te id : : i ¢ a si Selyes eats weed ost sod eets) ieeeek ; Soest inte eracarien ae te sare etay wanton 3 . Ces ies * Bs FE rotatany eres =* “see ates og DEMOCRACY AND REPRESENTATION KK YK THE UNIVERSITY OF ILLINOIS LIBRARY 221.8 C2e7d Oe E, See aint vee Return this book on or before the _ Latest Date stamped below. A charge is made on all overdue books. ) University of Illinois Library M32 CEG Dk A hy iy Weil eH ty AMM Ai Democracy and Representation London: Humphrey Milford Oxford Unwersity Press Democracy and Kepresentation By William Seal Carpenter, Ph.D. Assistant Professor of Politics in Princeton University Princeton Princeton University Press 1925 Copyright 1925, Princeton University Press Printed at the Princeton University Press, Princeton, N.J., U.S.A. PREFACE Tue Convention of 1787 marks the close of a long period during which the ideas fundamental to the American theory of government had their growth. The members of the convention regarded the government then under construction as an experi- ment, which must either prove successful or reveal as fallacious the entire set of political ideas de- veloped in this country. James Madison observed that “it was more than probable we were now di- gesting a plan which in its operation would decide forever the fate of republican government.” AI]- exander Hamilton “concurred with Mr. Madison in thinking we were now to decide forever the fate of republican government; and that if we did not give to that form due stability and wisdom, it would be disgraced and lost among ourselves, disgraced and lost to mankind forever.” In the judgment of these men the foundations of the system of representative democracy had already been laid in the thought and experience of the American people. It was not expected that the work of the framers would endure forever, but it was believed that the form of government must CONTENTS be so contrived as to continue throughout the ex- istence of the ideas underlying it. As it happens, the people of the United States are very slow to embrace new political ideas, and it may well be — questioned whether the principles of 1787 do not today represent the whole stock of their funda- mental ideas. In this little book I have attempted to discuss the principle of representation as it has been applied in this country. The work is by no means complete, for I have not explained the origin of any of the ideas with which I deal. I have, however, undertaken to account for the changes which the American theory of represen- tation has undergone since the establishment of the Constitution. To describe the process by which the men of 1787 came into the possession of their political ideas is a much greater task which I shall attempt in a later volume. Princeton, September 29, 1925 W..S, 0, Synopsis of Contents PAGE I. The Foundations of Democracy 1 The democratic dogma asserted in the Declaration of In- dependence had its origin much earlier in the political thought of England and America. It involved the idea of the sovereignty of the people and the right of revolution. But whether the political institutions through which it can be realized rest upon choice, or are determined by the nature and life of a people, was not fully considered until the Con- vention of 1787. The speeches of Madison, Hamilton and James Wilson envisage different. aspects of this problem. They disclose the fact that social and economic forces in | America favor democracy, but indicate also the need of security for private rights. Madison believed that the re- — conciliation of democracy with stable government is possible if the spirit of faction be curbed, by tying in a nice poise and balance through the clauses of a written constitution the vital political forces in the state. This ideal of dynamic equilibrium, achieved in the Constitution of the United States, has been consistent with the growth of social and economic equality. By avoiding the lodgment of power in the hands of any class or sectional group, the government set up under the Constitution has been capable of adaptation to the changing needs of the people of the United States. At the same time, a clear distinction has been maintained between the sovereignty which vests in the people and the powers which are delegated to the government. This prin- ciple, derived from John Locke, has pointed the way: to the achievement of democracy in the United States during the nineteenth century. But these later developments were fully SYNOPSIS OF CONTENTS foreshadowed by the liberal spirit of the Convention of 1787. IJ. The Idea of Representation 39 The idea of representation, notwithstanding the denial of Rousseau, is implied in the doctrine of popular sovereignty. In the Convention of 1787, representation was considered as a substitute for direct action by the people. This concep- tion differed from that which came to be held in England, where the representative assembly was intended to watch over and check the government. It involved the notion that the executive and the legislature should reflect directly the popular sentiment; for the doctrine of the separation of powers precluded any branch of the government in the United States from acting as a checking body. But the no- tion that the legislative assembly will be a miniature of the electorate has heen failed because the representatives are not always able or willing to reflect the opinions of their constituents. The framers of the Constitution not only did not insert provisions which insure a harmony of interests between representatives and constituents but also created, by the compromise on the apportionment of representation, the great “‘sinister interest” of States’ rights. The decline in prestige of Congress is due in large measure to the evils of local sentiment and special interests. Degradation of the | legislature has been accompanied by exaltation of the ex- _ ecutive. The President has come to be the only available exponent of the general sentiment. This division of represen- | tation is fraught with danger, but for the present seems necessary to secure adequate leadership. IlJ. The Forms of Government 713 The republican form of government was compounded by _ engrafting upon democracy the principle of representation. [ viii ] SYNOPSIS OF CONTENTS In this process, the basis of representation was not found in social or economic groups, although property qualifications for suffrage were not forbidden. The wisdom of fixing the basis of representation on the number of inhabitants has been justified by subsequent developments; for it is clear | that the adoption of equal representation of States in the/ Senate has led to serious evils. So great have these evils become that an amendment of the Constitution is desirable to effect a remedy. Although the States have declined in importance, sectional differences have arisen. It is there- fore desirable to have a second chamber elected on a basis of population but apportioned among distinct sectional groupings. This would at the same time enable the various economic interests to display their strength in the elections. | A reform of this sort, together with the disfranchisement of | the vicious and the illiterate, appear to be steps by which | democracy may be advanced. External devices, however, can promote democracy only with a people who are able and willing to do all that is required for its furtherance. CHAPTER I ‘The Foundations of Democracy HE democratic dogma finds its foundation in the principle that governments derive their just powers from the consent of the gov- erned. Asserted in the Declaration of Indepen- dence, the dictum merely restates conclusions long accepted in the political theory of England and America. If the nature of sovereign power was nowhere subjected to careful scrutiny in the formative period of American political institu- tions it was because of the widespread belief that “the people were in fact the fountain of all power, and by resorting to them all difficulties were got over.” ! It was a very practical conception of popular sovereignty that pervaded American political thought. As a result of more than a century of town-meetings with their instructions to repre- sentatives in the colonial assemblies, the idea had emerged that the people as a whole have in their hands a power which can be counted upon to se- 1M. Farrand, Records of the Federal Convention, II, p. 476 DEMOCRACY AND REPRESENTATION cure obedience. The Continental Congress recog- nized the existence of this power when its mem- bers refused to enter upon the important question of independence until they had obtained proper instructions from the popular assemblies which had elected them.? Even in the Convention of 1787 the Delaware delegates at first objected to considering the proposals for a new constitution because their credentials did not allow them to go so far.* It was this same belief in the supreme authority of the people which led James Madison to argue for the ratification of the Constitution through popular conventions. In order to discover the origins of this power the American colonists in 1776, like their English forebears in the previous century, turned back to the state of nature. “It appears to me,” wrote a correspondent to Samuel Adams, “if there is any force in the late Acts of Parliament, they have set us afloat; that 1s, have thrown us into a state of nature. We now have a fair opportunity of choosing what form of government we think proper, and contract with any nation we please 2A. W. Small, Beginnings of American Nationality (J.H.U. Studies, 8th ser.), p. 74 3Farrand, I, p. 37 Le THE FOUNDATIONS OF DEMOCRACY for a king to reign over us.’’* The formation of new constitutions was regarded by many of the patriots as the work of a people convened in the state of nature who had “‘deputed a few fathers of the land to draw for them a glorious cove- nant.” If it could be argued that the condition of the people of Massachusetts, or any other of the thirteen colonies, contrasted strangely with eighteenth century conceptions of the state of nature, the ready answer was that the device | served to reveal the people as the source of su- preme power. The theory of popular sovereignty embraced clearly enough the idea that the people have the right to alter their government. In the state of nature this essential attribute of sovereign power was discernible in the hands of the people to a greater degree than in civil society. According to John Locke, who identified this power with the right of revolution, it was not to be exercised for light and transient causes, a view which seems to have commended itself to the framers of the Dec- laration of Independence. But since the power 4H. A. Cushing, History of the Transition from Provincial to Common- wealth Government in Massachusetts, p. 8 footnote SH. Niles, Principles and Acts of the Revolution, p. 71. See also ibid., p. 66 [3] DEMOCRACY AND REPRESENTATION was thought to exist as a natural right, it was in- capable of qualification or limitation. Hence the sovereignty of the people came to be identified with civil liberty, as “a power existing in the peo- ple at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead.’’6 When the convention to frame a constitution for the United States assembled at Philadelphia in May 1787, the question of the ultimate seat of authority did not require discussion. Every dele- gate realized that each separate constitutional construction would have to find ratification at the hands of the people. But there remained the issue between free will and determinism. That is to say, were the institutions to be set up in the Constitution to rest upon the choice of the con- vention or had they already been determined by the nature and life of the American people? In the solution of this question the members of the con- vention displayed great breadth of knowledge and much acuteness in evaluating human motives. Among the leading men of the convention none Niles, Principles and Acts of the Revolution, p. 47 [4] THE FOUNDATIONS OF DEMOCRACY stood out more conspicuously than James Madi- son. He was essentially a scholar in politics, blend- | ing together vast knowledge and profound insight into human nature. A graduate of Princeton in the Class of 1771, Madison returned for further study. His undergraduate training in the classics was followed by the reading of Hobbes, Locke, Sidney, Pufendorf and other writers on political science in the library of President Witherspoon.’ The writings of Montesquieu, which formed the basis of Witherspoon’s classroom lectures, Madi- son studied minutely. He possessed the complete equipment which marked the man of education in the American colonies, and his ability to quote from Livy or Plutarch’s Lives and to explain the political contrivances of the ancient world as- sured him respectful attention in any assembly. To the inventive genius of Madison, govern- ment was a problem to be worked out by the superior minds in the convention without consid- ering the opinions of the “unreflecting multi- tude.’’® The method of his political reasoning was 7The Library of Princeton University possesses the classroom lectures of President Witherspoon as well as the books contained in his private library. For an account of Witherspoon’s ideas on education, see V. L. Collins, President Witherspoon, Vol. II, pp. 201-16, passim 8Farrand, I, p. 215 [5 | DEMOCRACY AND REPRESENTATION very largely from historical analogy. He assumed, as Montesquieu had done, the accuracy and suffi- ciency of the accounts left by the Roman histo- rians, and never hesitated upon the questions of the nature of republics and the principles under- lying confederacies to cite examples from the an- cient world. In one of the first sessions, “‘Mr. Madison in a very able and ingenious speech ran through the whole scheme of the government,— pointed out all the beauties and defects of ancient republics; compared their situation with ours wherever it appeared to bear any analogy, and proved that the only way to make a government answer all the end of its institution was to collect the wisdom of its several parts in aid of each other whenever it was necessary.’’® When William Paterson introduced what became known as the “small State plan” for the modification of the Articles of Confederation, Madison led the oppo- sition and “reviewed the Amphyctionic and Achaean confederacies among the ancients, and the Helvetic, Germanic and Belgic among the moderns, tracing their analogy to the United States—in the constitution and extent of their federal authorities—in the tendency of the par- *Farrand, I, p. 110 [ 6 | THE FOUNDATIONS OF DEMOCRACY ticular members to usurp on these authorities, and to bring confusion and ruin on the whole.’’!° Notwithstanding the flavor of finality which attaches to Madison’s scholarly demonstrations, his methods of reasoning failed to convince some of his colleagues. In an age which could not boast of critical classical scholarship, his facts were manifestly insufficient. Moreover, it was felt that the differences in his comparisons were more striking than the agreements. Charles Pinckney retorted that “the people of this country are not only very different from the inhabitants of any state which we are acquainted with in the modern world . . . but their situation is distinct from either the people of Greece or Rome, or of any state we are acquainted with among the ancients. Can the orders introduced by the institution of Solon, can they be found in the United States? Can the military habits and manners of Sparta be resembled to our habits and manners? Can the Helvetic or Belgian confederacies, or can the un- wieldy, unmeaning body called the Germanic Empire, can they be said to possess either the same or a situation like ours?’ He denied that any two people were so exactly alike as to admit - -10gbid., p. 317 Le] DEMOCRACY AND REPRESENTATION of the same political institutions. “A system,” he said, “‘must be suited to the habits and genius of the people it is to govern, and must grow out of them.’’!! Many years later John Stuart Mill in the open- ing sentences of his famous essay on representa- tive government summed up the two conflicting theories respecting political institutions which are revealed in the debate between Madison and Pinckney. But the Federal Convention antici- pated Mill in holding that each of these doctrines is untenable if pushed to an exclusive and logical conclusion. The framers of the Constitution dis- covered that although the construction of a gov- ernment may be the result of the conscious pur- poses of men, the institutions set up must be congenial to the spirit of the people for whom they are intended. Everyone is familiar with the statement of Gladstone that “the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man.” Yet the extent to which political institutions are a matter of rational choice received less enlightenment 11 Farrand, I, pp. 401-2. For a similar criticism by James Wilson, see J. Elliot, Debates, II, pp. 422-3 Eos THE FOUNDATIONS OF DEMOCRACY from the Convention of 1787 than has generally been supposed. The primary purpose was to estab- lish a national government which should provide security for private rights and the steady dispen- sation of justice. “Interferences with these,” said Madison, “were evils which had more perhaps than anything else produced this convention.” But the framers of the Constitution could not break with the political theory of the time. They were fully conscious of the fact that the genius of the American people was in favor of democracy.” Indeed, the limits of political speculation were fixed by the democratic dogma of the Declaration of Independence. There could be no dissent from the mandate that governments derive their just powers from the consent of the governed. Con- fronted with the necessity of reconciling the prin- ciples of democracy and the security of private rights, the convention was reduced to the di- lemma noted by Alexander Hamilton in which “the members most tenacious of republicanism . were as loud as any in declaiming against the vices of democracy.” Hamilton, as he argued for the adoption of the Constitution, raised the question “whether soci- ” Farrand, I, p. 101 [9] DEMOCRACY AND REPRESENTATION eties of men are really capable or not of estab- lishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on acci- — dent and chance.”’ His answer was that a govern- ment would succeed in proportion to the interest enlisted in its support.’ “Men will pursue their interests,’ he told the New York Convention in 1788. “‘It is as easy to change human nature as to oppose the strong current of selfish passions. A wise legislator will gently divert the channel, and direct it, if possible, to the public good.” According to this principle, the part to be played by reason is to point out interest. What Hamilton assumed was that men recog- nize their interests and consciously shape their political conduct to promote them. A man may have a very clear conception of his own interest. But it is a difficult thought process to discover the precise measures which will promote that interest. A merchant conceives it to be his interest to sell goods. But he can recognize only dimly, and often not at all, the kind of legislation which will assure him the best market. Hamilton appreciated the 13 Federalist, No. 11 “4Elhot, Debates, I, p. 320 [ 10 | THE FOUNDATIONS OF DEMOCRACY bewilderment of the average citizen when called upon to make a decision which he hopes may be consistent with his interest. He believed that this decision could be rightly made only by the legis- lator. It was therefore necessary that government possess sufficient stability and permanency to control the political vagaries of the people. In the Federal Convention, Hamilton “ac- knowledged himself not to think favorably of re- publican government,” but “he was sensible at the same time that it would be unwise to propose one of any other form. In his private opinion, he had no scruple in declaring . . . that the British Government was the best in the world, and that he doubted much whether any thing short of it would do in America.” These remarks led to the charge that Hamilton favored a monarchical form of government. In point of fact, he desired a very simple political structure and aimed his criticism at the “multiple agency system” in- volved in the contemporary conception of a republic. Hamilton appreciated that the British monar- chical form could not be transferred intact to American soil. He believed at this time a maxim 4 Farrand, I, p. 288 [ei DEMOCRACY AND REPRESENTATION he later expressed by saying that “what may be good at Philadelphia, may be bad at Paris, and ridiculous at Petersburg,’ a formula which, of course, could be reversed and made to include London." His real desire seems to have been to combine popular participation in government with the separation of powers and the stability of the British system. Writing to Gouverneur Morris ten years before the Federal Convention, Hamilton had said: “That instability is inherent in the nature of popular government I think very disputable; unstable democracy is an epithet fre- quently in the mouths of politicians; but I believe that from a strict examination of the matter, from the records of history, it will be found that the fluctuations of governments In which the pop- ular principle has borne a considerable sway, have proceeded from its being compounded with other principles;—and from its being made to operate in an improper channel. Compound governments, though they may be harmonious in the beginning, will introduce distinct interests, and these inter- ests will clash, throw the State into convulsions, and produce change or dissolution. When the de- liberative or judicial powers are vested wholly or 161. B. Dunbar, Monarchical Tendencies in the United States, p. 88 [ 12 | THE FOUNDATIONS OF DEMOCRACY partly in the collective body of the people, you must expect error, confusion, and instability. But a representative democracy, where the right of election is well secured and regulated, and the exercise of the legislative, executive, and judiciary authorities is vested in select persons, will, in my opinion, be most likely to be happy, regular, and durable.’’!” The idea of responsible government through the cooperation of the legislative and ex- ecutive departments is here discerned long before the rise of the cabinet system was reflected in political philosophy. The ideas of Hamilton did not prove acceptable to the Federal Convention partly because of the aristocratic flavor of some of his proposals but especially on account of the extreme nationalism of his plan. His proposal to reduce the States to “corporations for local purposes’’ alienated the entire group of believers in States’ rights.!* Ham- ilton never appreciated the popular attachment to the State governments. His realism would not per- mit him to see that men often cling through senti- “Works, IX, pp. 71-2 18 Farrand, I, p. 287. Hamilton explained in the Federal Convention the precise position he thought the States ought to occupy in the new scheme of government, but his remarks were not calculated to soothe the advocates of States’ rights. See Farrand, I, pp. 323, 358 [ 13 | DEMOCRACY AND REPRESENTATION ment to institutions which may be shown through © logical arguments to be imperfect. Toward the close of his life, Hamilton remarked that “nothing is more fallacious than to expect to produce any — valuable or permanent results in political projects by relying merely on the reason of men. Men are rather reasoning than reasonable animals, for the most part governed by the impulse of passion.’’!® If he had adapted his proposals in the Conven- tion of 1787 to the spirit of the American people, his arguments would doubtless have carried much weight. But, as Dr. Johnson said, “‘the gentleman from New York . . . has been praised by every- body, he has been supported by none.” The most sublimated conception of democracy is to be found in the utterances of James Wilson of Pennsylvania. Born and educated in Scotland, Wilson came to America when twenty-three years old. He served several times in Congress and was one of the signers of the Declaration of Independence. At forty-five he was regarded as one of the ablest lawyers in the country. Intellec- tually the equal of Madison, he was not afflicted with the shyness which marked the Virginian in the company of others. But he was at a disadvan- 19Works, X, p. 432 [ 14 ] THE FOUNDATIONS OF DEMOCRACY tage in lacking the intimate acquaintance with his colleagues which Madison possessed. From the outset Wilson was at once demo- cratic and national. “He could not agree that property was the sole or the primary object of government and society. The cultivation of the mind was the most noble object. . . . Conceiving that all men wherever placed have equal rights and are equally entitled to confidence,” he in- sisted that “the majority of people wherever found ought in all questions to govern the minor- ity.’?° None, with the exception of Gouverneur Morris, was so often on his feet during the de- bates. Each time he spoke directly to the pur- pose, seeking to emphasize and enlarge upon the idea that any government, if it is to enjoy the public confidence, must reflect the mind or sense of the people at large. Wilson “‘wished for vigor in the government, but he wished that vigorous authority to flow from the legitimate source of all authority.”?! For 20Farrand, I, p. 605. For an interesting study of the political theory of James Wilson, see A. C. McLaughlin, “James Wilson in the Philadel- phia Convention,” Political Science Quarterly, XII, pp. 1 ff. The most complete statement of Wilson’s philosophy is contained in his lectures before the law students of the University of Pennsylvania in 1790. Works (ed. Andrews), 2 vols. Chicago, 1896. 1ibid., p. 132 [ 15 | DEMOCRACY AND REPRESENTATION this reason, he sought “to derive not only both branches of the legislature from the people, with- out the intervention of the State legislatures, but the executive also.”? He admitted the difficulty of defining with precision the sentiments of the people throughout the thirteen States. But “he could not persuade himself that the State govern- ments and sovereignties were so much the idols of the people, nor a national government so obnox- ious to them as some suppose.’ Both were meant for the people, and “the same train of ideas which belonged to the relation of the citizens to their State governments were applicable to their rela- tions to the general government, and in forming the latter, we ought to proceed by abstracting as much as possible from the idea of State govern- ments. With respect to the province and objects of the general government, they should be con- sidered as having no existence.’ Filled with the democracy of the next century, Wilson regarded the officers of government as the servants of the people. Representation was “made necessary only because it is impossible for the people to act collectively.” From this theory it 2 Farrand, I, p. 69 *3¢bid., p. 253 [ 16 | THE FOUNDATIONS OF DEMOCRACY necessarily followed that in the selection of po- litical institutions the convention should aim at a single object, “the accommodation of the voters.” The democratic doctrine was favored by the economic circumstances in the United States. Among the people there were few distinctions of rank and less of fortune. Land was the chief form of property and its wide distribution brought about in fact a considerable economic equality to correspond to the theory of political equality. It was argued by Charles Pinckney that “the people of the United States are more equal in their cir- cumstances than the people of any other country —that they have very few rich men among them . ; that it is not probable that this number will be greatly increased; that the genius of the people, their mediocrity of situation and the pros- pects which are afforded their industry in a coun- try which must be a new one for centuries are unfavorable to the rapid distinction of ranks.” Pinckney looked to the abundant free lands in the public domain west of the Alleghenies to maintain the economic and social equality of the American people. ‘“That vast extent of unpeopled territory,” he said, “which opens to the frugal and industri- La DEMOCRACY AND REPRESENTATION ous a sure road to competency and independence will effectually prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condi- tion which so eminently distinguishes us.’ But the democratic ideal, as Wilson moulded it, could not be reconciled with the necessary pro- tection of private rights. Madison was quick to see that the central problem of democracy is not the maintenance of equality but the preservation of liberty. Within the limited areas of the several States disturbances had already arisen which made him shrink from the logical consequences of unfettered democracy. Despite the apparent freedom of economic opportunity, Madison saw in the popular demands for paper money legisla- tion and stay laws evidences of a diversity of in- terests among the people of the United States. In reply to Pinckney, he said: ““We cannot be re- garded even at this time as one homogeneous mass in which every thing that affects a part will 4Farrand, I, p. 400. The remarks in the convention of Charles Pinckney, Mason, and Madison on the one side and Gouverneur Morris, Elbridge Gerry and others on the other side of the question of the political sig- nificance of the frontier anticipate the conclusions reached by nearly all of the group of American historians who have in recent years dealt so copiously with the subject. By 1787 the frontier as a political issue was fully defined. [ 18 | THE FOUNDATIONS OF DEMOCRACY affect in the same manner the whole. In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will pro- duce. An increase of population will of necessity increase the proportion of those who labor under all the hardships of life and secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in this country, but symp- toms of a levelling spirit, as we have understood, have sufficiently appeared in certain quarters to give notice of the future danger.” Equality which did not exist by nature could not be estab- lished through universal suffrage and majority rule. To the Virginian it was fallacious to suppose “that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their pas- sions.’ As long as there was a diversity in the %ibid., pp. 421-2 °6 Federalist, No. 10. Madison had long reflected upon the theory advanced in this number of the Federalist. As early as April 1787, he had outlined his ideas. Writings (ed. Hunt), II, pp. 361 ff. This sketch formed the Fibeet DEMOCRACY AND REPRESENTATION faculties of men, there could be no uniformity of interests. Inequality Madison regarded as the natural condition of men, which the statesman must take into account in the formation of popu- — lar government. Madison believed that democracy could be rec- onciled with the security of private rights if the spirit of faction could be curbed. By faction he did not mean a party in the modern sense of the word, but “‘a number of citizens, whether amount- ing to a majority or minority of the whole, who are united and actuated by some common im- pulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.’’” Such “blocs” would always be dangerous because al- ways actuated by selfish motives. But the causes of faction he traced to “‘the na- ture of man,” where latent dispositions are “brought into different degrees of activity, ac- cording to the different circumstances of civil so- ciety.” He observed that “‘all civilized societies would be divided into different sects, factions, basis of his speech of June 6 in the Federal Convention. Farrand, I, p. 135 27 Federalist, No. 10 [ 20 | THE FOUNDATIONS OF DEMOCRACY and interests, as they happened to consist of rich and poor, debtors and creditors, the landed, the manufacturing, the commercial interests, the in- — habitants of this district or that district, the fol- lowers of this political leader or that political leader, the disciples of this religious sect or that religious sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.’’” Although the causes of faction could not be re- moved, the control of its effects was within human power. ““The only remedy,”’ said Madison, “is to enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a com- mon interest separate from that of the whole or of the minority; and in the second place, that in case they should have such an interest, they may not be apt to unite in the pursuit of it.”?® That is to say, the vital political forces in the state should be tied up in a nice poise through the clauses of a written constitution. A government so contrived Mould, as Madison believed, “secure the perma- *8 Farrand, I, p. 135 - 27bid., p. 136 [ 21 | DEMOCRACY AND REPRESENTATION nent interests of the country against innovation.” The ideal which Madison envisaged was one of dynamic equilibrium. He thought that by deriv- ing the various branches of the government from different sources all positive action to the detri- ment of established order and guaranteed rights would be checked from the outset. Every safe- guard against “‘the mutability of public councils” was to be embodied in the interior structure of the government itself. The keystone of the whole edifice was to be the system provided for judicial control, through which the Constitution would be preserved inviolate against legislative or exec- utive aggression. Apart from the idea of judicial control, which is the unique contribution of America to the science of government,*° the theory is that set forth by Montesquieu. Madison had studied carefully the pages of the observant Frenchman. The equilibrium of power which the latter had thought necessary to balance the enormous pre- ponderance of royalty in England Madison con- ceived to be equally essential in the United States as afrestraint upon temporary majorities in pur- suit of their selfish interests. What he failed to *°W.S. Carpenter, Judicial Tenure in the United States, Chap. I | 22 ] THE FOUNDATIONS OF DEMOCRACY take into account was the difference in the way in which power had come into the hands of the peo- ple in the two countries. The evolution of the British constitution had witnessed the admission to civil and political rights of successive classes or estates. The rights which each order came to en- Joy were first wrung as privileges from the Crown. At no time was the grant of privileges conditioned upon a theory of abstract human equality. On this side of the Atlantic, however, the establish- ment of independent governments was accom- panied by a declaration that all men are created equal. It is true that property qualifications and religious tests barred the way to an immediate realization of political equality. But the free-and- equal doctrine had been proclaimed as the ideal, and no theory which gave to property and to estates a place in the process of government could withstand its triumphal advance. The analogy which Madison sought to trace through the writ- ings of Montesquieu between the conditions of political life in England and those in America proved as defective as his earlier essays in the comparative governments of ancient and modern times. Nevertheless, the idea prevailed that the interior structure of the government should be so | 23 | DEMOCRACY AND REPRESENTATION contrived “that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.””*! The maintenance of the nice poise and balance of political forces involved in the theory of Madi- son would seem to demand that government re- main within the control of the classes most di- rectly affected. This thought was undoubtedly in the mind of Gouverneur Morris when he pro- posed restricting the right of suffrage to the free- holders. Morris appears to have been convinced of the utter depravity of man. “‘Give votes to people who have no property,”’ he said, “‘and they will sell them to the rich who will be able to buy them. He looked to the time when the country will abound with mechanics and manufacturers who will receive their bread from their employers. Will such men be the secure and faithful guard- ians of liberty?’* But he was reminded by George Mason that in some States the franchise had already been extended beyond the freehold- ers. Only five States restricted the right to vote to owners of real estate. In seven States alterna- tives to landed property were permitted, while in 31 Federalist, No. 51 Farrand, II, p. 202 [ 24 | THE FOUNDATIONS OF DEMOCRACY Pennsylvania the only requirement was the pay- ment of public taxes.