Novus ordo seclorum

As we have discussed in previous posts, the Framers were brilliant men who had deeply studied the lessons of history, and they sought to establish a Constitutional order fit for the realities of human nature as seen in the light of experience. Nevertheless, they knew they were doing a new thing, which is reflected in the second motto on the reverse of the Great Seal of the United States. They believed they were establishing a new order for the ages.

The Great Seal actually predates the Constitution by five years. The phrase itself, novus ordo seclorum, was chosen by Charles Thompson, who was well-versed in Latin and particularly fond of Virgil, the Roman epic poet. It has been speculated that the phrase was inspired by this passage from Virgil’s Eclogue IV:

Come are those last days that the Sybil sang:
The ages’ mighty march begins anew.
Now come the virgin, Saturn reigns again:
Now from high heaven descends a wondrous race.
Thou on the newborn babe – who first shall end
That age of iron, bid a golden dawn. . .

Thou, trampling out what prints our crimes have left,
Shalt free the nations from perpetual fear.
While he to bliss shall waken; with the Blest
See the Brave mingling, and be seen of them,
Ruling that world o’er which his father’s arm shed peace.

(C.S. Calverley translation)

The actual Latin is Magnus ab integro seclorum nascitur ordo. The variant spelling, seclorum, which is usually spelled seculorum in Latin prose, was a common poetic variant. It seems significant to us that Thompson chose the poetic form for the American motto.

The likelihood of inspiration  from Virgil’s poem is significant. It reminds us that this new order is not entirely de novo, but is a renewal of what the Framers regarded as the best heritage of the past. We speculate that the Framers saw the Constitution as the capstone of the Rennaissance — the fulfillment in the political sphere of what had begun in the arts and literature and spread through the sciences.

Nevertheless, they understood that the Constitution was an experiment.

We agree with John Godfrey Saxe, who was apparently the first to observe (in 1869) that “Laws, like sausages, cease to inspire in proportion as we know how they are made.” Lawmaking by representative legislatures is a messy process, and the framing of the Constitution by the  Convention of 1787 was no exception. The delegates to the Convention understood this, and agreed that their deliberations would be kept secret. Amazingly, they were successful at this for a long time; we doubt it could be done today. The official minutes are sketchy and the best record of what took place is Madison’s Notes of Debates in the Federal Convention of 1787, which was not published until 1840, four years after his death and 52 years after the ratification of the Constitution. By then the Constitution had enough legitimacy that the human aspects of its origin were less likely to be found troubling.

What makes republican lawmaking messy, and at the same time both possible and tolerable, is compromise. The crucial compromise that allowed the drafting of the Constitution to go forward was apparently the Connecticut Compromise, also known as the Great Compromise of 1787, brokered by Roger Sherman. This began with Sherman’s original proposal of a bicameral legislature, and proposed a lower House with proportional representation and a Senate in which each State was equally represented. Ordinary legislation would thus required the support of a majority of the people (as represented in the House) and the majority of the states (as represented in the Senate). The House was, by design, sensitive to majority sentiment, and this was reflected in its exclusive power to originate spending bills. The Senate was given considerable independence, in part because Senators were given a long term in office (six years), exceeding that of most of the state legislators who appointed them.

Other compromises were also significant. Some were very messy, including the slavery compromises. The slave states wished to count slaves as full persons for purposes of apportioning Representatives in Congress; the free states did not wish to count them at all. The compromise was to count them as three-fifths of a person. Congress was given power to enforce fugitive slave laws, but was also given the power to ban the slave trade, though not until 1808 (which Congress promptly did in that year, as was expected from the start.) As we have observed before, slavery was an evil the Constitution did not create and could not then abolish. However, its compromises to accommodate slave States  created distortions in the Constitution whose effects we will revisit in future posts.

Another issue was whether judges should be appointed by the legislature or the executive. Nathaniel Gorham proposed the compromise that was finally accepted, in which the President would appoint judges with the “advice and consent” of the Senate. This, together with the lifetime tenure of judges, shattered the precedent that judges were officers of the executive or the legislature and turned the judiciary into an independent third branch of the proposed Federal government. A proposal for a “Council of Revision” composed of the President and a panel of judges, who could veto all legislation but could be overridden by a supermajority of legislators, was rejected. The notion that judges could rule laws unconstitutional was already in the Founder’s thinking, and they feared a Council of Revision would politicize the judiciary by putting the judges into the business of rejecting legislation on policy rather than constitutional grounds. Instead, the President was given sole veto power, subject to override.

