Thursday, April 20, 2017

The Framers, Democracy, and the Demagogue, Part One

Guest Blogger

Michael Klarman

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

            The delegates assembled at the Philadelphia convention in May of 1787 mostly agreed with the assessment of Governor Edmund Randolph of Virginia when he introduced the plan that would become the convention’s working outline (the “Virginia Plan,” mostly written by James Madison): “Our chief danger arises from the democratic parts of our constitutions,” and none of the state constitutions had “provided sufficient checks against the democracy.”        

            Much of the Framers’ disdain for democracy derived from their hostility to the populist economic policies that a majority of states had enacted in the mid-1780s in response to a severe economic contraction—principally, paper money laws and debtor relief legislation. The Framers overwhelmingly regarded such laws as craven capitulations by overly responsive state legislatures to the illegitimate demands of lazy and dissolute farmers. Such legislation was “wicked and fraudulent”; it “corrupted the morals of the people”; and it enabled “idle spendthrifts [and] dissipating drones of the community” to live “upon the sweat of their neighbors’ brows.”

            Governor William Livingston of New Jersey (who later represented his state at the Philadelphia convention) responded to demands for debt and tax relief by pillorying the “lazy, lounging, lubberly” fellows who sat around drinking, “working perhaps but two days in the week and receiving for that work double the wages [they] earn and spending the rest of [their] time in squandering those . . . non-earnings in riot and debauch,” and yet dared to complain “when the collector calls for his tax of the hardness of the times.” The farmer who protested that he could not pay taxes was “a man whose three daughters are under the discipline of a French dancing master when they ought every one of them to be at the spinning wheel,” and while they should be “dressed in decent homespun, as were their frugal grandmothers, now carry half of their father’s crop upon their backs.” (Think Mitt Romney and the “47 percent . . . who are dependent on government, who believe that they are victims, . . . who pay no income tax . . . [and] should take personal responsibility . . . for their lives.”)

            Elite statesmen of the 1780s blamed tax and debt relief legislation on overly democratic state constitutions. Charles Lee of Virginia told George Washington that unless state legislatures could be reconstructed to make them “more powerful and independent of the people, the public debts and even private debts will in my opinion be extinguished by [them].” Reflecting on state relief measures, William Grayson (also of Virginia) concluded that “however excellent democratical governments may be in some respects, the payment of money and the preservation of the public faith are not among their good qualifications.”

            At least as alarming to the Framers were events in Massachusetts, where the legislature’s refusal to provide tax or debt relief to farmers provoked Shays’s Rebellion, during which armed protestors shut down civil courts in several counties in 1786–87. The nation’s propertied elite were even more distressed when, after an army raised by eastern Massachusetts creditors had forcibly suppressed the rebellion, the Shaysites sought (as one of their critics observed) to win “the same objects by legislation, which their more manly brethren last winter would have procured by arms.”
            An incredulous Madison reported, “We understand that the discontents in Massachusetts which lately produced an appeal to the sword are now producing a trial of strength in the field of electioneering,” and if they could “muster sufficient numbers, their wicked measures are to be sheltered under the forms of the constitution.” After the insurgent relief seekers scored victories in gubernatorial and legislative contests in the spring of 1787, Madison told James Monroe that the Massachusetts election had “shifted the legislative power into the hands of the discontented party, and it is much feared that a grievous abuse of it will characterize the new administration.”

            Governor John Hancock, propelled into office by that discontent, promptly pardoned most of the insurgents, including Daniel Shays. The new legislature dramatically reduced taxes and repealed an earlier law punishing insurgents with disfranchisement and exclusion from office. Washington’s private secretary, Tobias Lear, asked General Benjamin Lincoln, who had led the army that suppressed the rebellion: “What frenzy can have seized upon the people of your state [Massachusetts] to induce them to aim at an establishment of those principles by law, which, but a few days ago, they were opposing by arms?” Lear feared that unless “some measures are pointed out and adopted to give security to property,” the United States was verging “fast towards a point which may . . . involve us in a civil war with all its terrible consequences.”

