Searching for a "natural aristocracy" III
This is Part III of my 2008 essay on civility and federalism. Part I can be found here, and Part II here.
Part III: Civility and Federalism
It is with this background in mind that we now turn to the creation of the American republic. When the Constitutional Convention was convened in 1787, it was officially with a view to amending the existing Articles of Confederation which, for various compelling reasons, were proving unsatisfactory. The constitutional delegates quickly abandoned any pretense of amending the existing Articles, opting instead to recommend an entirely new Constitution to their sponsor states. The main project was to create a government which was sufficiently energetic to remedy the failures of the Confederacy while not permitting the slide into the sort of tyranny over which the War for Independence had been so recently fought. This much is commonly understood, yet the interaction between this political balancing act and the culture of civility in which the Founders existed has not been sufficiently explored.
But if one recognizes the culture of civility which reigned in the eighteenth century, discussions of the independence of political actors take on a much broader meaning than simple conflict of interest. Today, when we worry about politicians being subject to undue influence, we are usually concerned with whether they stand to gain financially from the matters over which they have authority,1 or more broadly, whether they have more of an eye for reelection than good governance.2 Yet in neither case is there a general questioning of whether a political actor who is subject to influence in one area is capable of exercising objective judgment in another. We expect Supreme Court justices to recuse themselves from cases in which they have a financial interest, but we do not expect having financial interests to disqualify someone from being a justice as such.
For the Founders, this was not nearly so clear cut an issue. As gentlemanly free action was the foundation of trustworthy action, a person who was at all dependent was considered inherently untrustworthy. For the Founders, dependence thus caused problems on two potential levels. The first level is the one with which we are currently familiar, the standard conflict of interest problem. Bribery was just as much a concern for the Founders as it is today, and they were no more optimistic about the ability of a politician to exercise his disinterested judgment in matters where he had a direct stake than we are. But for the Founders, given their commitment to civility and gentility, dependence in one area caused reliability problems in all areas.
A. The Debates at the Constitutional Convention
The tension between the desire for a republican form of government and the lingering reality of a society ordered by civility animates much of the constitutional debates. One can identify three particular debates where understanding the context of civility in which the Founders operated is helpful in understanding the positions being advocated: the manner of selection for national officials, both legislative and executive; the issue of salaries; and the construction of the national executive.
1. Selection of Officials
Consider, for example, the means by which members of the national legislature should be appointed. Any solution posed problems for the concept of gentility. As Pocock notes, this makes the concept of representation inherently problematic:
Once representation became a means to the creation and establishment of a sovereign, the act of choosing—or acknowledging—a representative became logically almost the reverse of participation; it was rather the act of saying that there existed a person whose acts were so far authoritative that they were to be taken as equivalent to one’s own; and Hobbes, spelling out this interpretation with admirable clarity, had pointed out that a sovereign assembly of representatives was no different in this respect from a sovereign and representative individual. The choice of a representative was a surrender, a transfer to another of one’s plenitude of power and one’s persona if not one’s individuality; and republican humanism, which was fundamentally concerned with the affirmation of moral personality in civic action, had cause to ask whether the concept of representation did not exclude that of virtue. How could I designate another to be virtuous for me, in my place and wearing my mask?3
Elbridge Gerry, in discussing the means by which the members lower house of the national legislature should be elected, expressed concern that direct election would discourage men of “honor and character.”4 Given that popular election had failed to guarantee popular support for state legislatures, Gerry seems to have been concerned that a gentleman would be unwilling to take such a position. His solution was to have popular nomination of legislators, with final section from among those nominated being conducted by state legislatures. His worry fits rather well with the idea that a gentleman would not jeopardize his personal honor and worth by accepting a position which would subject him to disapprobation from the body that selected him for the position.
