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THE FOUNDERS’ VISION OF ELITE GOVERNANCE
History will teach us … that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.
—ALEXANDER HAMILTON, FEDERALIST 1
In the summer of 1787, the newly independent American states were in shambles. The national government could not protect its territorial borders, which remained vulnerable to hostile Indian tribes, the British, and two other empires, Spain and France. It could not pay its debts. It could not build roads and canals. It could not put down rebellions except with difficulty, as an uprising led by Daniel Shays in Massachusetts had just revealed. It could not protect diplomats or foreign travelers or American shipping.
The nation, as it stood, was ungovernable.
Under the Articles of Confederation, which the states had ratified in 1781, the national government, which consisted entirely of a Congress made up of delegates from the thirteen states, could get little done. It lacked a powerful executive to enforce the law, represent the government overseas, and lead the nation in war. It lacked a federal court system. The states could rarely agree with each other, and since the Articles of Confederation required them to act with a large majority or unanimously, Congress was frequently unable to act—even in the most pressing circumstances.
Fifty-five Americans met in Philadelphia to hash out a new Constitution. George Washington, the Revolutionary War hero, presided, but the leading figure was James Madison, a Virginia delegate who would later serve as the country’s fourth president. Other luminaries included Alexander Hamilton (New York), Benjamin Franklin (Pennsylvania), George Mason (Virginia), Gouverneur Morris (Pennsylvania), and James Wilson (Pennsylvania). John Adams and Thomas Jefferson, serving overseas, were not present but later played a vital role in the development of the constitutional system.
Americans worship the Founding Fathers. Today’s lawyers and judges look to their work for solutions to our constitutional problems, as if the Founders had left coded messages for posterity, and their biographies regularly top the bestseller lists. The Founders, or most of them, were impressive people. They were highly educated, deeply learned, experienced in politics and business, devoted to their new country, and, in some cases, touched by genius. Thomas Jefferson, for example, was a scientist, architect, and inventor (as well as the author of the Declaration of Independence and third president of the United States). No other generation of politicians in American history can match their achievements.
But they were not saints and, brilliance aside, were hardly infallible. As commander of the Revolutionary army, Washington was more lucky than talented. Franklin had made significant contributions to the scientific understanding of electricity and is known for several inventions (the lightning rod, bifocals, and the Franklin stove among them). But during the ratification debates, he was in his eighties and long past his prime. Hamilton would later be blackmailed after conducting an extramarital affair and then died prematurely in a senseless duel with then-sitting Vice President Aaron Burr. Adams’s presidency would be a failure; Jefferson would serve a disastrous term as governor of Virginia. Most of the Founders were extremely wealthy, and their own interests were not far from their deliberations. The southerners among them owned slaves, mostly knowing slavery was wrong but unwilling to sacrifice their luxurious lifestyles to correct injustice. Washington, one of the richest presidents in American history, freed his slaves only on his deathbed. Jefferson, one of history’s most eloquent defenders of human freedom, denounced slavery and signed a bill to outlaw the import and export of slaves but nonetheless kept hundreds of slaves on his plantation and in the White House. He sired children with Sally Hemings, whom he owned, and freed only a handful of slaves over his lifetime.
These men did not agree on very much—none was very happy with the Constitution they produced, each believing it full of flaws—but they were willing to compromise. After ratification, they quickly divided into factions and quarreled over the spoils of power. Hamilton and Jefferson became enemies. Jefferson and Madison despaired when Washington fell under Hamilton’s influence. The unlikely friendship between the tall, aristocratic Jefferson and the short, rotund Adams collapsed. Hamilton, brilliant but arrogant, would eventually repel even his own allies, like Adams. Their views about the meaning of the Constitution shifted with the political winds, often based on no principle other than political expediency.
Still, we need to take seriously their opinions and accomplishments. We inherit the Constitution they created, and their decisions continue to influence our own politics.