            Shays’s Rebellion played a critical role in the creation of the Constitution. Investigating the rebellion for the Confederation Congress, Secretary at War Henry Knox wrote to George Washington, “The commotions of Massachusetts have wrought prodigious changes in the minds of men in that state respecting the powers of government. Everybody says they must be strengthened and that unless this shall be effected, there is no security for liberty or property.” Virginia congressional delegate Henry Lee wrote Washington, “The period seems to be fast approaching when the people of these United States must determine to establish a permanent capable government or submit to the horrors of anarchy and licentiousness,” as “[w]eak and feeble governments are not adequate to resist such high handed offenses.”   

            Rufus King, a Massachusetts delegate to the Philadelphia convention, announced that Shays’s Rebellion had taught him that “the great body of the people are without virtue and are not governed by any internal restraints of conscience.”  He was therefore reconsidering his prior advocacy of “government free as air,” which had been based on the mistaken belief that his “countrymen were virtuous, enlightened, and governed by a sense of right and wrong.”  It was Shays’s Rebellion that led Massachusetts delegate Elbridge Gerry to declare to the Philadelphia convention that the people of New England had “the wildest ideas of government in the world,” and Alexander Hamilton to note “the amazing violence and turbulence of the democratic spirit.”

            Because the Framers blamed relief legislation on “democratic licentiousness,” they designed the federal government to be insulated from the populist politics that had produced such measures in the states. Thus, they opted for enormous districts for congressional representatives—the Constitution provides for sixty-five members for the first House, compared, for example, to over three hundred representatives in the lower house of the Massachusetts legislature—and for indirect elections and lengthy terms in office for both senators and presidents. The U.S. Senate was expressly designed to be “the aristocratic part of our government,” to “represent the wealth of the country,” and to bear “as strong a likeness to the British House of Lords as possible.” The Framers also rejected, for federal legislators, instruction, recall, and mandatory rotation in office. In addition, they created a powerful executive armed with a veto power that could be used to block any populist economic measures that might somehow sneak through a legislature designed to squelch them. To the extent that the Framers were thinking about judicial review at all, they mostly conceived of it as another potential check on such relief legislation.

            As I was working on The Framers’ Coup (from roughly the summer of 2012 through January of 2016), I found troubling the extent of the Framers’ elitist disdain for populist politics.  While Virginian Henry Lee complained to Washington that “the malcontents” (the Shaysites) had as “their object . . . the abolition of debts [and] the division of property,” the debtor farmers actually had strong arguments for the relief programs they demanded in the mid-1780s. In a time of severe economic distress, they were being forced to pay heavy and regressive taxes in scarce hard currency in order to pay off government securities that had been scooped up (sometimes from them) at a fraction of par value by speculators who now stood to make a financial killing.  Relief measures had been necessary, according to one opponent of the Constitution’s ratification in North Carolina “to save vast numbers of people from ruin.” That perspective was one for which most of the delegates to the Philadelphia convention had little sympathy.

            Political developments since I finished the book, however, have cast a more favorable light upon the Framers’ deeply skeptical view of populist politics. The Framers worried not only that the People would redistribute wealth if left unchecked but also that they were simply too ignorant and vulnerable to deception to exercise responsible influence upon their government. At the Philadelphia convention, Virginia delegate George Mason declared that “it would be as unnatural to refer the choice of a proper character for chief magistrate [i.e., the president] to the people, as it would be to refer a trial of colors to a blind man.” The People could not possibly possess “the requisite capacity to judge of the respective pretensions of the candidates.” (Incidentally, another concern of the Framers with regard to presidential selection was, as Madison stated in Philadelphia, that “[m]inisters of foreign powers” would seek to influence the selection of the president. Pierce Butler of South Carolina seconded Madison’s concern, noting that the two great evils to be avoided in selecting the chief executive were “cabal at home and influence from abroad.”) 

            Elbridge Gerry, who had been especially shaken by Shays’s Rebellion, opposed even direct election of congressional representatives on the grounds that the People were “the dupes of pretended patriots” and were “daily misled into the most baneful measures and opinions by the false reports circulated by designing men.” George Mason told the convention that the chief evils of republican government were “the majority oppressing the minority, and the mischievous influence of demagogues.”

[Part Two of this Essay appears tomorrow]

Michael J. Klarman is Kirkland & Ellis Professor at Harvard Law School and author of The Framers’ Coup: The Making of the United States Constitution (Oxford University Press 2016).

Older Posts
Newer Posts