But later that day, James Wilson came out against appointment of senators by either state legislatures or the lower national house, on the ground that doing such would impair their independence.5 We must read this through the lens of gentlemanly free action as well. Making senators’ reelection subject to state legislatures threatened to compromise this free action on the first level, where senators’ particular state interests would only occasionally be implicated, but far more on the second level, as any degree of subjection to state officials would call into question a senators’ ability to exercise free action under any circumstances. Making their reelection subject to the inferior national legislature would be even worse, for both levels of conflict would be implicated, as the first level of conflict would be even greater, as senators would be beholden to the very actors with whom they should be negotiating. It would be bad enough for senators be subject to third parties in their negotiations with the House, but having them beholden to the House itself was, Wilson argued, simply unworkable. Ultimately, James Madison and John Dickenson were successful in arguing that giving Senators longer terms of office than members of the House would serve to counteract any taint on their free action. But it should be remembered that it was this tension between representation and gentlemanly free action, not merely a balance between tyranny and liberty, that they were attempting to secure. Not all of the members were entirely satisfied with this solution,6 but it appears to have been viewed as the best of a number of bad options.
2. Salaries
The same issue arises concerning the problem of salaries. On one hand, as Benjamin Franklin noted, endowing national legislative and executive positions with salaries poses a problem, in that though a gentleman might seek such a post for reasons of honor alone, adding money to the equation might tend to attract exactly the Wrong Sort of Person:
And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate; the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits.7
Wilson believed that there should be no salary for federal officers:
It may be imagined by some that this is an Utopian Idea, and that we can never find mento serve us in the Executive department, without paying them well for their services. I conceive this to be a mistake. Some existing facts present themselves to me, which incline me to a contrary opinion. The high Sheriff of a County in England is an honorable office, but it is not a profitable one. It is rather expensive and therefore not sought for. But yet, it is executed and well executed, and usually by some of the principal Gentlemen of the County.8
Yet Madison, among others, noted that as the hereditary aristocracy had already been abandoned, federal officers, especially the Executive, would lack “that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest against betraying the national interest, which appertain to an hereditary magistrate.”9 As inherited fortunes were fewer—and younger—in America than in England, and as the monied interest which derived its wealth from trade rather than inheritance was making itself more and more visible,10 some form of salary was viewed as needed.
Yet who was to pay this salary? Some suggested the states should pay.11 But the majority seems to have viewed such a system as creating an undesirable dependence in national legislators: “If the States were to pay the members of the national Legislature, a dependence would be created that would vitiate the whole System. The whole nation has an interest in the attendance & services of the members. The national treasury therefore is the proper fund for supporting them.”12 As Hamilton put it, “Those who pay are the masters of those who are paid.”13 Furthermore, leaving salaries up to the states might leave an official from a poorer, western state with insufficient support to maintain a living.14 Such a condition is entirely antithetical to gentlemanly free action, which would render national officers inherently untrustworthy in the eyes of any early modern observer. Furthermore, Madison raised the question of whether “the best citizens” would be willing to accept federal office without being compensated for the considerable expenses involved in traveling between their homes and the capital.15 Here, the compromise was to have the national treasury pay officials’ salaries but to fix those salaries during a term of office, balancing the possibility of gentlemanly free action against the need for a republican form of government.16
3. The composition of the Executive
Concepts of gentility can also be observed in the way the Founders debated the composition of the national executive. Initially, the question was whether the Executive should consist of a single officer or a council.17 Much of the debate indeed hinged on the question of the extent of executive power, and it would be improper to ignore those tensions. Gerry argued that:
He could not see why the great requisites for the Executive department, vigor, dispatch and responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore in order to support its independence to consist of more than one.18
Gerry was overruled and a single, independent executive was decided upon relatively early,19 but the question of managing the independence of that executive, of essentially creating the space for gentlemanly free action in the face of the need for a republican government, was a problem. Hamilton went so far as to suggest that the executive consist of a single man, elected by the people, who would serve for life:
In his private opinion he had no scruple in declaring, supported as he was by the opinions of so many of the wise & good, that the British Govt. was the best in the world: and that he doubted much whether any thing short of it would do in America.20
Hamilton linked independence with character in arguing that only an executive who served for life could sufficiently rise above the influence exerted by those, in state governments and especially in foreign ones, who would bend him to their will. He believed the term of seven years which had been previously proposed to be too short to attract “the best Citizens” given the personal sacrifices necessary in serving the public interest. One who served for life could be relied upon to exercise the disinterested judgment expected of a gentleman, but one who served for a term, even one of seven years, was likely to compromise his judgment in order to remain in power.21
Apparently this proved to be insufficiently republican for the delegates’ tastes, for Hamilton’s rather lengthy speech, which took up the bulk of June 18, received remarkably little response in the following days. When the discussion of the executive resumed in mid July, the question revolved around the method of presidential selection. Gouverneur Morris argued that the president should be elected
by the people at large, by the freeholders of the Country. . . If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation.—If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.22
Thus we already see a hint that the gentlemanly character of the president was an important point. But Wilson then argued that popular elections would be less dangerous in the US than in Europe, because a higher proportion of the American population were freeholders and thus independent, capable of free action.23 Here the concept of civility is actually doing rather important work for him.
