carefully designed.

Third, when democratization unfolded in Europe and in other English-speaking countries during the two centuries to come, constitutional arrangements would arise that were radically different from the American system. Within a generation or two, even the British constitution would bear little resemblance to the one the Framers knew—or thought they knew—and in many respects admired and hoped to imitate.

Fourth, ideas and beliefs about what democracy re- quires, and thus what a democratic republic requires, would continue to evolve down to the present day and probably beyond. Both in the way we understand the meaning of “democracy” and in the practices and insti- tutions we regard as necessary to it, democracy is not a static system. Democratic ideas and institutions as they unfolded in the two centuries after the American Constitutional Convention would go far beyond the conceptions of the Framers and would even transcend the views of such early democrats as Jefferson and Madison, who helped to initiate moves toward a more democratic republic.

I shall consider each of these developments in later chapters. But first I want to indicate some of the practical limitations on what the Framers could rea- sonably achieve.

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What the Framers Couldn’t Do

The Framers were not only limited by, so to speak, their inevitable ignorance. They were also crucially limited by the opportunities available to them.

We can be profoundly grateful for one crucial re- striction: the Framers were limited to considering only a republican form of government. They were con- strained not only by their own belief in the superiority of a republican government over all others but also by their conviction that the high value they placed on re- publicanism was overwhelmingly shared by American citizens in all the states. Whatever else the Framers might be free to do, they well knew that they could not possibly propose a monarchy or a government ruled by an aristocracy. As the Massachusetts delegate Elbridge Gerry put it, “There was not a one-thousand part of our fellow citizens who were not against every approach to- ward monarchy.”3 The only delegate who was recorded by Madison4 as looking with favor on monarchy was Alexander Hamilton, whose injudicious expression of support for that heartily unpopular institution may have greatly reduced his influence at the Convention, as it was to haunt him later.5 Hardly more acceptable was an adaptation of aristocratic ideas to an American constitu- tion. During the deliberations about the Senate, Gou- verneur Morris of Pennsylvania explored the possibility of drawing its members from an American equivalent of the British aristocracy.6 But it soon became obvious

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that the delegates could not agree on just who these American aristocrats might be, and in any case they well knew that the overwhelming bulk of American cit- izens would simply not tolerate such a government.

A second immovable limit was the existence of the thirteen states, with still more states to come. A consti- tutional solution that would be available in most of the countries that were to develop into mature and stable democracies—a unitary system with exclusive sover- eignty lodged in the central government, as in Britain and Sweden, for example—was simply out of the ques- tion. The need for a federal rather than a unitary re- public was therefore not justified by a principle ad- duced from general historical experience, much less from political theory. It was just a self-evident fact. If Americans were to be united in a single country, it was obvious to all that a federal or confederal system was inescapable. Whether the states would remain as fun- damental constituents was therefore never a serious issue at the Convention; the only contested question was just how much autonomy, if any, they would yield to the central government.7

The delegates had to confront still another stub- born limit: the need to engage in fundamental com- promises in order to secure agreement on any consti- tution at all. The necessity for compromise and the opportunities this gave for coalitions and logrolling meant that the Constitution could not possibly reflect a coherent, unified theory of government. Compro- mises were necessary because, like the country at large,

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members of the convention held different views on some very basic issues.

Slavery. One, of course, was the future of slav- ery. Most of the delegates from the five southern states were adamantly opposed to any constitutional provi- sion that might endanger the institution. Although the delegates from the other seven states were hardly of one mind about slavery, it was perfectly obvious to them that the only condition on which coexistence would be acceptable to the delegates from the southern states would be the preservation of slavery. Consequently, if these delegates wanted a federal constitution they would have to yield, no matter what their beliefs about slavery. And so they did. Although some delegates who signed the final document abhorred slavery, they nev- ertheless accepted its continuation as the price of a stronger federal government.

Representation in the Senate. Another conflict of views that could not be settled without a one-sided compromise resulted from the adamant refusal of the delegates from the small states to accept any constitu- tion that did not provide for equal representation in the Senate. The opponents of equal representation in- cluded two of the most illustrious members of the Convention, James Madison and James Wilson, who were also among the chief architects of the Constitu- tion. Both men bitterly opposed what seemed to them an arbitrary, unnecessary, and unjustifiable limit on national majorities. As Alexander Hamilton remarked about this conflict: “As states are a collection of indi-

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vidual men which ought we to respect most, the rights of the people composing them, or the artificial beings resulting from the composition. Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been sd. that if the smaller States re- nounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty. Will the men composing the small States be less free than those composing the larger.”8

Let me give you a flavor of the elevated discussion that preceded the victory of the small states. Here is Gunning Bedford of Delaware on June 30:

The large states dare not dissolve the Confederation. If they do the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.

To which Rufus King of Massachusetts replied:

I cannot sit down, without taking some notice of the lan- guage of the honorable gentleman from Delaware. . . . It was not I who with a vehemence unprecedented in this House, declared himself ready to turn his hopes from our common Country, and court the protection of some foreign hand. . . . I am grieved that such a thought has entered into his heart. . . . For myself whatever might be my distress, I would never court relief from a foreign power.9

Faced with the refusal of the small states to ac- cept anything less, Madison, Wilson, Hamilton, and the other opponents of equal representation finally ac-

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cepted compromise of principle as the price of a con- stitution. The solution of equal representation was not, then, a product of constitutional theory, high prin- ciple, or grand design. It was nothing more than a practical outcome of a hard bargain that its opponents finally agreed to in order to achieve a constitution.10

Incidentally, this conflict illustrates some of the complexities of voting coalitions at the Constitutional Convention, for the faction opposed to equal repre- sentation in the Senate included four strange bed- fellows: Madison, Wilson, Hamilton, and Gouverneur Morris. Although all four generally supported moves to strengthen the federal government, Madison and Wilson usually endorsed proposals that leaned toward a more democratic republic, while Hamilton and Mor- ris tended to support a more aristocratic republic.

Undemocratic Elements in the Framers’ Constitution

It was within these limits, then, that the Framers con- structed the Constitution. Not surprisingly, it fell far short of the requirements that later generations would find necessary and desirable in a democratic republic. Judged from later, more democratic perspectives, the Constitution of the Framers contained at least seven important shortcomings.

Slavery. First, it neither forbade slavery nor em- powered Congress to do so. In fact, the compromise

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on slavery not only denied Congress the effective power to prohibit the importation of slaves before 180811 but it gave constitutional sanction to one of the most morally objectionable byproducts of a morally re- pulsive institution: the Fugitive Slave laws, according to which a slave who managed to escape to a free state had to be returned to the slaveholder, whose property the slave remained.12 That it took three-quarters of a century and a sanguinary civil war before slavery was abolished should at the least make us doubt whether the document of the Framers ought to be regarded as holy writ.

Suffrage. Second, the constitution failed to guar- antee the right of suffrage, leaving the qualifications of suffrage to the states.13 It implicitly left in place the exclusion of half the population—women—as well as African Americans and Native Americans.14 As we know, it took a century and a half before women were constitutionally guaranteed the right to vote, and nearly two centuries before a president and Congress could overcome the effective veto of a minority of states in order to pass legislation intended to guarantee the vot- ing rights of African Americans.

Election of the president. Third, the executive power was vested in a president whose selection, ac- cording to the intentions and design of the Framers, was to be insulated from both popular majorities and congressional control. As we’ll see, the Framers’ main design for achieving that purpose—a body of presi- dential electors composed of men of exceptional wis-

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dom and virtue who would choose the chief executive unswayed by popular opinion—was almost immedi- ately cast into the dustbin of history by leaders sympa- thetic with the growing democratic impulses of the American people, among them James Madison him- self. Probably nothing the Framers did illustrates more sharply their inability to foresee the shape that politics would assume in a democratic republic. (I shall say more about the electoral college in a later chapter.)

Choosing senators. Fourth, senators were to be chosen not by the people but by the state legislatures, for a term of six years.15 Although this arrangement fell short of the ambitions of delegates like Gouver- neur Morris who wanted to construct an aristocratic upper house, it would help to ensure that senators would be less responsive to popular majorities and perhaps more sensitive to the needs of property hold- ers. Members of the Senate would thus serve as a check on the Representatives, who were all subject to popular elections every two years.16

Equal representation in the Senate. The attempt to create a Senate that would be a republican version of the aristocratic House of Lords was derailed, as we have seen, by a prolonged and bitter dispute over an entirely different question: Should the states be equally represented in Congress or should members of both houses be allocated according to population? This ques- tion not only gave rise to one of the most disruptive is- sues of the Convention, but it resulted in a fifth unde- mocratic feature of the constitution. As a consequence

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of the famous—or from a democratic point of view, in- famous—“Connecticut Compromise” each state was, as we have seen, awarded the same number of sena- tors, without respect to population. Although this arrangement failed to protect the fundamental rights and interests of the most deprived minorities, some strategically placed and highly privileged minorities— slaveholders, for example—gained disproportionate power over government polices at the expense of less privileged minorities. (I shall come back to this ele- ment in the constitution in a later chapter.)

Judicial power. Sixth, the constitution of the Framers failed to limit the powers of the judiciary to declare as unconstitutional laws that had been prop- erly passed by Congress and signed by the president. What the delegates intended in the way of judicial re- view will remain forever unclear; probably many dele- gates were unclear in their own minds, and to the ex- tent that they discussed the question at all, they were not in full agreement. But probably a majority ac- cepted the view that the federal courts should rule on the constitutionality of state and federal laws in cases brought before them. Nevertheless, it is likely that a substantial majority intended that federal judges should not participate in making government laws and policies, a responsibility that clearly belonged not to the judiciary but to the legislative branch. Their oppo- sition to any policy-making role for the judiciary is strongly indicated by their response to a proposal in the Virginia Plan that “the Executive and a convenient

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number of the National Judiciary, ought to compose a council of revision” empowered to veto acts of the Na- tional Legislature. Though this provision was vigor- ously defended by Madison and Mason, it was voted down, 6 states to 3.17

A judicial veto is one thing; judicial legislation is quite another. Whatever some of the delegates may have thought about the advisability of justices sharing with the executive the authority to veto laws passed by Congress, I am fairly certain that none would have given the slightest support to a proposal that judges should themselves have the power to legislate, to make national policy. However, the upshot of their work was that in the guise of reviewing the constitu- tionality of state and congressional actions or inac- tions, the federal judiciary would later engage in what in some instances could only be called judicial policy- making—or, if you like, judicial legislation.18

Congressional power. Finally, the powers of Con- gress were limited in ways that could, and at times did, prevent the federal government from regulating or controlling the economy by means that all modern democratic governments have adopted. Without the power to tax incomes, for example, fiscal policy, not to say measures like Social Security, would be impos- sible. And regulatory actions—over railroad rates, air safety, food and drugs, banking, minimum wages, and many other policies—had no clear constitutional au- thorization. Although it would be anachronistic to charge the Framers with lack of foresight in these

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matters,19 unless the constitution could be altered by amendment or by heroic reinterpretation of its provi- sions—presumably by what I have just called judicial legislation—it would prevent representatives of later majorities from adopting the policies they believed were necessary to achieve efficiency, fairness, and se- curity in a complex post-agrarian society.

