An economic interpretation of the Constitution of the United States

by Charles A. Beard

I. THE STRUCTURE OF GOVERNMENT OR THE BALANCE OF POWERS

The fundamental theory of political economy thus stated by Madison was the basis of the original American conception of the balance of powers which is formulated at length in four numbers of The Federalist and consists of the following elements:

1. No mere parchment separation of departments of government will be effective. “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republic ... seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”[^[391]]

2. Some sure mode of checking usurpations in the government must be provided, other than frequent appeals to the people. “There appear to be insuperable objections against the proposed recurrence to the people as a provision in all cases for keeping the several departments of power within their constitutional limits.”[^[392]] In a contest between the legislature and the other branches of the government, the former would doubtless be victorious on account of the ability of the legislators to plead their cause with the people.

3. What then can be depended upon to keep the government in close rein? “The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.... It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”[^[393]] There are two ways of obviating this danger: one is by establishing a monarch independent of popular will, and the other is by reflecting these contending interests (so far as their representatives may be enfranchised) in the very structure of the government itself so that a majority cannot dominate the minority—which minority is of course composed of those who possess property that may be attacked. “Society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”[^[394]]

4. The structure of the government as devised at Philadelphia reflects these several interests and makes improbable any danger to the minority from the majority. “The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”[^[395]]

5. All of these diverse interests appear in the amending process but they are further reinforced against majorities. An amendment must receive a two-thirds vote in each of the two houses so constituted and the approval of three-fourths of the states.

6. The economic corollary of this system is as follows: Property interests may, through their superior weight in power and intelligence, secure advantageous legislation whenever necessary, and they may at the same time obtain immunity from control by parliamentary majorities.

If we examine carefully the delicate instrument by which the framers sought to check certain kinds of positive action that might be advocated to the detriment of established and acquired rights, we cannot help marvelling at their skill. Their leading idea was to break up the attacking forces at the starting point: the source of political authority for the several branches of the government. This disintegration of positive action at the source was further facilitated by the differentiation in the terms given to the respective departments of the government. And the crowning counterweight to “an interested and overbearing majority,” as Madison phrased it, was secured in the peculiar position assigned to the judiciary, and the use of the sanctity and mystery of the law as a foil to democratic attacks.

It will be seen on examination that no two of the leading branches of the government are derived from the same source. The House of Representatives springs from the mass of the people whom the states may see fit to enfranchise. The Senate is elected by the legislatures of the states, which were, in 1787, almost uniformly based on property qualifications, sometimes with a differentiation between the sources of the upper and lower houses. The President is to be chosen by electors selected as the legislatures of the states may determine—at all events by an authority one degree removed from the voters at large. The judiciary is to be chosen by the President and the Senate, both removed from direct popular control and holding for longer terms than the House.

A sharp differentiation is made in the terms of the several authorities, so that a complete renewal of the government at one stroke is impossible. The House of Representatives is chosen for two years; the Senators for six, but not at one election, for one-third go out every two years. The President is chosen for four years. The judges of the Supreme Court hold for life. Thus “popular distempers,” as eighteenth century publicists called them, are not only restrained from working their havoc through direct elections, but they are further checked by the requirement that they must last six years in order to make their effects felt in the political department of the government, providing they can break through the barriers imposed by the indirect election of the Senate and the President. Finally, there is the check of judicial control that can be overcome only through the manipulation of the appointing power which requires time, or through the operation of a cumbersome amending system.

The keystone of the whole structure is, in fact, the system provided for judicial control—the most unique contribution to the science of government which has been made by American political genius. It is claimed by some recent writers that it was not the intention of the framers of the Constitution to confer upon the Supreme Court the power of passing upon the constitutionality of statutes enacted by Congress; but in view of the evidence on the other side, it is incumbent upon those who make this assertion to bring forward positive evidence to the effect that judicial control was not a part of the Philadelphia programme.[^[396]] Certainly, the authors of The Federalist entertained no doubts on the point, and they conceived it to be such an excellent principle that they were careful to explain it to the electors to whom they addressed their arguments.

After elaborating fully the principle of judicial control over legislation under the Constitution, Hamilton enumerates the advantages to be derived from it. Speaking on the point of tenure during good behavior, he says: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is no less an excellent barrier to the encroachments and oppressions of the representative body.... If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.... But it is not with a view to infractions of the Constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.”[^[397]]

Nevertheless, it may be asked why, if the protection of property rights lay at the basis of the new system, there is in the Constitution no provision for property qualifications for voters or for elected officials and representatives. This is, indeed, peculiar when it is recalled that the constitutional history of England is in a large part a record of conflict over the weight in the government to be enjoyed by definite economic groups, and over the removal of the property qualifications early imposed on members of the House of Commons and on the voters at large. But the explanation of the absence of property qualifications from the Constitution is not difficult.