There was some debate as to the role of term limits. Some argued that term limits were necessary, as the inability to be re-elected would eliminate any dependence that the executive might have on the legislature (an early vote had the legislature electing the president).24 Others argued that the lack of term limits actually removed incentive for good behavior, as the reward of re-election was unavailable. Ultimately, the Founders settled on the original plan of the Electoral College with no term limits, as this was judged to be the best balance between free action and republicanism.
B. The Federalist
The convention debates are not the only place we see civility in tension. In Federalist No.10, James Madison addresses the charge that federal officials will be selected from those least likely to represent the interests of the people. Madison dismisses this, and in doing so, some work indeed is done by the balancing of interests which is still regarded as part of the distinguishing genius of federalism. But he also stresses the idea that “as [those elected] have been distinguished by the general preference of their fellow-citizens, we are to presume that they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements.” What are those qualities? “[W]isdom to discern, and most virtue to pursue, the common good of society.” Madison takes some pains to argue that what the primogeniture system and property requirements did in England—namely, to ensure gentlemanly conduct by politicians—are amply provided for by the republican character of the federal constitution.25
In Federalist No. 78, Hamilton stresses the need for independence of the judiciary as a necessary reason for life tenure on the federal bench. With the background of gentlemanly free action, this, like all discussions of independence, takes on a different note than simple conflict of interest. But even more, Hamilton makes observations with respect to the judiciary that can arguably be summed up as “We want gentlemen to fill these positions”:
[T]here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.26
Here we see something very much like the idea that only a person who is truly independent, who need not labor as the commoners do, will have adequate time to cultivate those sensitivities and virtues necessary for the proper administration of justice.
End of Part III
Part IV can be found here.
For example, members of the Supreme Court commonly take no part in discussions regarding companies in which they own stock.
Judicial elections in those states that have them are of perennial interest. See, e.g., David E. Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265 (2008).
J.G.A. Pocock, The Machiavellian Moment 518 (1975).
Elbridge Gerry, Speech delivered on May 31, 1787, in James Madison, The Debates in the Federal Convention of 1787.
James Wilson, Speech delivered on June 21, 1787, in Id.
See, e.g., John Lansing, Speech delivered on June 20, 1787, in Id.
Benjamin Franklin, Speech delivered on June 2, 1787, in Id.
Wilson, supra note 5.
James Madison, Speech delivered on June 8, 1787, in Id.
Pocock, supra note 3, at 526.
These included Oliver Ellsworth and Roger Sherman of Connecticut, Hugh Williamson of North Carolina, and James Wilson of Pennsylvania, among others. The debates on June 22 contain much of the discussion related to this issue.
Edmond Randolph, Speech delivered on June 22, 1787, in Madison, supra note 4.
Alexander Hamilton, Speech delivered on June 22, 1787, in Id.
Rufus King, Speech delivered on June 22, 1787, in Id.
James Madison, Speech delivered on June 23, 1787, in Id.
James Madison, Speech delivered on June 22, 1787, in Id.
This constituted a significant portion of the debate on June 1, 1787.
Elbridge Gerry, Speech delivered on June 1, 1787, in Id.
The vote was conducted on June 4 with seven in favor, three against (Rhode Island had refused to send a delegation, New Hampshire’s had not arrived yet, and New Jersey apparently abstained).
Alexander Hamilton, Speech delivered on June 18, 1787, in Id.
Id.
Gouverneur Morris, Speech delivered on July 17, 1787, in Id.
James Wilson, Speech delivered on July 17, 1787, in Id.
Morris, supra note 22.
Federalist No. 10 (James Madison).
Federalist No. 78 (Alexander Hamilton).