Penguin History of the United States of America (39 page)

not only to thirteen independent and sovereign states… but likewise to innumerable states yet unformed, and to myriads of citizens who in future ages shall inhabit the vast uncultivated regions of the continent. The duties of that body therefore, were not limited to local or partial consideration, but to the formation of a plan commensurate with a great and valuable portion of the globe.

Such a plan could only work if it were grounded on the people.

For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form; and under the operation of that right, the people of the United States can never be wretched beyond retrieve, unless they are wanting to themselves.

The principles of the new Constitution were and had to be ‘purely democratical’; and Wilson meant what he said so much that he was one of those who held out longest for popular, not state, election of the Senate, and resisted all attempts to restrict the suffrage. Madison took the same line. To both men it seemed that the Articles conceded too much to the states; both at first had fears that the same was true of the Constitution, after the Great Compromise; and both have been vindicated by time. The democratic thrust of the American Revolution has compelled many amendments to the Constitution, but none, it is likely, that would have given greater satisfaction to Wilson and Madison, could they have foreseen it, than the Seventeenth, which took the election of the Senators away from the state assemblies and gave it to the people.

The belief that the government of the American Empire, to be permanent, had to be democratic, and that the Articles were not, or not sufficiently so, must seem thoroughly respectable to the modern mind; not so the equally prominent belief of the Founding Fathers that the people could not be wholly trusted, and that another of the main tasks of the Constitution must be to hold their dangerous impulses in check. The men of 1787 were in some respect alarmists. They were mocked for it in the Virginian state convention:

Pennsylvania and Maryland are to fall upon us from the north like the Goths and Vandals of old… the Indians are to invade us from our rear… And the Carolinians from the south, mounted on alligators, I presume, are to come and destroy our
cornfields and eat up our little children! These, Sir, are the mighty dangers which await us if we reject the Constitution.

More characteristic of the Federalists was their fear of inflation, expressed as a loathing of paper money and stay laws. Paper money was a direct means of robbing persons of property; stay laws, by which the payment of debts might be more or less indefinitely postponed, were indirect robbery. Worse might lurk behind. They had all read their ancient history and knew that the poor had in the past risen to compel the passage of agrarian laws, to divide up the land of the rich between themselves: and that this had been the first act of the drama leading to dictatorship. When the poor became sufficiently numerous in America, the same drama might threaten, so it was necessary to take precautions. In this matter the chief instrument of demagoguery was the state: look at Rhode Island, look at what would have happened in Massachusetts if Shays had won. So the states were stripped of the power to issue paper money, and the central government was given the power to intervene to suppress rebellion if asked to do so by the legitimate authorities.

Yet the Founding Fathers remained American liberals. They were just as concerned to protect the states against illegitimate interference from the central government as the other way round. Again and again they insisted to themselves and to critics that the Constitution left all powers to the states that were not specifically removed or reduced; eventually the point was made specific in the Tenth Amendment. Anyway, it seemed obvious that the state governments must be strong and vigorous if the immense expanse of America was to be governed as a unity. A big country, whether measured by area or population – and the United States was going to be big on both counts – needs a central government, but if it is to be either free or efficient, let alone both, that central government cannot make all, or even most political and administrative decisions. Power, a great deal of power, must be left with regional and local governments. This principle of decentralization can go too far, as the history of the United States has demonstrated all too often, but then so can the principle of centralization. To preserve freedom, equality, peace and prosperity, the best way is the middle way, and that is what American federalism means: a dynamic combination of nationalism with localism. A federal republic, James Wilson explained, was one in which the freedoms of a republic were combined with the external dignity and force of a monarchy. The essence of the case (as so often with the Constitution) was common sense. The experience of the Articles of Confederation showed the dangers of too weak an association; America did not want to dwindle into something as futile as the Holy Roman Empire. A wholly centralized republic would concentrate too much power in one place, and was politically impossible; neither the states nor the people would agree to such a thing (the same holds true today). The Constitution successfully holds these considerations in balance.

So the first and second characteristics of the Constitution are its essential democracy and the horizontal separation of powers between the federal and state governments. The third, and perhaps the most conspicuous characteristic, is the vertical separation of powers: Executive, Legislative, Judiciary – or, Presidency, Congress, Courts. This principle was, as we have seen, one of the first matters agreed by the convention. It had become a cliche in the writings of Montesquieu and a dozen other thinkers deriving from Locke. It corresponded very closely to the formal structure of colonial politics, though colonial practice, as in the case of Massachusetts, was rather different. The alternative doctrine, of the rights of a sovereign legislature, had been given a fair trial in the Continental Congress, to general dissatisfaction, and to the particular dissatisfaction of those, like Madison and Hamilton, who had tried to make Congress work. As we have seen, under the Articles there had already begun some evolution towards the separation of executive from legislature, though the new ministers were firmly subordinated to the Congress. All in all, this fundamental decision was quickly taken because it was so obvious. Yet with hindsight it is easy to see that of all the arrangements of the Founding Fathers it was the most revolutionary.