The members of the Convention were, in general, not opposed to property qualifications as such, either for officers or voters. “Several propositions,” says Mr. S. H. Miller, “were made in the federal Convention in regard to property qualifications. A motion was carried instructing the committee to fix upon such qualifications for members of Congress. The committee could not agree upon the amount and reported in favor of leaving the matter to the legislature. Charles Pinckney objected to this plan as giving too much power to the first legislature.... Ellsworth objected to a property qualification on account of the difficulty of fixing the amount. If it was made high enough for the South, it would not be applicable to the Eastern States. Franklin was the only speaker who opposed the proposition to require property on principle, saying that ‘some of the greatest rogues he was ever acquainted with were the richest rogues.’ A resolution was also carried to require a property qualification for the Presidency. Hence it was evident that the lack of all property requirements for office in the United States Constitution was not owing to any opposition of the convention to such qualifications per se.”[^[398]]

Propositions to establish property restrictions were defeated, not because they were believed to be inherently opposed to the genius of American government, but for economic reasons—strange as it may seem. These economic reasons were clearly set forth by Madison in the debate over landed qualifications for legislators in July, when he showed, first, that slight property qualifications would not keep out the small farmers whose paper money schemes had been so disastrous to personalty; and, secondly, that landed property qualifications would exclude from Congress the representatives of “those classes of citizens who were not landholders,” i.e. the personalty interests. This was true, he thought, because the mercantile and manufacturing classes would hardly be willing to turn their personalty into sufficient quantities of landed property to make them eligible for a seat in Congress.[^[399]]

The other members also knew that they had most to fear from the very electors who would be enfranchised under a slight freehold restriction,[^[400]] for the paper money party was everywhere bottomed on the small farming class. As Gorham remarked, the elections at Philadelphia, New York, and Boston, “where the merchants and mechanics vote, are at least as good as those made by freeholders only.”[^[401]] The fact emerges, therefore, that the personalty interests reflected in the Convention could, in truth, see no safeguard at all in a freehold qualification against the assaults on vested personalty rights which had been made by the agrarians in every state. And it was obviously impossible to establish a personalty test, had they so desired, for there would have been no chance of securing a ratification of the Constitution at the hands of legislatures chosen by freeholders, or at the hands of conventions selected by them.

A very neat example of this antagonism between realty and personalty in the Convention came out on July 26, when Mason made, and Charles Pinckney supported, a motion imposing landed qualifications on members of Congress and excluding from that body “persons having unsettled accounts with or being indebted to the United States.” In bringing up this motion Mason “observed that persons of the latter descriptions had frequently got into the state legislatures in order to promote laws that might shelter their delinquencies; and that this evil had crept into Congress if report was to be regarded.”[^[402]]

Gouverneur Morris was on his feet in an instant. If qualifications were to be imposed, they should be laid on electors, not elected persons. The disqualification would fall upon creditors of the United States, for there were but few who owed the government anything. He knew that under this rule very few members of the Convention could get into the new government which they were establishing. “As to persons having unsettled accounts, he believed them to be pretty many. He thought, however, that such a discrimination would be both odious and useless and in many instances unjust and cruel. The delay of settlement had been more the fault of the public than of individuals. What will be done with those patriotic Citizens who have lent money or services or property to their country, without having been yet able to obtain a liquidation of their claims? Are they to be excluded?” On thinking it over, Morris added to his remarks on the subject, saying, “It was a precept of great antiquity as well as of high authority that we should not be righteous overmuch. He thought we ought to be equally on our guard against being wise overmuch.... The parliamentary qualifications quoted by Colonel Mason had been disregarded in practice; and was but a scheme of the landed against the monied interest.”[^[403]]

Gerry thought that the inconvenience of excluding some worthy creditors and debtors was of less importance than the advantages offered by the resolution, but, after some reflection, he added that “if property be one object of government, provisions for securing it cannot be improper.” King sagely remarked that there might be a great danger in imposing a landed qualification, because “it would exclude the monied interest, whose aids may be essential in particular emergencies to the public safety.”

Madison had no confidence in the effectiveness of the landed qualification and moved to strike it out, adding, “Landed possessions were no certain evidence of real wealth. Many enjoyed them to a great extent who were more in debt than they were worth. The unjust laws of the states had proceeded more from this class of men than any others. It had often happened that men who had acquired landed property on credit got into the Legislatures with a view of promoting an unjust protection against their Creditors. In the next place, if a small quantity of land should be made the standard, it would be no security; if a large one, it would exclude the proper representatives of those classes of Citizens who were not landholders.” For these and other reasons he opposed the landed qualifications and suggested that property qualifications on the voters would be better.[^[404]]

The motion to strike out the “landed” qualification for legislators was carried by a vote of ten to one; the proposition to strike out the disqualification of persons having unsettled accounts with the United States was carried by a vote of nine to two. Finally the proposition to exclude persons who were indebted to the United States was likewise defeated by a vote of nine to two, after Pinckney had called attention to the fact that “it would exclude persons who had purchased confiscated property or should purchase Western territory of the public and might be some obstacle to the sale of the latter.”

Indeed, there was little risk to personalty in thus allowing the Constitution to go to the states for approval without any property qualifications on voters other than those which the state might see fit to impose. Only one branch of new government, the House of Representatives, was required to be elected by popular vote; and, in case popular choice of presidential electors might be established, a safeguard was secured by the indirect process. Two controlling bodies, the Senate and Supreme Court, were removed altogether from the possibility of popular election except by constitutional amendment. Finally, the conservative members of the Convention were doubly fortified in the fact that nearly all of the state constitutions then in force provided real or personal property qualifications for voters anyway, and radical democratic changes did not seem perilously near.[^[405]]