The Constitutional Convention: Who Should Govern

From "The Trouble With Elections: Everything We Thought We Knew About Democracy is Wrong," Chapter 6.9

At the outset of US nationhood, sortition was completely off the table, and the possibility of direct democracy through general assemblies wasn’t an option given any serious consideration. Town meeting government was thriving in small New England communities, but the leaders of the convention disparaged such direct democracies, or “small republics,” as prone to vacillating passions and a threat to the minority (particularly those with property). So even if it had been possible to conceive of a practical way to follow such a model on a national scale, most of the framers did not believe democracy was a wise goal to aspire to. 

An electoral system was not an unfortunate but necessary compromise from the ideal of pure democracy. A representative republic was a distinct system, considered superior to direct democracy. As Madison wrote in Federalist Paper No. 10 the impact of representation was

“to refine and enlarge the public views by passing them through the medium of a chosen body of citizens….Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, if convened for the purpose.”

Partly due to the writings of anti-democrats such as Plato and Thucydides, there was a deep suspicion of direct democracy as constituting intemperate rule by “the mob” —what Massachusetts Federalist politician George Cabot called “the government of the worst” — which would threaten the rights of  property owners.

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This worry about “the mob” was not necessarily expressed as a concern about class interests, but rather the inability of large groups to thoughtfully deliberate. Madison expressed concerns about the risk of popular passions if the people ruled unfiltered by representatives, He wrote in Federalist Paper No. 63 that the new republic should be governed with the

“total exclusion of the people, in their collective capacity.”

He also pinned some hope also on the potential of deliberation, which was enhanced by the leisure time, education and other advantages associated with wealth. Madison expressed the concern that people participating in large assemblies were likely to succumb to emotional appeals of orators, rather than make the effort to deeply deliberate. He asserted in his Federalist Paper No. 55 that “had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” In other words, the inherent inability for a vast group to engage in deliberation and thus “refine” public opinion that underlay Madison’s anti-democratic concern, rather than necessarily the inferior abilities of the average man (Socrates was certainly a capable man). 

This problem of demagogues in a mass assembly misleading the people was also recognized in classical Athens. Their solution in the restored democracy after 403 BCE was to remove all lawmaking powers from the Assembly (ecclesia) and vest it instead in large randomly selected legislative panels (nomothetai), which could spend more time, listen to an equal number of supporters and opponents of a proposed law, and then vote. This reform in Athens was unknown by the Framers and political theorists at the time of the Convention as a possible solution. It is also unknown by most political scientists today, unless their specialty is classical Athens.

This concern about the self-apparent impossibility of mass deliberation may have played a role, along with the balancing act between free and slave states, in the adoption of the Electoral College. The Framers believed that the people would never be well informed enough to elect a president. One of the delegates at the Constitutional Convention, George Mason, suggested that allowing the people to directly elect the president would be akin to giving a “trial [test] of colours to a blind man.” Some believed that the members of the Electoral College in each state would deliberate, rather than reflexively parrot the result of some popular vote. Many people today are shocked to learn that there is no constitutional requirement for a popular vote for president of the United States. Indeed, in the early decades of the US, many state legislatures simply appointed their Electors, without any popular election at all. Popular elections of presidential Electors soon became the norm, but it wasn’t until 1872 that popular presidential elections finally became standard practice in all states. Interestingly, in the disputed 2000 Bush/Gore/Nader presidential election, there was serious consideration in the Florida legislature of reverting to legislative appointment of that state’s electors. This potential “loophole” in the Constitution was also discussed by President Trump’s advisors in the aftermath of the 2020 election.

Setting aside, for the moment, what portion of “the people” must give consent, or how they are to do that — there is a separate issue. Who should be eligible to actually do the governing — that is, be consented to?

In contrast to the “exact portrait” analogy offered by Adams in 1776 (that a legislature should be an exact portrait of the people at large, and should think, feel, reason, and act like them), there is a competing vision, which I will discuss at greater length in the next chapter.  The Federalist framers of the Constitution (among others), believed that members of Congress should be different than the average man. This view holds that representatives should be the cream of the crop, or “natural aristocracy” as Madison called it, superior in wisdom and civic virtue. There was a common attitude (at least among many of the elite) that wisdom and civic virtue were associated with the ownership of property.  

Working men, like women, were thought to be too easily pressured by their employers, or husbands (respectively), and thus unable to exercise independent judgment. Adams himself thought that this “exact portrait” he advocated for a legislature should be a likeness of propertied white males. He argued that it would be dangerous to give the vote to unpropertied men, just as it would be to give the vote to women or children. 

Alexander Hamilton, though of humble birth, apparently viewed himself as a “natural aristocrat,” and was a particularly ardent supporter of aristocratic government. He favored a Senate and President selected for life. In a speech to the Constitutional Convention, Hamilton is quoted saying

"All communities divide themselves into the few and the many. The first are the rich and the well-born; the other the mass of the people … turbulent and changing, they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the Government … Nothing but a permanent body can check the imprudence of democracy."

The compromise in the final draft, which avoided direct popular election of the President and Senate (by an electoral college and by state legislators respectively), satisfied this fear of a democratic rabble that might elect the House of Representatives, achieving the ”mixed constitution” of a republic. 

While Madison was not as extreme as Hamilton, beyond his concern about “mob” tendencies of mass politics, he shared Hamilton’s class-based concern for the privileges of the wealthy. Another reason Madison favored a quasi-oligarchic Roman-style republic of elite elected representatives instead of a Athenian-styled democracy was that he believed, as stated in Federalist Paper No. 10, that a democracy would not produce leaders “who possess the most attractive merit and the most diffusive and established characters.” But the protection of property wealth seems to have always been in the back of his mind. He agreed that the Senate should be structured to protect the wealthy from the many. In the Notes of the Secret Debates of the Federal Convention of 1787, taken by the Robert Yates, New York Delegate to the Convention and Chief Justice of the State of New York,  Madison is quoted as saying:

“In England, at this day, if elections were open to all classes of people, the property of landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The Senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability.”

The framers of the Constitution intended to establish a property-ownership requirement in order to be eligible to serve as a member of Congress. The Constitutional Convention directed the Committee of Detail to draft the necessary language. It was only that committee’s inability to settle on any particular level among the existing property requirements in the various different states that fortuitously left this intended requirement out of the Constitution.

While some Americans cherish the Constitution as a virtually sacred, inerrant model for “democracy,” the founders and framers of the constitution did not hold this view. In addition to having no interest in establishing a democracy, they knew they were striking a political compromise, particularly with respect to the issue of slavery, rather than launching a perfected final model for government. Thomas Jefferson, as mentioned above, believed the constitution should sunset every 19 years. In an 1816 letter to Samuel Kercheval he wrote:

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy…”

  George Washington in 1787 stated about the constitution:

“I think the people (for it is with them to judge) can, as they will have the aid of experience on their side, decide with as much propriety on the alterations and amendments wch [sic] shall be found necessary, as ourselves; for I do not conceive that we are more inspired—have more wisdem [sic]—or possess more virtue than those who will come after us.”

They gave us explicit advice to periodically reconsider the decisions they made about how we should govern ourselves today.

1. Although Madison argued that democracy was incompatible with the rights of property — specifically of the wealthy,  this was conjecture that the history of Athens does not support. There, the wealthy families maintained their great wealth generation after generation despite periodic requirements that they finance religious festivals or the construction of war ships.