British readers may best understand what is involved by giving a moment’s thought to the constitution of their own country. It is built round a dogma of the absolute sovereignty of the King in Parliament, a dogma that emerged as a result of the civil wars of the seventeenth century and gave the sanction of immemorial tradition to the compromises that ended those wars. The myth of the King in Parliament has lasted for centuries, and is not quite done for yet. It cannot be defended on any grounds except that it happens to be the way that the British do things, yet all political transformations, all radical programmes, have had to adjust to it (at least until Britain entered the European Union). The American Constitution has had an even more overwhelming effect on American history. The Presidency, for example, the embodiment of the executive in one man, was invented partly for the reasons given, and partly because, in George Washington, the ideal President happened to exist. Had Washington died suddenly in the middle of the convention Wilson might have got his way and the United States have acquired a three- or four-man executive, like the five-member Directory in Revolutionary France. The convention had enormous difficulty in settling how to elect the President, and fixed on a method of indirect election, through an electoral college chosen by the voters, only after every other expedient had been considered at length. In the event the electoral college became a mere rubber-stamp for the people’s choice; and so this purely practical expedient could become the towering symbol without which no American can imagine his country. Thanks to the first, very distinguished men who occupied the Presidency (Washington, John Adams, Jefferson, Madison); thanks to President Andrew Jackson’s insistence on the overriding authority of his mandate from the voters; thanks to the Civil War and the martyrdom of Abraham Lincoln; thanks to the rabble-rousing of Theodore
Roosevelt, the crusading zeal of Woodrow Wilson and, above all, the dynamic leadership of Franklin Roosevelt, the President is now a popularly elected monarch; even the scandals of a Grant, a Nixon or a Clinton cannot strip the office of the mystique that has slowly accrued to it since 1789. There are only two really sacred things in America: one is the flag, the other is the White House. Nothing about this state of affairs would have gratified the Founding Fathers, who had no intention of setting up a monarch of any kind. Yet the institution they actually created has proved too strong for their philosophy (which held that the executive ought to come a decided second to the legislature, and expressed itself by putting the President in the second Article of the Constitution, the Congress in the first); and its glamorous example has of late filled the world with imitations.

If the Founding Fathers did not anticipate the spectacular development of the Presidency and pooh-poohed the warnings of those who feared the worst, they did provide institutions to keep it in check. ‘Checks and balances’ was a notion particularly associated with John Adams and his book; but it very well expressed the universal assumption. Power was too tempting to fallen man; the exercise of power must never be free from question, debate, exposure, possible defeat. Indeed, it was too likely that any exercise of power would lead to evil: quite as much as Lord Acton did the Fathers believe that ‘power tends to corrupt’. So they piled check on balance, balance on check, until they arrived at what Richard Hofstadter so felicitously termed ‘a harmonious system of mutual frustration’.
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When Jefferson, back from France to be the first Secretary of State (foreign minister), asked Washington why the convention had thought a Senate necessary, the President in turn asked him why he tipped his coffee from his cup into his saucer. ‘To cool it.’ ‘Even so we pour legislation into the senatorial saucer to cool it.’ In practice the Senate has cooled the President: since every proposal he wants to get through the House of Representatives has also to pass the Senate. Two chambers make Presidential usurpation more than twice as difficult. The Constitutional convention expressly conferred the power to declare war on the Congress, and although the evolution of war in the industrial age has made this power increasingly nominal, the power of the purse, by which Congress alone can vote the money to pay for wars and armies, has meant that the President has always had to try to take Congress into partnership on foreign and military policy, or face calamitous consequences. And no treaty can come into effect until it has been ratified by two-thirds of the Senators present. Domestic legislation is peculiarly the province of Congress; and the power of Congressional investigation and review means that the executive always has to bear the views of Capitol Hill in mind. Since it is through their Representatives and Senators in Congress assembled that the views, ambitions, prejudices, passions and ideals of the ordinary American people most regularly make themselves felt in modern
Washington, this is all to the good, as otherwise the President would tend to be over-impressed by the fact that he was elected to office by a large number of his fellow-citizens (not always, or even, of late years, often, a majority of those citizens who actually vote, and very seldom a majority of those citizens with the right to vote, since American voter turnout nowadays is low compared with that in other democracies).

The most impressive and original of the checks and balances is to be found elsewhere, in the courts, in the institutional doctrine known as ‘judicial supremacy’, or, in other words, the maxim that the Constitution is what the Supreme Court says it is. This was something entirely new.

Yet the legal tradition which the Constitution enshrines was the most English thing about the whole document; and intimations of judicial review – that is to say, of the role of the courts in deciding whether a given law or action is legal or constitutional – abounded in the earlier eighteenth century; the most famous English case being Camden’s finding in favour of Wilkes in the general warrants judgement, and the most famous American case, perhaps, being Thomas Hutchinson’s finding in the opposite sense in the matter of writs of assistance in 1761. The English-speaking world in the eighteenth century rang with appeals to the rights of men and Englishmen, and to the Anglo-Saxon Constitution; who but judges learned in the law could deal with such appeals in the last resort? The pre-eminence of statute law, though a thing accomplished, was not yet a thing generally acknowledged; indeed, the chief eighteenth-century legal monument is Blackstone’s
Commentaries
, a panegyric on the common law that was intensely popular in America; and the common law is essentially judge-determined law.

This was the background; but as usual the members of the convention had more practical concerns at the forefront of their minds. They were anxious to entrench the judiciary in the political process, seeing the judges, rightly, as pillars of the settled order of things; but in the end caution, common sense and their own disagreements led them to abandon the idea of setting up a Constitutional Council of Revision, in which the President and the Supreme Court together would have passed on the constitutionality of the laws proposed by Congress. Indeed, so cautious were they that although they clearly understood the idea of judicial review, they refrained from mentioning it in the Constitution; its inevitability and desirability were first brought out by Hamilton in
The Federalist
. The utmost the Founding Fathers did was to declare (Art. VI, sec. 2) that the Constitution and treaties made under its authority were ‘the supreme law of the land’. The wise might well infer that a law must be interpreted by judges, to be effected, and imposed by their decisions; the matter remained to be spelled out, the theory to be tested.