Compromises at the Constitutional Convention: Principled?

When is compromise right? When is it wrong? When I look at historical compromises, I try to apply this rule:

A compromised principle leads to unrighteousness, but a principled compromise is a step closer to the principle’s ideal.

Let’s take the Constitutional Convention as an example.

The delegates who comprised the convention that led to our current Constitution had to grapple with a number of controversial issues. The two most prominent were how to carry out proper representation and how to incorporate the existence of slavery within the document.

On the issue of representation, states with greater population argued that they should have more say in the making of the laws. After all, they had more people, so it only seemed fair to them.

The smaller states, however, fearing that they would always be outvoted on matters of concern to them that might not concern larger states, called for equal representation in the newly proposed government.

Who had the better argument?

In this case, both were making good points. Both arguments had validity.

Consequently, a compromise was forged that led to setting up two houses in the national legislature (as opposed to one in the Congress established by the Articles of Confederation). The House of Representatives would be allotted a proportional number of members based on each state’s population while the Senate would have two members from each state, thereby providing a chamber where the smaller states had an equal vote.

In my view, this was an acceptable compromise that answered the concerns of both parties. No one sacrificed a principle.

The other thorny issue was whether to count the slaves as part of the population of a state. If all slaves were counted, that would definitely give slave states a higher number of representatives in the House. The Southern states, therefore, favored this position.

Northern states, many of whom had already abolished slavery while others were in the process of doing so, thought that would be unfair. After all, as Gouverneur Morris of New York postulated in the debate,

Are they men? Then make them citizens and let them vote. Are they property? Why then is no other property included?

Fair question. What was to be done?

The convention came up with this compromise: count 3/5 of the slave population toward a state’s representation (not all the slaves, as the South desired); allow the Congress, twenty years hence, to pass a law that would prohibit the importation of more slaves into the country.

That latter provision was based on a sincere wish that most of those delegates had: the eventual elimination of slavery in America. They hoped that such a law would dry up the slave population over time.

Incidentally, twenty years later, Congress did pass that law.

Was this an acceptable compromise? People are divided on that. Personally, I would have welcomed a stronger stance against slavery, but I also understand the tenor of the times and the limitations on what that convention needed to accomplish.

The Constitutional Convention couldn’t hope to achieve unanimity on the issue of the continuance of slavery. What it could hope to achieve was to set up a working government that could then deal more fully with the issue.

That was accomplished. The sad fact that Congress, over the next few decades, didn’t come to grips with slavery as it should have is not something that should be laid at the feet of those at the Convention.

In fact, based on what they knew at the time, there was good reason to believe slavery was already on its way out. It was not as profitable as expected.

What changed? How about the invention of the cotton gin seven years later, which made slavery far more profitable?

Let’s not play a blame game that holds people responsible for something that happened seven years in the future. That would be like holding people in 2018 responsible for something that will occur in 2025 that alters the whole perspective of an issue.

We’re not really all that good at knowing what the future holds, given the millions of individual choices of citizens that will be made along the way.

It’s possible, therefore, to consider even that slavery compromise as a principled one, despite the disrepute it has earned over time.

The main lesson here, I believe, is to work toward compromises that move the ball toward what one wants to see eventually. Any step in the right direction should be welcomed.

Should Convention Delegates Be Unbound?

The Republican party is getting anxiety attacks from the latest move to deny Donald Trump the nomination at the convention. There is an organized effort to release the delegates at the convention from the restriction that they must vote for whoever won the primary or convention in the individual states.

Is this anarchy? Is it a threat to the voice of the people?

While not an exact comparison, let me offer a history lesson today.

We are so used to referring to our nation as a democracy that we fail to grasp what the Founders actually established. They called it either a federal republic or a constitutional republic. Regardless of the precise wording, the one word they always avoided—actually abhorred—was “democracy.”

Constituitonal Convention

James Madison’s notes at the Constitutional Convention, and the comments made elsewhere throughout this Founding Era, reveal a profound antipathy to anything resembling a direct democracy. They constantly called to mind the ancient Greek city-states that were often democracies. The problem? The citizens were often deluded into following the rantings of popular speakers who would lead them astray by appealing to their emotions. Many Founders referred to democracy as “mobocracy.”

The word that describes those kinds of speakers/politicians is “demagogue.” As defined by the Merriam-Webster dictionary, a demagogue is “a political leader who tries to get support by making false claims and promises and using arguments based on emotion rather than reason.”

The Founding generation wanted cooler heads to prevail in political discourse and the decisions to be made by the federal government. That’s why they deliberately chose to divide up the representation in a number of ways.

Constitutional Republic

First, they did give the people a direct say by letting them choose their representatives in the House of Representatives. The Senate, however, was to be chosen by state legislatures, thereby giving state governments representation as well. A lot can be said about how we later changed that—for the worse—but I’ll let that slide for now.