What is the nature of this inheritance? It is common to say that the Founders created a “democracy.” But most of the Founders would have blanched at the term. It is true that they rejected the systems that today we contrast with democracy—monarchy, dictatorship, aristocracy. They had committed themselves earlier on, during the Revolution, to the principle of popular sovereignty—the people rule. As they wrote in the Declaration of Independence, “All men are created equal…; Governments are instituted among Men, deriving their just powers from the consent of the governed.” The Founders complained that the American colonies lacked representation in the British Parliament, so it was natural to acknowledge that Americans—“We the People,” as the Constitution says—were entitled to representation in the new government. Moreover, popular sovereignty was a rallying cry, used to persuade the common people to take up arms against the hated imperialists.
However, the Founders did not want to create a democracy, as the term was understood at the time. “Democracy” meant rule of the common people, or mob rule. Athens’ democratic institutions produced its disastrous defeat by Sparta in the Peloponnesian War. Democracy in Athens and other Greek city-states meant incessant turmoil, frequently leading to wars and cycles of authoritarian rule. John Adams noted in a letter to John Taylor, a leading political theorist, that “the Athenians grew more and more Warlike in proportion as the Commonwealth became more democratic. I need not enumerate to you, the foolish Wars into which the People forced their wisest Men and ablest Generals against their own Judgments, by which the State was finally ruined, and Phillip and Alexander, became their Masters.” It was also democracy that gave power to demagogues who undermined the ancient Roman Republic. Adams observed with typical gloominess, “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide.” Even Madison agreed that “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” He worriedly observed the tendencies toward democracy in the failing experiments of self-governance in the American states.1
What was wrong with “democracy”—rule by the people? Drawing on classical history, the great English political theorist Thomas Hobbes, writing toward the end of the English Civil War in the mid-seventeenth century, argued that democracy was inherently unstable because it incites competition for power among the people. Hobbes’s amusing portrayal of legislative assemblies as “a triall of wits” among the “Eloquent” before people who are largely ignorant of public affairs, one that “breeds that most destructive of human characteristics, proclivity to the profitless contentions that vain-glory engenders,” would have struck a nerve with the Founders. Most Americans in 1787 received little or no formal schooling, lived in remote villages and on isolated farms, believed in religious dogmas that had been debunked by the scientific revolution and Enlightenment philosophy, and lacked access to newspapers or books that provided adequate information about the wider world. As the historian Richard Beeman explains, most newspapers of the time were about four pages long. At least two of those pages were devoted to advertisements for fabrics, furnishings, ship passage, servants, and land. The others might contain poems, public announcements, and a bit of news—not always accurate. As a result, ordinary people knew next to nothing about foreign affairs, or even conditions in the neighboring state. And they knew even less about how economic and political institutions functioned.2
Most ordinary people were dependent on others for their livelihoods, which meant that they lacked political independence. Living in tiny settlements, villages, and cities, they were vulnerable to the opinions of their neighbors. The ballot at the time was public, so it took significant character and independence to avoid the crushing local conformism that prevailed in most places. Moreover, as leading philosophers in France and Britain had demonstrated, there were paradoxes and problems of aggregation that could interfere with efforts to derive the public good from democratic voting even when people were informed.
The solution, as we shall see, was not to return to the ways of aristocracy but to ask the common people to delegate their political power to an elite class of gentlemen, from whose ranks would be drawn bureaucrats and elected officials. What about the risk that this class would govern selfishly rather than in the public interest? The people would retain a check—in the form of a limited right to vote and run for office—and certain unalienable rights. But policymaking would be carried out by the elite, or those with the education and training to make informed decisions.
The Founders did not invent democracy, or even create a democracy. Their accomplishment was to create a lasting system of government that combined elements of democracy and elite rule. The elites would govern, but ordinary people would retain a residual power to check them if they ruled badly.
Or such was the theory.