Once the composition of the legislature was decided, the most contentious issue seems to have been the nature and powers of the executive. This is unsurprising. The Framers had considerable experience with legislatures, which had been a feature of government for centuries, and particularly in the governments of the original colonies.  The supremacy of the legislature had historical precedents and was already firmly entrenched in American political thinking. By contrast, the Framers found all the historical models for the executive unsatisfactory. Their distaste for monarchy was obvious and nearly universal. The stadtholder (steward) of the Dutch Republic had become a hereditary office, which they eschewed. The Swiss Confederation lacked an executive entirely, and the historical examples of elective monarchies were characterized by pervasive public corruption. Yet James Wilson argued that only a unitary executive would have the necessary “energy, dispatch, and responsibility” to remedy many of the ills of government under the Articles of Confederation. It was thus in the executive that the Founders were venturing furthest into unknown territory. We shall revisit this theme again.

An important feature of the new Constitution was the relative ease with which it could be amended. Under the Articles of Confederation, amendments required the unanimous consent of the states. Under the new Constitution, amendments could be made binding with mere supermajorities, if substantial ones. Two paths were adopted, only one of which has ever been used: Congress proposes an amendment by two-thirds vote of both houses, and decides whether ratification is by three-fourths of the state legislatures or three-fourths of ratifying conventions in each state. The latter was likely a mechanism for gaining ratification of amendments judged beneficial to the people but less attractive to legislatures. The other path, never yet used, is for two-thirds of the states to petition Congress for another Constitutional Convention, which Congress is then required to call. This Convention can apparently propose Amendments by mere majority vote; again, these are ratified by three-fourths of either the legislatures or of ratifying conventions in each state. It is unclear if the amendments proposed by a Convention must be ratified as a whole or can be ratified separately; we suspect the Founders intended the former, but cannot prove it.

We observed in an earlier post that the power of amendment is critical to the continuing legitimacy of the Constitution, since it gives each successive generation of Americans the power to repair faults in the Constitution. The requirement of substantial supermajorities to do so provides minorities with considerable protection against passing fashions, factions, and moral panics. How well has this worked out in practice?

We set aside for now the Bill of Rights, whose promulgation was a requirement for winning the ratification of the original Constitution by several states. It is, in every sense that matters, a part of the original Constitution. Of the remaining amendments, we first note their timeline:

11th Amendment, 1794-1795: Limits lawsuits against states in federal court

— 9 years —

12th Amendment, 1803-1804: Changing how Vice-Presidents are elected such that they are no longer guaranteed to be political opponents

— 62 years —

13th Amendment, 1865: Abolished slavery

— 3 years —

14th Amendment, 1868: Intended to protect the rights of freedmen; has been rather more consequential

— 2 years —

15th Amendment, 1870: Protected voting rights

— 43 years —

16th Amendment, 1909-1913: Income tax

— 3 years —

17th Amendment, 1912-1913: Direct election of senators

— 6 years —

18th Amendment, 1917-1919: Prohibition

— 1 year —

19th Amendment, 1919-1920: Female sufferage

— 13 years —

20th Amendment, 1932-1933: Presidential elections and succession

— Simultaneous —

21st Amendment, 1933: Ending Prohibition

— 18 years —

22nd Amendment, 1947-1951: Term limits on the President

— 10 years —

23rd Amendment, 1960-1961: Granting electors to the District of Columbia

— 3 years —

24th Amendment, 1962-1964: Prohibiting a poll tax

— 3 years —

25th Amendment, 1965-1967: Presidential incapacity and succession

— 4 years —

26th Amendment, 1971: Lowering the voting age

— 21 years —

27th Amendment, 1789-1992: Prohibiting changes in Congressional pay to take effect until an election has intervened

— 28 years and counting —

The present day.

The average time between amendments was thus 12.5 years between the 11th Amendment and the 27th Amendment. The standard deviation is 16.5 years. This suggests the present hiatus of 28 years is not as remarkable as we have sometimes heard suggested.

It is tempting to suggest that the 65 year hiatus prior to the Civil War reflects an ossified political order contributing to the Civil War. It is even more tempting to suggest that the dearth of recent amendments reflects the rise of judicial activism, which has effectively circumvented the amendment process. Neither can be demonstrated with statistics. Both suggestions nevertheless have some merit, in our view.

It will be the purpose of many of our future posts to propose further amendments, though we do not delude ourselves that there is much likelihood that very many voters will pay attention. Almost all our proposals are meant to reinforce classical liberalism and strengthen protections of minorities,  but our greatest fear for the Constitution is that its countermajoritarian features, meant to check passing political fashions, temporary interests, and moral panics, are inadequate to check a permanent majority opposed to the basic principles of classical liberalism. We shall have much more to say about that, as well.