The president, in the Constitution, is not chosen by a direct vote of the people, but by specific “electors” chosen by the state legislatures. The goal was to ensure that popular enthusiasm wouldn’t allow a poor choice. They hoped the electors, who were supposed to be the wisest of statesmen, would choose better. In fact, the first time a direct vote by the people became common was in 1828, three decades after the Constitution was ratified.

Again, that electoral college approach has been altered by states simply allowing the slate of electors for whichever political party wins the popular vote to cast the official votes. Keep in mind that in the disputed election of 2000, the Florida legislature would have been well within its constitutional rights to choose its electors rather than waiting for all those recounts to be completed. They didn’t do that purely for political reasons: they would have been accused of overturning “democracy.”

Unfortunately, that’s where we are today in our understanding of how the system is supposed to work.

One of the big arguments in the decades following the ratification of the Constitution was whether the congressmen elected by the people in the House could vote their conscience or whether they were bound to vote according to what the majority of their constituents wanted.

Andrew JacksonThe ones pushing for the latter position were primarily the Democrats who, with the advent of Andrew Jackson, began to believe that congressmen were mere ciphers who cast the official votes for whatever their constituents desired. The feeling began to grow that the people are always right.

But the overwhelming view of the Founders was just the opposite. They knew that people could be misled and congressmen had a responsibility to consider seriously every proposed bill that came before them and vote according to what they believed was best for the nation, regardless of what their constituents wanted.

If they went against the wishes of those who elected them, they then went back to the people to explain why they did so. If they could convince the voters that they did the right thing, they were reelected; if they were unsuccessful in convincing them, they resigned themselves to the results of the next election.

That’s called living by principle and following one’s conscience. That means a representative is exactly that—a representative—which differs from a public functionary who must do whatever the people demand, even if it goes against sound logic and good policy.

Why even have congressmen if they are mere functionaries robbed of their own minds? Just take a nationwide vote on everything and do whatever the people want at a given moment? Sorry, but that sounds very scary to me. Public opinion is anything but stable and principled.

So how does this relate to the upcoming Republican convention?

Republican voters in the states made their decision on who they thought the nominee should be. They send delegates to the convention to make it official. What are those delegates? Are they thinking people who should have an opportunity to evaluate the voters’ decision or are they mere ciphers who are forced to vote a certain way even if they believe it would be to the detriment of their party and the nation?

I’ve read quite a bit about whether these delegates are truly free to vote as they wish. I think the evidence comes down in favor of that overall. Yes, some states have told them they have to vote according to the results of the primary. One Virginia delegate has now challenged that in court.

In other states, the Republican party itself has dictated they have to vote according to the results on the first ballot, at least, or in some cases, beyond that. But party rules can be changed at the convention.

A hypothetical: suppose the presumed nominee, prior to this convention, should do something particularly outrageous, along the order, let’s say, of advocating a lifetime tenure for the president, or giving the president the authority to dismiss federal judges whenever he disagrees with a court decision. If such a presumed nominee were to do something like that, do you think it would be wise to force the delegates to vote for that person regardless? Or would the party then rethink its rules?

Donald TrumpThe nomination of Donald Trump has divided the Republican party in a way no previous nomination ever has. A new NBC/Wall Street Journal poll indicates 52% of Republicans are not satisfied with Trump as the nominee. That is unprecedented in the lead-in to the national convention.

Trump won only 44% of the vote in the primaries, and that figure is only as high as it is because he added to the percentage once his remaining opponents dropped out and the voters were resigned to having no other choice. Other polls indicate that up to 70% of the general electorate can’t stand this man.

Trump’s antics—whether one focuses on his character, his lack of policy knowledge, or his highly disorganized campaign—have not changed since his pledge to become more presidential in his bearing and manner.

Most political prognosticators (I know, they can be massively wrong at times) see an electoral disaster looming for Republicans.

Why, then, is the party establishment circling the wagons around Trump? They argue, with some discernment, that a circus at the convention would doom the party for sure in November. It might.

I would argue that going forward with Trump is the surest path to a Hillary Clinton presidency. Anyone else nominated would stand a better chance of beating her than Donald Trump.

So if the delegates were unbound, yes, there would be some instability introduced into this election even if Trump were to win the nomination anyway. And he would be an even more damaged candidate afterward.

If Trump were to lose the nomination at the convention, who would be nominated in his place? I don’t know. Perhaps that would be an even bigger tumult and the eventual nominee would be trounced in the general election.

However, it is also conceivable that someone might get the nomination who could unite the party in a way that Trump never can. If that should occur, and this nominee is a good communicator of Republican principles, there is a chance that the most despised Democrat nominee in history could be kept out of the White House.

I’m often accused of helping Hillary Clinton become president by not supporting Trump. I firmly believe, however, that those who are in Trump’s corner are the ones who are assuring a Clinton victory. He is electoral poison. Trump as the Republican nominee will put Clinton in the presidency.

