Lots of people like to talk about the “Founders’ intent.” But the truth is, wrapping oneself in the cloak of what the founders did or didn’t want is too often a lazy, half-assed way to assume instant credibility. And the entire pursuit can even be rather fruitless.
For starters, which founder? There were 55 delegates at the Convention in Philadelphia, and they agreed on very little, which is why the document was referred to as The Great Compromise. They also had some dubious values mixed in with their love of liberty; many of them thought ethnically cleansing Indians and enslaving black people was A-OK. So on second thought, maybe they actually shouldn’t be our go-to authorities on, say, civil rights for starters.
Now of course I’m being a little catty for dramatic effect. There is obviously a lot to admire and respect about the framers, and trying to suss out their intentions can be a very interesting, rewarding, and important for endeavors like Constitutional law. It certainly makes for great hay in my own field, American history.
But as we approach another Election Day [This essay was originally published in 2010], be aware that the journey to ascertain the Founders’ intentions might end with Be Careful What You Wish For Because it Might Come True.
Here’s the thing. You probably think you live in a democracy. And we Americans can be awfully darned proud of our democracy, bragging all over the world about it. But Lord help you if the founders heard you talk like that. They worked very hard NOT to create a democracy. Instead, they used the Articles of Confederation, and later the Constitution, to fashion a republic.
What’s the difference, you ask? Some minor technicality, perhaps?
Well, as time marches on, the practical differences for Americans are less and less stark. But for the founders, the differences were monumental, and their selection of a republican (small r, not big R) model of governance was, to their understanding, the key to maintaining the United States’ long term success and viability. And they may very well have been right about that; history’s certainly on their side.
However, it al
so means that they probably did NOT want you to vote. Let me explain.
Rebelling against monarchical England specifically, and monarchical Europe in general, the founders did not have a contemporary example of representative government they could base their new experiment on. Well, that’s not entirely true. There were actually several examples of representative government among American Indian nations, most notably the Iroquois League of Nations, which several founders had personally observed. But for reasons both understandable and bigoted, they used Europe as their model.
Europe was a land of kings, queens, and aristocrats, where rulers inherited their powers and justified them in the name of God (the divine right of kings). So where to turn for their inspiration? The founders opened the pages of history, all the way back to Ancient Greece and Rome, early purveyors of representative government.
I’ll spare you the lesson on a thousand years of Greek and Roman political history. Besides, in this case, what actually happened in antiquity is less important than what the founders think happened. And they interpreted that history as follows.
The Greeks had a democracy that allowed every citizen could vote on the vital issues of the day. Not every person, or even adult, mind you, but just the citizens, and citizenship was highly restricted in this patriarchal, slave-holding society. The franchise in Ancient Greece was very limited. Nonetheless, they still fell into tyranny.
Afterwards, the Romans developed an even more restrictive system, a republic. Citizens would no longer vote directly on issues; instead, they would elect politicians who represented them in a legislative body called the Senate. Starting to sound familiar? This too eventually fell to despotic demagogues (they stabbed the shit out of Julius Caesa
r for a reason). But the founders viewed the Roman republic as a more durable model than Greek democracy. And a big reason why they believed a republic superior to a democracy is precisely because it is less democratic. Simply put, they thought democracy was dangerous.
Many of the founders believed that, generally speaking, the mass of citizens could not be trusted to vote. Ignorance makes them easily swayed. Poverty makes them vulnerable to corruption. If too many people were allowed to vote, the result would be charismatic tyrrants, or even chaotic mob rule. “The people” deserve liberty, but they are vulnerable and should not be given too much political responsibility or say-so. So if you let the people decide what to do, it won’t be long before they either hand the reins of government over to some charming rapscallion who will quickly establish himself as a brutal despot, or the whole thing will simply devolve into anarchy and bloodshed.
For that reason, the founders of this grand American experiment believed a small coterie of talented, capable, virtuous people should make the political decisions on everyone’s behalf. In other words, elections are for citizens to choose the best and brightest from among their ranks to go forth and rule the nation. What’s more, elected politicians should sacrifice their own personal gain for the honor of putting the nation’s best interests ahead of their own, thereby expressing the principles they termed “republican virtue.” And after a brief stint in government, a politician should return to private life, to be replaced by the next generation of talented, virtuous, honest American citizens.
So based on that, it sounds like the founders WOULD want you to vote. What’s this all about then?
The key word here is “citizen.” Citizens should choose politicians from among their own ranks. But do you think you’re a qualified citizen? Really? Because odds are, they didn’t.
Here in the 21st century, we have inherited the broad view of voting rights that came about only after a long struggle. It took nearly two centuries for the nation to move towards a model approaching universal adult suffrage. Until the mid-1960s, many African Americans were precluded from voting in much of the South. Arizona and Maine prevented American Indians from voting (despite their U.S. citizenship) until the mid-20th century. Prior to
1920, voting rights for women were partial in some places and denied altogether in much of the country. Before the Civil War, almost no African Americans people, including free blacks, could vote. And until the 1820s, even most white guys were denied the right to cast a ballot.
This highly restricted franchise was no accident. Not only did the founders deny women and non-whites the right to vote, but they also believed that qualified white men should meet certain requirements, most often based on net-worth. They believed wealth signified that someone was beyond corruption because they weren’t economically vulnerable; the founders feared poor people would sell their votes. And they hoped wealthy men would generally be educated and capable, and make good decision. They worried that poor people who didn’t vote would more often make bad decisions because they were ignorant.
Hell (pun intended), for the first couple of decades after the Constitution’s ratification, some states even restricted voting based on religious affiliation. Following the right religion was seen as a sign that you were likelier to vote for the right candidates. And property requirements for voting didn’t fully melt until more than half-a-century after the constitution was ratifiied. Tally it all up, and the early republic (not democracy) extended voting rights to a scant 10 – 15% of the American population.
And what could they actually vote for? Not much, really. The House of Representatives was the only federal office that small slice of citizenry could vote for directly.
U.S. Senators were chosen by state legislatures until the passage of the 17th amendment in 1913. All federal judges are appointed, not elected. And even today, none of us can vote directly for a presidential candidate; instead, we vote for electors from the Electoral College, who are duty bound, but not actually required, to vote for that person on our behalf. It’s yet another buffer the founders placed between the sliver of the population they thought should be allowed to vote, and the mechanisms of power they would be indirectly influencing. If an Electoral College member doesn’t vote as promised, they’re called a Faithless Elector, as there’s no recourse. But I mean, that would never happen right?
Actually, it has happened dozens of times, most recently in 1968 when a Republican-pledged elector from North Carolina went with his conscience and refused to cast an official electoral vote for Richard Nixon as voters had directed him. Good!
Oh, wait. Instead, that elector voted for American Independent Party nominee George Wallace who was, for the record, an evil racist running on a platform of “segregation now, segregation forever!” For reals.
So when you go into the booth this Tuesday to cast ballots on behalf of your chosen federal, state, and local candidates, as well as various initiatives and bond measures, remember this: assuming you’re not one of the privileged elite of this nation, specifically a white male living in the top quintile economic bracket, remember that the your simple act of participating in this election would make many of the founders shit a brick.
Indeed, we don’t always get what the founders wanted, and once in a while, that’s actually a good thing.
Then again . . .