Enlightened as the Framers’ constitution may have been by the standards of the eighteenth century, fu- ture generations with more democratic aspirations would find some of its undemocratic features objec- tionable—and even unacceptable. The public expres- sion of these growing democratic aspirations was not long in coming.

Even Madison did not, and probably could not, predict the peaceful democratic revolution that was about to begin. For the American revolution was soon to enter into a new and unforeseen phase.

The Framers’ Constitution Meets Emergent Democratic Beliefs

We may tend to think of the American republic and its constitution as solely the product of leaders inspired by extraordinary wisdom and virtue. Yet without a citi- zenry committed to republican principles of govern- ment and capable of governing themselves in accor- dance with those principles, the constitution would soon have been little more than a piece of paper. As

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historical experience would reveal, in countries where democratic beliefs were fragile or absent, constitutions did indeed become little more than pieces of paper— soon violated, soon forgotten.

The American democratic republic was not cre- ated nor could it have been long maintained by lead- ers alone, gifted as they may have been. It was they, to be sure, who designed a framework suitable, as they thought, for a republic. But it was the American people, and the leaders responsive to them, who ensured that the new republic would rapidly become a democratic republic.

The proto-republican phase. The ideas, practices, and political culture necessary to sustain a republican government were by no means unfamiliar to Ameri- cans. Unlike some countries that have moved almost overnight from dictatorship to democratic forms, and often soon thereafter to chaos and back to dictator- ship, by 1787 the Americans had already accumulated a century and a half of experience in the arts of gov- ernment.

The long colonial period had provided opportuni- ties to both leaders and many men of ordinary rank to become acquainted with the requirements of self- government, both in the direct form of a town meeting and through electing representatives to the colonial legislatures.20 We easily forget that although in its two famous opening paragraphs the Declaration of Inde- pendence laid down some new and audacious claims, in the rest of that document—the part few people

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bother to read today—the authors mainly protested against the British king for violating rights that, with some exaggeration, they had previously enjoyed as Englishmen.

The republican phase. The next phase, creating a popular republic, had begun with the astounding dec- laration on July 4, 1776, “that all Men are created equal.” The Declaration marks the beginning of a se- ries of events that went much further than simply gaining independence from Britain. In what the histo- rian Gordon Wood has called the “greatest Utopian movement in American history,”21 the Declaration also triggered a democratic revolution in beliefs, practices, and institutions—or better, an evolution—that has con- tinued ever since. The two decades since independ- ence had provided still more, and deeper, experience in the practices of self-government. Nor was this expe- rience limited to a tiny minority. In some of the thir- teen states, a fairly high proportion of adult males had acquired the franchise.22

Toward a democratic republic. The lengthy colo- nial and post-independence experience provided a sturdy foundation for the efforts that Americans now undertook in the next phase of the revolution, when the new republic was transformed into a more demo- cratic republic. To be sure, at the end of the eigh- teenth century few Americans were ready to concede that the principles of the Declaration, much less dem- ocratic citizenship, applied to everyone.23 It would take two more centuries of evolution in democratic beliefs

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before most Americans would be inclined to agree that the famous claim in the Declaration might be re- phrased: not just “all men,” but “all persons are cre- ated equal.”

Yet always keeping in mind the huge and persistent exceptions, by the standards prevailing elsewhere in the world the extent of equality among Americans was extraordinary. Alexis de Tocqueville, who observed Americans during his year’s visit in 1831– 32, opened his famous work with these words:

Among the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a cer- tain tenor to the laws; by imparting new maxims to the governing powers, and peculiar habits to the governed.

I speedily perceived that the influence of this fact extends far beyond the political character and the laws of the country, and that it has no less empire over civil society than over the Government. . . .

The more I advanced in the study of American so- ciety, the more I perceived that the equality of condi- tion is the fundamental fact from which all others seem to be derived, and the central point at which all my ob- servations constantly terminated.24

During the three decades before Tocqueville ar- rived, under the leadership of Jefferson, Madison, and others, supporters of a more democratic republic had already made some changes. The seismic shift from

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the views of the Framers and the Federalists is sym- bolized by the changing name of the party that won both the presidency and Congress in the election that Jefferson called—as have later historians—the Revo- lution of 1800. To defeat the Federalists, win the elec- tion, and gain control of the new government, Jeffer- son and Madison had created a political party that they appropriately named the Democratic-Republican Party. By 1832, with Andrew Jackson as its winning candidate, the Democratic-Republican party became the Democratic Party, plain and simple.25 The name has stuck ever since.

Conservative delegates among the Framers—later the core of the Federalist Party—had feared that if or- dinary people were given ready access to power they would bring about policies contrary to the views and in- terests of the more privileged classes, which, as the conservative delegates viewed their interests, were also the best interests of the country. These conservative fears were soon confirmed. Within a decade the emi- nent Federalist leaders were pushed aside and the Fed- eral Party became a minority party. A generation later had seen the demise of both the party and its leaders.

If these changes justified some of the pessimism about popular majorities of many of the Framers, their pessimism proved unjustified in another important re- spect. A substantial number of the Framers believed that they must erect constitutional barriers to popular rule because the people would prove to be an unruly mob, a standing danger to law, to orderly government,

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and to property rights. Contrary to these pessimistic appraisals, when American citizens were endowed with the rights and opportunities to support demagogues and rabble rousers, they chose instead to support law, orderly government, and property rights. White male Americans were, after all, mainly farmers who owned their own land; or, where farm land was not easily available because most of it had already been occu- pied, they could count on the ready availability of good farm land farther west—often obtained, to be sure, at the expense of its earlier inhabitants, the Native Americans.

White Americans in vast numbers bought western land and settled down on their own farms. “Two-thirds of the landless white men of Virginia moved West in the 1790s. . . . Between 1800 and 1820, the trans- Appalachian population grew from a third of a million to more than two million.”26 In foreseeing a democratic republic based on a citizen body consisting predomi- nantly of independent farmers, mainly property owners cultivating their own lands, Jefferson reflected the re- ality of his time.27 Outside the South, and even in the southern piedmont, a predominant number of Ameri- can citizens were free farmers who stood to benefit from an orderly government dependent on their votes.

Ordinary citizens also revealed strong beliefs in democratic values and procedures. Presented with the opportunity to do so, they would choose leaders who cultivated democratic values and procedures. Just such an opportunity was soon presented by four acts passed

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in 1798 by the Federalists, who were alarmed not only by the seemingly subversive activities of France but also by the rapidly growing influence of boisterous, ir- reverent, and sometimes libelous opponents in the new Republican party. In particular, the Federalists employed one of these new laws, the Sedition Act, in an effort to silence Republican critics. Notable among the fourteen who were prosecuted was a bombastic and somewhat unsavory Republican congressman, the Irish immigrant Mathew Lyon, whose only memorable con- tribution to American history was his conviction for sedition, which carried a fine of a thousand dollars—a huge amount in those days—and four months in jail.28

To the Republicans, the Sedition Act was a flagrant vio- lation of the newly adopted First Amendment. After they gained the presidency and control of Congress in the election of 1800, the Sedition Act was allowed to lapse, despite the vigorous efforts of the Federalists.

Democratic Changes to the Framers’ Constitution: Amendments

The fate of the Alien and Sedition Acts symbolizes a larger change at work in the country. The democratic revolution, fitful and uncertain though it would for- ever remain, not only helped to democratize the for- mal constitution itself by amendments, it generated new democratic political institutions and practices within which the constitutional system would operate.

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The constitutional system that has emerged is no longer that of the Framers, nor is it one they had in- tended to create.

The Bill of Rights. To be sure, the first ten amend- ments to the Constitution—the Bill of Rights—cannot be attributed to the democratic revolution that fol- lowed the Convention. They resulted instead from de- mands within the Convention itself by delegates who generally favored a more democratic system than their colleagues could then accept. Among the most influen- tial of these was George Mason, who wrote the Virginia constitution and its Declaration of Rights. Responding to the insistent demands of Mason and several others, as well as to similar voices outside the Convention, Mason’s fellow Virginian, James Madison, drafted ten amendments that were ratified in 1789 – 90 by eleven states, more than a sufficient number for their adop- tion. (Incidentally, the two laggards, Georgia and Con- necticut, finally did come around—but not until 1939!) Thus, for all practical purposes the Bill of Rights was a part of the original constitution. In any case, the amendments have proved to be a veritable cornucopia of expanding rights necessary to a democratic order.29

Other Amendments

As I have mentioned, the most profound violation of human rights permitted by the original constitution, slavery, was not corrected until the adoption of the

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Thirteenth, Fourteenth, and Fifteenth Amendments between 1865 and 1870. In 1909 the Sixteenth Amend- ment in 1913 gave Congress the power to enact in- come taxes. The election of U.S. senators by state legis- latures finally gave way to direct election with the adoption of the Seventeenth Amendment in 1913. Women were finally guaranteed the right of suffrage in federal and state elections with the passage of the Nineteenth Amendment in 1919. Although the effort to add an Equal Rights Amendment failed, the Four- teenth Amendment was later interpreted to provide a constitutional basis for eliminating discrimination against women as well as certain minorities whose members suffered from discriminatory practices. The iniquitous poll tax that had continued to bar African Americans from voting in some southern states was fi- nally forbidden in 1964 by the Twenty-Fourth Amend- ment. Finally, in a move toward a more inclusive elec- torate, in 1971 the Twenty-Sixth Amendment reduced the voting age to eighteen.

In this halting fashion, the democratic revolution belatedly worked its way through the Constitution to overcome the veto power of long-entrenched minorities and to eliminate some of the most flagrantly undemo- cratic features of the constitution. As Alan Grimes ob- served some years ago, of the twenty-six (now twenty- seven) amendments to the constitution, “Twenty-one amendments may be said to affirm either the principle of democratic rights or that of democratic processes.”30

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Democratic Changes in Political Practices and Institutions

The constitution of the Framers was changed not only by formal amendments. It was also fundamentally al- tered by political practices and institutions that the Framers did not foresee, even though they were un- avoidable—indeed, highly desirable—in a democratic republic.

Political parties. Perhaps the most important of these was the political party. The Framers feared and detested factions, a view famously expressed by Madison in Federalist No. 10.31 Probably no statement has been so often cited to explain and justify the checks against popular majorities that the Framers attempted to build into the constitution. It is supremely ironic, therefore, that more than anyone except Jefferson, it was Madison who helped to create the Republican Party in order to defeat the Federalists. Although the system would not settle down for some years, Jefferson and Madison helped to inaugurate the competitive two-party system that has pretty much remained in place ever since.

Which suggests other questions. Despite the claim of every political party everywhere in the world that it truly represents the general interest, aren’t political parties really “factions” in Madison’s sense? So did the Framers fail after all to prevent government by fac- tions? And did they succeed only in making it more difficult for a majority faction to prevail—that is, a party reflecting the interests of a majority coalition?