* Moreover, there was a strong sentiment in the convention that a property qualification ought to embrace other forms of property besides real es- tate. Rufus King objected to the exclusion of the “monied interest,’ and Madison agreed that property in land was not a sure criterion of wealth.** The idea was freely expressed that “every man having evidence of attachment to and permanent common interest with the society ought to share in all its rights and privileges.’’* None could pretend that these virtues were con- fined to the freeholders. But the real obstacle to the inclusion in the Con- stitution of a property qualification for the exer- cise of the suffrage was the accomplished fact that in some States the franchise was enjoyed by per- sons who were not owners of property. Nathaniel Gorham declared that “‘the elections in Philadel- phia, New York and Boston, where the merchants and mechanics vote are at least as good as those 33K. Porter, Suffrage in the United States, pp. 12-13. George Mason de- clared in the convention that eight or nine States had already extended the right of suffrage beyond the freeholders. Farrand, II, p. 201 Farrand, II, pp. 123-4 *7¢bid., p. 203. For a similar statement by Alexander Hamilton, see Works, I, p. 90 [ 25 | DEMOCRACY AND REPRESENTATION made by freeholders only.’’** Madison was of the opinion that the freeholders “would be the safest depositaries of republican liberty. But he was un- certain how a constitutional provision limiting the suffrage to freeholders would be received in States where the right was now exercised by everyide- scription of people.’’*” Pierce Butler “feared any provision which would effect any disfranchise- ment,’’*§ and James Wilson was “against abridg- ing the rights of election in any shape.”’*® The dis- cussion concluded with the solemn warning of Gorham that “the people of America who have been accustomed to vote without freeholds will not give it up.’’*° In the decision to omit from the Constitution any qualification for the suffrage the “rooted prejudices”’ of the people controlled the judgment of the delegates. But the powerful leaven of the democratic philosophy was destined to penetrate even further into the political system under con- struction. The adoption of the rule of numbers in fixing the apportionment of representation and 6 Farrand, II, p. 216 37 {bid., p. 204 88 ibid., p. 202 s9ibid., L, p. 375 ibid., p. 216 | 26 | THE FOUNDATIONS OF DEMOCRACY the admission of new States on equal terms with the old foreshadowed the democracy of the nine- teenth century. The controversy in the Convention of 1787 over the apportionment of representation is inti- mately connected with the long series of contests between the democratic forces of the frontier and the aristocratic pretensions of the tidewater set- tlements. As early as 1676 the social revolt in Vir- ginia known as Bacon’s Rebellion indicated the character of the coming struggle. “In general this took these forms: contests between the property- holding class of the coast and the debtor class of the interior, where specie was lacking, and where paper money and a readjustment of the basis of taxation were demanded; contests over defective or unjust local government in the administration of taxes, fees, lands, and the courts; contests over apportionment in the legislature, whereby the coast was able to dominate, even when its white population was in the minority; contests to secure the complete separation of Church and State; and, later, contests over slavery, internal im- provements, and party politics in general.’’*! This antagonism between the coast and the interior “FJ. Turner, The Frontier in American History, pp. 110-1 [ 27 | DEMOCRACY AND REPRESENTATION was exhibited along the entire frontier. In New England it gave rise to Shays’ Rebellion and to separatist movements in Maine, New Hampshire and Vermont. The frontiersmen in Pennsylvania — in 1764 demanded a right to share in political privileges with the older part of the colony, and protested against the apportionment by which the counties of Chester, Bucks, and Philadelphia, together with the city of Philadelphia, elected twenty-six delegates, while the five frontier counties had but ten. The three old wealthy counties under Quaker rule feared the growth of the West, therefore made few new counties, and carefully restricted the representation in each to preserve the majority in the old section. The States south of the Potomac showed the same lodgment of power in the hands of the coast, even after population preponderated in the upland country. From New England to Georgia, the in- terior region had a common grievance against the coast, that 1t was generally deprived of its due share of representation. The policy of exclusive tidewater statesman- ship was urged in the Philadelphia Convention by Gouverneur Morris. “He thought property ought to be taken into the estimate (of appor- [ 28 | THE FOUNDATIONS OF DEMOCRACY tionment) as well as the number of inhabitants. Life and liberty were generally said to be of more value than property. An accurate view of the matter would nevertheless prove that property was the main object of society. . . . Hf property was then the main object of government, cer- tainly it ought to be one measure of the influence due to those who were to be affected by the gov- ernment. He looked forward to that range of new States which would soon be formed in the West. He thought the rule of representation ought to be so fixed as to secure to the Atlantic States a prevalence in the national councils. The new States will know less of the public interest than these, will have an interest in many respects dif- ferent, in particular will be less scrupulous of in- volving the community in wars the burdens and operations of which would fall chiefly on the maritime States. Provision ought therefore to be made to prevent the maritime States from being hereafter outvoted by them. He thought this might easily be done by irrevocably fixing the number of representatives which the Atlantic States should respectively have, and the number which each new State will have.” Again he ar- “Farrand, I, pp. 533-4 [ 29 | DEMOCRACY AND REPRESENTATION gued that the Western States would be unable to furnish “men equally enlightened” to participate in the work of government. “The busy haunts of men,” he said, “‘not the remote wilderness, was the proper school of political talents. If the western people get the power into their hands they will ruin the Atlantic interests. The back members are always most averse to the best measures.” The spokesman of the propertied and commer- cial classes, Morris had many followers in the convention. John Rutledge and Pierce Butler of South Carolina saw the advantage to the slave- owning planters of apportioning representatives on a basis of wealth as well as the number of in- habitants. Elbridge Gerry, who feared the influx of Scotch-Irish, French Huguenots and Germans along the frontier, pleaded that those who re- mained on the Atlantic seaboard might not “be at the mercy of the emigrants.’’* Before any ar- guments could be advanced on the democratic side, Morris had obtained the adoption of a re- port which allowed Congress “to regulate the number of Representatives” in any new States 48Farrand, I, p. 583 “ibod., pp. 534, 541 7bid., II, p. 3 THE FOUNDATIONS OF DEMOCRACY which might be created, “upon the principles of their wealth and number of inhabitants.” Since the Atlantic States would have control of the government from the outset, they could “take care of their own interest by dealing out the right of representation in safe proportions to the West- ern States.’”* It was only a temporary victory. Two days later the liberal view was introduced in the con- vention by Colonel Mason. “From the nature of man,” he said, “we may be sure that those who have power in their hands will not give it up while they can retain it. . . . Ought we to sacrifice what we know to be right in itself, lest it should prove favorable to States not yet in existence? If the Western States are to be admitted into a Union as they arise, they must, he would repeat, be treated as equals, and subjected to no degrad- ing discriminations.’’*7 Mason was supported by Edmund Randolph, who observed that ‘‘Con- gress have pledged the public faith to the new States, that they shall be admitted on equal terms. They never would nor ought to accede on *ibid., I., pp. 559-60 “Tibid., p. 578 [ 31 | DEMOCRACY AND REPRESENTATION any other.’’** Not only the abstract principle of right but a contractual obligation of the Con- gress under the Articles of Confederation also confronted the exclusive policy of Gouverneur Morris and the party of tidewater control. Congress had two months earlier been peti- tioned to provide for the opening of the territory in the valley of the Ohio River. A joint-stock company had been formed by two enterprising citizens of Massachusetts to promote the settle- ment of the unoccupied lands; eager, impover- ished veterans of the Revolutionary War were ready to go and take possession at once. At their request the Ordinance for the Government of the Territory Northwest of the Ohio had been drafted and awaited the final vote. It contained in un- mistakable terms the recognition of the equality of the western people with the inhabitants of the old thirteen States. On July 13, a quorum being present in Congress, the bill became a law. At almost the same hour, the Constitutional Con- vention resolved to apportion representatives solely on a basis of the number of inhabitants. This step having been taken, no further objection was interposed to writing into the Constitution 48Farrand, I, p. 580 | 32 | THE FOUNDATIONS OF DEMOCRACY provisions which opened the way to the admis- sion of new States on terms of equality with those already in existence.*® The Constitution was, from the point of view of eighteenth century political theory, a demo- cratic document. It is true, the democratic char- acter of the instrument depends largely upon the failure to lodge political power in the hands of special classes or interests. But it was recognized that with unrestricted suffrage, the apportion- ment of representation according to the rule of numbers, and the admission of new States on a parity with those already established, the Con- stitution would not endanger the growth of eco- nomic and social equality. Harrington in the seventeenth century had predicated the success of republican institutions upon the widespread ownership of land.*° In similar vein Madison de- clared that “the extent and fertility of the western soil would for a long time give to agriculture a preference over manufactures. . . . The value of labor might be considered as the principal cri- terion of wealth and ability to support taxes; and 49 Rufus King, in the debates on the admission of Missouri into the Union, argued that the power of Congress to admit new States is conferred without limitation. Life and Correspondence of Rufus King, V1, p. 691 *°Oceana (ed. Morley), p. 19 [ 33 | DEMOCRACY AND REPRESENTATION this would find its level in different places where the intercourse should be easy and free, with as much certainty as the value of money or any other thing. Wherever labor would yield most, people would resort, until the competition should destroy the inequality.’ For a period extending over ninety-six days the Federal Convention was engaged in its momen- tous task. Human reason and human prejudices played their part in framing the great document which has since served as the basis of government in the United States. Yet there were added few provisions which could not be found in the State constitutions or in the Articles of Confederation. The framers were dependent largely upon the political experience of their own immediate past; they were not seeking innovations. As John Dick- inson said in the course of the debates: “*E:xperi- ence must be our only guide. Reason may mislead us. It was not reason that discovered the singular and admirable mechanism of the English Consti- tution. It was not reason that discovered or ever could have discovered the odd, and in the eyes of those who are governed by reason, the absurd mode of trial by jury. Accidents probably pro- 1 Farrand, I, p. 585 [ 34 ] THE FOUNDATIONS OF DEMOCRACY duced these discoveries, and experience has given sanction to them. This then is our only guide.” Human ingenuity was limited in the main to adapting to the requirements of a new govern- ment institutions that were very old. The growth of those institutions may be traced back through the State constitutions, the colonial charters and the charters of the trading companies, to their origins in the great landmarks of English consti- tutional development. The continuity of this de- velopment was not broken in 1787. As Madison said in the Federalist: ““The truth is, that the great principles of the Constitution proposed by the convention may be considered less as abso- lutely new, than as the expansion of principles which are found in the Articles of Confederation. .. . If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists less in the addi- tion of New Powers to the Union, than in the in- vigoration of its Original Powers.”’* The crowning feature of the American political system as it was worked out during the summer of 1787, from the point of view of popular govern- 27bid., II, p. 278 3 Federalist, No. 45 [ 35 | DEMOCRACY AND REPRESENTATION ment, is the clear distinction between the sover- eignty which vests in the people and the powers which are delegated to the government. When the members of the convention adjourned on the Fourth of July to celebrate the anniversary of the Declaration of Independence, they heard with approval from the lips of Dr. Benjamin Rush the doctrine that “all power is derived from the people; they possess it only on the days of their elections. After this, it is the property of their rulers.’’** The distinction made by Rousseau be- tween state and government is here preserved. But the people cease to be active in political affairs as soon as the government has been set up, except at the periodical elections. By the act of setting up a government the people divest themselves of the rights which they transfer to the government. That is to say, the function of governing becomes lodged exclusively in the gov- ernment. The true distinction between the democ- racies of ancient Greece and the American govern- ment, declared the writers of the Federalist, “‘lies an the total exclusion of the people, in thetr collective capacity, from any share in the latter.” 54Niles, p. 234 55 Federalist, No. 63 | 36 | THE FOUNDATIONS OF DEMOCRACY The political philosophy of which this type of state is the central object was expounded by John Locke in the seventeenth century. In Locke’s theory, sovereignty can exist nowhere except in the community as a whole. This is the original and supreme will which organizes the govern- ment and defines its just powers. It is compatible with almost any variety of institutions, so long as it is recognized that the rulers are the trustees of the people who delegate their powers to them. But the community retains the reserve power of revolution which may be exercised whenever the rulers have so far abused the trust confided in them that it becomes necessary for the people to dispose their powers in another way. In practice the formation or alteration of a constitution has proved to be identical with an act of revolution. Thus through the theory of Locke democracy is revealed rather as a spirit than as a special set of institutions. The realization of democracy in the United States was an achievement of the nineteenth cen- tury. It was fully defined in the words of Lincoln as he gazed upon the resting-places of the heroic dead at Gettysburg,—“government of the people, by the people, and for the people.” But this im- ra DEMOCRACY AND REPRESENTATION pressive formula does no more than reflect the liberal spirit of the Convention of 1787. With the settlement of the interior valleys of the West and the admission of new States to the Union, aristo- cratic pretensions came to be disregarded. The sort of equality contemplated by the Declaration of Independence gradually permeated the whole political system. CHAPTER II The Idea of Representation T is an impressive fact that in the Federal Con- vention representation was considered solely as a substitute for legislation by direct action of the people. More than a hundred years earlier, Par- liament had been described by John Selden as a meeting of representatives of the people made necessary “because the room will not hold all.’”! Through successive generations of American col- onists the idea remained unchanged. “‘What is the principle of representation?” said William Pater- son at Philadelphia. “It is an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient 1Table Talk, (ed. Reynolds), p. 46. A theory of Parliament as a repre- sentative body was given by Sir Thomas Smith in the reign of Elizabeth. In his book, De Republica Anglorum (1583), he said of Parliament: ‘‘For every Englishman is intended to be there present, either in person or by procuration and attorneys, of whatever pre-eminence, state, dignity or quality soever he be, from the prince, be he King or Queen, to the lowest person of England. And the consent of Parliament is taken to be every man’s consent.” Book II, chap. 1. But it would seem that Smith regarded Parliament as a court rather than a legislative assem- bly. C. H. Mcllwain, High Court of Parliament and Its Supremacy, pp. 124 ff. | 39 | DEMOCRACY AND REPRESENTATION meeting of the people themselves.”? James Wilson “‘was of the opinion that the national legislative powers ought to flow immediately from the peo- ple, so as to contain all their understanding, and be an exact transcript of their minds.’’