In the sticky heat of the Philadelphia summer, the delegates agreed that the new national government would need to be stronger than the existing government. Strong enough to put down internal rebellions, oppose foreign powers like Britain, France, and Spain, and protect the frontier from Indian tribes. Strong enough to knit together local economic systems into a national economy, protect American merchant shipping on the high seas, enforce tariffs, and finance roads and canals. Strong enough to protect religious dissenters and to resolve disputes among citizens and groups. Many of the Founders harbored visions of a great empire, while others hoped only to cultivate a virtuous citizenry. Nearly all of them agreed, however, that a powerful national government would play a vital role.
At the same time, they were worried that a national government could cause great harm. Majority rule could mean “tyranny of the majority” that ran roughshod over individual liberties or the interests of vulnerable groups. At the Constitutional Convention in Philadelphia, Madison pointed out that when debtors gained control of the Rhode Island legislature, they passed laws that blocked creditors from collecting on their debts. In other states, legislatures confiscated the property of people who had been loyal to Great Britain. These events showed that legislative control might be seized by a “faction” that used the government to advance its interest at the expense of the public.
The major source of division was economic. Southerners wanted to preserve their slavery-based plantation economy. To advance commerce, northern merchants favored tariffs to protect manufacturing and internal improvements like canals. But tariffs would raise costs for southerners, who also did not see much to gain from internal improvements.3
As the debate proceeded, the now-familiar contours of our system emerged. The government would be divided into a legislature, an executive, and a judiciary—reflecting a widespread view of the period that a government divided into branches posed less of a threat to liberties. The legislature, or Congress, was given power over taxation, the budget, commerce, declarations of war, and much else. It was divided into a House and a Senate. The House would represent the common people, who were allowed to elect representatives who oversaw districts of roughly equal population. It was established to support the principle of popular sovereignty. But the Founders also worried that a powerful legislature dominated by the people might make foolish decisions. Thus, to counter the House, they conceived of a separate body, the Senate.
George Washington famously (and perhaps apocryphally) explained the Senate as a device for ensuring that transient popular enthusiasms did not produce bad law:
“Why did you pour that tea into your saucer?” asked Washington. “To cool it,” said Jefferson. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.”
Because senators enjoyed six-year terms, compared to the two-year terms of members of the House, they would not be as vulnerable to popular passions, or so the theory went. The senators differed in another respect: they were not elected by the people. (This remained true until the Seventeenth Amendment, ratified in 1913, which allowed the public to choose senators through the ballot.) They were instead chosen by state legislatures, which themselves were dominated by professional politicians and the merchant or planter classes in most states. (The planters were the wealthy plantation owners of the South.) The senators were meant to be drawn from a kind of aristocracy of experienced politicians, who would take a more deliberative approach to legislation and ensure that traditional institutions—above all, property rights, including (among southerners) rights to slave ownership—were respected. Because senatorial representation was not proportional to population, with each state entitled to two senators, the slave states could preserve their system even if southern members of Congress were outnumbered in the House.
The delegates reached consensus about Congress relatively quickly. They also agreed that a Supreme Court should lead a federal judiciary, and that federal law should prevail over state law. The delegates had more difficulty with the presidency. They started with radically different ideas. Roger Sherman, a delegate from Connecticut, argued that the executive should be a kind of clerk—“an institution for carrying the will of the Legislature into effect.”4 James Wilson, from Pennsylvania, forcefully advocated a powerful presidency that was independent of the legislature. The delegates debated whether the executive should be “plural”—meaning that a committee would preside over the executive branch, or that different components of it would be assigned to different officers—but abandoned the idea. Article 2, section 1 of the Constitution thus announces that “the executive power shall be vested in a President of the United States of America.” But what exactly is “executive power”? The Founders did not define this term, and indeed went on to mention only a few of the president’s powers: to command the army and navy, to make treaties (with Senate consent), and to appoint officers (also with Senate consent). Executive power included enforcement of the law, collection of taxes, expenditure of funds, and supervision of government employees, but the exact and even rough contours were highly ambiguous at the time. The Founders also imposed on the president a number of obligations: to report to Congress, to receive ambassadors, to “take care that the laws be faithfully executed.” Elsewhere, the president was given the power to veto bills and issue pardons. Historians who have scoured the debate at the Constitutional Convention and other contemporary sources have found little to fill in the gaps.
