Recapping the legislative branch

For the last year, we have been devoting the time we have to write about the Constitution to briefly annotating the text of the Constitution itself. We have now completed our annotation of Article I, which establishes the legislative branch of the federal government of the United States. Our annotation has frankly been hasty and incomplete; there is not one of us that does not have other serious demands on his or her time. We intend to make a more careful revision of these posts in the future, so that they will be living posts, directly accessible from the categories menu on our  home page.

In this post, we will recapitulate our understanding of the constitutional design of the legislature. In the next post, we will lay out our preliminary thoughts regarding the executive branch, before plunging in to the annotation of Article II, which establishes that branch.

What is government for?

The Founders believed that the legitimate functions of a just and proper government were to protect the people in the enjoyment of their rights and to be good stewards of the public commons. All legitimate operations of government fall under one of these two heads. We believe the Founders also intended for the public commons to be but a small fraction of the national assets.

By people we mean the entire body of citizens.  We believe that a decisive majority of the signers of the Declaration of Independence, even among those who owned slaves, were sincere in attaching their imprimatur to a document that declared “All men are created equal”. They believed that slavery was incompatible with the American character and would wither away on its own in due course. The Constitution added the unfortunate qualifier “but not before 1807”, but the fact that a ban on the slave trade was enacted almost at the moment it was constitutionally permissible is, we think, an indication of their sincerity.  Their attitudes on slavery were also reflected in the delicate language of the Constitution, which avoided even the use of the word “slave.” This was the writing of men with a consciousness of guilt.  We will expand upon and defend this claim when we post on the Reconstruction amendments.

The phrase in the Declaration was all men. But it is doubtful that any Western polity of 1787 had a greater respect for the worth of women than the young United States. The literacy rate of women in New England was greater than the literacy rate of men in most other Western nations. New Jersey enfranchised all adult property owners, male or female, in 1776 (though this was repealed in 1807). By and large, the attitude was not that women were inferior, but that they were different, and that the difference included an unsuitable temperament for politics.  This attitude changed over the course of the 19th century, with particularly strong support for women’s suffrage among those who also supported abolition of slavery, and female enfranchisement was first enacted in the West, beginning with the territories of Utah and Wyoming. By the time the 19th Amendment was ratified in 1920, fifteen states had already granted full franchise to women, and another 26 had granted women partial voting rights. We will revisit this when we post on the 19th Amendment.

By rights we mean certain spheres of human activity in which third parties cannot freely interfere. For the most part, the Founders believed in a philosophy of natural rights that were sweeping and numerous. Among these were the cardinal rights, necessary to maintenance of a democratic government under the rule of law: rights of speech, of the press, of assembly and petition for redress, and of due process in legal proceedings. Freedom of religion stood in a class by itself. The Founders almost universally regarded rights in property as being as sacred as political or due process rights. We will revisit this when we post on the Bill of Rights.

The commons include public property and those natural resources that are public goods, such as clean air. The Founders understood the need for a limited commons and the necessity of government to be a good steward of those commons.

Law enforcement falls under the protection of the people in the enjoyment of their rights. So does national defense.

Government of, by, and for the people

Lincoln’s famous formula postdated the Revolution by 87 years, but it is taken for granted in modern American politics.  Any serious suggestion that we have too much democracy, not too little, will condemn the speaker to political oblivion.

The Founders would have agreed that ours is a government of and for the people. They would have had problems with the idea that ours is a government by the people. We mean no disrespect to Lincoln, whom we place second only to Washington in the American pantheon, and whose speeches include some of the finest utterances ever made in the English tongue. But we doubt even Lincoln meant government “by the people” to mean a pure democracy.

One occasionally hears some curmudgeon repeat the saying, attributed (incorrectly) to Benjamin Franklin, that “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.” But while the quote is actually attributed to James Bovard and dates back only to 1995, it could well reflect the attitude of some of the Founders. John Adams wrote in an 1814 letter that

Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty.”

And yet, the Constitution gives the legislature pride of place, and the House of Representatives, the most democratic branch of the government, comes before the Senate. We do not believe this is accidental. The House is the great nuclear pile at the heart of democratic government, but it must be shielded and checked by the other branches of government. To draw out the analogy further: Nuclear power is a problem, but it is also our only hope for keeping humanity clothed, warmed, and fed for the next thousand years without either wrecking the climate or imposing a brutal totalitarian regime on all nations. Democracy is a problem, but it is our only hope for maintaining a government of and for the people.

We believe the key to putting Adam’s quote in context is his caution regarding simple government. No form of government, even democracy, is tolerable as the basis for government by a single body. The Constitution accordingly provides for a complex government full of checks and balances.

The House as representative body and powerhouse of democracy

Democracy is essential because it is the guarantor of a government of and for the people. Its chief place in the federal government, by the Founder’s design, was in the House of Representatives. We need not reiterate the commentary we have made on Article I, Section 2. Suffice it to say that the Founders designed the House to be as democratic in makeup as possible.

One must understand what the House is not. It is not by design a deliberative body, but a representative body. Its members were expected to vote the way their constituents would vote if they could devote all their time to examining the policy issues of the day. Legislation by representatives of the people, rather than by direct plebiscite, is a guard against the phenomenon of rational ignorance, and it is essential to the constitutional order.

The House is theoretically kept close to the people by the frequency of its direct elections. In practice, turnover is shockingly small, which we attribute to a combination of machine politics, gerrymandering, and oversized districts, of which we consider the latter by far the most damaging. We are inclined to agree that the House ought today to  number 6500 members, or one representative per 50,000 persons.

It is consistent with its role that the House has the sole power of impeachemt and must originate all appropriations bills. The former makes it much more difficult for a popular politician to be forced out of office by rivals in the Senate. The latter theoretically limits the government to what taxpayers are willing to fund. We say theoretically because it now seems clear that this has not worked out in practice. We will revisit this in connection with the 16th Amendment and when we begin discussing possible future amendments to the Constitution.

The Senate as deliberative body and system of control rods

The Senate was, by original design, the chief system of control rods on the federal government. Its members were originally chosen  by state legislatures, until this was changed by the 17th Amendment, which we regard as a grave error. As representatives of state legislatures, who presumably would be jealous of their powers, the senators were expected to keep the entire federal government in check. We also see value in the two houses of Congress being chosen by different bodies, for reasons we have outlined elsewhere, and so would support repeal of the 17th Amendment, though only in connection with other reforms.

The Senate was intended to be small enough for genuine deliberation. The current count of 100 Senators is a touch on the large size for that, and perhaps it would bear consideration to reduce the representation to one Senator per state. This would not deprive any state of its equal representation in the Senate and so could be ratified as an ordinary constitutional amendment.  We see value in a Senate that over-represents rural states;  not because we are “blood and soil” conservatives, but because we believe rural communities are less susceptible to groupthink in political matters, and this is vital to thoughtful deliberation.

It is one with this role for the Senate that it must approve all treaties and appointments to office and has the sole power to try impeachment. We believe that the tradition of the filibuster, controversial as it is, is in keeping with the Senate’s constitutional role even though the filibuster is neither required nor forbidden by the Constitution. Weighty matters ought not to be decided by slim majorities.

We will revisit the Senate in connection with the 17th Amendment.