* This the- ory emphasizes the notion that representation is designed to secure in the government a reflex of the opinion of the entire electorate rather than to generate an organ of control over the government. Before we can accept the idea that the legisla- ture can be a “‘transcript of the whole society,” we must admit that the principle of representation is consistent with popular government. Exactly a quarter of a century before the Philadelphia Con- vention, the French philosopher Rousseau denied that the sovereignty which vests in the people could be represented any more than it could be alienated.‘ In his view, there could be no law which the people in person had not ratified. But Rousseau was himself unable to extend his theory beyond the confines of a city-state, ““where every- one hastens to the assemblies.”’ In a modern state of large area such perpetual referenda to the peo- *Farrand, I, p. 561 Sibid., p. 141 4 Social Contract, Book II, xv | 40 | THE IDEA OF REPRESENTATION ple are impracticable. It therefore follows that popular sovereignty implies representation. It was not until the appearance of the Encyclo- pedia article on “Government” by James Mill in 1820 that the representative system was reflected in political theory. By that date the divergence between English and American political develop- ment was well defined. Under the leadership of John Marshall; the Supreme Court of the United States was asserting the scope and limits of the powers vested in the different departments of the government, by the exercise of which they were to check each other. But the doctrine of Mill was that the community itself must check those indi- viduals entrusted with the conduct of govern- ment; else they will follow their own interest and produce bad government. Since the community can act only when assembled, and when assem- bled it is incapable of acting, it must choose rep- resentatives. The representative assembly must therefore be the checking body, and must not only have an identity of interest with the com- munity but must also have a degree of power sufficient for the business of checking. The ideas of Mill had little significance in the United States; he was arguing for a theory of representa- [ 41 ] DEMOCRACY AND REPRESENTATION tive institutions with which Americans were not yet acquainted. The Constitution of the United States was es- tablished on a theory of checks and balances which precluded the existence of any single de- partment of government as a checking body. The people through the clauses of the Constitution assigned to each department specific powers and fixed the limits within which they were to be exercised. The powers thus granted, though lim- ited to specific objects, are plenary as to those objects. As one writer has said: “The checks and balances of the Constitution were regarded, not as restraints upon the government itself, but as restraints upon the classes who would have pos- session of the government, to keep them from abusing their trusts for individual advantage.’” The desire was not to enable the people to control the government, but to enable the government to control the people. “In framing a government which is to be administered by men over men,” said Madison, “the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself.’’ 5H. J. Ford, Rise and Growth of American Politics, p. 60 6 Federalist, No. 51 [ 42 ] THE IDEA OF REPRESENTATION The constitution-makers with historic prece- dent immediately behind them provided that all bills for raising revenue should originate in the popular house of the national legislature. This control of the purse was intended as a resource in the hands of the representatives of the people to compel the government to accomplish its just purposes. In the Federalist it was claimed that “this power over the purse may, in fact, be re- garded as the most complete weapon with which any constitution can arm the immediate repre- sentatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.’ But in the sentence granting this power, the Constitution states that “the Senate may propose or concur with amendments as on other bills.’’ The result has been that the Senate has steadily gained in its influence over revenue legislation until it now frankly assumes, under its power to make amend- ments, what is for practical purposes the right of initiating revenue measures. Whatever may be the theory held today regarding the Senate, that body was not originally formed on the principles of popular representation. 7™No. 58 [ 43 ] DEMOCRACY AND REPRESENTATION The system of checks and balances also in- volved the doctrine of the separation of powers which denied any cooperation of executive and legislature in the construction of legislation. At the moment when political practice in England was disregarding the separation of the legislative and executive departments, the doctrine was up- held by the framers of the United States Consti- tution in the belief that they were imitating what they regarded as cardinal principles in the English system. The fact that the Prime Minister had be- come the real executive was perceived clearly enough in the Convention of 1787. But the idea still prevailed on both sides of the Atlantic that it was the business of the King to govern the country. This “interception of royal duty by min- isterial combinations, based upon parliamentary interest, was regarded as an aberration from the principles of the English constitution and as the chief source of political corruption.’’® In other words, the rise of the cabinet system was not yet reflected in political philosophy. It must not be forgotten that John Francis Mercer argued in the convention for the creation of a cabinet. “The legislature,” he said, “must 8Ford, p. 276 [ 44 ] THE IDEA OF REPRESENTATION and will be composed of wealth and abilities, and the people will be governed by a junto. The exec- utive ought to have a council, being members of both houses. Without such an influence, the war will be between the aristocracy and the people. He wished it to be between the aristocracy and the executive. Nothing else can protect the peo- ple against those speculating legislatures which are now plundering them throughout the United States.”® This brought from Elbridge Gerry the retort that “according to the idea of Mr. Mercer our government it seems is to be a government of plunder. In that case it certainly would be pru- dent to have but one rather than many to be em- ployed in it.” But the convention had already agreed, before the arrival of Mercer at Philadel- phia, that it was essential to the principle of the separation of powers that the whole executive power should be vested in the President. “The President should be authorized to call or not for advice as he might choose,” was the thoughtful conclusion of Charles Pinckney. “Give him an able council and it will thwart him; a weak one and he will shelter himself under their sanction.” °Farrand, II, p. 284 Wibid., p. 285 U¢bid., p. 329 [ 45 | DEMOCRACY AND REPRESENTATION Indeed, the principle of the separation of legisla- tive and executive functions continued to be re- garded as so fundamental throughout the forma- tive period of American political institutions that every deviation, no matter how slight, was dis- couraged. At the first session of Congress, in the bill to create a Treasury Department, it was intended that the Secretary should have access to the House of Representatives “‘to report plans for the improvement and management of the revenue, and the support of the public credit.”? The meas- ure was drawn not merely upon the lines, but al- most in the exact language of the act creating the Superintendent of Finance under the Articles of Confederation. In that position Robert Morris had frequently appeared in the Congress and had enjoyed an intimate acquaintance with its pro- ceedings. But the proposal to give to the Secre- tary of the Treasury the same direct and familiar access to the Congress under the Constitution was met by the objection that this “would be a dangerous innovation upon the constitutional privilege” of the House of Representatives. The old Congress, it was agreed, could safely allow the 2 Annals of the First Congress, I, pp. 616 ff. [ 46] THE IDEA OF REPRESENTATION Superintendent of Finance to appear before them, “because they possessed the legislative and exec- utive power; they could abolish his plans and his office together, if they thought proper.” But under the Constitution the Congress would have no control over the head of an executive depart- ment, therefore they “ought to be cautious of putting dangerous powers into his hands.” More- * over, “all the information that can be required, may be called for, without adopting any clause that may undermine the authority of this House, and the security of the people. The Constitution has pointed out the proper method of communi- cation between executive and legislative depart- ments; it is the duty of the President to give, from time to time, information to Congress of the state of the Union, and to recommend to their consideration such measures as he shall judge necessary and expedient. If revenue plans are to be prepared and reported to Congress, here is the proper person to do it; he is responsible to the people for what he recommends, and will be more cautious than any other person to whom a less degree of responsibility is attached.’’ The jeal- ousies which were thus aroused produced a deter- mination to exclude the heads of the departments [ 47 | DEMOCRACY AND REPRESENTATION from the House of Representatives and the op- portunity to establish this branch as an organ of control was rejected. The representative body was not conceived to be an agency for the control of the government; it was to be a part of the government itself. Powers were granted to Congress which were to be exercised subject to no limitations, except those contained in the Constitution. As “‘a sub- stitute for a meeting of the citizens in person,” Congress was expected to perform its functions in the same spirit, if not in the same manner, as an assembly of the people. This conception of the representative body sprang from the notion of the state as a compact. In his lectures before the law students of the Uni- versity of Pennsylvania in 1790, James Wilson said: “In free states the people form an artificial person or body politic, the highest and noblest that can be known. They form a moral person . as a complete body of free natural persons, united together for their common benefit; as hav- ing an understanding and a will; as deliberating and resolving and acting; as possessed of inter- ests which it ought to manage; as enjoying rights [ 48 ] THE IDEA OF REPRESENTATION which it ought to maintain; and as lying under obligations which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of state. . . . The constitu- tion of the United States and that of Pennsyl- vania rest solely, and in all their parts, on the great democratical principle of a representation of the people; in other words, of the moral person, known by the name of the state.’ Thomas Hobbes in the seventeenth century had a similar conception of the unity of the multitude in one person. But Wilson departed from the theory of the Englishman in considering sovereignty as continuing to be vested in the people, who dele- gate specific powers to the government. “‘Repre- sentation,” said Wilson, “‘is the chain of com- munication between the people and those to whom they have committed the exercise of the powers of government.’ The idea that the representative body will be a miniature of the electorate has the merit of simplicity. But it fails to achieve reality because the representatives are not always able or willing 3 Lectures on Law. Works, II, pp. 120-3. It is probable that some of the lectures were not delivered, but they indicate clearly enough the more mature ideas of Wilson on political philosophy Mibid., p. 124 [ 49 | DEMOCRACY AND REPRESENTATION to reflect the opinions of their constituents. Any system of representative government depends in large measure for its success upon the men en- trusted with its conduct. “‘It is a mistake,” said Mercer of Maryland in the Federal Convention, “to suppose that the paper we are to propose will govern the United States. It is the men whom it will bring into the government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.’ The State governments had already been es- _ tablished upon the idea that the representatives in the legislatures would reflect accurately the sentiments of the electorate. Yet there was almost universal complaint that “the State legislatures drawn immediately from the people did not al- ways possess their confidence.’ Gouverneur Mor- ris warned the delegates assembled at Philadel- phia that “the legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. When their interest coincides with that of their constituents, as happens in many of their acts, no abuse of trust is to be ap- prehended. When a strong personal interest hap- 6 Farrand, II, p. 289 [ 50 ] THE IDEA OF REPRESENTATION pens to be opposed to the greatest interest, the legislature cannot be too much distrusted.’’! _ The danger to be guarded against was the growth in the representative body of what Bentham once defined as sinister interests. Inter- ests adverse to those of the whole community had already reduced the government in some of the States toa condition of turbulence and anarchy. In the constitutional convention, James Wilson called attention to the fact that in these States “the legislatures are actuated not merely by the sentiment of the people, but have an official sen- timent opposed to that of the general govern- ment and perhaps to that of the people them- selves.’’!7 Paper money legislation and stay laws enacted in the State legislatures indicated a solici- tude for the debtor classes which was adverse to the general welfare. Recognition of the danger did not, however, produce a remedy. Here the convention entered upon the realm of the impalpable. “With regard to the sentiments of the people,” at the time of the convention, James Wilson “‘conceived it diffi- cult to know precisely what they are. Those of 6 ibid., p. 104 17ibid., I, p. 358 [ 51 | DEMOCRACY AND REPRESENTATION the particular circle in which one moved were commonly mistaken for the general voice.”?® Madison “‘observed that if the opinions of the people were to be our guide, it would be difficult to say what course we ought to take. No member of the convention could say what the opinions of his constituents were at this time; much less could he say what they would think if possessed of the information and lights possessed by the members here; and still less what would be their way of thinking six or twelve months hence.’’!® If subse- quent experience has proved anything, it is that the doubts which assailed the men of 1787 have become permanently fixed in American political speculation. No one can pretend today that the interests of the representative assembly are al- ways in harmony with those of the electorate or that the power supposedly delegated by the peo- ple is not frequently perverted to vicious ends. The only provision inserted in the Constitution for maintaining a proper responsibility of the representative to his constituents was that of fre- quent elections. “The House of Representatives,” wrote the authors of the Federalist, “is so consti- 18Farrand, I, p. 253 9¢bid., p. 215 [ 52 | THE IDEA OF REPRESENTATION tuted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there to remain forever unless a faithful discharge of their trust shall have established their title to a renewal of it.’’?° This argument seems almost specious in view of the fact that most of the State legislatures, which were so generally condemned in the Federal Con- vention, were chosen by annual elections. Indeed, Hamilton suggested that “frequency of elections tended to make the people listless to them; and to facilitate little cabals.’’! Notwithstanding the unqualified approbation in the convention of the idea of representation which aims to secure in the government a reflex of public opinion, the framers of the Constitution were unable to adapt the theory to the exigencies of the situation which confronted them. ‘The 20No. 57 *1Farrand, I, p. 362 [ 53 | DEMOCRACY AND REPRESENTATION doctrine of representation,” said James Wilson early in the debates, “is this—first the represen- tative ought to speak the language of his consti- tuents, and secondly that his language or vote should have the same influence as though the constituents gave it.”’” This interpretation, which is the only one consistent with the idea of repre- sentation as a substitute for direct action by the people, demands the apportionment of represen- tatives on a basis of population. But the assent of the delegates from the smaller States could not be obtained to any practical arrangements which did not secure in at least one branch of the legislature the equal representation of the States. Under the leadership of William Paterson a compromise was forced upon the convention whereby the States secured an equal representa- tion in the Senate while the members of the House of Representatives were to be apportioned ac- cording to population. This was in effect a repudi- ation of Paterson’s own principle of representa- tion. “Mr. Madison reminded Mr. Paterson that his doctrine of representation, which was in its principle the genuine one, must forever silence the pretensions of the small States to an equality Farrand, I, p. 185 [ 54 | THE IDEA OF REPRESENTATION of votes with the large ones. They ought to vote in the same proportion in which their citizens would do, if the people of all the States were col- lectively met.’’?* Nevertheless the delegates from the small States were determined to secure pro- tection for their interests regardless of the prin- ciples that might have to be sacrificed. Undoubtedly the Constitution would never have been accepted by the small States without this compromise. But it introduced at once into the government of the United States the great sinister interest of States’ rights, which has since remained an obstacle to the development of a national sentiment which could be reflected in Congress. “The State systems,’’ wrote Henry Knox to Rufus King in the summer of 1787, “‘are the accursed things which will prevent our being a nation. The democracy might be managed, nay, it would be a remedy itself after being sufficiently fermented; but the vile State governments are sources of pollution, which will contaminate the American name for ages—machines that must produce ill, but cannot produce good.’’