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Whatever the best answers to these hard ques- tions, it cannot be denied that partisan politics trans- formed the constitution. Despite their familiarity with the role of the Tories and Whigs in Britain and nascent parties in their own legislatures, the Framers did not fully foresee that in a democratic republic political parties are not only possible, they are also inevitable and desirable. As Jefferson and Madison soon came to realize, without an organized political party to mobi- lize their voters in the states and their fellow support- ers in the Congress, they could not possibly overcome the entrenched political domination of their political adversaries, the Federalists. The democratic rights in- corporated in the Bill of Rights made parties possible; the need to compete effectively made them inevitable; the ability to represent citizens who would otherwise not be adequately represented made them desirable.

Today we take for granted that political parties and party competition are essential to representative de- mocracy: we can be pretty sure that a country wholly without competitive parties is a country without democ- racy. If the Framers had been aware of the central im- portance of political parties to a democratic republic, would they have designed their constitution differently? They might well have. At the very least they would not have created the absurdity of an electoral college.

The electoral college. In an outcome the Framers had made possible by their defective design of the electoral college, the election of 1800 produced a tie between Jefferson and his running mate, Aaron Burr.

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From the time the final results were known in late December 1800, the deadlock in the electoral college persisted, despite many attempts at persuasion and compromise, until February 17, 1801, when shifts and abstentions by a number of state delegations gave Jef- ferson the presidency.32 Ironically, the very institution that the Framers hoped would insulate the election of the president from partisan politics was its first victim. Although a similar fiasco was prevented in the future by the Twelfth Amendment in 1804, even with the amendment the electoral college was converted by par- tisan politics into nothing more than a rather peculiar and ritualized way of allocating the votes of the states for president and vice president. Yet the electoral col- lege still preserved features that openly violated basic democratic principles: citizens of different states would be unequally represented, and a candidate with the largest number of popular votes might lose the presi- dency because of a failure to win a majority in the elec- toral college. That this outcome was more than a theo- retical possibility had already occurred three times before it was displayed for all the world to see in the election of 2000. I’ll come back to the democratic shortcomings of the electoral college in a later chapter.

The Democratic Revolution: What Madison Learned—and Taught

James Madison arrived in Philadelphia in 1787, a few months past his thirty-sixth birthday. He was already

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far from a political neophyte, having been elected at the age of twenty-five to the Virginia constitutional convention where, with George Mason, he helped to draft the Virginia Declaration of Rights and the new state constitution. He then became successively a mem- ber of the Virginia legislature (though he failed to be reelected because, it was said, he refused to treat the voters to the customary rum punch), a delegate to the Continental Congress, and again a member of the Vir- ginia legislature. In the months before the Constitu- tional Convention opened, he drafted the outline of the proposal that would be presented in the opening days of the Convention and that would come to be known as the Virginia Plan. (We shall see something of its contents in the next chapter.)

Yet, experienced as he was, like his fellow delegates Madison brought to the Convention limited knowl- edge of the institutions and practices that a more fully democratized republic would require. Before his death in 1836 at the age of eighty-five, nearly half a century after the Convention, Madison could have looked back on a rich body of experience that would have shaped his constitutional views in many ways.

Following the Convention, he was elected to the U.S. House of Representatives where he drafted and introduced the first ten amendments to the Constitu- tion—the Bill of Rights. With Jefferson he soon be- came a leader of the opposition to Federalist policies and ideas. As we have seen, they formed and led the

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opposition party, the Democratic Republicans. After Jefferson’s election, Madison became secretary of state. He then succeeded Jefferson in the presidency. By the time he left that office in 1817, his views about democratic political institutions were probably as well informed as those of any person then alive.

However that may be, the Madison of seventy in 1821 was no longer the Madison of thirty-six in 1787. Among other changes, the Madison of 1821 would have trusted popular majorities—American popular majorities, anyway—far more than the Madison of 1787. The mature and experienced Madison of 1821 might therefore have done less to check majority rule and more to facilitate it. Let me offer several pieces of evidence, one from a time early in his awakening to the requirements of a democratic republic, the others from his reflections in old age.

I have already alluded to the first: the basic alter- ation in his views about “factions,” or what the two distinguished historians of Federalism describe as “Madison Revises The Federalist.”33 Madison’s views in Federalist No. 10, influenced by his reading of David Hume, are cited endlessly: the dangers of factions, the threat from majorities united on principles contrary to the general interest, political parties as at best a neces- sary evil. But these were not his more mature views.

In January 1792, less than five years after the close of the Convention, Madison begins to publish a series of essays in The Gazette, an opposition newspaper

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published by Philip Freneau. The first is entitled “On Parties.” In “every political society,” he writes, “parties are unavoidable.” To combat their dangers, Madison offers five proposals that might well serve us better in our own time than the anti-majoritarian biases dis- played in Federalist No. 10. Whatever dangers politi- cal parties may pose can be overcome

“By establishing political equality among all.”

“By withholding unnecessary opportunities from a few, to increase the inequality of property by an immoder- ate, and especially unmerited, accumulation of riches.”

“By the silent operation of the laws, which, without vio- lating the rights of property, reduce extreme wealth to- wards a state of mediocrity, and raise extreme indigence toward a state of comfort.”

“By abstaining from measures which operate differently on different interests, and particularly favor one inter- est, at the expense of another.”

“By making one party a check on the other, so far as the existence of parties cannot be prevented, nor their views accommodated.”34

“If this is not the language of reason,” he went on to say, “it is that of republicanism.”

Nearly thirty years later (around 1821), when he is preparing his notes on the constitutional debates for publication, he records some of his later reflections. As to the right of suffrage, he remarks that his obser- vations at the Convention “do not convey the speaker’s [Madison’s] more full and matured view of the sub-

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ject.” “The right of suffrage,” he now insists, “is a fun- damental Article in Republican Constitutions.” He also makes explicit his view of political parties: “No free Country,” he says, “has ever been without parties, which are a natural offspring of Freedom.” But politi- cal parties and a broad suffrage may create a conflict over property. “An obvious and permanent division of every people is into the owners of the Soil, and the other inhabitants.” Consequently, if the suffrage is ex- tended to citizens who are not freeholders, a majority might threaten the property rights of the freeholders.

Madison then considers a number of possible solu- tions to this problem, of which the first would be to re- strict the suffrage to “freeholders, and to such as hold an equivalent property.” He rejects this solution with an observation that might well have been a central principle of the Second Phase of the American Revo- lution. “The objection to this regulation,” he writes, “is obvious. It violates the vital principle of free Govt. that those who are to be bound by laws, ought to have a voice in making them. And the violation wd. be more strikingly unjust as the lawmakers became the minor- ity.” A second option is “confining the right of suffrage for one branch to the holders of property, and for the other Branch to those without property.” But to do so “wd. not in fact be either equal or fair.” Nor prudent: “The division of the State into the two Classes . . . might lead to contests & antipathies not dissimilar to those between the Patricians and Plebeians at Rome.”

After examining other possibilities, he concludes:

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Under every view of the subject, it seems indispensable that the Mass of Citizens not be without a voice, in making the laws which they are to obey, & in chusing the Magistrates, who are to administer them, and if the only alternative be between an equal & universal right of suffrage for each branch of the Govt. and a confine- ment of the entire right to a part of the Citizens, it is better that those having the greater interest at stake namely that of property & persons both, should be de- prived of half their share in the Govt. than, that those having the lesser interest, that of personal rights only, should be deprived of the whole.35

The older Madison is also more favorable to ma- jority rule. Like most of his contemporaries, Madison believes that “all power in human hands is liable to be abused.” But taking that assumption as axiomatic to- gether with the need for government, the relevant question becomes: what kind of government is best? His answer remains unchanged:

In Governments independent of the people, the rights and views of the whole may be sacrificed to the views of the Government. In Republics, where the people gov- ern themselves, and where, of course, the majority gov- ern, a danger to the minority arises from opportunities tempting a sacrifice of their rights to the interest, real or supposed, of a majority. No form of government, therefore, can be a perfect guard against the abuse of power. The recommendation of the republican form is, that the danger of abuse is less than any other.36

What has changed is his greater confidence in ma- jority rule. Compared with its alternatives at least, the

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mature Madison is confident that majority rule, in the words of Marvin Meyers, promises the “least imper- fect government.”37

“[E]very friend to Republican Government,” he writes in 1833, “ought to raise his voice against the sweeping denunciation of majority Governments as the most tyrannical and intolerable of all Governments.”

It has been said that all Government is an evil. It would be more proper to say that the necessity of any govern- ment is a misfortune. This necessity however exists; and the problem to be solved is, not what form of govern- ment is perfect, but which of the forms is least imper- fect; and here the general question must be between a republican Government in which the majority rule the minority, and a government in which a lesser number or the least number rule the majority.

The result . . . is, that we must refer to the moni- tory reflection that no government of human device and human administration can be perfect; that that which is the least imperfect is therefore the best gov- ernment; that the abused of all other governments have led to the preference of republican government as the best of all governments, because the least imperfect; that the vital principle of republican government is the lex majoris parties, the will of the majority.38

! ! !

I HAVE LITTLE DOUBT THAT IF THE AMERICAN CONSTI- tutional Convention had been held in 1820, a very dif- ferent constitution would have emerged from the de- liberations—although, I hasten to add, we can never

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know what shape that constitution might have taken. We can be reasonably sure, however, that the dele- gates would have attempted to provide more support for, and fewer barriers to, a democratic republic.

As to the undemocratic features of the constitution created in 1787, let me suggest four conclusions.

First, the aspects of the constitution that are most defective from a democratic point of view do not nec- essarily all reflect the intentions of the Framers, inso- far as we may surmise them. Though the flaws are traceable to their handiwork, they are in some cases flaws resulting from the inability of these superbly tal- ented craftsmen to foresee how their carefully crafted instrument of government would work under the chang- ing conditions that were to follow—and most of all, under the impact of the democratic revolution in which Americans were, and I hope still are, engaged.

Second, some of the undemocratic aspects of the original design also resulted from the logrolling and compromises that were necessary to achieve agree- ment. The Framers were not philosophers searching for a description of an ideal system. Nor—and we may be forever grateful to them for this—were they philosopher kings entrusted with the power to rule. They were practical men, eager to achieve a stronger national government, and as practical men they made compromises. Would the country have been better off if they had refused to do so? I doubt it. But in any case, they did compromise, and even today the consti- tution bears the results of some of their concessions.

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I’ll have more to say on that point in my next chapter. Third, undemocratic aspects that were more or

less deliberately built into the constitution overesti- mated the dangers of popular majorities—American popular majorities, at any rate—and underestimated the strength of the developing democratic commit- ment among Americans. As a result, in order to adapt the original framework more closely to the require- ments of the emerging democratic republic, with the passage of time some of these aspects of the original constitution were changed, sometimes by amendment, sometimes, as with political parties, by new institu- tions and practices.

Finally, though the defects seem to me serious and may grow even more serious with time, Americans are not much predisposed to consider another constitu- tion, nor is it clear what alternative arrangements would serve them better.

As a result, the beliefs of Americans in the legiti- macy of their constitution will remain, I think, in con- stant tension with their beliefs in the legitimacy of democracy.

For my part, I believe that the legitimacy of the constitution ought to derive solely from its utility as an instrument of democratic government—nothing more, nothing less. In my last chapter, I’ll reflect further on the meaning of that judgment.

