The Framer's Foresight and the Biggest Question the Nation Faces
Over the last year and a half, the President has repeatedly announced that, since Congress won't act on this or that, he will have to, by decree, uh, executive order and regulation.
Challenges to the substance and even legitimacy of the Constitution comprise the biggest question overhanging our republic in this time of many questions. Some critics of our founding tells us that the Constitution is out of date. The Framers, they say, could not have anticipated the nation as it has developed. But in reading Madison's 1787 convention notes, I am struck at how much the debates anticipated our later political history, particularly the successive party systems -- and how much that dialogue speaks to us still today.
I am not talking just about what the Framers agreed on, but even more on where they disagreed. Four times, by my count, delegates threatened walkouts, each time over a conflict that shaped later events:
- The Senate and the First Party System: We all know about the small state v. large state divide and the vow of some small states not to join any arrangement in which neither house of Congress gave equal representation to the states. It was the same strong-central-government v. strong-states line that separated the Hamiltonian Federalists from the Jeffersonian Democratic-Republicans, the first party system. When Jefferson came to office in 1801, Federalists feared he would move in a radical anti-federalist (in the sense of the ratifying period) direction. He may have wanted to. Reality intervened and he couldn't, confirming for decades the balance of national and local needs that the Framers had struck.
- Atlantic v. Interior and Jacksonianism: Largely forgotten now, the convention heatedly debated whether the 13 original states should receive special privileges, in particular trade and governing preferences that subsequent states would not share. Put another way, would the new country become a nation or an empire? The same question was at stake in the rise of Andrew Jackson to the presidency and for decades more in the nation's ability to expand west without spawning devastating East-West divisions.
- Slavery and the Third Party System: During one of the convention's big states/small states debates (almost a fight, by the tone of the notes), Madison suggested that the real division in the years ahead would be south v. north, slave v. free. Delegates from the north despised slavery, wanted the slave trade cut off immediately and denounced any apportionment of seats in the House of Representatives that included slaves in the count. The Virginians and even North Carolinians were flexible on some matters, particularly rapid ending of the slave trade, but the Georgians and South Carolinian were not. Faced with these states forming a potentially hostile country, perhaps allying with Spanish Florida, slavery's foes opted for a flawed but viable union. In his 1854 speech in Peoria, Lincoln detailed how, once the new government took form, these Framers in their various official positions seized every opportunity to undermine slavery. The balance struck in Philadelphia was temporary. But, in a remarkable act of foresight and judgment, it allowed the nation to grow and strengthen until it could survive the upheavals that ending slavery would eventually bring.
- Trade regulation and the McKinley era: The New England states wanted the new government to have the power to regulate foreign trade, i.e. to be able to nurture domestic manufacturing. The southern states wanted no such national power, but relented once the compromises on slavery were struck. Policies to nurture the growth of manufacturing drove the third party systems, a system that started with McKinley's election as president in 1896 and lasted until the Great Depression.
It was remarked in the debates that the new system might only last 150 years fully in tact, that is, until 1937, which today looks prescient. But here's the point. Separation of powers, checks and balances, arrangements to defend the nation against "cabal and corruption" (as one delegate summarized the purpose of the electoral college): these speak to the enduring and mixed character of humanity... to containing hubris and ambition even while allowing decision and action... to making room for considered change while closing the door on wild and destabilizing swings in policy... in short to making it possible for a system of enduring liberty in the context of popular sovereignty to last far beyond the 225th anniversary the nation marked last year.
But in this age of the administrative state and government increasingly by decree, will that system survive?
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Comments:
Jul '12
Re: The Framer's Foresight and the Biggest Question the Nation Faces
I am always astonished more than anything by our Founders' understanding of human nature and politics. Still, having not studied these things as you have, I wonder if they could have anticipated the problems wrought by an almost completely subservient press, unregulated immigration, and most of all, the right to vote given to a lazy and uninterested population. The last is our greatest enemy, because a population that gave a damn beyond its own needs would demand a more prudent government rather than demanding free stuff.
Jul '10
Re: The Framer's Foresight and the Biggest Question the Nation Faces
I am seriously in doubt that our system can survive.