** Because the States have been so firmly entrenched behind 3 ibid., p. 562 24 Life and Correspondence of Rufus King, I, p. 228 [ 55 | DEMOCRACY AND REPRESENTATION the Constitution, the American people have never been able again to attain the political solidarity they once displayed so consp cue aS in the Dec- laration of Independence. The explanation for the constitutional position of the Senate was that it would not only be a check upon the hasty deliberations of the lower house but would also provide representation for the sovereignty of the States. “The sense of the States,” it was argued, ought to be collected, not only to allow these entities to maintain their in- tegrity but also to bring them to the support of the national government. John Dickinson “com- pared the proposed national system to the solar system, in which the States were the planets, and ought to be left to move freely in their orbits.” In order to secure the sovereignty of the States, he thought “the State legislatures ought to have some means of defending themselves against the encroachments of the national government.” In the effort to reflect in Congress the opinion of the State governments, as well as that of the people, it became necessary to modify the con- ception of the relation of the representative to his constituents. In the minds of the men of 1787, * Farrand, I, p. 153 | 56 | THE IDEA OF REPRESENTATION members of Congress were not to be simply the delegates of the people; for the purposes of gov- ernment they were to be the people themselves. They were to be guided by “the deliberate sense of the community,” but this was not to “require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.’’?* This is, in effect, to reject the con- ception of a restricted mandate which Burke had already condemned and which in a later day was to be excoriated by the younger Mill. But senators were deemed to be “in quality of ambassadors of the States.’?7 It was therefore considered entirely appropriate that they should receive instructions from the State legislatures which elected them. In 1788 the selection of Madison as senator from Virginia was success- fully opposed by Patrick Henry on the ground that it was “‘doubted whether Mr. Madison will obey his instructions,”?* and thereafter the State 26 Federalist, No. 71. See also the debates in the first session of Congress on the proposal to amend the Constitution to permit the people “‘to instruct their representatives.” Annals of the First Congress, I, pp. 761 ff. 27 Elliot, Debates, II, pp. 18, 46, 145; IV, pp. 123, 207 28M. Conway, Life and Letters of Edmund Randolph, pp. 120-1 [ 57 | DEMOCRACY AND REPRESENTATION legislatures very freely instructed their senators, in some cases demanding the resignations of those who refused compliance.?? It was not until the Whig party, which opposed the “doctrine of instructions,” came into power that the practice fell into disuse. In the course of American political develop- ment particularist sentiment has penetrated Con- gress to such an extent that an accurate reflection of public opinion throughout the country is im- possible. Members of the House of Representa- tives, in order to assure themselves of re-election, are so intent upon gratifying the demands of the peculiar interests of their districts that they have been reduced from the position of legislators for the entire nation to that of “‘ambassadors of local interests.” Every session of Congress presents a spectacle of that “confused and scuffing bustle of local agency” against which Burke gave warning if representatives were not permitted to act upon a very enlarged view of things. ‘Our representa- 29For examples of instructions by State legislatures, see T. H. Benton, Abridgment of Debates in Congress, XII, pp. 578-9; XIII, p. 154. H. Niles, Register, XI, p. 407; XLVII, p. 317; LVI, p. 99; LVII, pp. 208, 308; LXIII, p. 247; LXV, pp. 381, 397. Congressional Globe, 28th Cong., 1 Sess., XIII, p. 250. Senate Journal, 33rd Cong., 1 Sess., p. 478. zbid., 35th Cong., 1 Sess., p. 402 | 58 | THE IDEA OF REPRESENTATION tives at Washington now are occupied with the division of the spoils of office, the procuring of appropriations for their districts or even appro- priations and favors for certain persons and in- terests therein, and in ‘building their fences’ gen- erally rather than studying the welfare of the en- tire United States.’’?° But it is in the Senate that the evils of local sentiment and special interests have become most pernicious. The member of the lower House whose constituents expect him to get for them a bit of “pork” finds that each of his colleagues has constituents who entertain similar expectations. The people of no State and no section of the coun- try have a monopoly of human greed; that is rather evenly diffused throughout the entire United States. As long as there are voters who act upon the belief that “Uncle Sam is rich enough to buy us all a farm,” selfish legislation may be expected, whether it takes the form of useless ap- propriations for the improvement of rivers and harbors or a bonus for able-bodied veterans of the World War. Such measures indicate a low stand- ard of public morals for which the only remedy is to be found in a more widespread education of the 80W.S. Myers, American Democracy Today, p. 86 [ 59 | DEMOCRACY AND REPRESENTATION electorate. In the Senate, however, the system of representation encourages the formation of agri- cultural and other “blocs,” which negative ma- jority rule and foster class legislation wholly in- consistent with the spirit of democracy. As a result of the equal representation of States in the Senate, there are at present eighteen States, electing thirty-six senators, the total pop- ulation of which is less than that of the State of New York and only slightly larger than the popu- lation of Pennsylvania. If the principle that “the majority of people wherever found ought in all questions to govern the minority” should be adopted, the twenty-two States west of the Mis- sissipp1 River would be obliged to submit to a re- duction of forty per cent in their representation in the upper House of Congress. The senators from the six States in the Northwest who have been most conspicuous in the “agricultural bloc”’ represent only ten millions of people while the sen- ators from the six New England States from whom the ascendency in Congress has been wrested, have only about seven million constituents. The States which are over-represented in the Senate offer easy opportunities for the radical and the demagogue to intermeddle with the en- | 60 | THE IDEA OF REPRESENTATION actment of legislation. It is unnecessary for spe- cial interests to align themselves with a political party when they may control the government by dictating the votes of a handful of senators. Class legislation has thus been enacted by men who openly seek and receive the support of voters under the label of one or the other of the two great political parties. The Grand Army of the Republic never required the formation of a politi- cal party, since its members were so distributed throughout the States that it could always make its influence felt in senatorial elections. The Ameri- can Federation of Labor appears to have appre- ciated and made use of the tactics of the veterans of the Civil War, and the American Legion may be expected to inherit the same tradition. The diminished prestige of popular assemblies is a world-wide characteristic of the representa- tive system. But in the United States the decline of Congress as “the nation’s Committee of Griev- ances and its Congress of Opinions” has wit- nessed a corresponding increase in the represen- tative character of the presidency. The principle of representation was from the beginning thought to extend to the executive as well as the other de- partments of government. A great advantage [ 61 | DEMOCRACY AND REPRESENTATION was claimed over England in that the Constitu- tion of the United States extended the theory and practice of representation through the entire po- litical structure, whereas in the former country it was limited to one branch of the legislature. ““The President of the United States will be himself the representative of the people,” said Hamilton in the New York convention. “From the competi- tion which ever subsists between the branches of the government, the President will be induced to protect their rights, whenever they are invaded by either branch.”*! The idea that the President as the representa- tive of the people would carry on the administra- tion was familiar enough in 1787. “Our President will be the British Minister,”’ said Gouverneur Morris. It was necessary to surround him with adequate safeguards against domination by the legislature. ‘“The preservation of republican gov- ernment,” declared Madison, “therefore required some expedient for the purpose, but required evi- dently at the same time that in devising it, the genuine principles of that form should be kept in view.” According to Gouverneur Morris, “the one great object of the executive is to control the 31Works, il, p. 21 | 62 | THE IDEA OF REPRESENTATION legislature. The legislature will continually seek to aggrandize and perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the executive magistrate should be the guardian of the people, even of the lower classes, against the great and wealthy who in the course of things will necessarily compose the legislative body. . . . The check provided in the second branch was not meant as a check on legislative usurpations of power, but on the abuse of lawful powers, on the propensity of the first branch to legislate too much to run into projects of paper money and similar expedients. It is no check on legislative tyranny. On the contrary, it may favor it; and if the first branch may be se- duced, may find the means of its success. The ex- ecutive therefore ought to beso constituted as to be the great protector of the mass of the people.” With this reasoning Madison agreed, asserting that “if it be a fundamental principle of free gov- ernment that the legislative, executive and judici- ary powers should be separately exercised, it is equally so that they be independently exercised.”* ® Farrand, IJ, p. 52 87bid., p. 56 [| 63 | DEMOCRACY AND REPRESENTATION Nevertheless the independence of the executive and legislative departments of government was not intended to establish the President as a dicta- tor over Congress. The possession of the veto and the power to recommend to Congress such meas- ures as he shall judge necessary and expedient were for the protection of the constitutional posi- tion of the executive. The rise of the President to a position where he may engage in the competi- tion with the other branches of the government which Hamilton predicted would take place is wholly adventitious. Circumstances wholly unforeseen by the fram- ers of the Constitution have conspired to elevate the office of President. With the growth of the party system the President has come to be re- garded as the head of his party. After his nomina- tion by the convention he is expected to repre- sent the party before public opinion, and to stand before the country as the exponent of the pur- poses and principles of the party. Above all he is expected to achieve the victory for himself and his party ticket at theelection. From themoment when the machinery of the electoral college passed under the control of a system of popular election, the presidency acquired a direct popular character. [ 64 ] THE IDEA OF REPRESENTATION The idea of executive stewardship which under- lies the newer conception of the presidency recalls the notion of a “patriot king” at the head of a dominant party which Bolingbroke advanced in the eighteenth century. The theory found its ablest apologist in President Roosevelt, who in- sisted that “‘the executive power was limited only by specific restrictions and prohibitions appear- ing in the Constitution or imposed by Congress under its constitutional powers.”’ In explanation of the principles which guided him throughout his administration of the presidency, Mr. Roose- velt said: “My view was that every executive officer, and above all every executive officer in high position, was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the negative merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the nation demanded unless such action was forbid- den by the Constitution or by the laws. Under | 65 | DEMOCRACY AND REPRESENTATION this interpretation of executive power I did and caused to be done many things not previously done by the President and the heads of the de- partments. I did not usurp powers, but I did greatly broaden the use of executive power. In other words, I acted for the public welfare, I acted for the common well-being of all our people, whenever and in whatever manner was necessary, unless prevented by direct constitutional or legis- lative prohibition.”*4 Undoubtedly the great mass of the people gave Mr. Roosevelt their support, but the dangers which attend the exercise of a theory that the President “‘is to play the part of a universal prov- idence and set all things right, and that anything that in his judgment will help the people he ought to do, unless he is expressly forbidden not to do it,’ have been pointed out by his successor in the White House. At the same time Mr. Taft found that his own theory of the presidency was un- workable. He believed “‘that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such ex- press grant as proper and necessary to its exer- 4 Autobiography, pp. 371-2 [ 66 | THE IDEA OF REPRESENTATION cise. Such specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no unde- fined residuum of power which he can exercise be- cause it seems to him to be in the public interest. . 35 But when he was confronted with a seri- ous upheaval within the membership of his own party in the House of Representatives in 1910, Mr. Taft was unable to provide the leadership necessary to maintain party solidarity. He failed not only to keep faith with the people by bringing about the enactment into legislation of the party pledges of 1908 but also allowed the control of his partisans in Congress to slip from his hands. His decisive defeat in the election of 1912 was indica- tion that the people expect in the President a leader who can at least compel the members of his own party in Congress to adhere to their plat- form promises. While the President is expected to assume the leadership of Congress, it is clear that he cannot set his will in opposition to that of a majority of the people. Woodrow Wilson came to the presi- dency with a theory of the functions of the execu- tive not essentially different from that of Mr. 3 W.H. Taft, Our Chief Magistrate and His Powers, pp. 140-1 [ 67 | DEMOCRACY AND REPRESENTATION Roosevelt.*° He had behind him a majority of his own party in both Houses of Congress when he first put his theory into practice. It is true that many members, especially in the lower House, were inexperienced and looked to the President for guidance. But there were sinister interests both in and outside of Congress which Mr. Wil- son had to combat. Throughout his first adminis- tration he skilfully held the leaders in Congress to the important matters of legislation to which the Democratic party had given its pledge in the campaign. In matters of foreign policy he fol- lowed the currents of popular opinion so closely that he was able to appear before the govern- ments of Europe, as well as the Congress of the United States, as the spokesman of a united peo- ple. For almost six years Mr. Wilson ably repre- sented not only the controlling ideals and princi- ples of his party but also the political sentiment of a majority of the American people. It was not until he attempted to dictate to the people them- sleves in the congressional elections of 1918 and sought at Paris to commit the United States to a treaty of peace which did not accord with the traditional foreign policy of the nation that he 3% Wilson, Constitutional Government in the United States, pp. 60, 67-8, 79 | 68 | THE IDEA OF REPRESENTATION lost the support of public opinion. Without the backing of the people, his position as leader be- came untenable and he soon met defeat at the hands of Congress. The growth of executive power in the United States recalls the fears of an elective monarchy which excited some of the members of the Fed- eral Convention.*’ Roger Sherman, in debating the veto power of the President, “was against enabling any one man to stop the will of the whole. No one man could be found so far above the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the legislature.”** But the truth is that the President has emerged as the representa- tive of the people as a whole because the legisla- ture does not reflect “the will of the whole.’ En- gaged in the rivalry of purely local concerns, the representatives of the people in Congress have lost a proper perspective with regard to matters of general policy. The President remains as the only available exponent of the general sentiment. That is not to say that he enjoys arbitrary power, 37Dunbar, Monarchical Tendencies in the United States, pp. 79 ff. 38 Farrand, I, p. 99 [ 69 | DEMOCRACY AND REPRESENTATION “for he is constantly under the check of public ‘criticism and the common sentiment, which he ignores at his peril.’’ His assumption of leadership instead of marking the decline of the national government toward despotism is in fact “only a phase of the tendency toward a greater measure of direct popular control.’’* The situation created by this development is one of divided representation. It is assumed quite frankly that the representative assembly is in- sufficient in itself to reflect the opinion of the nation, which demands that the issues shall be defined by someone in a position to act upon an enlarged view of things. At the same time there has been no movement toward making the Presi- dent responsible to Congress. This fact is cer- tainly a mute witness of the extraordinary degra- dation of legislative authority in the United States. Since the day of John Stuart Mill it has been apparent that dangers lurk in the division of rep- resentation, and the new governments of Europe have not been modelled on the American system.