I still vividly recall my 10th-grade social studies teacher preaching to our impressionable minds. Our constitution may not be perfect, he said. But It’s the best governmental framework ever written.
As an adult, it’s hard to buy into that claim. Today, we gloss over some of the more repulsive clauses of our constitution which have since been repealed or expired.
- Article 1, Section 2, Clause 3, known as the 3/5 compromise, counted five slaves as three people for apportionment purposes.
- Article 1, Section 9 allowed the importation of slaves until 1808.
As horrifying as these clauses were, it’s the underlying premise of the constitution that still haunts us in modern times and will continue to do so.
The big myth of 1787
To persuade the noncommital delegates of New York, James Madison, Alexander Hamilton, and John Jay laid out their arguments for the constitution in a series of essays known as The Federalist Papers.
They argued for their vision of a republican government, as opposed to a true democracy. The basic tenet was that only enlightened statesmen could be trusted to make law and decide policy.
Madison defended the constitutional design as a guard against his greatest fear — one which came to pass on January 6, 2021. He explains his fear in one of the most influential essays in the Federalist Papers, The Federalist Number 10, published November 22, 1787. He opens with this line:
Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction — The Federalist Number 10
Here’s how Madison defined faction:
… A number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
The founders determined that preventing factions would amount to a futile effort. But a Republic instead of a Democracy could keep factions at bay. In a republic, we elect representatives who pass laws and set policy on our behalf. In a true democracy, citizens vote on individual issues themselves.
Madison and Alexander Hamilton put a lot of stock in enlightened statesmen to act in our best interests. This class of people mirrored the framers. They were white, well-educated land-owners. Many of them owned slaves.
Informed but not trusted
People in the late 18th century, at least white men, were fairly well informed. Daily newspapers had already started to take hold in cities by 1784. It wasn’t that the citizenry was ignorant. Rather, the founders lacked trust that they would put aside their passions and act in favor of the greater good.
That was the arrogance among the framers, thinking that only the upper class — enlightened politicians — were capable of subverting the threat of factions, though they did recognize their own limitations.
Madison writes, “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests and render them all subservient to the public good.”
To further protect us, they instituted a series of checks and balances to make it harder for factions to exert their influence. Still, several of the institutions the founders dreamed up were intended to be filled by elite statesmen.
In our recent election, those checks nearly failed us. Elected representatives failed to quell the beliefs of a violent faction. Worse, they adopted and promoted those views.
The problem goes deeper than the 147 representatives who voted to overturn the presidential election.
Some of our most vital institutions were formed based on the belief that these esteemed individuals would steer our republic away from self-destruction.
The enlightened electoral college
In Federalist 68, Alexander Hamilton argued that assigning a group of electors who hold no Federal office and whose nature is temporary would prevent the elevation of the wrong sort of person.
Hamilton wrote, “The immediate agents in the election will at least enter upon the task free from any sinister bias.”
Hamilton reasoned that these independent agents would act of their own free will. He sums up his argument with the conclusion, “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
We know how that turned out.
Electors don’t fit the mold of enlightened statesmen. They’re merely political appointees, pawns who swear to vote for their party’s candidate should he or she win the popular vote.
The enlightened state legislatures
Your state legislature can pass a law stating that it will no longer hold presidential elections and that they alone will appoint presidential electors. Most presidents were elected in this manner before 1824.
Whether it would hold up in court given federal laws passed since then is unknown, but here is what it states in the constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
Nothing in that phrase requires a state to hold a popular election. It’s unlikely any legislature would attempt to reclaim the power to appoint electors directly, though Arizona just introduced a bill that authorizes the legislature to toss out election results and appoint their own slate.
The enlightened Senate
The founders envisioned the Senate as the one body that would be free of passions and better able to resist factions.
In Federalist 62, Madison writes, “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
Madison explains that the body of the Senate should be comprised of men of wisdom. “What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom.”
The founders granted these enlightened gentlemen of esteemed wisdom sole power of advice and consent of cabinet members, ratification of treaties, and approval of appointed federal judges.
The Senate has proved less tempestuous than the house and more protective of the constitution thanks to their six year term which shields them somewhat from public pressures. That doesn’t mean they're a body of enlightened statesmen, especially when they’re unable to identify the three branches of government.
The Senate could have been a far worse protectorate of our republic if the founders’ vision had remained law. In the original ratified version of the constitution, the framers vested state legislatures with the task of choosing Senators.
Since the Senate was intended to house elite individuals, they deemed it a task suited to the more enlightened state legislatures.
On paper, it provided a linkage between state and federal government. Madison stated, “… The double advantage of favoring a select appointment and giving to the State governments such an agency in the formation of the federal government…”
The 17th amendment allowed for the popular vote of U.S. senators. Before the amendment’s passage, 29 states nominated senators based on the popular vote, with legislators taking an oath to honor the winners regardless of party affiliation.
It’s hard to imagine the passage of the 17th amendment in today’s political environment. It’s equally difficult to envision the enlightened statesmen in the Georgia and Arizona legislatures honoring their oath by appointing the popularly elected Democrats over their Republican counterparts.
Oath seems to have lost its luster among the enlightened.
We’ll have to live with the big myth of 1787
Madison posited that a republican form of government would curb the effects of factions by putting power into the hands of an elite few too enlightened to fall for the sinister plots of evildoers.
With few exceptions, the enlightened statesmen have failed us. Everyone knows it, but don’t count on any relief. Given the hurdles of passing a constitutional amendment, we’ll have to live with them as our overseers.