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chapter 3

The Constitution as a Model: An American Illusion

M ANY AMERICANS APPEAR TO BELIEVE THAT OUR

constitution has been a model for the rest of the democratic world.1 Yet among the coun-

tries most comparable to the United States and where democratic institutions have long existed without break- down, not one has adopted our American constitutional system. It would be fair to say that without a single ex- ception they have all rejected it. Why?

Before I explore that question, I need to clarify two matters. As you may have noticed, rather than speaking simply of “the constitution,” I’ve sometimes used the phrase “the constitutional system.” I do so because I want to include in a constitutional system an important set of institutions that may or may not be prescribed in the formal constitution itself: these are its electoral

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arrangements. As we’ll see, electoral systems can in- teract in crucial ways with the other political institu- tions and thereby determine the way they function.

Also, I’ve just referred to the countries where democracy is oldest and most firmly established. We could call them the older democracies, the mature democracies, the stable democratic countries, and so on, but I’ll settle on “the advanced democratic coun- tries.” Whatever we choose to call them, in order to compare the characteristics and performance of the American constitutional system with the characteris- tics and performance of the systems in other demo- cratic countries, we need a set of reasonably compa- rable democratic countries. In short, we don’t want to compare apples and oranges—or good apples and rot- ten apples.

I’ve noticed that we Americans often assure our- selves of the superiority of our American political sys- tem by comparing it with political systems in countries ruled by nondemocratic regimes or in countries that suffer from violent conflict, chronic corruption, fre- quent chaos, regime collapse or overthrow, and the like. On voicing or hearing criticism of political life in the United States, an American not infrequently adds, “Yes, but just compare it with X!,” a favorite X being the Soviet Union during the Cold War and, after its collapse, Russia. One could easily pick more than a hundred other countries with political systems that by almost any standard are unquestionably inferior to our own. But comparisons like this are absurdly irrelevant.

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To my mind, the most comparable countries are those in which the basic democratic political institu- tions have functioned without interruption for a fairly long time, let’s say at least half a century, that is, since 1950. Including the United States, there are twenty- two such countries in the world.2 (See Appendix B, Ta- bles 1 and 2.) Fortunately for our purposes, they are also comparable in their relevant social and economic conditions: not a rotten apple in the bunch. Not sur- prisingly, they are mostly European or English speak- ing, with a few outliers: Costa Rica, the only Latin American country; Israel, the only Middle Eastern country; and Japan, the only Asian country.

When we examine some of the basic elements in the constitutional structures of the advanced demo- cratic countries, we can see just how unusual the Amer- ican system is. Indeed, among the twenty-two older de- mocracies, our system is unique.3

Federal or Unitary

To begin with, among the other twenty-one countries we find only six federal systems, in which territorial units—states, cantons, provinces, regions, Länder— are endowed by constitutional prescription and prac- tice with a substantial degree of autonomy and with significant powers to enact legislation. As in the United States, in these federal countries the basic territorial units, whether states, provinces, or cantons, are not

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simply legal creatures of the central government with boundaries and powers that the central government could, in principle, modify as it chooses. They are basic elements in the constitutional design and in the political life of the country.

As with the United States, so too in these other five countries federalism was not so much a free choice as a self-evident necessity imposed by history. In most, the federal units—states, provinces, cantons—existed before the national government was fully democra- tized. In the extreme case, Switzerland, the consti- tuent units were already in place before the Swiss Confederation itself was formed from three Alpine cantons in 1291, five centuries before America was born. Throughout the following seven centuries the Swiss cantons, now twenty in number,4 have retained a robust distinctiveness and autonomy. In the outlier, Belgium, federalism followed long after a unitary gov- ernment had been imposed on its diverse regional groups. As the brilliant period of Flemish painting, weaving, commerce, and prosperity in the sixteenth and seventeenth centuries reminds us, profound terri- torial, linguistic, religious, and cultural differences be- tween the predominantly Flemish and Walloon areas existed long before Belgium itself became an inde- pendent country in 1830. Despite the persistent cleav- ages between the Flemish and Walloons, however, federalism did not arrive until 1993 when the three regions—Wallonia, Flanders, and Brussels—were fi- nally given constitutional status. I should point out

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that the deep divisions between Walloons and Flemish continue to threaten the survival of Belgium as a single country.

The second and third features follow directly from the existence of federalism.

Strong Bicameralism

A natural, if not strictly necessary, consequence of fed- eralism is a second chamber that provides special rep- resentation for the federal units. To be sure, unitary systems may also have, and historically all have had, a second chamber. However, in a democratic country with a unitary system, the functions of a second cham- ber are far from obvious. The question that was posed during the American constitutional convention is bound to arise: Exactly whom or whose interests is a second chamber supposed to represent? And just as the Fram- ers could provide no rationally convincing answer, so too as democratic beliefs grow stronger in democratic countries with unitary governments, the standard an- swers become less persuasive—in fact, so unpersua- sive to the people of the three Scandinavian countries that they have all abolished their second chambers. Like the state of Nebraska, Norway, Sweden, and Denmark also seem to do quite nicely without them. Even in Britain, the gradual advance of democratic beliefs created an inexorable force opposed to the his- torical powers of the House of Lords. As early as 1911

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the Liberals wiped out the power of the Lords to veto “money bills” passed by the Commons. The continu- ing advance of democratic beliefs during the past cen- tury led in 1999 to the abolition of all but ninety-two hereditary seats, whose occupants would be elected by hereditary peers.5 The future of that ancient chamber remains in considerable doubt.

By the end of the twentieth century, then, a strongly bicameral legislature continued to exist in only four of the advanced democratic countries, all of them federal: in addition to the United States, these were Australia, Germany, and Switzerland. Their exis- tence poses a question: What functions can and should a second chamber perform in a democratic country? And in order to perform its proper functions, if any, how should a second chamber be composed? As the deliberations of the Parliamentary Commission on the future of the House of Lords indicate, these questions admit of no easy answer. It would not be surprising, then, if Britain ends up with no real second chamber at all, even if a ghostly shade of the upper house persists.

Unequal Representation

A third characteristic of federal systems is significant unequal representation in the second chamber. By un- equal representation I mean that the number of mem- bers of the second chamber coming from a federal unit such as a state or province is not proportional to

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its population, to the number of adult citizens, or to the number of eligible voters. The main reason, per- haps the only real reason, why second chambers exist in all federal systems is to preserve and protect un- equal representation. That is, they exist primarily to ensure that the representatives of small units cannot be readily outvoted by the representatives of large units. In a word, they are designed to construct a bar- rier to majority rule at the national level.

To make this clear, let me extend the range of the term unequal representation to include any system where, in contrast to the principle of “one person one vote,” the votes of different persons are given unequal weights. Whenever the suffrage is denied to some per- sons within a system, we might say that their votes are counted as zero, whereas the votes of the eligible citi- zens are counted as one. When women were denied the vote, a man’s vote effectively counted for one, a woman’s for nothing, zero. When property require- ments were required for the suffrage, property owners were represented in the legislature, those below the property threshold were not: like women their “votes” counted for zero. Some privileged members of Parlia- ment, like Edmund Burke, referred to “virtual repre- sentation,” where the aristocratic minority repre- sented the best interests of the entire country. But the bulk of the people who were excluded easily saw through that convenient fiction, and as soon as they were able to they rejected these pretensions and gained the right to vote for their own M.P.s. In nine-

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teenth-century Prussia, voters were divided into three classes according to the amount of their property taxes. Because each class of property owners was given an equal number of votes irrespective of the vast dif- ference in numbers of persons in each class, a wealthy Prussian citizen possessed a vote that was effectively worth almost twenty times that of a Prussian worker.6

To return now to the United States: as the Ameri- can democratic credo continued episodically to exert its effects on political life, the most blatant forms of unequal representation were in due time rejected. Yet, one monumental though largely unnoticed form of un- equal representation continues today and may well continue indefinitely. This results from the famous Connecticut Compromise that guarantees two sena- tors from each state.

Imagine a situation in which your vote for your representative is counted as one while the vote of a friend in a neighboring town is counted as seventeen. Suppose that for some reason you and your friend each change your job and your residence. As a result of your new job, you move to your friend’s town. For the same reason, your friend moves to your town. Presto! To your immense gratification you now dis- cover that simply by moving, you have acquired six- teen more votes. Your friend, however, has lost sixteen votes. Pretty ridiculous, is it not?

Yet that is about what would happen if you lived on the western shore of Lake Tahoe in California and moved less than fifty miles east to Carson City, Nevada,

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while a friend in Carson City moved to your commu- nity on Lake Tahoe. As we all know, both states are equally represented in the U.S. Senate. With a popula- tion in 2000 of nearly 34 million, California had two senators. But so did Nevada, with only 2 million resi- dents. Because the votes of U.S. senators are counted equally, in 2000 the vote of a Nevada resident for the U.S. Senate was, in effect, worth about seventeen times the vote of a California resident. A Californian who moved to Alaska might lose some points on climate, but she would stand to gain a vote worth about fifty- four times as much as her vote in California.7 Whether the trade-off would be worth the move is not for me to say. But surely the inequality in representation it reveals is a profound violation of the democratic idea of political equality among all citizens.

Some degree of unequal representation also exists in the other federal systems. Yet the degree of unequal representation in the U.S. Senate is by far the most extreme. In fact, among all federal systems, including those in more newly democratized countries—a total of twelve countries—on one measure the degree of unequal representation in the U.S. Senate is exceeded only by that in Brazil and Argentina.8

Or suppose we take the ratio of representatives in the upper chamber to the populations of the federal units. In the United States, for example, the two sena- tors from Connecticut represent a population of slightly above 3.4 million, while the two senators from its neigh- bor New York represent a population of 19 million:

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a ratio of about 5.6 to 1. In the extreme case, the ratio of over-representation of the least populated state, Wyoming, to the most populous state, California, is just under 70 to 1.9 By comparison, among the advanced democracies the ratio runs from 1.5 to 1 in Austria to 40 to 1 in Switzerland. In fact, the U.S. disproportion is exceeded only in Brazil, Argentina, and Russia.10

On what possible grounds can we justify this ex- traordinary inequality in the worth of the suffrage?

A brief digression: rights and interests. A common response is to say that people in states with smaller populations need to be protected from federal laws passed by congressional majorities that would violate their basic rights and interests. Because the people in states like Nevada or Alaska are a geographical minor- ity, you might argue, they need to be protected from the harmful actions of national majorities. But this re- sponse immediately raises a fundamental question. Is there a principle of general applicability that justifies an entitlement to extra representation for some indi- viduals or groups?

In searching for an answer, we need to begin with an eternal and elementary problem in any governmen- tal unit:11 whether the unit is a country, state, munici- pality, or whatever, virtually all of its decisions will in- volve some conflict of interests among the people of the relevant political unit. Inevitably, almost any gov- ernmental decision will favor the interests of some cit- izens and harm the interests of others. The solution to this problem, which is inherent in all governmental

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units, is ordinarily provided in a democratic system by the need to secure a fairly broad consent for its deci- sions by means, among other things, of some form of majority rule. Yet if decisions are arrived at by majority rule, then the possibility exists, as Madison and many others have observed, that the interests of any minor- ity will be damaged by a majority. Sometimes, fortu- nately, mutually beneficial compromises may be found. But if the interests of a majority clash irreconcilably with those of a minority, then the interests of that mi- nority are likely to be harmed.