*° 39See remarks of Mr. Charles Evans Hughes before the Phi Beta Kappa Society at Harvard University on June 30, 1910, while Mr. Hughes was Governor of the State of New York. Quoted in E. Stanwood, History of the Presidency, II, pp. 240-2 40 McBain and Rogers, New Constitutions of Europe, Chap. II | 70 | THE IDEA OF REPRESENTATION Undoubtedly it seems incongruous that a democ- racy should bestow the executive power upon a single individual for a period of four years, sub- ject to no positive control or supervision except through the clumsy expedient of impeachment. Perhaps the scheme of popular election places fewer eminent men in the presidency than if the chief magistrate were selected by the dominant party in the representative assembly. It was an English critic of American political institutions who explained “‘why great men are not chosen Presidents.’’*! Nevertheless the principle of representation was adopted in the United States to give effect to the sovereignty of the people. “It is useless to call the sovereignty of the people effective if the or- gans through which it works fail to do justice to the popular desire.”?? The popular will has not been discoverable, as the framers of the Constitu- tion believed, through the exchange of opinions from the legislative districts. Experience has shown that “‘the sum or a combination of local impressions is not a wide enough base for national policy, and no base at all for the control of foreign “J. Bryce, American Commonwealth, I, Chap. VIII ®H. J. Laski, Foundations of Sovereignty, p. 222 Faia ea DEMOCRACY AND REPRESENTATION policy.’ The absorption of power by the execu- tive indicates merely that the popular will finds a better means of expression in the President than in Congress. In the process of government it may have been the intention of the framers of the Constitution that the President should “‘stand the mediator between the intrigues and sinister views of the representatives and the general liber- ties and interests of the people;’’*4 experience has shown that in the President is to be found the leadership essential to democracy. 8W. Lippmann, Public Opinion, p. 288 “t Farrand, II, p. 30 CHAPTER III The Forms of Government HE form of government set up in the Con- stitution was regarded by its founders as the only one which was “‘reconcilable with the genius of the people of America,” and at the same time adequate to govern the large extent of territory within the United States. It was by them denomi- nated republican. According to the eighteenth century formula, republican government was compounded by engrafting representation upon democracy. “As long as the offices are open to all men,” said Hamilton, “and no constitutional rank is established, it is pure republicanism.””? This concise definition is in no way inconsistent with the longer and more famous one by James Madison,? but it does not take into account the evils of democracy which practical arrangements were expected to cure. To convert theory into practice it was thought necessary to guard against abuse of power by the partition and limitation of 1Farrand, I, p. 432 2 Federalist, No. 39 Ebaa DEMOCRACY AND REPRESENTATION authority. That is to say, stability was to be maintained in the government through the intro- duction of a system of checks and balances. The result was to create precisely the form of govern- ment declared by Rousseau to be incompatible with the existence of liberty. Unlike the French philosopher, the men of 1787 were confronted with a practical problem. Charles Pinckney told the constitutional conven- tion that “‘all we have to do is to distribute the powers of government in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the magistrate, will re- "serve to the people the right of election which they will not or ought not frequently to part with.’ But the task was not so readily per- formed; conflicting forces had to be calculated and given their due weight in the political system under construction. The crucial moment in the formation of the Constitution came in the debate on representa- tion. Here the impact of the democratic spirit of the frontier and interior regions upon the conser- vatism of the seaboard was most direct. For thirty-one days the members of the convention 3Farrand, I, p. 404 [ 74 ] THE FORMS OF GOVERNMENT struggled in the stifling summer heat of Philadel- phia before they reached a solution of the dif_i- culty. As Madison said, “the great difficulty lies in the affair of representation; and if this could be adjusted, all others would be surmounted.’ In point of fact, the solution of this problem in- volved nothing less than the reconciliation of the American conception of democracy with efficient government. Despite the strength of the propertied classes in the convention, the adoption of the idea of representation was not conditioned upon the re- flection of economic or occupational interests. Modern systems of representation in Europe have in most instances evolved out of the representa- tion of three or more classes or estates. Frequently each class has not only been represented by per- sons of its own choice, but each class has had a house of its own through which the interests of the group were expressed in the government. European adaptations of the representative sys- tem have not sought to reflect the opinions of mere numerical aggregations of human beings considered apart from property and employment. On the contrary, they have reflected the senti- *7bid., p. 321 [ 75 | DEMOCRACY AND REPRESENTATION ments and views of different estates or classes of men: clergy, nobility, landed gentry, burghers, and peasants.* If it had been suggested to the leaders of the Federal Convention that special provision had not been made for the representation of the various economic interests in the United States, they would undoubtedly have been surprised. They thought that the representation of economic in- terests was secured from the very nature of the government itself. James Madison, although he accepted the rule of numbers as the basis of rep- resentation, believed that class distinctions would penetrate the legislative assemblies. “Many of the most important acts of legislation,’ he thought, would be “but so many judicial deter- minations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens.” The different classes of legis- lators, he concluded, would be merely “advocates and parties to the causes which they determine.’”® Perceiving the logical justification for group representation, Madison argued that the inter- ests of no important class should be left entirely 5C. A. Beard, Economic Basis of Politics, Chap. II 6 Federalist, No. 10 | 76 | THE FORMS OF GOVERNMENT to the care of other classes. “‘It was politic as well as just,” he said, “that the interests and rights of every class should be duly represented and understood in the public councils. It was a provi- sion everywhere established that the country should be divided into districts and representa- tives taken from each, in order that the legisla- tive assembly might equally understand and sympathize with the rights of the people in every part of the community. It was not less proper that every class of citizens should have an oppor- tunity of making their rights be felt and under- stood in the public councils. The three principal classes into which our citizens were divisible were the landed, the commercial, and the manufactur- ing. The second and third classes bear as yet a small proportion to the first. The proportion will however daily increase. We see in the populous countries in Europe, what we shall be hereafter. These classes understand much less of each others interests and affairs than men of the same class inhabiting different districts. It is particularly requisite therefore that the interests of one or two of them should not be left entirely to the care or imparitality of the third.”’ 7Farrand, II, p. 124 Meo DEMOCRACY AND REPRESENTATION At the same time, Madison “could not agree that any substantial objection lay against fixing numbers for the perpetual standard of represen- tation.”’* He later examined the question with great care and concluded that “under every view of the subject, it seems indispensable that the mass of citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them, and if the alternative be between an equal and uniform right of suffrage for each branch of the government and a confinement of the entvre right to a part of the citizens, it is better that those having the greater interest at stake, namely that of property and persons both, should be de- prived of half their share in the government than that those having the lesser interest, that of per- sonal rights only, should be deprived of the whole.’’? Hamilton, in the thirty-fifth number of the Federalist, thought that the interdependence of economic groups was so great that no distinctions could be made in the apportionment of represen- tatives. He said: “The idea of an actual represen- $Farrand, I, p. 585 °abid., III, pp. 454-5 [| 78 | THE FORMS OF GOVERNMENT tation of all classes of the people, by persons of each class, is altogether visionary. Unless it were actually provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will al- ways be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discern- ing citizens are well aware that the mechanic and manufacturing arts furnish the materials of mer- cantile enterprise and industry. Many of them, indeed, are immediately connected with the oper- ations of commerce. They know that the mer- chant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their in- terests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior ac- quirements of the merchants render them more equal to a contest with any spirit which might [ 79 | DEMOCRACY AND REPRESENTATION happen to infuse itself into the public councils, unfriendly to the manufacturing and trading in- terests. These considerations, and many others that might be mentioned, prove, and experience confirms it, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the com- munity. “With regard to the learned professions, little need be observed; they truly form no distinct in- terest in society, and according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community. “Nothing remains but the landed interest; and this, in a political view, and particularly in rela- tion to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest ten- ant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every land- holder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon [ 80 | THE FORMS OF GOVERNMENT as the surest bond of sympathy. But if we could even suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate pro- prietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which 1s composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have the most con- fidence; whether these happen to be men of large fortunes, or of moderate property, or of no prop- erty at all. “Tt is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better under- stood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too [ 81 | DEMOCRACY AND REPRESENTATION few exceptions to have any influence on the spirit of government, will be composed of landholders, merchants, and men of the learned professions.”’ Group representation requires stability in the groups to be represented. Unless these groups are fixed and unchangeable, constant revision of the basis of apportionment must be undertaken. No- body would pretend today that the classes men- tioned by Hamilton are the only ones which have political aspirations. But the emergence of other groups influential in governmental affairs tends to emphasize the mutability of social classes. Va- riations in the social structure are due to the ex- isting system and are not fundamental. When ag- riculture was the only important industry in this country, freehold qualifications for the suffrage could be indulged without serious contravention of the principle of democracy. But the growth of com- merce and manufactures introduced many new groups whose members held property in forms other than land, or in whom was vested the owner- ship of no property at all. The impermanence of social and economic groups, wisely foreseen by themembers of the Federal Convention, compelled in a later generation the removal from the State constitutions of all restrictions upon the suffrage. [ 82 | THE FORMS OF GOVERNMENT Property qualifications illustrated the maxim of John Jay that “those who own the country ought to govern it.” But the changes in social or- ganization revealed the fallacy of this maxim, in that ownership does not consist in technical title to property. The Massachusetts constitutional convention of 1820, in providing that all who paid a State or county tax should vote, recognized the transformation which was taking place in Ameri- can society. Even the tax-paying qualification was opposed at this time on the ground that it would shut out some of the workingmen. “It was all the more important,” said one delegate, “that workers should vote. Otherwise they would array themselves against the laws; mix them with the good part of society and you disarm them.’’!® In the midst of social changes it was sophistry to argue for the continuance of the political institu- tions of a bygone era. The rise, growth and decline of social and eco- nomic groups is inevitable because of the rapid and continuous changes which take place in the composition of the groups. Men and women do not remain in the social positions in which they were born nor cling through life to the same eco- 10 Massachusetts Convention 1820, Debates, p. 253 | 83 | DEMOCRACY AND REPRESENTATION nomic pursuits. George Mason reminded the members of the Philadelphia Convention that they “‘ought to attend to the rights of every class of the people. He had often wondered at the in- difference of the superior classes of society to this dictate of humanity and policy, considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, dis- tribute their posterity throughout the lowest classes of society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the low- est than of the highest order of citizens.” Most advocates of group representation fall into the error of ascribing to economic interests a preeminent position in the social process. That is to say, they are content to invoke as the sole cause of social change the economic needs of man and their satisfactions without consideration of other elements. John Stuart Mull long ago pointed out “how far mere physical and economic power is from being the whole of social power.”” 4 Farrand, I, p. 49 2 Representative Government, p. 84 [ 84 | THE FORMS OF GOVERNMENT Although extremists still argue from the stand- point of economic determinism, the growth of democracy in the United States cannot be re- ferred in any great degree to economic influences. Material interests are a part of the great social forces which influence the destiny of man. But all social forces react upon the wills and thoughts of men and become effective in so far as they are embodied in human contrivances. The mind of man is therefore in itself a great force which may modify environmental factors. Among the vari- ous political institutions there exists the possi- bility of a rational choice. But if stability in the government is to be attained, the choice must rest upon those arrangements which are con- sistent with the permanent not the transitory in- terests of the people, the spiritual rather than the material purposes of society." 8'There have been few proposals to introduce group representation in the government of the United States. Two such proposals are: W. Mac- Donald, A New Constitution for a New America, p. 138, and H. A. Overstreet, “The Government of To-Morrow,” Forum, LIV, p. 10. Political writers who would extend the principle of group representation to the United States lose sight of the important fact that the President cannot be made the representative of economic groups. He must be the representative of the entire electorate. In the cabinet system of govern- ment it is entirely possible to set up a ministry which shall carry on the work of administration and at the same time represent different eco- nomic groups within the state. But the Constitution of the United States is a standing repudiation of the principle of group representa- [ 85 | DEMOCRACY AND REPRESENTATION In theory the members of the Philadelphia Convention clung to the idea that the basis of representation should rest solely on the number of inhabitants. The departure from the principle in the establishment of equal representation in the Senate was forced by the necessity of recon- tion. The whole question of elections turns on that of the President. He can be the representative of but one party or group. Group representation has been given serious consideration in France. M. Charles Benoist, as far back as 1895, advocated the election of a Chamber of Deputies by voters grouped into seven classes according to their professions. The notion of a public sentiment he denounced as a great myth, and worked out a unique scheme of functional represen- tation combined with proportional representation whereby the various groups might combine to secure a voice in the government. Benoist, La crise de l'état moderne, de organisation du suffrage uniwersel and Pour la réforme électorale. A somewhat different scheme has been sug- gested by M. Leon Duguit of the Faculty of Law in the University of Bordeaux. M. Duguit argues that “if we would secure in the parliament the representation of all the elements of the national life, it is necessary to place beside the assembly elected by the people proportioned accord- ing to the numerical strength of the different parties, an assembly elected by the professional groups.” That is not to say that the repre- sentation is to be of the interests of small groups, but is to be “truly a representation of the different industrial and artistic forces which are effective in the country, and which are . . . elements of the highest importance in the national life.”’ In the lower house of the legislature the representation should be that of the people, while the second chamber should represent “‘more particularly the social groups, follow- ing sucha system as the art of politics shall determine for each country.” Duguit, Droit constitutionnel (2nd ed.), II, pp. 560, 596, 598. The League of Professional Representation and Regionalist Action pre- sented a scheme of professional representation to the Chamber of ‘Deputies on April 29, 1915. J. Hennessy, Régions de France, pp. 229- 30. See also Charles Brun, Le régionalisme (1911). The proposition was not adopted by the Chamber of Deputies in 1915; and in a more [ 86 | THE FORMS OF GOVERNMENT ciling conflicting interests. At the same time it was fully recognized that the sacrifice of princi- ples to a supposed interest was fraught with danger. The evil inherent in the scheme of equal repre- sentation was vigorously attacked by Wilson. recent regionalist bill prepared by the Administration Commission the provision for group representation has been omitted. The omission was caused by the failure to agree upon a principle whereby the share of each association in the deliberations of the regional council could be determined. ‘“The practical difficulties in the proper representation of these interests appeared so insurmountable to the Commission that it was unanimous in deciding that the members of the Regional Council should hold their powers from the whole of the electoral body.” Hen- nessy, Réorganisation administrate de la France, p. 160. The failure becomes significant in view of the fact that professional organization is undoubtedly the most marked characteristic of present day French society. In England the Guild Socialists under the leadership of G. D. H. Cole have evolved a scheme which would transform the present state. Asserting that “the omnicompetent state, with its omnicompetent par- liament, is utterly unsuited to any really democratic community, and must be destroyed or painlessly extinguished,’ Mr. Cole would divide economic and political power among a number of independent func- tional associations. His idea of the essentials of democratic representa- tion are, ‘‘first, that the represented shall have free choice of, constant contact with, and considerable control over, his representative. The second is that he should be called upon, not to choose some one to rep- resent him as a man or as a citizen in all the aspects of citizenship, but only to choose some one to represent his point of view in relation to some particular purpose or group of purposes, in other words, some particular funcizon. All true and democratic representation is therefore functional representation.’ In order to bring the political system into harmony with the functional principle, it is necessary to divest the state of control over economic, religious and other activities which do not affect all members of society to the same extent and in the same | 87 | DEMOCRACY AND REPRESENTATION “The rule of suffrage,” he said, “ought on every principle to be the same in the second branch as in the first branch. If the government be not laid on this foundation, it can be neither solid nor lasting. Any other principle will be local, con- fined and temporary. . . . “ If equality in the second branch was an error that time would cor- rect, he should be less anxious to exclude it, being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the representation, like an error in the first way. Only very general functions would be allocated to a body repre- senting society as a whole. All other functions would be distributed among the guilds, each of which includes only those persons who stand in peculiar relationship to the service or interest which is the exclusive concern of the guild. The state is thus brought down to a level with the other associations. Cole, Guild Socialism. See also Niles Carpenter, Guild Socialism (1922). The framers of the constitution for the new German Republic have recognized the principle of group representation to a limited extent in the establishment of the Economic Council. “Before proposing drafts of politico-social and politico-economic bills of fundamental impor- tance,” the Ministry must submit them to this council for considera- tion. Moreover, the council may itself propose bills and may submit them to and defend them before the Reichstag even over the protest of the Ministry. Although the Economic Council has only advisory powers it may grow in public confidence and esteem until it exerts a real influence in the government. R. Brunet, The New German Consti- tution, pp. 80 ff. McBain and Rogers, The New Constitutions of Europe, | p- 122 Farrand, I, p. 483 [ 88 | THE FORMS OF GOVERNMENT concoction, must be followed by disease, convul- sions, and death itself.’ Selfish particularism is an ill which seldom finds a cure unless adminis- tered by a despot. Gouverneur Morris was even more vehement in denouncing the danger threatened by the pro- tagonists of equal representation. “Good God, Sir,” he cried, “‘is it possible they can so delude themselves. . . . It had been said that the new government would be partly national, partly fed- eral; that it ought in the first quality to protect individuals; in the second, the States. But in what quality was it to protect the aggregate in- terest of the whole?” Morris begged the conven- tion to look at Germany. ““The same circum- stances,” he declared, “‘which unite the people here, unite them in Germany. They have there a common language, a common law, common usages and manners, and a common interest in being united; yet their local jurisdictions destroy every tie. The case was the same in the Grecian States. The United Netherlands are at this time torn in factions. With these examples before our eyes, shall we form establishments which must necessarily produce the same effects. It is of no 6 ibid., IL, p. 10 [ 89 | DEMOCRACY AND REPRESENTATION consequence from what districts the second branch shall be drawn, if it be so constituted as to yield an asylum against these evils.” Yet the delegates who withstood the cogent ar- guments of Wilson and Gouverneur Morris could justify their position by the fact that the State systems enjoyed the confidence of the people, while the Congress under the Articles of Confed- eration was everywhere distrusted and despised. James Wilson reviewed the melancholy course of disruption which had in a few years destroyed the solidarity of the American nation. “Among the first sentiments expressed in the first Congress,” he said, “‘one was that Virginia is no more, that Massachusetts is no more, that Pennsylvania is no more, etc. We are now one nation of brethren. We must bury all local interests and distinctions. This language continued for some time. No sooner were the State governments formed than their jealousy and ambition began to display themselves. Each endeavored to cut a slice from the common loaf, to add to his morsel, till at length the confederation became frittered down to the impotent condition in which it now stands." _- 16Farrand, I, p. 552 177bid., p. 166 | 90 | THE FORMS OF GOVERNMENT To be sure, the convention had been called to alter the Articles of Confederation so as to arrest the centrifugal forces of State loyalty. But in 1787 State boundaries were important factors in separating the people of the United States. State governments were known and trusted; they had carried the people through the war with Great Britain while the impotent Congress of the Con- federation had been unable to achieve the objects for which it was created. It followed that not only did men distrust a national government, but they also failed to understand that two jurisdictions largely coordinate could work toward a similar end. They imagined that coordination meant an- tithesis, and feared lest the surrender of a portion of the power wielded by the States would end in the destruction of personal liberty. It could there- fore be argued that the national government must rest in part upon the States. Today the States have declined in importance, although therepresentation given them in theSen- ate allows them a specious control in the national government. The States have, in effect, become the “rotten boroughs” of the United States. The Seventeenth Amendment removes from senators the character of representatives of State gov- [91 ] DEMOCRACY AND REPRESENTATION ernments, but it allows unequal representation to groups based upon territorial propinquity. In the interest of democracy a further amend- ment of the Constitution is required which will deprive the States of their equal representation in the Senate. Senators, no less than members of the House of Representatives, should be apportioned on a basis of population. The rule of numbers is as just today as when James Wilson made his argument in the Federal Convention. There is an obstacle in the way of the easy achievement of an apportionment of the Senate on the basis of population. The Constitution pro- vides that no State shall be deprived of its equal representation in the Senate without its consent. It has been contended that it is entirely possible to strike out the whole of Article V, or any part of it, by the vote of two-thirds of both Houses of Congress and the assent of the legislatures of three-fourths of the States. Such course might lead to a charge of bad faith but any other view, it is argued, would involve a denial of the in- alienable and inexhaustible right of the people to govern themselves. But this view is challenged on the ground that it overlooks the fact that the guarantee of equal [ 92 ] THE FORMS OF GOVERNMENT suffrage in the Senate appears in the Constitution as an exception from the power of amendment. Moreover, it seeks to define as a constitutional act what is really an act of revolution. That is to say, there are some parts of the Constitution which are so fundamental as to be unchangeable by the ordinary process of amendment. A politi- cal act cannot be both constitutional and revolu- tionary; the terms are mutually exclusive. When changes are in contemplation which do violence to the existing system of government, the acts by which they are brought about are revolutionary and necessitate “a recurrence to first principles.” That was the belief of the men of 1787 when they referred the Constitution for ratification to popu- lar conventions.!* It is no less true today, for a majority of two-thirds of both Houses of Con- gress and majorities in the legislatures of three- fourths of the States may not represent a major- ity of the people of the United States. Indeed, in the complex process of amending the Constitu- tion the will of a majority of the people may never be expressed, except in the two-thirds of the members of the House of Representatives who probably were not elected on the issue pre- 18 Farrand, II, p. 93 : [ 93 | DEMOCRACY AND REPRESENTATION sented in the amendment. To maintain that the Constitution may be amended in all its parts by the process set forth in Article V is to repudiate the method by which the instrument was origi- nally established. | The second of these views has had a history almost as old as that of the Constitution itself. When the question of amending the constitution of South Carolina was advocated in 1794 in order to adjust the representation, it was objected that “since the existing representation was fixed in the constitution it could never be altered. If the con- stitution was not conclusive and binding on that point it was in none. While the constitution could be amended, it was advocating a false principle to contend that the constitution was made wrong in the first place. If that were true, all parties could make objections, and instead of a bond of union the constitution would become a cause of conten- tion and strife. The idea was that the constitution could be amended only in those points that were unperfectly covered, or to adjust it to new condi- tions not foreseen by its framers.’’!® In the con- gressional elections of 1866, the Democratic party declared that the Thirteenth Amendment con- 19W. A. Schaper, Sectionalism in South Carolina, p. 374 [ 94 | THE FORMS OF GOVERNMENT travened the property right guaranteed by the Constitution and could not be valid. More re- cently Mr. Elihu Root, in an effort to overturn the prohibition amendment, argued that “Article V of the Constitution could not be construed to confer unlimited legislative power upon the amending authorities. To assume that it does is inconsistent with the plain provision of paragraph 1 of Article I of the Constitution that ‘all legisla- tive powers herein granted shall be vested in a Congress of the United States,’ and with the terms of Article V itself, as the proceedings of the Constitutional Convention disclose that the framers themselves understood those terms. The framers undoubtedly regarded the power to amend only as authorizing the inclusion of matter of the same general character as the instrument or thing to be amended; and as all the constitu- tions of their day were concerned solely with the distribution and limitation of the powers of gov- ernment, and not with the direct exercise thereof by the constitution makers themselves, no amend- ment of the latter sort would have been deemed appropriate or germane by them.”?° The question at issue in the controversy over 20 Rhode Island v. Palmer, 253 U.S., pp. 361-4 | 95 | DEMOCRACY AND REPRESENTATION the scope and limits of the power of amendment is really one of form. It may be admitted that any change in the existing government involves an act of revolution, but this does not necessarily re- quire the direct assent of the people. Of course, the people cannot barter away or delegate to any other authority the right of revolution. But that is not to say that the people are prevented from giving their approval to innovations which have been proposed except through a constitutional convention. By their acquiescence in a statute enacted by Congress or a decision handed down by the Supreme Court of the United States they may change the existing government quite as radically as has been done by any constitutional amendment heretofore adopted. The framers of the Constitution submitted their work to the ratification of popular conven- tions in the States because they wished to obtain prompt and unconditional approval of the sweep- ing changes they proposed. They looked upon the establishment of the Constitution “as an act of popular revolution, which not only overturned the Articles of Confederation, but broke through the State constitutions also at essential points.””?! *1E.S. Corwin, Doctrine of Judicial Review, p. 84 [ 96 | THE FORMS OF GOVERNMENT It was therefore good political tactics for them to follow the advice of Madison and to refer the Constitution for ratification to popular conven- tions in the States.” At the same time, Madison was entirely un- concerned about the procedure by which the Con- stitution should be amended. Some time after the Committee of Detail had proposed that “‘on ap- plication of the legislatures of two-thirds of the States in the Union, for an amendment of this Constitution, the legislature of the United States shall call a convention for that purpose,””* Madi- son objected that the terms “call a convention for that purpose” were too vague. He offered a substitute proposal which would enable Congress by a vote of two-thirds of both Houses, or upon application of the legislatures of two-thirds of the States, to propose amendments which would be valid parts of the Constitution when ratified by the legislatures or by conventions in three-fourths of the States. George Mason replied that if the proposal of amendments were left wholly to Con- gress, “no amendments of the proper kind would Farrand, II, p. 476 _ 8ibid., p. 188 *47bid., pp. 557-9 [ 97 ] DEMOCRACY AND REPRESENTATION ever be obtained by the people, if the government should become oppressive.” In order to meet this objection, an amendment of the article was sug- gested so as to require a convention upon applica- tion of two-thirds of the States. Madison “‘did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States as to call a convention on the lke ap- plication. He saw no objection, however, against providing for a convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, etc., which in constitutional regulations ought to be as much as possible avoided.’’?> In other words, Madison in laying the basis for Article V of the Constitution regarded the amending process as a formal de- Farrand, II, pp. 629-30. Lincoln, in his First Inaugural Address, said: “I cannot be ignorant of the fact that many worthy and patriotic citizens are desirous of having the National Constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor rather than oppose a fair opportunity being afforded the people to act upon it. I will venture to add that to_ me the convention mode seems preferable, in that it allows amendments — to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others not especially chosen for the purpose, and which might not be precisely such as they would wish to either accept or refuse.’ Speeches and Letters of Abraham Lin- coln, p. 173 | 98 | THE FORMS OF GOVERNMENT vice; the efficacy of an amendment, like any other part of the Constitution, would depend upon its acceptance by the people. The difficulty of altering the Constitution with respect to the exception contained in Article V should not blind us to the fact that the equal rep- resentation of the States in the Senate is the ves- tige of a political environment that has passed away. The Constitution is expected to keep pace with the fundamental and permanent changes which take place in our society. Changes in the Constitution should not be undertaken for light and transient causes. At the same time, through the agencies of judicial interpretation, statutory enlargement, and party practices, new meaning is given to ancient forms. When the forms them- selves can no longer be adapted to meet the con- ditions and problems surrounding the people, as well as their ideals, they must be discarded. Although the States have ceased to be a factor in dividing the people of the United States into distinct groups, sectional differences prevail. “As the States have declined, sectional self-conscious- ness has arisen.” That is to say, the differences between sections in economic interests mean also *6 Turner, “Sections and Nation,” Yale Review, XII, p. 10 [ 99 | DEMOCRACY AND REPRESENTATION differences in political ideas. New England, the Middle Atlantic States, the South, the Mississippi valley, and the. Pacific coast have distinct differ- ences which are reflected in political sentiment. Indeed, this was true in 1787. Madison “con- ceived that the difference of interest in the United States lay not between the large and the small, but the Northern and the Southern States.’27 But the real difference was constantly obscured by the alignment of the large and small States into distinct parties in the convention. The people of the United States fall into six more or less distinct groups which differ in social and economic interests. New England, the Mid- dle Atlantic States, and the Old Northwest be- tween the Great Lakes and the Ohio River form sections each of which has its own particular in- terests. The South, the trans-Mississippi Middle West extending to the Rocky Mountains, and the Pacific coast are also distinct groupings according to economic interests and social characteristics. For the most part the States which are included in the sectional groupings contain homogeneous populations. But in some cases the sectional divi- sions cut across State boundaries. It is clear, for 27 Farrand, I, p. 601 [ 100 ] THE FORMS OF GOVERNMENT example, that the southeastern counties in Wis- consin belong to the Old Northwest while the in- terests of the rest of the State coincide with those of the territory immediately beyond the Missis- sipp1 River. If the members of the Senate were selected from sections instead of States, and the appor- tionment were made on a basis of population, the people would be represented in proportion to their numerical strength throughout the country. At the same time, this new regionalism would enable the various economic interests to display their strength in the elections. Another advantage which would be derived from sectional groupings would be the ease with which the decentralization of administration could be accomplished. The growing demand for the regulation of business by the government has tended toward the creation of a bureaucracy at Washington not in harmony with the spirit of democracy. One step toward the correction of this defect was taken in the establishment of the Federal Reserve System. Further steps should be taken along the same line with the Interstate Commerce Commission and other governmental agencies. In each section the agencies should Bun DEMOCRACY AND REPRESENTATION be practically autonomous, within the powers granted by the Constitution and the acts of Con- gress. Such administrative reorganization should be accompanied by the regional reorganization of the railroads in the United States. A further reform which has many earnest advocates looks toward the restriction of the suffrage. Limitations upon the exercise of the franchise were urged by John Stuart Mill in the in- terest of democracy. Among the conditions which Mill laid down as essential to the success of repre- sentative government were a willingness and an ability on the part of the people to do what is necessary to keep it standing, and to do what is required of them to enable it to fulfil its purposes. Neither of these conditions can be met by an elec- torate that is vicious or illiterate. At the time of the framing of the Constitution it was believed that “‘all persons should have a voice in the government, except those who are in so mean a situation that they are esteemed to have no will of their own.’’? But there was no agreement as to the precise method of determin- ing this question. John Adams advocated a small property qualification,’® and Madison and Frank- *8 Hamilton, Works, I, p. 90 °°Works, V, p. 457 [ 102 ] THE FORMS OF GOVERNMENT lin at one time would have excluded from the suffrage all but landowners.** Even Jefferson ap- proved the provision in the Spanish constitution of 1814 which disfranchised the illiterate.*! Many held the view that the unpropertied had no po- litical opinion. While nobody would today argue that political wisdom resides exclusively in the owners of property, it is a pertinent inquiry whether we have not gone too far in granting suf- frage to persons who are incapable of the intelli- gent use of the privilege. The enfranchisement of illiterates in the United States did not begin with the enforcement of the Fifteenth Amendment. Although the highest per- centage of illiteracy is to be found among the resi- dents of States having large negro populations, the ignorant immigrant has been a problem since before the Civil War. In the States of the North- west admitted into the Union a decade or two before 1860, foreigners were encouraged to settle and were given the opportunity to participate in the government upon the simple declaration of intention to become citizens.*? In many cases the 3°Elliot, Debates, V, p. 387; Benj. Franklin, Works, IV, pp. 221, 224 Works, VI, p. 592 ® Porter, Suffrage in the United States, Chap. V [ 103 ] DEMOCRACY AND REPRESENTATION succeeding generations justified the liberal fran- chise privileges extended to their forebears. But a generous policy of immigration brought to our shores millions of Europeans who could not grasp the meaning of democracy. They could conceive of government only in terms of a proletarian des- potism, whereby they sought with the inversion of social classes to perpetuate the autocratic po- litical systems of Europe. It is not without sig- nificance that the names which appear on the ballot in the columns of parties dedicated to the establishment of cheap and tawdry forms of so- cialism are those of men who are foreign born or of immediate foreign ancestry. The extent of illiteracy among the people of the United States has only recently been revealed. The census of 1920 indicated that there were 4,931,905 illiterates over the age of ten years of whom 4,331,111 persons had reached the voting age. But the census definition of illiteracy is no schooling whatever. The army psychological tests are much more adequate in determining the qual- ifications of individuals with respect to literacy. In these tests the ability to read and understand newspapers and similar printed matter and to write letters home in English was indicative of [ 104 ] THE FORMS OF GOVERNMENT literacy on the part of the candidate. The results showed that 24.9 per cent of the 1,552,256 men between the ages of twenty-one and thirty-one examined in connection with the psychological tests were illiterate. Literacy tests have been adopted in the elec- tion laws of at least twenty States at various times. Sometimes the tests have been used to ex- clude from voting persons whose exercise of the franchise would not be to the liking of the domi- nant political party. But more often the test never revealed the intelligence of the voter at all. The requirement in Massachusetts that the voter be able to read certain sections of the State con- stitution was deemed to be met if the clauses were read intelligibly although the voter might have no intelligent appreciation of their contents. The first State to adopt a literacy test that is really adequate is New York. The law provides that “after January 1, 1922, no person shall be- come entitled to vote by attaining majority, by naturalization or otherwise, unless such person 1s also able, except for physical disability, to read and write English.’’** Suitable tests have been prepared which require the “new voter’’ to show 33New York Constitution, Article XI, Section 1 [ 105 ] DEMOCRACY AND REPRESENTATION the same ability to read and write that would be expected of the average child who had completed the sixth grade in the New York schools. In 1923 the tests were taken by 25,199 persons, of whom 21.4 per cent failed. In 1924 the number taking the tests rose to 61, 144, of whom only 16.1 per cent failed. The failures in New York City were somewhat higher, amounting to about 20 per cent of the entire number who took the tests.¥ External devices cannot create democracy, but democracy requires machinery through which the popular will may find realization in governmental action. Democracy in the United States means the supremacy of the numerical majority. A sys- tem of governmental checks and balances which thwarts rather than subserves the popular will can have no place in a democratic state. It was 3!Comment on the operation of the literacy law in New York will be found in the University of the State of New York Bulletin to the Schools, March 2, 1925, p. 169. The following table presents the data for the past two years: Certificates issued 1923 1924 On day school credentials 7,929 13,848 On evening school credentials 767 1,288 On passing of Regents’ test 19,806 48,888 No. failed Regents’ test 5,393 12,256 Per cent of failures 21.4 16.1 No. issued in cities 21,113 53,936 No. issued in villages 1,147 2,899 No. issued in rural districts 6,142 7,187 Total issued in State 28,402 64,022 | 106 | THE FORMS OF GOVERNMENT Alexander Hamilton who argued that simple forms of government alone are appropriate in a democracy.* Hamilton realized that democracy becomes effective only through leadership and with the ready and intimate coordination of the various departments of the government to reflect the will of the people. He recognized what Har- rington and John Adams did not admit, that even in “a government of laws,” the work must be done by men. It was a great king of Israel who discerned the true basis of rulership when he asked that he be given an understanding heart. He realized that a state whose rulers have not wisdom cannot long endure. This is all the more true in a democracy where a full and free play of the critical spirit is essential to honest and efficient government. Without the exercise of discriminating judgment, a people cannot long govern themselves. The power supposed to vest in the people becomes in fact lodged in the politician whose knowledge of tactics enables him to organize human intelli- gence and human impulses to promote his own ends. The discrimination required of a people who are % Works, 1X, pp. 71-2 [ 107 ] DEMOCRACY AND REPRESENTATION to govern themselves can result only from their education. ‘““The best laws,”’ said Aristotle, “will be of no avail unless the young are trained by habit and education in the spirit of the constitu- tion.” Are we in the United States providing this type of education? The question is too big here to be answered. Our colleges are expected to train their young men and young women for the ostensible world, which is the world of business. Can a system of education designed to increase the acquisitive capacity of the individual also provide the ethical discipline necessary in a peo- ple who are to undertake the task of self-govern- ment? A recent writer has remarked that the edu- cation of the older generation in America “aimed to produce leaders and, as it perceived, the basis of leadership is not commercial or industrial eff- ciency, but wisdom.’’*” That is to say, the older education was a training for wisdom and charac- ter. Since it was based on the belief that men need to be disciplined to some ethical center, it taught the conquest of self which is the first requisite of leadership. If the education of today cannot some- how inculcate the principle of control, the failure 36 Politics, Book V, ix 37J. Babbitt, Democracy and Leadership, p. 304 [ 108 ] THE FORMS OF GOVERNMENT of democracy from the want of leadership is only a matter of time. There is an intimate relationship between the system of education in a country and the forms of its government. Ten years ago one of the most brilliant of the younger German economists came to the United States to tell us that the avenues by which men advance from one economic or social level to another are closed. Therefore it was the duty of education, he thought, to train men and women to be happy in the social status in which they were born. In other words, he revived the idea of a static equilibrium of social classes which captivated the ancient Greeks and led them to adopt it as the basis of their definition of justice. - But since November 11, 1918, neither the forms of government nor the system of education lauded in Germany ten years ago have found a sympa- thetic response throughout the world. Government is power. That power must be lodged somewhere in the state and find the means of its exercise is inherent in the very nature of government. Since the day of John Locke we have looked to the community as a whole for the original and supreme will which organizes the government and defines its just powers. We have [ 109 ] DEMOCRACY AND REPRESENTATION discovered what was not apparent to some of the men of 1787, that the popular will does not emerge as a spontaneous emanation from the thoughts of men. It is therefore not enough in a democracy to insure the accuracy of public opinion. A democ- racy also requires the leadership of men and women trained in the ethical spirit of auth government. oF Alsace 1a Whether it can ever be possible to formulae a theory of the state depends upon the moral prog- gress of mankind. “Justice is the end of govern- ment. It is the end of civil society,” wrote the authors of the Federalist.** They then proceeded to show that injustice arises largely from the fac- tious nature of man. That is to say, justice in the state is the resultant of justness in men. The foundations of a popular government are laid in the virtue and wisdom of the people by whose consent it was reared and is maintained. It may be true that the chief business of the statesman is to adjust the conflicting interests of individuals or groups in society. But this remains a problem in externals. The principles which are to control the destiny of a state must be sought in the wis- dom and character of its citizens. 3No. 51 anon Index Apams, John, 102, 107 Aristotle, 108 BrntTuaM, Jeremy, 51 Butler, Pierce, 26, 30 CaBINET System, advocated by Mercer, 44-5; defeated in Con- gress, 45-7; not reflected in po- litical theory in 1787, 44; op- posed by Charles Pinckney, 45 DeEcLaRATION of Independence, fixed limits of political specula- tion in 1787, 9; states democratic dogma, 1 democracy, defects in, 18-20; eighteenth century conception of, 1-2; favored by economic circumstances, 17-18; and the Constitution, 33; and literacy tests, 103-6 Dickinson, John, 34, 56 Equauity, in the United States (1787), 17-18; as viewed by Madison, 18-20 FRANKLIN, Benjamin, 102 Gerry, Elbridge, 30, 45 Hamiuton, Alexander, argues for representative character of the presidency, 62; attacks group representation, 78-82; defines re- public, 73; his conception of gov- ernment, 11-13; his law of politi- cal development, 8-10; his na- tionalism, 13-14; opposes fre- quent elections, 53 Harrington, James, 33, 107 Henry, Patrick, 57 Hobbes, Thomas, 49 Jay, John, 83 Jefferson, Thomas, 103 Johnson, William S., 14 Kine, Rufus, 25 Knox, Henry, 55 Liserty, the central problem of democracy, 18 Lincoln, Abraham, 37 Locke, John, 3, 37, 109 Mapison, James, argues for secu- rity of private rights, 9; edu- cated at Princeton, 5; explains sources of the Constitution, 35; favors freehold qualifications for suffrage, 26, 102; his view of democracy, 18-20; method of his political reasoning, 4-7; on amending the Constitution, 97— 8; on group representation, 76-8; on independence of the execu- tive, 63; on influence of the West, 33; on public opinion, 52; INDEX opposes equal representation of States, 54-5; recognizes sover- eignty of the people, 1; seeks remedy for factions, 20-2 Marshall, John, 41 Mason, George, explains suffrage qualifications, 24; favors liberal franchise, 84; his view of the ap- portionment of representation, 31; on amending the Constitu- tion, 97 Mercer, John F., 44-5, 50 Mill, James, 41 Mill, John Stuart, 8, 57, '70, 84, 102 Montesquieu, Baron, 6, 22-3 Morris, Gouverneur, advocates re- stricted suffrage, 24; argues for apportionment of representation on basis of property, 28-9; ar- gues for representative character of the presidency, 62-3; attacks equal representation of States, 89; warns against legislative du- plicity, 50-1 Morris, Robert, 46 NATIONALISM, advocated by Ham- ilton, 13; in America in 1776, 90 PARTICULARISM, evils of, 60-1, 90; in Convention of 1787, 13; per- meates Congress, 58-9 Paterson, William, defines princi- ple of representation, 39-40; se- cures equal representation of States in the Senate, 54 Pinckney, Charles, attacks Madi- son’s method of political reason- ing, 7; envisages equality in America, 17-18; gives formula for representative democracy, 74; opposes cabinet system, 45 popular sovereignty, in 1776, 1; in 1787, 2; identified with right of revolution, 4 Ranpo.peH, Edmund, 31 republic, defined, 73 representation, apportionment of, 27 ff; and the President, 62 77; and restrictions on suffrage, 102 ff.; and sectional groups, 99— 102; debated in Convention of 1787, 74-5; evils of equal, 88-90; in State constitutions, 50; of economic groups, 75 ff.; outlined in the Constitution, 43-4; per- version of the principle of, 51-2; principle of, 39 ff.; reform in ap- portionment of, 91 ff.; substitute for direct popular action, 39, 48; theory of James Mill, 41, 53-4 Roosevelt, Theodore, 65-6 Root, Elihu, 95 Rousseau, Jean-Jacques, 36, 40, 74 Rush, Benjamin, 36 Rutledge, John, 30 SELDEN, John, 39 Sherman, Roger, 69 social contract, in Massachusetts (1780), 3 state of nature, as defined in 1776, 2-3 suffrage, and illiteracy, 102-6; and property qualifications, 23, 25-6; effects of equal, 19 Tart, William H., 66-7 howe) INDEX Wi1son, James, attacks equal rep- resentation in the Senate, 88-9; declares State legislatures do not represent the popular will, 51; 48-9; his theory of representa- tion, 40, 53-4; opposes limita- tions on the franchise, 26; points to evils of particularism, 90 his conception of democracy, 15—- Wilson, Woodrow, 67-9 16; his definition of the State, Witherspoon, John, 5 pe b134| eke me A My st ha mf ( ity 0 NANA, Hult VERSITY OF ILLIN OIS-URBANA 3 0112 062935900 UNI