Filtered Democracy - A Constitution of Compromises

Those even marginally familiar with the United States Constitution and the process of its creation understand that is a document of compromises. Some of the compromises are famous, or perhaps infamous; two that come instantly to mind are the 3/5 compromise and the “Great Compromise”, the latter being the agreement that gave us our two-house legislative branch structured as it is, and selected as it was before the 17^th Amendment.

What many do not completely understand is the reason for all of these compromises in a more specific sense than simply chocking it all up to “politics”, and the first step in gaining that understanding is to become aware of the structure and circumstances of the United States of America at the time of the Constitutional Convention.  That structure was not of a nation at all, but rather of thirteen nations loosely banded together to win a war for independence that was now four years behind them and no longer providing the epoxy mixed of danger and patriotism that had held them together, however imperfectly.  The glue was cracking along sectional seams, with New England, the Middle States, and the Southern States showing signs of creating three separate alliances.  Everyone knew that such an arrangement would inevitably lead to war, and to make the situation even more perilous the major European powers were hovering and hoping for exactly such conflict so they could sweep in and divide up the continent.

With these political realities in mind, and with the blessing of the Continental Congress, most of the States agreed to send delegates to a convention in Philadelphia to shore up the anemic Articles of Confederation, the formal document that defined the weak social compact that existed between the States.  But while some of the delegates were thinking new Constitution, the State Assemblies that sent them to Philadelphia were not.  Only very slight additional powers for the Continental Congress, such as a limited power to levy taxes from the States, was what almost everyone had in mind.  The former colonies were newly independent, loosely confederated nation states whose citizens had no desire to create a central government in America with any powers comparable to the British government they had so recently cast off at the price of much blood, treasure and turmoil.  And this sentiment was most acute in the smaller states that feared being politically overwhelmed by their larger, more populous, neighbors; tiny Rhode Island actually refused to send delegates to the Convention and was the last to ratify the Constitution, doing so only when the hand-writing on the wall was undeniable. 

When it became clear at the Convention that a new constitution was actually the goal, there was universal agreement that the government would be in the form of a constitutional republic; theocracy was never considered and democracy universally shunned as both impractical and undesirable.  But the exact form of the republic was not easy to agree upon; nearly four months were spent hammering out compromises.

It was generally understood that a majority of the States in each of the three regions must agree to the new Constitution in order for it to be viable.  New England and the Middle States agreeing while excluding the South would not do; the Middle States and the South agreeing without New England would fail as well.  Compromises acceptable to at least a majority of the states from each region were absolutely necessary or the result would be disunion and inevitable war.  Slavery was tolerated by delegates who generally found it intolerable; delegates who wanted the central government to have almost no power agreed to give it more than they were comfortable with; delegates who wanted the voice of “The People” at large to speak through the power of a strong central government agreed to retain a significant portion of State sovereignty. Everyone compromised.

Each of the three regions had large, populous States, but each also had many low population States and these had to be accommodated.  These smaller States were being asked to give up One State, One Vote equality under the Articles of Confederation, and they were not about to agree to a formula of representation based purely on population that would completely subordinate them to the big States.  The “Great Compromise” gave small States equal representation in the U.S. Senate and allowed that the Senators be selected by the State legislatures, while members of the House of Representatives were made proportional to State populations and directly elected by the people of each State.  Each State’s allotment of delegates to the Electoral College that selects the President was made equal in number to the State’s representatives in The House of Representatives plus the two Senators from each State.  This formula gives slightly disproportionate representation in the selection of the President to the smaller States.  The larger States did not agree to these compromises lightly, but they were absolutely necessary to bring the small States on board, a necessity because there was still to be a One State, One Vote election, and that was for ratification of the new Constitution.  It was agreed that nine of the thirteen States must ratify before the Constitution would be adopted, and further understood that unanimous ratification was highly desirable. 

In what might be called a “pure republic” every citizen would be equally represented in the bodies that make the laws and select the executive.  This is not the case in the government created by the United States Constitution, and not all of the deviations from “pure republic” were arrived at by hard fought compromise; some were more universally accepted and deemed desirable by most of the delegates.  They were very aware of what John Adams would call “Tyranny of the Majority”, and specifically designed a constitution that would protect minorities – in a sense that’s what the Constitutional is all about. 

During the ratification process and beyond, constitutional cheerleaders like Madison and Hamilton put positive spin onto every article and section of the Constitution, the unavoidable compromises no less so than the well designed safeguards. In some cases it’s difficult for us to know which features of the Constitution fall into which category, but the result is what has been called “filtered democracy” meaning that The People were in charge, but not directly so.  In addition to the basic representative nature of the government, various cleverly designed “filters” removed the choosing of some officials and the making of law from the momentary whims or knee jerk reactions of The People.  Many of these filters have already been briefly mentioned:  Senators were chosen by State legislatures, not directly by the people; the President was chosen by “Electors” who were elected by The People, but would presumably vote their consciences and were not constitutionally bound to vote for The People’s choice. Constitutional amendment or State laws have eliminated these particular filters. 