Some interests, however, may be protected from the ordinary operation of majority rule. To a greater or lesser degree, all democratic constitutions do so.

Consider the protections that all Americans enjoy, not just in principle but substantially in practice as well. First, the Bill of Rights and subsequent amend- ments provide a constitutional guarantee that certain fundamental rights are protected whether a citizen lives in Nevada or California, Rhode Island or Massa- chusetts, Delaware or Pennsylvania. Second, an im- mense body of federal law and judicial interpretation based on constitutional provisions enormously extends the domain of protected rights—probably far beyond anything the Framers could have foreseen. Third, the constitutional division of powers in our federal system provides every state with an exclusive or overlapping domain of authority on which a state may draw in order to extend even further the protections for the particular interests of the citizens of that state.

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The basic question. Beyond these fundamental and protected rights and interests, do people in the smaller states possess additional rights or interests that are entitled to protection from policies supported by national majorities? If so, what are they? And on what general principle can their special protection be justi- fied? Surely they do not include a fundamental right to graze sheep or cattle in national forests or to extract minerals from public lands on terms that were set more than a century ago. Why should geographical lo- cation endow a citizen or group with special rights and interests, above and beyond those I just indicated, that should be given additional constitutional protection?

If these questions leave me baffled, I find myself in good company. “Can we forget for whom we are forming a government?” James Wilson asked at the Constitutional Convention. “Is it for men, or for the imaginary beings called States?” Madison was equally dubious about the need to protect the interests of people in the small states. “ Experience,” he said, “sug- gests no such danger. . . . Experience rather taught a contrary lesson. . . . The states were divided into dif- ferent interests not by their differences in size, but by other circumstances.”12

Two centuries of experience since Madison’s time have confirmed his judgment. Unequal representation in the Senate has unquestionably failed to protect the fundamental interests of the least privileged minorities. On the contrary, unequal representation has some- times served to protect the interests of the most privi-

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leged minorities. An obvious case is the protection of the rights of slaveholders rather than the rights of their slaves. Unequal representation in the Senate gave ab- solutely no protection to the interests of slaves. On the contrary, throughout the entire pre–Civil War period unequal representation helped to protect the interests of slave owners. Until the 1850s equal representation in the Senate, as Barry Weingast has pointed out, gave the “the South a veto over any policy affecting slavery.” Between 1800 and 1860 eight anti-slavery measures passed the House, and all were killed in the Senate.13

Nor did the Southern veto end with the Civil War. After the Civil War, Senators from elsewhere were compelled to accommodate to the Southern veto in order to secure the adoption of their own policies. In this way the Southern veto not only helped to bring about the end of Reconstruction; for another century it prevented the country from enacting federal laws to protect the most basic human rights of African Americans.

So much for the alleged virtues of unequal repre- sentation in the Senate.

Suppose for a moment we try to imagine that we actually wanted the constitution to provide special pro- tection to otherwise disadvantaged minorities by giv- ing them extra representation in the Senate. What mi- norities most need this extra protection? How would we achieve it? Would we now choose to treat certain states as minorities in special need of protection sim- ply because of their smaller populations? Why would we want to protect these regional minorities and not

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other, far weaker minorities? To rephrase James Wil- son’s question in 1787: Should a democratic govern- ment be designed to serve the interests of “the imagi- nary beings called States,” or should it be designed instead to serve the interests of all its citizens consid- ered as political equals?

As I have said, the United States stands out among twenty-two comparable democratic countries for the degree of unequal representation in its upper chamber. Of the half dozen that have federal systems and an upper house designed to represent the federal units, none come even close to the United States in the ex- tent of its unequal representation in its upper house.

We begin to see, then, that our constitutional sys- tem is unusual. As we continue our exploration we shall discover that it is not merely unusual. It is one of a kind.

Strong Judicial Review of National Legislation

Not surprisingly, other federal systems among the older democracies also authorize their highest national courts to strike down legislation or administrative actions by the federal units—states, provinces, and the like— that are contrary to the national constitution. The case for the power of federal courts to review state actions in order to maintain a federal system seems to me straightforward, and I accept it here. But the authority of a high court to declare unconstitutional legislation that has been properly enacted by the coordinate con-

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stitutional bodies—the parliament or in our system the Congress and the president—is far more controversial.

If a law has been properly passed by the law- making branches of a democratic government, why should judges have the power to declare it unconstitu- tional? If you could simply match the intentions and words of the law against the words of the constitution, perhaps a stronger case could be made for judicial re- view. But in all important and highly contested cases, that is simply impossible. Inevitably, in interpreting the constitution judges bring their own ideology, biases, and preferences to bear. American legal scholars have struggled for generations to provide a satisfactory ra- tionale for the extensive power of judicial review that has been wielded by our Supreme Court. But the contradiction remains between imbuing an unelected body—or in the American case, five out of nine jus- tices on the Supreme Court—with the power to make policy decisions that affect the lives and welfare of millions of Americans. How, if at all, can judicial re- view be justified in a democratic order? I’ll discuss that question in my last chapter.

Meanwhile, let me return to another aberrant as- pect of the American constitutional system.

Electoral Systems

Earlier I explained that I wanted to use the term con- stitutional system because some arrangements that are

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not necessarily specified in a country’s constitutional document interact so strongly with the other institu- tions that we can usefully regard them as a part of the country’s constitutional arrangements. In that spirit, we might want to reflect on the peculiarities of our elec- toral system, which, natural as it may seem to us, is of a species rare to the vanishing point among the advanced democratic countries. Closely allied with it is an equally rare bird, our much revered two-party system.

To be sure, our electoral system was not the doing of the Framers, at least directly, for it was shaped less by them than by British tradition. The Framers simply left the whole matter to the states and Congress,14

both of which supported the only system they knew, one that had pretty much prevailed in Britain, in the colonies, and in the newly independent states.

The subject of electoral systems is fearfully com- plex and for many people fearfully dull as well. I shall therefore employ a drastic oversimplification, but one sufficient for our purposes. Let me simply divide elec- toral systems into two broad types, each with a variant or two. In the one we know best, typically you can cast your vote for only one of the competing candidates, and the candidate with the most votes wins. In the usual case, then, a single candidate wins office by gain- ing at least one more vote than any of his or her oppo- nents. We Americans tend to call this one-vote margin a plurality; elsewhere, to distinguish it from an ab- solute majority it may be called a relative majority. To describe our system, American political scientists

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sometimes employ the cumbersome expression “single member district system with plurality elections.” I pre- fer the British usage: on the analogy of a horse race where the winner needs only a fraction of a nose- length to win, the British tend to call it the “first-past- the-post” system.

If voters were to cast their ballots in the same pro- portion in every district, the party with the most votes would win every seat. In practice, as a result of varia- tions from district to district in support for candidates, a second party generally manages to gain some seats, although its percentage of seats will ordinarily be smaller than its percentage of votes. But the represen- tation of third parties usually diminishes to the vanish- ing point. In short, first-past-the-post favors two-party systems.

The main alternative to first-past-the-post is pro- portional representation. As the name implies, propor- tional representation is designed to ensure that voters in a minority larger than some minimal size—say, 5 percent of all voters—will be represented more or less in proportion to their numbers. For example, a group consisting of 20 percent of all voters might win pretty close to 20 percent of the seats in the parliament. Consequently, countries with proportional represen- tation systems are also very likely to have multiparty systems in which three, four, or more parties are rep- resented in the legislature. In short, although the rela- tionship is somewhat imperfect, in general a country with first-past-the-post is likely to have a two-party

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system and a country with proportional representation is likely to have a multiparty system.

In the most common system of proportional repre- sentation, each party presents voters with a list of its candidates; voters cast their votes for a party’s candi- dates; each party is then awarded a number of seats roughly in proportion to its overall share of the vote. Countries with a list system may also permit voters to indicate their preferences among the party’s candi- dates. The party’s seats are then filled by the candi- dates who are most preferred by the voters. Twelve of the twenty-two advanced democratic countries employ the list system of proportional representation, and an- other six use some variant of it. (See Appendix B, Table 3.)

Of the four countries without proportional repre- sentation, France avoids one of the defects of single- member districts by providing that in parliamentary districts where no candidate receives an absolute ma- jority of votes, a second election will be held in which the two candidates with the highest number of votes compete. This run-off, two-round, or double-ballot sys- tem, as it is variously called, thereby ensures that all the members have been elected by a majority of the voters in their constituency.

This leaves the three oddballs with first-past-the- post, a plurality system in single member districts: Canada, the United Kingdom, and the United States. Even in the United Kingdom, the original source on which the Americans drew, the traditional system was

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replaced by proportional representation in the 1999 elections to the newly created legislative bodies in Scotland and Wales. Four parties won seats in the Scottish Parliament, and four too in the Welsh Assem- bly. What is more, the Independent Commission on the Voting System set up by the Labor Party in 1997 to recommend an alternative to first-past-the-post pro- posed in its report a year later that members of the House of Commons be elected by means of a propor- tional representation system—a hybrid, to be sure, but one that would ensure greater proportionality be- tween votes and seats in that ancient house.15 It is al- together possible that one day not far off, Britain will be added to the list of proportional representation countries, leaving only Canada and the United States among the advanced democracies with first-past-the- post.

Although few Americans know much about experi- ence in the other advanced democratic countries with proportional representation and multiparty systems, they seem to have strong prejudices against both. Un- willing to conceive of an alternative to first-past-the- post and under pressure to ensure fairer representa- tion for minorities in state legislatures and Congress, our legislatures and federal courts in recent years have sometimes gerrymandered weirdly shaped districts. . . well, yes, rather like a salamander. But neither legisla- tures nor courts seem willing to give serious thought to some form of proportional representation as quite possibly a better alternative.

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The extent to which we take first-past-the-post for granted was clearly revealed in 1993, when it was dis- covered that a well-qualified candidate to head the Civil Rights Division of the Department of Justice had written an article in a law journal suggesting that a rather sensible system of proportional representation might be worth considering as a possible solution to the problem of securing more adequate minority repre- sentation.16 From the comments the author’s innocent heresy generated, you might have thought that she had burned the American flag on the steps of the Supreme Court. Her candidacy, naturally, was stone dead.

First-past-the-post was the only game in town in 1787 and for some generations thereafter. Like the locomotive, proportional representation had not yet been invented. It was not fully conceived until the mid-nineteenth century when a Dane and two Eng- lishmen—one of them John Stuart Mill—provided a systematic formulation. Since then it has become the system overwhelmingly preferred in the older democ- racies.

After more than a century of experience with other alternatives, isn’t it time at last to open our minds to the possibility that first-past-the-post may be just fine for horse races but might not be best for elections in a large and diverse democratic country like ours? Might we not also want to consider the possible advantages of a multiparty system?

I do not say that we should necessarily make these choices. But should we not at least give them serious

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consideration? Shouldn’t we ask ourselves this ques- tion: What kind of electoral and party systems would best serve democratic ends?