The American model demands a knowledgeable, educated populace. This was mostly true for much of our history, although the overall levels have been progressively (no pun intended) dropping. People of the 19th century seemed to understand from their own education that certain things are needed to maintain the nation. This information has been scrubbed from the educational system little by little, until today we see a truly pitiful performance of general education. This is true in all aspects of education, not just philosophical concepts.
Meanwhile government marches on chewing up freedom as it goes. It has always been so. It's just that previously people resisted it far more forcefully, so it was kept boxed. Today they don't seem to even recognize what is happening to them.
Re: The Framer's Foresight and the Biggest Question the Nation Faces
If our country comes to be governed by a tyranny in the guise of a democracy (of the sort exemplified by the city of Chicago), the key to its development in that direction will be seen to be the breach in the doctrine of the separation of powers represented by the delegation of the legislative power to the executive agencies which have been given the right to issue rules and regulations that have the force of law.
If we seriously want to prevent this from happening, we should insist that Congress recover this power and that no rules or regulations take effect until voted on in Congress. Ours should be a nation distinguished by the rule of law, not the rule of regulations.
Dec '12
Re: The Framer's Foresight and the Biggest Question the Nation Faces
Following on previous comments, it is clear that the regulatory state - both federal and local, is becoming (or as become) a clear and present danger to my family's freedom. The overwhelming number of regulations that carry very stiff financial penalties as well as jail time suggest that it might be wise to reallocate my available resources. My current payments to health insurance probably need to be redirected toward retaining permanent legal counsel for myself and family. Where did we go wrong?!
Aug '12
Re: The Framer's Foresight and the Biggest Question the Nation Faces
The Roman Senate became so divided and disinterested in governing that they voted to give their powers to a dictator. The Germans voted for Hitler; the Italians for Mussolini, and the Venezuelans voted for Chavez. Considering the recent vote for Obama Santa Claus, I could imagine a day when Americans vote to repeal the 22nd Amendment and go down a similar road.
The only thing that gives me hope for an American future is that we are still largely governed by laws. (I think bribery and corruption are actually pretty rare. However, I think the popular perception is that they are more pervasive than they really are.)
Re: The Framer's Foresight and the Biggest Question the Nation Faces
I endorse Paul Raye's comment, with this addition. The term "Article 3 court" has entered our governmental lexicon, reflecting that much judicial activity is now housed outside the regular courts, mostly in the agencies that promulgate and enforce regulations on which the administrative law judges rule. This strikes me as an equally dangerous violation of the separation of powers doctrine, one that Mauritius seems to sense in his comment.
Frederick/Deveraeux: We have had a partisan press and unregulated immigration before. But have we had a citizenry that didn't know or care? Not so sure. And do we now? Not sure about that either. I mean that response literally, not as a sly way of saying we don't have such a citizenry but as a direct way of saying, I don't know. The outcome of the last election doesn't tell us much one way or another. The limited government side refused to engage on key issues and ran an inept campaign. But in your comments you would find a friend in Lincoln, what said, as you do, "If destruction be our lot, we must ourselves be its author and finisher."
Dec '12
Re: The Framer's Foresight and the Biggest Question the Nation Faces
Devereaux rightly brings up the issue about low-information voters, and the need for an educated people. And Dr. Rahe also mentions the need to fix the hyper-regulatory trend by reestablishing the founders' separation of powers:
"we should insist that Congress recover this power and that no rules or regulations take effect until voted on in Congress."
But it's that "we" and "should" that are the issues. The Republic can stand only by the good character of its people. Do we have that? Not only do we need to be knowledgeable about the basis of our freedoms, but we must have the will and character to defend them. That can be very difficult for many these days ... by speaking up we can risk ridicule, censure (at work or elsewhere), or possibly worse. It is certainly easier in principle to participate in democracy, and have an effect, at the local level. But it is nearly impossible at the state and federal level where the regulatory state is run by unelected staff.
And again, it means getting out of my comfort zone. Each time I sign an online petition, or write a letter (not often) I do so with trepidation.