Among the filters that remain are those that provide slightly disproportionate clout to the smaller States in Congress and in the Electoral College.  The smaller States are also protected in the constitutional amendment process which requires three-fourths of the State legislatures to agree before any amendment to the Constitution is adopted, with the small States having an equal vote. It might be argued that such filters should go the way of the 3/5 compromise that is obviously not relevant in 21st century America, but it must be remembered that the purpose of these filters, whether arrived at by bitter compromise or by judicious philosophical agreement, and of the Constitution itself, is to protect minorities from the Tyranny of the Majority. This nation would not be viable if dominated by the political philosophies of its major population centers. To rural America it would be, or at least appear, the exact situation that so many early Americans feared, a tyrannical, corrupt government no better than the British monarchy. What’s truly amazing is that more than two centuries and 37 States of all sizes later, the delicate balance created in a chaos of desperate compromise between big, medium, and small States remains intact with no region or demography consistently dominating.

Links to related reading:

http://www.history.com/topics/articles-of-confederation

http://chnm.gmu.edu/tah-loudoun/blog/lessons/differences-among-colonial-regions/

http://americanhistory.about.com/od/usconstitution/tp/compromises-of-the-constitutional-convention.htm

http://teachingamericanhistory.org/ratification/overview/

In Response to Joseph J. Ellis Regarding The Second Amendment

Joseph J. Ellis is an American author and history professor.  He has written several bestselling books on the Revolutionary era, is a good writer, and can be credited to a large degree with turning me into a history nerd.  Prior to discovering Ellis I had enjoyed a book now and then on American or European history, but it was Ellis's best seller "Founding Brothers" published in 2003, that set me on a quest to truly learn American history, especially our early history.  Now, all these years and dozens of books  later, I pick up "The Quartet: Orchestrating the Second American Revolution, 1783 - 1789" by Ellis, and begin to learn more about the men who successfully pushed for a convention to consider a new constitution, and then led the political struggle to get that Constitution ratified by the thirteen States.  The men featured were George Washington, Alexander Hamilton, John Jay, and James Madison - with more than a fair share of the ink dedicated to Madison. 

I was glad that Madison was so well represented because most of what I've read about him has been in other people's biographies.  Thanks to The Federalist Papers, I've probably read more written by Madison than about Madison, so gathering more knowledge about him and John Jay were major motivations for me to take the time to read the book.  I was neither surprised, especially disappointed, nor at all skeptical that Ellis portrayed Madison as less of a philosopher and more of a politician than I had imagined.  Such deflation of idealistic views of historical figures is familiar to any serious student of history, and I picked up on nothing that specifically contradicted what I've learned elsewhere until late in the book I came to the following passages referring to Madison's sponsorship of the Bill of Rights and specifically the Second Amendment: (Note 1)

"...It's meaning has provoked more controversy in our own time than it did in 1789.  Madison was responding to recommended Amendments from five State ratifying conventions calling for a prohibition to a permanent standing army..."  And then:  "It is clear that Madison's intention in drafting his proposed amendment was to assure those skeptical souls that the defense of the United States would depend on State militias rather than a professional, federal army.  In Madison's formulation, the right to bear arms was not inherent, but derivative, dependent on service in the militia.  The recent Supreme Court decision Heller v District of Columbia, 2008, that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison's original intention."

It's true that five States included in their ratification documents resolutions recommending an amendment to the Constitution prohibiting a standing federal army, but more importantly, Ellis completely ignores the fact that four of those very same resolutions called for an amendment specifically protecting the right to bear arms, and the fifth State made the same recommendation in a separate resolution. New York, North Carolina, Virginia, and Rhode Island were obviously in communication with each other; their resolutions were virtually identical:  "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence (sic) of a free s­­tate; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power."

This resolution mentions militia because it lumps four related issues together, but it certainly does not imply that the right to keep and bear arms is a subordinate one or dependent upon militia service. Of course this resolution has no legal standing, but it does reflect the political and philosophical notions of many important revolutionary era people.  But the primary point here is that Ellis ignores the entire statement except the part about standing armies - he avoids mention of the fact that the very same resolutions he references regarding a standing army also state that "the people have a right to keep and bear arms." His presentation seems to suggest that the whole "keep and bear arms" thing is Madison's idea and only came into existence as his answer to the standing army issue. 

New Hampshire's separate resolutions stated: "That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent of the Owners." and "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion" (underline mine)  New Hampshire didn't mention militias at all.