Party Systems

Nearly a half-century ago, a French political scientist, Maurice Duverger, proposed what came to be called Duverger’s Law: first-past-the-post electoral systems tend to result in two-party systems. Conversely, pro- portional representation systems are likely to produce multiparty systems.17 Although the causal relation may be more complex than my brief statement of Du- verger’s Law suggests,18 a country with a proportional representation system is likely to require coalition gov- ernments consisting of two or more parties. In a coun- try with a first-past-the-post electoral system, however, a single party is more likely to control both the execu- tive and the legislature. Thus in countries with propor- tional representation–multiparty systems and coalition governments, minorities tend to be represented more effectively in governing. By contrast, in countries with first-past-the-post and two-party systems, the govern- ment is more likely to be in the hands of a single party that has gained a majority of seats in the parliament and the most popular votes, whether by an outright majority, or more commonly, a plurality. To distinguish the two major alternatives, I’ll refer to the propor- tional representation–multiparty countries as “propor-

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tional” and countries with first-past-the-post electoral systems and only two major parties as “majoritarian.”19

Where does the United States fit in? As usual: in neither category. It is a mixed system, a hybrid, nei- ther predominantly proportional nor predominantly majoritarian. (See Appendix B, Table 4.) I am going to return to the American hybrid in Chapter 5, but three brief observations may help to put it in perspective here. First, the Framers had no way of knowing about the major alternatives to first-past-the-post, much less fully understanding them. Second, since the Framers’ time most of the older and highly stable democratic countries have rejected first-past-the-post and opted instead for proportional systems. Third, our mixed de- sign contributes even further to the unusual structure of our constitutional system.

Our Unique Presidential System

As we make our way through the list of countries that share some constitutional features with the United States, the list, short to begin with, diminishes even fur- ther. By the time we reach the presidency the United States ceases to be simply unusual. It becomes unique.

Among the twenty-two advanced democracies, the United States stands almost alone in possessing a single popularly elected chief executive endowed with im- portant constitutional powers—a presidential system. Except for Costa Rica, all the other countries govern

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themselves with some variation of a parliamentary sys- tem in which the executive, a prime minister, is chosen by the national legislature. In the mixed systems of France and Finland, most of the important constitu- tional powers are assigned to the prime minister, but an elected president is also provided with certain pow- ers—chiefly over foreign relations. This arrangement may lead, as in France, to a president from one major party and a prime minister from the opposing party, a situation that with a nice Gallic touch the French call “cohabitation.” Yet even allowing for the French and Finnish variations, none of the other advanced demo- cratic countries has a presidential system like ours.

Why is this? The question breaks down into sev- eral parts. Why did the Framers choose a presidential system? Why didn’t they choose a parliamentary sys- tem? Why have all the other advanced democratic countries rejected our presidential system? Why have they adopted some variant of a parliamentary system instead, or as in France and Finland a system that is predominantly parliamentary with an added touch of presidentialism?

To answer these questions in detail would go be- yond our limits here. But let me sketch a brief answer.

Before I do so, however, I want to admonish you not to cite the explanation given in the Federalist Papers. These were very far from critical, objective analyses of the constitution. If we employ a dictionary definition of propaganda as “information or ideas me- thodically spread to promote or injure a cause, nation,

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etc.,” then the Federalist Papers were surely propa- ganda. They were written post hoc by partisans— Alexander Hamilton, John Jay, and James Madison— who wanted to persuade doubters of the virtues of the proposed constitution in order to secure its adoption in the forthcoming state conventions. Although they were very fine essays indeed, and for the most part much worth reading today, they render the work of the convention more coherent, rational, and compel- ling than it really was. Ironically, by the way, the task of explaining and defending the Framers’ design for the presidency was assigned to Hamilton, who had somewhat injudiciously remarked in the Convention that as to the executive, “The English model was the only good one on this subject,” because “the heredi- tary interest of the king was so interwoven with that of the nation. . . and at the same time was both suffi- ciently independent and sufficiently controuled [sic], to answer the purpose.” He then proposed that the ex- ecutive and one branch of the legislature “hold their places for life, or at least during good behavior.”20 Per- haps as a result of these remarks, Hamilton seems to have had only a modest influence in the Convention on that matter or any other.

How it came about. What is revealed in the most complete record of the Convention21 is a body floun- dering in its attempts to answer an impossibly difficult question: How should the chief executive of a republic be selected, and what constitutional powers should be assigned to the executive branch? The question was im-

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possibly difficult because, as I emphasized in the pre- vious chapter, the Framers had no relevant model of republican government to give them guidance. Most of all, they lacked any suitable model for the executive branch. To be sure, they could draw on the sacred doc- trine of “separation of powers.” Not surprisingly, the references to that doctrine recorded in Madison’s notes were all positive. And up to a point, its implications were obvious: a republic would need an independent judiciary, a bicameral legislature consisting of a popular house and some kind of second chamber to check the popular house, and an independent executive.

But how was the independent executive to be cho- sen? How independent of the legislature and of the people should he be? How long should his term of of- fice be? (“He” is, of course, the language of Article II and, like most Americans until recently, the only way the Framers could conceive of the office.) The British constitution was a helpful model for the Framers in some respects. But as a solution to the problem of the executive, it utterly failed them. Despite the respect of the delegates for many aspects of the British constitu- tion, a monarchy was simply out of the question.22

Even so, they might have chosen a democratic ver- sion of the parliamentary system, as the other evolving European democracies were to do. Although they were unaware of it, even in Britain a parliamentary system was already evolving. Why then didn’t the Framers come up with a republican version of a parliamentary system?

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Well, they almost did. It has been too little empha- sized, I think, that the Framers actually came very close to adopting something like a parliamentary sys- tem. What is more, it is far from clear, to me at least, why they rejected it and ended up instead with a pres- idential system.23 One obvious solution—even more obvious to us today than it would have been in 1787— was to allow the national legislature to choose the ex- ecutive. In fact, throughout most of the Convention this was their favored solution. Right off the bat on June 2, only two weeks after the Convention opened, the Virginia delegation, which contained some of the best minds and most influential delegates, proposed that the national executive should be chosen by the na- tional legislature. In Madison’s notes, the subsequent course of that proposal and the alternatives to it has left a fascinating and often mystifying trail.

The meandering trail they pursued, as best I can reconstruct it, looks something like this.24 On three occasions—July 17, July 24, and July 26—the dele- gates vote for the selection of the president by “the na- tional legislature,” the first time by a unanimous vote, the last by a vote of 6 – 3. With one exception every other alternative is defeated by substantial majorities: in a puzzling detour on July 19, with Massachusetts di- vided, they vote 6 – 3 for electors appointed by the state legislatures. On July 26, their favored solution, election by the national legislature, is forwarded to a Committee on Detail. On August 6 the committee duly reports in favor of election by the national legislature.

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On August 24 two other alternatives fail once again. A new committee to consider the issue reports back on September 4. By now the delegates are eager to wind up a convention that has already gone on for three months. In contradiction to the recommendation of the previous committee, however, this one recom- mends that the executive be chosen by electors ap- pointed by the state legislatures. Two days later, with nine states in favor and only two opposed, the impa- tient delegates adopt this solution.

Well, not exactly. What they adopt actually states that: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and representa- tives to which the State may be entitled in Congress.” Whatever the Framers intend by these words, they will offer a huge opportunity for the democratic phase of the American revolution to democratize the presidency.

Ten days after they agree on this provision, the constitution is signed and the Convention adjourns.

What this strange record suggests to me is a group of baffled and confused men who finally settle on a so- lution more out of desperation than confidence. As events were soon to show, they had little understand- ing of how their solution would work out in practice.

So the question remains with no clear answer: Why, finally, did they fail to adopt the solution they had seemed to favor, a president elected by the Congress, a sort of American version of a parliamentary system? The standard answer no doubt has some validity: they feared

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that the president might be too beholden to Congress. And all the other alternatives seemed to them worse.

Among these alternatives was election by the people, which had been twice rejected overwhelm- ingly. Yet it was this twice-rejected solution, election by the people, that was quickly adopted de facto dur- ing the democratic phase of the American revolution.

How their solution failed. Perhaps in no part of their work did the Framers fail more completely to design a constitution that would prove acceptable to a democratic people. As I have mentioned, their hope for a group of electors who might exercise their inde- pendent judgments about the best candidate to fill the office came a cropper following the election of 1800. But as I shall describe in the next chapter, more was still to come. If the election of 1800 first revealed how inappropriate the electoral college was in a democratic order, the presidential election of 2000, two centuries later, dramatized for all the world to witness the con- flict between the Framers’ constitution and the demo- cratic ideal of political equality.

Ironically, had they adopted the Virginia Plan and placed the choice of the chief executive in the hands of the legislature, as would become the practice in parlia- mentary systems, the Framers would have put a bit more distance between the people and the president than their solution provided in practice. Here again, in 1787 they could not anticipate a constitutional design that was yet to evolve fully in Britain and, even later, in other countries on the path to democracy.

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The continuing democratic revolution would bring about an even more profound change in the presi- dency. However deftly Jefferson steered the Congress as he rode the tide of the democratic revolution, he never publicly challenged the standard view that the only legitimate representative of the popular will was the Congress, not the president. Nor did any of his successors, Madison, Monroe, John Quincy Adams, lay down such a claim.

Andrew Jackson did just that. In justifying his use of the veto against Congressional majorities, as the only national official who had been elected by all the people and not just by a small fraction, as were Sena- tors and Representatives, Jackson insisted that he alone could claim to represent all the people. Thus Jackson began what I have called the myth of the presidential mandate: that by winning a majority of popular (and presumably electoral) votes, the president has gained a “mandate” to carry out whatever he had proposed during the campaign.25 Although he was bitterly at- tacked for this audacious assertion, which not all later presidents supported, it gained credibility from its re- assertion by Lincoln, Cleveland, Theodore Roosevelt, and Wilson and was finally nailed firmly in place by Franklin Roosevelt.

Whatever we may think of the validity of the claim—I am inclined to think it is little more than a myth created to serve the political purposes of ambi- tious presidents—it is simply one part of a transforma- tion of the presidency in response to democratic ideas

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and beliefs that has produced an office completely dif- ferent from the office that the Framers thought they were creating, vague and uncertain as their intentions may have been.

And a good thing, too, you may say. But if you ap- prove of the democratization of the presidency—or, as I would prefer to say, its pseudo-democratization—aren’t you suggesting in effect that the constitutional system should be altered to meet democratic requirements?

Why other countries became parliamentary de- mocracies. There is still one more reason why the Framers didn’t choose a parliamentary system. They had no model to inspire them. One hadn’t yet been in- vented.

The British constitutional system they knew, and in some respects admired, was already on its way to his- tory’s attic of abandoned or failed constitutions. Al- though no one saw it clearly in 1787, even at the time of the Convention the British constitution was under- going rapid change. Most important, the monarch was swiftly losing the power to impose a prime minister on the parliament. The contrary assumption was gaining strength: that a prime minister must receive a vote of confidence from both houses of parliament, and that he must resign if and whenever he lost their confi- dence. But this profound change in the British consti- tution did not become fully manifest until 1832, too late for the Framers to see its possibilities.