This has led to wildly divergent interpretations of the presidency. At one extreme, the president is little more than a clerk who is charged with carrying out Congress’s will, like a police chief or sheriff—albeit one commanding an army in times of war. An important figure, to be sure, but not someone with the authority to make policy, or a true leader of the country. At the opposite extreme, one could see him—and many did see him—as an “elective monarch.” He would be only slightly less powerful than a king and, beholden to elections, be more accountable to the people. As Patrick Henry, the Virginia radical, put it, “Among other deformities, [the Constitution] has an awful squinting: it squints towards monarchy.” Henry was one of a group of critics, known as Anti-Federalists, who opposed ratification of the Constitution. Many of them spoke in even blunter terms. One Anti-Federalist sneered, “The President-general, who is to be our king after this government is established, is vested with powers exceeding those of the most despotic monarch we know of in modern times.”5
While Alexander Hamilton would go on to defend and expand presidential power as secretary of the treasury during George Washington’s administration, he took pains during the ratification debates to counter these objections by portraying the president as no more threatening than the governor of New York—and certainly a far cry from the British king. “What answer shall we give to those who would persuade us that things so unlike [namely, the US president and the British king] resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.” In Hamilton’s view, the Anti-Federalists were raving.6
What accounts for such conflicting views of the American presidency? Two factors. The first was that the delegates disagreed about presidential powers, and also could not rely on a good historical model to help them envision the role. The great democracies and republics of the past, including Athens and Rome, mainly ruled through bodies of citizens to whom the officials or magistrates—chosen by lot or elected—were considered subordinate. The governors in the states were too weak; the king of England was too strong. (Actually, at the time, the British king, George III, was not very powerful, but other kings—the French king Louis XVI, for example—were.) The second was the presence of George Washington. So popular and highly respected was Washington, everyone knew that he would be the first president, including Washington himself. The delegates believed that Washington, once elected, would help define presidential powers, and thus were able to spare themselves the awkward task of debating the risks of a too-powerful chief magistrate in his presence.
Washington would indeed define the contours of the office. He established that the president would be the leading figure for determining foreign policy, and that he would exert considerable control over subordinates in the executive branch. But Washington was a special case. With a few exceptions, including Thomas Jefferson, Andrew Jackson, James Polk, and Abraham Lincoln, presidents were relatively weak and subordinate to Congress—until the twentieth century. Starting with Teddy Roosevelt, presidents amassed power to an extent unimaginable to the generation that conceived of the role.
THE ELITES, THE COMMONS, AND THE DEMAGOGUE
Educated people in America in the late eighteenth century were steeped in the classics. They read Homer, Sophocles, Plato, and the other great Greek poets, dramatists, and philosophers. They read Cicero, Seneca, Virgil, Catullus, and other great Roman poets and political thinkers. The Founders, especially so. At a tender age, eight or thereabouts, they began their studies of Latin and ancient Greek, which were literally beaten into them under the pedagogic methods of the time. The entrance examination at Harvard in the 1750s required applicants
extempore to read, construe, and parse Tully, Virgil, or such like common classical authors, and to write Latin in prose, and to be skilled in making Latin verse, or at least in the rules of the Prosodia, and to read, construe, and parse ordinary Greek, as in the New Testament, Isocrates, or such like, and decline the paradigms of Greek nouns and verbs.