Three of these ratification documents also called for another relevant amendment.  North Carolina, Virginia and Rhode Island each included a resolution stating, "That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety." (underlines mine)   Obviously these men considered the right to bear arms to be a natural right - "natural" being synonymous with "inalienable", "God given", or "inherent". 

But according to Ellis, Madison did not agree.  Ellis states that, "In Madison's formulation, the right to bear arms was not inherent, but derivative, dependent on service in the militia".   I would ask Ellis for something in the way of supporting documentation.  Generally if historians question the meaning of a statement they look for clues to clarification in other statements made on the same subject by the same individual. Ellis provides no such examples or data to support his important and controversial conclusion that Madison considered the right to bear arms a derivative one; apparently he expects his readers to take his word for it.  Even worse, he completely discounts Madison's comments on the subject in Federalist 46 in which Madison discusses the advantages of an armed citizenry, able to form militias to thwart a despotic federal threat.  The sense of Federalist 46 is difficult to convey in a short quotation - I encourage the reader to read the entire essay - but a passage worth quoting is, "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."  Madison is saying the inverse of what Ellis implies; he's saying that the people have the right to bear arms and having that right they can form militias as necessary, not that people in militias have the right to bear arms.  Huge difference.  Madison did not take seriously the need for militias to thwart the federal government, but the point here is his conviction that if such militias became necessary, an armed populous would already exist to create them. 

The Federalist Papers were newspaper assays written by Madison, Hamilton, and Jay to sway public opinion in support of adopting the new Constitution.  Anything written in them was then, and should be now, considered as expert testimony on the intentions of those who framed the document.  In this case, written before the Second Amendment existed, Madison states without qualification that Americans have the advantage of being armed.  This was very important to many of the ratification delegates, so much so that hundreds put their names to documents asking for a specific amendment to protect the right to bear arms even after Madison had stated in Federalist 46 that Americans already had that right.  Ellis writes at length about the Federalist Papers in the book, but once again chooses to ignore information in the documents he references. ­­ I'm not sure if it's more disappointing to believe that Ellis is not familiar with Federalist 46, or to believe that he is but chooses to ignore it in his analysis of Madison's intentions.  One or the other is obviously the case, and the former is hardly believable.

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So far I've presented only absolutely verifiable facts. Ellis's comments can be found in his book, and the ratification documents from the 13 States are readily available to anyone who's interested, as is Federalist 46. (see links below)  Furthermore, while presenting only information relevant to the subject at hand, I've consciously omitted nothing that might compromise my argument.  Ellis cannot make the same claim.  Why does he purposely omit the several references from ratification committees to an amendment for protecting the right to bear arms? Why does he state that Madison's goal in authoring the Second Amendment is to promote militias as an answer to concerns about a "professional, federal army", concerns that Ellis ridicules as coming from "skeptical souls"?   Why does he ignore Federalist 46?

I won't pretend to know what's in Ellis's mind as Ellis pretends to know what was in Madison's, but I will now present some speculative answers to the questions stated above.  And even if Ellis's motives are not what I imply, my speculations about the effects of his deceptions are nevertheless valid.

If the Second Amendment had been solely Madison's creation, if other folks were only concerned about a standing army, then it can be argued that only Madison's opinion - which Ellis seems to think is in line with his own - matters when we attempt to recreate the intentions of the framers regarding the purpose and meaning of the Second Amendment.  And if the purpose was just to eliminate the need for a standing army, then that argument ceases to have meaning in the modern world, so there is no longer a justification for the Second Amendment at all.  I believe the above quote from Federalist 46 proves that Ellis is simply wrong about Madison's intent; he's deceptive about the origins of the Second Amendment; and he's certainly wrong in dismissing the desires, intentions, and expectations of other framers on this or any other subject - framers that expressed very strong opinions indeed, and not just about standing armies.  Other framers in this instance include every constitutional ratification delegate that put his name to a document requesting an amendment to protect the right to bear arms, every congressman and senator who voted for the amendment in congress, and every member of a State legislature who voted for ratification of the amendment. These people were not voting on what Madison may have had in the back of his mind when he sponsored the amendment, certainly not on what Ellis likes to think Madison intended; they voted on the amendment as written - and the text of the amendment clearly states that the right to keep and bear arms SHALL NOT BE INFRINGED, the prefatory clause about militias notwithstanding.