In addition, there was the problem of a monarch. How could a country have a parliamentary system

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without a symbolic head of state who would perform ceremonial functions, symbolize the unity of the coun- try, and help to confer legitimacy on the parliament’s choice by anointing him as prime minister? After the evolution of a parliamentary system in Britain, in due time monarchies also helped the Swedes, the Danes, and the Norwegians—and much later Japan and Spain—to move to a parliamentary system that the monarchy helped to legitimize. But in 1787 the full development of parliamentary democracy in countries with a monarchy was still a long way off. For Ameri- cans, a monarch, even a ceremonial monarch, was com- pletely out of the question. So why didn’t they split the two functions, ceremonial and executive, by creating a titular head of state to serve in the place of a ceremo- nial monarch, and a chief executive, the equivalent of a prime minister, to whom executive functions would be assigned? Although that arrangement may seem obvious enough to us now, for the Framers in 1787 it was even more distant than the system that was gradu- ally evolving in Britain, the country they knew best. It was not until after 1875 and the installation of the Third Republic in France that the French evolved a solution that would later be adopted in many other de- mocratizing countries: a president elected by the par- liament, or in some cases by the people, who serves as formal head of state, and a prime minister chosen by and responsible to the parliament, who serves as the actual chief executive. But for the Framers this inven- tion, which now seems obvious enough to us, was al-

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most as far off and about as difficult to imagine, per- haps, as a transcontinental railroad.

Without intending to do so, then, the Framers cre- ated a constitutional framework that under the driving impact of the continuing American Revolution would develop a presidency radically different from the one they had in mind. In time American presidents would gain office by means of popular elections—a solution the Framers rejected and feared—and by combining the functions of a head of state with those of a chief executive the president would be the equivalent of monarch and prime minister rolled into one.

I can’t help wondering whether the presidency that has emerged is appropriate for a modern demo- cratic country like ours.

! ! !

SO: AMONG THE OLDER DEMOCRACIES OUR CONSTITU- tional system is not just unusual. It is unique.

Well, you might say, being unique isn’t necessarily bad. Perhaps our constitutional system is better for it.

Better by what standards? Is it more democratic? Does it perform better in many ways? Or worse?

These questions are by no means easy to answer— probably impossible to answer with finality. But before turning to them, we need to take one more look at that anomalous vestige of the Framers’ work, the electoral college.

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appendix a

On the Terms “Democracy” and “Republic”

T HE VIEW THAT THE FRAMERS INTENDED TO create a republic, not a democracy, probably has its origins in comments by Madison in

Federalist No. 10. Although there as elsewhere he also used the expression “popular government” as a kind of generic term, he distinguished further between “a pure democracy, by which I mean a society consisting of a small number of persons, who assemble and ad- minister the government in person,” and a “republic, by which I mean a government in which the scheme of representation takes place.” “The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater

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sphere of the country, over which the latter may be ex- tended.”1

Here Madison was making the common distinction that political scientists and others would later differen- tiate as “direct democracy” and “representative de- mocracy.” For it was as evident to the Framers as it is to us that given the size of a nation composed of the thirteen existing states, with more to come, “the people” could not possibly assemble directly to enact laws, as they did at the time in New England town meetings and had done two millennia earlier in Greece, where the term “democracy” was invented. It was per- fectly obvious to the Framers, then, that in such a large country, a republican government would have to be a representative government, where national laws would be enacted by a representative legislative body consisting of members chosen directly or indirectly by the people.

Madison was probably also influenced by a long tradition of “republicanism” that in both theory and practice leaned somewhat more toward aristocracy, lim- ited suffrage, concern for property rights, and fear of the populace than toward a broadly based popular gov- ernment more dependent on “the will of the people.”

It is also true, however, that during the eighteenth century the terms “democracy” and “republic” were used rather interchangeably in both common and philosophical usage.2 Madison, in fact, was well aware of the difficulty of defining “republic.” In Federalist No. 39, he posed the question “What, then, are the

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distinctive characters (sic) of the republican form?” In response he pointed to the enormous range of mean- ings given to the word “republic.” “Were an answer to this question to be sought . . . in the application of the term by political writers, to the constitutions of differ- ent states, no satisfactory one could ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost univer- sally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of here- ditary nobles.”

In view of this ambiguity, Madison proposed that “we may define a republic to be . . . a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, or for a limited period, or during good behavior.”3 By defining a republic as a government which derives all its pow- ers “directly or indirectly from the great body of the people,” Madison now seems to be contradicting the distinction he had drawn earlier in Federalist No. 10. We might read his struggle with definitions as a fur- ther illustration of the prevailing confusion over the two terms.

If further evidence were needed of the ambiguity of terminology, we could turn to a highly influential writer whose work was well known to Madison and many of his contemporaries. In The Spirit of the Laws

o n t h e t e r m s “ d e m o c r a c y ” a n d “ r e p u b l i c ” 161

08dahlAppA.159_162 11/27/01 4:41 PM Page 161

(1748) Montesquieu had distinguished three kinds of governments: republican, monarchic, and despotic. Republican governments were of two kinds: “When, in a republic, the people as a body have the sovereign power, it is a Democracy. When the sovereign power is in the hands of a part of the people, it is called an Aris- tocracy.”4 But Montesquieu also insisted that “It is in the nature of a republic that it has only a small terri- tory: without that it could scarcely exist.”5

Although the Framers differed among themselves as to how democratic they wanted their republic to be,6

for obvious reasons they were of one mind about the need for a representative government. But as events soon showed, they could not fully determine just how democratic that representative government would be- come—under the leadership of, among others, James Madison.

162 o n t h e t e r m s “ d e m o c r a c y ” a n d “ r e p u b l i c ”

08dahlAppA.159_162 11/27/01 4:41 PM Page 162

WAC Workshop #2: Revisions

Political Science 10W Winter 2022 WAC TA: Margaret Hanson

ticket-ins • I hope taking the time to go over your TA comments was useful as you plan your revisions! • Remember that the work you did in your ticket-in might also be useful for your cover letter

• explaining how you incorporated your TAs comments • asking for feedback on specific areas 🡪what was helpful?

arguments and thesis statements • As a whole, your paper should make a cohesive, debatable argument that answers the prompt question(s) • In your introduction, you will set up your argument with a thesis statement, which

• Makes a debatable claim • Makes an argument in support of that claim • Can be multiple sentences • Depends on the evidence you will discuss in the rest of your paper • Is clearly stated and fully explained

• Your claim should provide a clear answer to the central question: “Have we failed to achieve our country?”

• In order to create a complete thesis, you also need to make an argument in support of that claim. To construct your argument, answer the prompt’s follow up questions: How has the US achieved/failed its ideals? What has made success possible/impossible?

• In order to answer these questions, you will have to define your criteria for success/failure.

• Your thesis should be based on the evidence you find in the readings • You might change your thesis to better

reflect the arguments in your body paragraphs • read through the paper • compare your conclusion and

introduction • You might change your thesis to

incorporate new evidence • Does the evidence from the new

readings contradict or complicate your argument?

• Did you miss important evidence in your first draft?

• If your evidence is complex, your thesis should be too.

body paragraphs—key components • Together, your body paragraphs should provide enough evidence + analysis to fully support your thesis • Each body paragraph should have a clear focus + point. This should be stated in a topic sentence at the beginning

of the paragraph • The point made in each paragraph should (1) provide support for your thesis and (2) be supported by

evidence • Integrating evidence into your body paragraph

• All quotes/examples should be contextualized + introduced using signal phrases • All examples/details/information should be cited, whether or not you use a direct quote • All quotes and examples should be analyzed: make sure to explain why your evidence is significant and how

it supports your point/thesis • Use transitions + refer to earlier paragraphs to show how your evidence fits together and guide your reader

through the paper

body paragraphs—key components

•If it’s useful, you can remember paragraph components using the acronym TAXES • Topic: a sentence establishing the focus of the paragraph • Assertion: a statement of the paragraph’s argument/main point • eXamples: evidence to support the assertion(s) • Explanation: analysis of how the evidence supports the assertion(s) • Significance: analysis of how the assertions/evidence support the thesis

• I have posted a short reading explaining the TAXES model on canvas.

body paragraphs—grammar and style • All quotes should be grammatically integrated into the sentence • Try to keep quotes under 3 lines, if they are longer, use a block quote

• In general, if a body paragraph should be about half a page. If it gets much longer (over 1 page is too long!), try to break it up • It’s okay if two paragraphs provide different evidence to support the same point

• Parenthetical citations should match the beginning of your works cited entries. For most sources in this class, that will be the author(s)’s name(s).

example: How Democracies Die (60-67)

example: How Democracies Die (60-67) • Each body paragraph should have a clear focus + point. This

should be stated in a topic sentence at the beginning of the paragraph • The point made in each paragraph should (1) provide

support for your thesis and (2) be supported by evidence

• Integrating evidence into your body paragraph • All quotes/examples should be contextualized +

introduced using signal phrases • All examples/details/information should be cited,

whether or not you use a direct quote • All quotes and examples should be analyzed: make sure

to explain why your evidence is significant and how it supports your point/thesis

• Use transitions + refer to earlier paragraphs to show how your evidence fits together and guide your reader through the paper

example: How Democracies Die (60-67) • Each body paragraph should have a clear focus + point. This

should be stated in a topic sentence at the beginning of the paragraph • The point made in each paragraph should (1) provide

support for your thesis and (2) be supported by evidence

• Integrating evidence into your body paragraph • All quotes/evidence should be contextualized +

introduced using signal phrases • All examples/details/information should be cited,

whether or not you use a direct quote • All quotes and examples should be analyzed: make sure

to explain why your evidence is significant and how it supports your point/thesis

• Use transitions + refer to earlier paragraphs to show how your evidence fits together and guide your reader through the paper

example: How Democracies Die (60-67) • Each body paragraph should have a clear focus + point. This

should be stated in a topic sentence at the beginning of the paragraph • The point made in each paragraph should (1) provide

support for your thesis and (2) be supported by evidence

• Integrating evidence into your body paragraph • All quotes/evidence should be contextualized +

introduced using signal phrases • All examples/details/information should be cited,

whether or not you use a direct quote • All quotes and examples should be analyzed: make sure

to explain why your evidence is significant and how it supports your point/thesis

• Use transitions + refer to earlier paragraphs to show how your evidence fits together and guide your reader through the paper

revising body paragraphs • Together, your body paragraphs should provide enough evidence + analysis to fully support your thesis • Each body paragraph should have a clear focus + point. This should be stated in a topic sentence at the beginning

of the paragraph 🡪make sure the opening sentences establish the focus & argument in the rest of the paragraph • The point made in each paragraph should (1) provide support for your thesis and (2) be supported by

evidence • Integrating evidence into your body paragraph

• All quotes/examples should be contextualized + introduced using signal phrases 🡪would a reader unfamiliar with the course be able to tell where your quotes were coming from?

• All examples/details/information should be cited, whether or not you use a direct quote 🡪would a reader be able to find & verify the evidence you’re using?

• All quotes and examples should be analyzed: make sure to explain why your evidence is significant and how it supports your point/thesis 🡪do you explain how your evidence supports your point? If not, can you explain it? Do you need better evidence? Do you need to change your topic sentence?