Adams, Madison, Hamilton, Jefferson, and other members of the founding generation kept reading the classics long after they completed their formal education; they drew inspiration from them and quoted them in letters, speeches, and pamphlets. They flung classical allusions at each other during the Philadelphia convention, quoted the classical authors in the ratifying debates, and kept at it long into retirement.7
The political models that the Founders admired came mainly from these texts. In contrast, the dominant form of political organization after antiquity was the monarchy. Monarchies came in many variations, some more appealing than others, but none could serve as a model for the US Constitution. The Founders were committed to Enlightenment principles, including political equality, which were incompatible with monarchy. Even constitutional monarchies, like Britain’s, gave enormous power to a hereditary landed aristocracy, which could not be reconciled with American traditions of self-government.
To find inspiration for self-government, the Founders reached back further. Some city-states in Italy during the Renaissance enjoyed various forms of self-government. But the great example was the ancient Roman Republic, which was the greatest, most powerful civilization of antiquity and survived for five hundred years. Before Rome, ancient Greece provided more examples of powerful city-states in which self-government prevailed—above all, Athens, which ruled an empire and originated many of the political, philosophical, and cultural ideas of Western civilization. Classical myths, philosophy, and art inspired the founding generation. The architectural legacy of the ancients can be seen in the Founders’ mansions, like Thomas Jefferson’s Monticello, and the official buildings of Washington, DC, to this day.
It is no wonder, then, that the Founders and their critics not only cited the lessons of ancient civilization but donned classical monikers when they wrote pamphlets and newspaper articles. Hamilton, Madison, and John Jay wrote the Federalist Papers over the signature Publius. Others signed their names Brutus, Cato, Cicero, or Cincinnatus. Even their critics, the Anti-Federalists, frequently used classical pseudonyms. But their readings of ancient history were not entirely reassuring. All the great republics had, after all, collapsed into civil war, degenerated into anarchy or tyranny, or fallen to a conqueror—a fate that was never far from the minds of the Founders. They faced the formidable task of creating the first large-scale republic since Rome, and hoped to avoid the mistakes of their heroic predecessors, from Pericles to Cicero.
In diagnosing the failures of the classical republics, the Founders returned again and again to a single theme: the problem of factions. Ancient Athens was a democracy in which citizens met in an assembly and voted on all matters of public policy, and could even vote to put people to death or exile them from the city. But even a pure democracy like Athens needs leaders, and therein lies the problem. If democracy means self-rule, what is the role of the leader?
In 415 BC, a military fleet of over a hundred ships left Athens for Sicily. It would end in disaster, with the ships destroyed and nearly the entire force—thousands of soldiers—killed or captured. The Sicilian debacle was a turning point in the war between Athens and Sparta, and the great ancient Greek historian Thucydides blamed it firmly on the demagoguery of Athens’ leading citizens. The trouble started with a conflict between two Sicilian city-states, Segesta and Selinus. Segesta sought help from its ally Athens. An Athenian general and political leader named Nicias offered wise advice to the Athenian assembly. He pointed out that the expedition would leave Athens poorly defended; that “the Sicilians, even if conquered, are too far off and too numerous to be ruled without difficulty”; that earlier victories had given the Athenians an unwarranted feeling of invincibility; that many supporters of the expedition merely sought personal gain; and that skeptics of the expedition were worried that if they publicly opposed the mission they would be regarded as cowards and shunned by their fellow citizens.8
Nicias’s words made a strong impression, but then Alcibiades arose to address the crowd. Thucydides informs us that Alcibiades was a sybarite who lived beyond his means and hoped to conquer Sicily so as “to gain in wealth and reputation by means of his success” resources he could use to pay his sizable debts and finance further disreputable adventures. Improbably, Alcibiades claimed that his own extravagance redounded to the glory of Athens, then painted an exceedingly optimistic picture of success. The crowd reveled in the imagined glories. The older men saw no possibility of disaster, while younger men “felt a longing for foreign sights and spectacles,” and “the idea of the common people and the soldiery was to earn wages at the moment, and make conquests that would supply a never-ending fund of pay for the future.”9 Of course, the reader knows that disaster ensues.
Copyright © 2020 by Eric A. Posner