Referring to a “right” as being derivative has the effect of eliminating the right altogether. "Derivative" in this sense means we derive the right dependent upon a prerequisite, and someone, somewhere gets to define that prerequisite. In other words, a derivative right is not a right at all, it's a privilege granted by government assuming government defined requirements are met. The phrase "the right to [WHATEVER] shall not be infringed." is completely incompatible with the bastardized notion of a derivative right; "derivative" invites infringement. Can Madison have been so devious that he deliberately slipped in vague language that would be ignored for 200 years and could then be used to decimate the Second Amendment? Such deception is exactly what Ellis implies, except he doesn't use the word "deceptive", instead he uses "political" and praises Madison for his mastery of the art. I don't believe Madison was so sneaky and dishonest in his authorship of the Second Amendment. I believe he thought of the right to bear arms as an inalienable right as he implied in Federalist 46. I believe he inserted the phrase about militia because the ratification documents requesting the amendment mentioned militia and because the issues are indeed related. I don't believe he meant it as a qualifier any more than those previously mentioned ratification delegates from North Carolina, Rhode Island, and Virginia who specifically refer to the right to bear arms as a "natural right" in one resolution even though they mention militia in another calling for an amendment to protect it. But if Madison was indeed so deceptive as to deliberately sneak language into the Second Amendment that would fool the "natural right" crowd at the time, but might later be used to convert the right to bear arms into a government granted privilege, then why should we even care about his underlying intentions? He was just another dishonest politician.

Ellis states that the Second Amendment, "has provoked more controversy in our own time than it did in 1789."  Analysis of this statement proves that no matter what James Madison might have thought, the rest of the country understood the Second Amendment to universally protect the right to bear arms, because, as Madison stated in Federalist 46, Americans already had guns; and they weren't about to give them up or accept nationally imposed qualifications for ownership of them.  It's difficult to estimate with great accuracy how many guns were in America in 1789, but one attempt at an estimate in that era is based on early American estate records.  According to research presented in a William and Mary Law Review article by James Lindgren and Justin L. Heather titled "Counting Guns in Early America" (see link below) , 54% of decedents who itemized their estates listed at least one gun as part of their estate in 1774.  Can there be any doubt that there were even more guns in American following an eight year war in which thousands of "Brown Bess" muskets were imported? I think it obvious that the Second Amendment provoked little or no controversy in 1789 because it was understood by everyone, at least at a gut level, that the right to bear arms was indeed inherent and virtually universal, and that the Amendment simply guaranteed for perpetuity what was already the case.  Local authorities might not have allowed the village idiot to have a gun, but the federal government had no such authority under the original Constitution according to Madison in Federalist 46, and an amendment that gave the national government that authority would never have been ratified; it would have had the exact opposite effect as was requested by the ratification committees among others.  If any politician had suggested that the right to bear arms was dependent on service in a militia or any other qualification, had anyone at the national level suggested background checks or other prerequisites for gun ownership, then there would have been controversy aplenty. (note 2)

I no longer expect to learn something on every page when I read books like "The Quartet".  After more than ten years of study I'm knowledgeable enough about the Revolutionary era that I'm familiar with most of the material in such books.  I read them to re-enforce that knowledge and to pick up tidbits of new information here and there, and because it's my favorite subject.  I've read literally dozens of such books and many of the documents of the era; I knew what Madison had written in Federalist 46; I knew about the resolutions in the ratification documents. I'm not comparing my knowledge of American History to that of Professor Ellis; I don't question his superior knowledge, I question his integrity - at least on this particular issue.  His greater knowledge and his position should impose upon him a greater responsibility to the truth. Promoting a political agenda in a historical book is acceptable if the author presents an honest argument to support that agenda, I suppose all history is political, but in this case Ellis deliberately ignores all relevant historical information running contrary to his agenda, even though that information is embedded with information that he references. There can be no question that he has attempted to employ his knowledge, reputation, and writing skills to deceive the less knowledgeable among his readers. Previously Joseph J. Ellis was an author and historian that I held in great esteem.  I feel the loss, and I feel insulted that Ellis has no such respect for his readers.

Note 1:

The Second Amendment as ratified: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Madison's original text prior to editing in the Senate (supplied by Ellis): The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Note 2:  For information on local vs national application of the Bill of Rights, including the Second Amendment see: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

Additional Links:

Link to Federalist 46: http://teachingamericanhistory.org/library/document/federalist-no-46/

Links to 5 States ratification documents:

New Hampshire: http://teachingamericanhistory.org/library/document/new-hampshire-ratifying-convention-proposed-admendments/

New York: http://teachingamericanhistory.org/library/document/new-yorks-ratification/

North Carolina: http://avalon.law.yale.edu/18th_century/ratnc.asp

Rhode Island: http://teachingamericanhistory.org/library/document/rhode-islands-ratification/

Virginia: http://teachingamericanhistory.org/library/document/virginias-ratification/

Link to William and Mary Law Review article titled "Counting Guns in Early America": http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1489&context=wmlr  (See pg 28 of 67)