• Use transitions + refer to earlier paragraphs to show how your evidence fits together and guide your reader through the paper 🡪Do the points in this paragraph connect to, build on, or rely on something you discussed earlier in the paper? Are these connections clear to the reader?

finding evidence • Read with questions in mind • Think about connections between readings • Consider any evidence that relates to your provisional thesis (even if it contradicts your argument)

During the February 7 Lecture (~42:25 on the recording), Dr. Rohr brought up Anderson’s argument about southern politicians efforts to make black economic independence impossible and asked about their motivation.

How would Glaude answer Dr. Rohr’s question?

How Democracies Die intro. & ch. 1-3

2/16/22, 4:00 PM Writing Assignment #2

https://elearn.ucr.edu/courses/35132/assignments/301852 1/2

Writing Assignment #2

Due Friday by 11:59pm Points 100 Submitting a file upload Attempts 0 Allowed Attempts 2

Start Assignment

Background:

In Federalist Paper no. 10 James Madison presents part of his vision of what America could be because of the structure of the Constitution—a representative republic free from the oppression of minority or majority factions. Many of the texts for this course present a similar notion of what America can or should be (i.e. a democratic, egalitarian society). But, these texts also address the ways in which we have failed to live up to this ideal or how we have failed to “achieve our country”…

Primary Question:

For this assignment begin writing an argumentative, thesis-driven essay answering the following questions:

Have we failed to achieve our country? Why or why not?

If so, what has kept the United States from living up to its ideals? If not, in what ways has the US lived up to its ideals?

And, is it possible to achieve our country with our Constitution in its current state? Why or why not?

Requirements:

You must have a debatable/argumentative thesis statement. To address this question you must use Federalist Paper no. 10, The Constitution, How Democratic is the American Constitution?, How Democracies Die. You must also use at least 2 of the following sources (Uneasy Alliances, Democracy in Black, White Rage)

DO NOT incorporate outside research unless you have cleared it with your TA. DO NOT cite lecture. Go to the sources themselves. Lecture will not count as a valid source.

1750-2000 words (double spaced, Times New Roman, 12 point font, 1” margins) Use whatever formatting style you prefer unless your TA specifies their preference. Cover page including your name, TA’s name, class, date, title of paper, and one paragraph (200-300 words [does not count towards your overall word count]) explaining how you incorporated your TA's

2/16/22, 4:00 PM Writing Assignment #2

https://elearn.ucr.edu/courses/35132/assignments/301852 2/2

comments into your revised draft as well as any particular parts of the paper you would like them to focus on. In-text citations as well as a works cited page

Please remember, this is a rough draft. You will likely not have a fully articulated argument in this assignment. But we want to see that you have engaged with the material and are moving in the direction of original scholarship. Because this is a rough draft, your grade will largely be dependent on the existence of an argument (even though it may not be fully articulated), your understanding of the material, the use of resources, and the quality of writing. Meeting all of the requirements above will also factor into your grade.

2/16/22, 4:00 PM Writing Assignment #1

https://elearn.ucr.edu/courses/35132/assignments/290833 1/2

Writing Assignment #1

Due Jan 28 by 11:59pm Points 100 Submitting a file upload Attempts 1 Allowed Attempts 2 Available after Jan 14 at 12pm

New Attempt

Background:

In Federalist Paper no. 10 James Madison presents part of his vision of what America could be because of the structure of the Constitution—a representative republic free from the oppression of minority or majority factions. Many of the texts for this course present a similar notion of what America can or should be (i.e. a democratic, egalitarian society). But, these texts also address the ways in which we have failed to live up to this ideal or how we have failed to “achieve our country”…

Primary Question:

For this assignment begin writing an argumentative, thesis-driven essay answering the following questions:

Have we failed to achieve our country? Why or why not?

If so, what has kept the United States from living up to its ideals? If not, in what ways has the US lived up to its ideals?

And, is it possible to achieve our country with our Constitution in its current state? Why or why not?

Requirements:

You must have a debatable/argumentative thesis statement. To address this question you must use Federalist Paper no. 10, The Constitution, How Democratic is the American Constitution?, and How Democracies Die.

DO NOT incorporate outside research unless you have cleared it with your TA. DO NOT cite lecture. Go to the sources themselves. Lecture will not count as a valid source.

750-1000 words (double spaced, Times New Roman, 12 point font, 1” margins) Use whatever formatting style you prefer unless your TA specifies their preference. Cover page including your name, TA’s name, class, date, title of paper, and one paragraph (100-200 words [does not count towards your overall word count]) explaining what you feel most confident about in your paper and what you’re most concerned about. In-text citations as well as a works cited page

2/16/22, 4:00 PM Writing Assignment #1

https://elearn.ucr.edu/courses/35132/assignments/290833 2/2

Total Points: 100

Rubric

Criteria Ratings Pts

5 pts

5 pts

20 pts

20 pts

15 pts

20 pts

15 pts

Please remember, this is a rough draft. You will likely not have a fully articulated argument in this assignment. But we want to see that you have engaged with the material and are moving in the direction of original scholarship. Because this is a rough draft, your grade will largely be dependent on the existence of an argument (even though it may not be fully articulated), your understanding of the material, the use of resources, and the quality of writing. Meeting all of the requirements above will also factor into your grade.

Cover Page

Does the student have a cover page which includes all of the necessary information (including your name, TA’s name, class, date, title of paper, and one paragraph (100-200 words explaining what you feel most confident about in your paper and what you’re most concerned about)?

Thesis

Does the student have a debatable/argumentative thesis statement that adequately answers the prompt?

Argument

Does the student translate the argument in their thesis to the paper itself, and do they do so convincingly?

Prose

Is the paper well written?

Organization

Is the paper as a whole well organized? And, is there good organization of the argument within the paragraphs themselves?

Material

Does the student show a good understanding of the course material?

Evidence

Is evidence well-used throughout the paper and is it cited correctly? Are all necessary sources used?

Name: Sihua Lin

TA’s name: Zachary Larsen

Class: POSC 010W 001

Date: 1/28/2022

The factors that made the U.S. fail to achieve its country

I am relatively confident that the arguments I make and the evidence I find fit

together, but I am not sure if they are accurate. I have some concerns about whether

my in-depth thinking about my argument is consistent with what I want to say in the

evidence. And I also have concerns about the adequacy of the analysis after listing the

evidence, after combining my arguments and evidence to validate them. I feel that the

content of each of my paragraphs is relatively sparse and not close enough, they are

each paragraph separately looks and feels quite good, but when combined always

feels strange.

If a country wants to be prosperous and stable, then there must be a

government and a ruling party to manage and restrain the country and reach a

consensus on governance with the people living and active in this country to

consolidate the country’s development. The United States has been fulfilling this

concept since the War of Independence and since the founding of the country, and has

also developed steadily and rapidly into a superpower. Nowadays, the internal

contradictions in the United States are becoming more and more obvious, and the

proud concept of democracy is slightly crumbling and stubborn. The United States

has not yet achieved its country, or to some extent does not fulfill and realize the ideal.

While the United States has demonstrated a great power internationally and set an

example in every way, irreversible racial tensions and pernicious social attitudes have

emerged within the country.

Through these years of observation, I found that the presidential election with

democratic common consultation as the primary concept does not seem to be so

strong, or rather the people are the people and the electors are separated from each

other. In “How Democratic is the American Constitution?” Dahl also has questions

about this: “how many readers of these lines have ever participated in a referendum

that asked them whether they wished to continue to be governed under the existing

constitution? The answer, of course, is: none.”(Page 2). I know that the U.S.

Constitution is very intertwined and complex, which makes it difficult for a lot of

popular analysis and thoughtfulness to get into the process, but it has to at least show

us some sort of sign of review and presentation of the various critiques of the people,

right? And during this Covid 19, we and the world saw a more “remarkable” side of

the United States. And does this phenomenon confirm that there is some kind of hole

or missing part in the present century-old iteration of the Constitution? The answer is

yes.

Is there a problem with the electoral rigor of the country’s presidency that

leads to electoral irrationality? This means that as the election system has been

improved and added to over the course of history, the system that was relatively stable

at one point in time has become less solid and less reasonable. Or perhaps the

inclusion of various election conditions makes the election system too saturated and

cracks a hole, thus allowing those who wish to exploit it. The best expression of this

view is the Trump administration. In “How Democracies Die,” it claims that “And in

2016, for the first time in U.S. history, a man with no experience in public office, little

observable commitment to constitutional rights, and clear authoritarian tendencies

was elected president.”(page 2). A person with no prior military or government

service has been the president. This presents an essential problem in the election

process. I think it was the Covid 19 that indirectly affected the smooth

implementation of “the Yeas and Nays of the Members of either House on any

question shall, at the Desire of one-fifth of those present, be entered on the

Journal.”(“The US Constitution” section 5) part of the constitution. This is like the

relationship between fans and stars, which star has more fans then the star will be able

to gain the right to speak. This is also extremely contrary to and impedes the idea of a

democratic state.

The United States is a multiracial country and its social components are very

diverse. This means that the interactions and intermingling of the various ethnic

groups will gradually form new social groups. It also creates all sorts of disorganized

small groups that can influence and intrude into larger groups. And this phenomenon,

of course, has a direct impact on the purity of the faction and these small groups will

be pulled in by the Republic. In “Federalist Paper no. 10,” James states “the greater

number of citizens and extent of territory which may be brought within the compass

of republican than of democratic government.”(Page 3). It seems that the Republic is

better at uniting small groups and using more combined minds and intelligence to

confront the enemy. This is also a kind of provocation and vigilance against

democracy. After all, the number of people is strong, and whoever has a large group

with the ability to think can take the initiative to grasp the overall situation.

The above-mentioned reasons are only the tip of the iceberg of American

society. After all, the American group and society are too complicated because of

immigration from many regions and countries. And this long-term accumulation of

factors is very difficult to control and integrate, which also requires the United States

to improve and spread the concept of democracy and accept some analysis and

criticism from more voters and audiences to reach a new consensus. In addition, I also

believe that with the mature constitution-making process of the United States, it is

possible to find a way to break the situation.

Uneasy Alliances: Race and Party Competition in America

by Paul Frymer

1. TA’s comment is only under assignment #1 / Submission Details / View Feedback.

2. The most helpful is the comment in the first body paragraph of my writing. The TA

reminded me that I had to speak about a specific event rather than the general problem.

3. I think the assistant coach said the comments he gave were very sharp and pointed

out my problems directly, he gave impeccable comments.

4. TA’s comment: “Your paper overall is way too general. I need more context as to

what you're referring to here. Are you talking about the inclusion of minority groups

in the electorate?” He said what I wrote is the way too general and it is. Not only this

comment, but also in the comments that follow this question. The arguments I listed

are not detailed and in-depth enough, and the evidence I gave does not strongly

support my arguments. This is what I need to pay attention to in my next writing.

5. I think I need to revise and improve too much, maybe I still need to redefine my

thesis statement and writing style. But the most important things are the evidence and

analysis.

6. When I was halfway through reading the TA’s comments, I was thinking that the

main problem was the evidence I gave didn’t quite fit the thesis statement. Both of

these are areas that I need to improve.

7. I need to re-read Federalist Paper no. 10, The Constitution, How Democratic is the

American Constitution?, How Democracies Die and look for evidence that fits my

argument, and this time I have to focus more on a specific of evidence.