So I do understand the anxiety over a contested convention, and I know there could be disastrous results, but I think we already have a disastrous result in a Trump nomination.

Free the delegates to be true representatives, not mere ciphers.

A Constitutional Protest: The American Colonial Example

The American colonies used every legal means available to them to protest unconstitutional acts of Parliament. When the Townshend Acts were passed in 1767, taxing tea, lead, paper, and glass without any representation on their part in Parliament, Massachusetts took action.

Samuel AdamsUnder the leadership of Samuel Adams, the Massachusetts assembly wrote the Circular Letter, stating that the measures were clearly opposed to all British constitutional precedents. Not only were they being taxed without their consent, but troops had been sent to Boston to oversee compliance with the Townshend Acts. This, in itself, was tantamount to an act of war against the government’s own citizens since having a standing army living within the populace was decidedly contrary to all common practice.

This Circular Letter, which was sent not only to the other Massachusetts towns but also to other colonies, raised the ire of the royal governor (and King George when he heard of it). The governor demanded that the assembly revoke the Letter, in effect saying that they were wrong. After strenuous debate, they instead confirmed their earlier vote, standing strong on principle.

The Letter, when sent to the other colonies, led to a non-importation agreement among the colonies to put economic pressure on British merchants who depended on the colonial market to sell their goods. Even with no mechanism to enforce any boycott of British products, the merchants saw their sales drop by more than one-third.

That was enough to scare them. They clamored for their members of Parliament to repeal the acts. Parliament, under the gun, did so—except for the tax on tea, which was simply its way of saying that it still had the authority to tax regardless of colonial protests.

While that tax on tea would come back to haunt Parliament later (I’ll tackle the Boston Tea Party in a future post), colonial unity had won the day, all without the shedding of blood and all within the legal system that allowed petition and redress of grievances.

These were not rebellious subjects, but citizens of the empire using constitutional means to achieve their goals—a lesson even for those of us today who are disturbed by all the unconstitutional actions we see in our own government.

Patrick Henry & the Stamp Act

Why did the Stamp Act, passed by the British government in 1765 and scheduled to go into effect the next year, raise such a furor in the American colonies? What was different about this act and how did they respond to it? As we continue our examination of American history, I will begin to tackle that question today.

Stamp ActThe colonists considered this act poisonous to their liberties. Why?

The act itself was a tax on all legal documents, newspapers, playing cards, and dice. That, in itself, was bad enough because the tax had to be paid in specie—coins—which was in short supply in the colonies. A lot of commerce was conducted via barter.

Another issue was that enforcement of the act was placed in the hands of special admiralty courts that would have no juries of their peers. This was considered a high-handed action at odds with their rights as British citizens.

But the greatest problem was that this tax had been mandated by Parliament, a novelty in British taxation of the colonies. While the colonists acknowledged the right of Parliament to legislate for the empire overall in matters of international trade, they had their own legislatures to tax them directly. Without any representation in Parliament, they saw this tax as arbitrary, something imposed upon them without their consent, which again was contrary to their rights as citizens of the empire.

Patrick HenryThe first salvo against the Stamp Act came from Virginia, spurred on by a new member of its House of Burgesses, Patrick Henry.

Henry, by the force of his arguments, persuaded a reluctant House to pass a number of resolutions stating opposition to the act. In summary, here is what those resolutions declared:

Colonists have always enjoyed the same liberties as all citizens of the British Empire, as if they were living in Britain itself;

All taxation must be by the people’s own representatives to ensure against burdensome taxes;

Britain has always recognized this right of local lawmaking and taxation.

The final resolution is best put in Henry’s own words:

Resolved, therefore that the General Assembly of this Colony have the only and exclusive Right and Power to lay Taxes and Impositions upon the inhabitants of this Colony and that every Attempt to vest such Power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.

Patrick Henry's Stamp Act SpeechWhile not fully documented, we are told from some sources that Henry gave a rousing speech at the time that almost led to his censure. He is said to have proclaimed,

Caesar had . . . his Brutus, Charles the First his Cromwell, and George the Third . . .

At this point, there were cries from some of the members that Henry was on the verge of treason because they all knew where he was going with this statement. Caesar had been assassinated in the Roman Senate and Charles I had been beheaded. Henry, reading his audience, finished his statement with the simple warning, “And George the Third may profit by their example.”

After these resolutions passed, Henry wrote down his innermost feelings about the importance of taking this stand:

Whether this will prove a blessing or a curse will depend upon the use our people make of the blessings which a gracious God hath bestowed on us. If they are wise, they will be great and happy. If they are of a contrary character, they will be miserable. Righteousness alone can exalt a nation. Reader! Whoever thou art, remember this; and in thy sphere, practise virtue thyself, and encourage it in others.

Those words are still applicable today.