AN EXPERIMENT IN SELF-GOVERNMENT – PART V Issues of Concern to the Founders

On September 17, 1787, when the Convention adjourned, there were fifty-three of the original fifty-five delegates still in attendance.  Two had left early for lack of faith in the project.  After the Convention adjourned fourteen more went home, leaving thirty-nine delegates willing to sign the final document upon its completion.  Thirty-eight actually signed.  The signers were barely two-thirds of the original delegates. (Whether the fourteen that went home at the adjournment would have signed we do not know.)  We know from the Convention debates and the State ratifying conventions there were numerous concerns, many repeatedly stated.  Below, following a general concern of Benjamin Franklin is a synthesis of the most repeated. 

“Madam, it’s a Republic, if you can keep it.”  In the fall of 1787, Benjamin Franklin was asked, “What kind of government do we have, is it a monarchy?”  His reply is the heading of this section.  There is no consensus about what Franklin had in mind.   The phrase “if you can keep it” suggests difficulties or possibly a bad ending From the Delegate Convention in Philadelphia in 1787 and from the State ratification debates in 1787-88 there is plenty of comment giving consideration to possible ill-fortune. Below are the most oft-mentioned issues.

Tyranny of Majorities:  Putting the whole of the nation’s sovereignty solely in the hands of “the people” might only last as long as “the people” act virtuously.  There was strong consensus about the danger of an “unruly mob” taking over the government. George Washington would later warn of similar danger using the word “factions” in his Farewell Address.  Madison authored many sections of the Constitution that put road-blocks in the way of intemperate majorities, because he was not confident the government would always be honorable.  To prevent bad results, the three co-equal branches of the federal structure require multiple steps before a law becomes effective. Then too, Courts might nullify unconstitutional laws.  The final barrier is the amount of time it takes to amend the Constitution, assuming the government lasts long enough to complete the amendment process.  Finally, some could foresee the Constitution being amended by the courts, and not by amendment.

Strong leaders bending the Constitution:  A President or Congress exercising power not authorized by the Constitution is expected to be stopped by a court’s opinion that the action is unconstitutional.  The debates of the Constitution recognized the possibility this check might be breached. Probably many thought it possible slick-talking lawyers could convince the Supreme Court the Constitution does not really mean what it purportedly states.  They even envisioned an approach, such as: “Surely, in a ‘national emergency’ the government has a right, or perhaps a duty to sanction what is necessary but forbidden.”  Madison acknowledged in the Federalist Papers, if men were angels there would be no need of a government to protect the rights of the people, but since men are not angels, we must have a government with inviolable limitations designed to protect the people’s rights.  Madison also acknowledged the Constitution was a parchment barrier.  

Plain ordinary Corruption:  One of the most often-used words recorded in the debates on the Constitution, other than “freedom” and “liberty” is “corruption”. The American people understood England’s history.  The Magna Carta in 1215 is in part an anti-corruption document which the King was forced to sign at swords point.  Still, corruption prevailed.  Corruption is not limited to graft or bribery — passing money from the people to government officers for a quid pro quo.  Corruption also includes the king’s spending for illicit or unvirtuous objects as well as payments to the king’s favorites.  King’s often sold grants of monopolies and kept the money as his own. This form of corruption was so distasteful that many State Constitutions have anti-monopoly clauses dating from the 1700s. The Constitution again uses structure as a barrier. No money of the government can be spent except by an appropriation by Congress.  All money belonging to the Federal government must be deposited in the government’s account only.  The founders believed (or hoped) that only citizens of merit and virtue would be elected to Congress or Presidency, or selected for the courts.  This depends upon virtuous citizens being willing to serve the nation’s needs.  

The Federal Government is Too Strong:  Many speakers in state ratifying conventions feared the government was too strong.  If corruption is inevitable, then a powerful government becomes formidably corrupt.  By making the national government more powerful than necessary, it will be more attractive to corruption than otherwise. Therefore, making it less powerful was proposed as a means of curtailing corruption.  A weak government only attracts petty corruption; a too powerful, corrupted government becomes fearsome.                                                                                 October 6, 2019

What Might Go Wrong!