The Non-Transparent Constitutional Convention

In his book, Political Realism, Jonathan Rauch argues that some of the changes we have made to the political system of the Untied States in the last several years have been self-defeating in regards to the functioning, efficiency, and effectiveness of our government. In particular, our ever expanding pursuit of transparency and the degree to which everything is recorded and open has made real debate with tough decisions more challenging. It is hard to have a debate with compromises where unpopular policies are discussed and worked through and more successful and effective legislation is created.

 

I was reminded of this idea from Rauch while reading Joseph Ellis’ book The Quartet. Our nation was originally founded under the Articles of Confederation, which did not pull our states together in a meaningful way to unify and promote our national interests. Replacing the Articles, however, was not a simple task and drafting a new Constitution was challenging. In many ways, the success of the new Constitution required our founding fathers to cut against many of the values they hoped the Constitution would establish for all citizens. Ellis describes it this way, “Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.”

 

Efforts to refine government and open up governance all start from a positive point of view, the belief that sunshine will act as a disinfectant, ridding politics of corruption and illegitimate deal making. The reality however, is that transparency and other reforms to make politics more open and clear can act as sand in the gears of our political machinery. Some debates require closed doors and safe spaces for compromises to be worked out. Getting legislators to organize together requires massive efforts of coordination and often requires conversations that take place outside of the spotlight as legislators and the people they represent have conflicting views and interests. It is worth reflecting on our ever growing pursuit of open democracy and remembering that our nation required what appeared to be non-democratic and non-transparent rules to get its start in the first place.

A Shift in Sovereignty

In my last post I wrote about the complexities of sovereignty, of who has the supreme power and authority in a given polity and where that authority comes from. The Revolutionary War in the United States ushered in a new government with independent states, each sovereign within their own territory, held together by a loosely constructed national government. Power and authority held within the state was derived from the citizens of the state who had come together to forge new lives in America.

 

This arrangement, however, was not politically stable and did not hold the states together in a way that protected the interests of each state and of each citizen within each state. A new government was needed to cement the bonds between the states, and the new government required a re-imagining of sovereignty. Today it is obvious that the Federal Government is sovereign over the state governments. It is clear to us that our elected officials represent us and receive their power with the consent of our votes, but at the time of the American Revolution and at the time of the writing of our Constitution, this was not obvious. Joseph Ellis describes the shift in sovereignty in his book The Quartet by writing:

 

“Sovereignty had shifted from a monarchy claiming to derive its authority from God to a legislature claiming to derive its authority from ‘the people.’ Political power flowed not downward from the heavens but upward from the citizenry. Indeed, this was the fundamental change that had made the war for independence a revolution.”

 

This view of power and authority was radically different from a view of a monarch ordained by God to lead a people. There were many questions that were addressed in the constitution to answer questions about how power and authority would be transmitted through the people to the governing authorities of the nation, and at the time these were new ideas that required a shift in thinking about both power and governance. Sovereignty now had a new basis for legitimacy, and it was bottom up, growing from the public and not top down from a ruler.

Sovereignty

Sovereignty is a difficult concept, even though it seems pretty easy and strait-forward. A quick Google definition of sovereignty is “supreme power or authority,” but what this means in the real world is more muddy than what the Google definition suggests. From the quick definition one might think of the Supreme Court and suggest that the court is the supreme power and authority in the United States, but with our separation of powers, the Supreme Court’s authority is somewhat limited and is not all encompassing. The Supreme Court is a good example of the complexity of sovereignty and the challenges of truly understanding how power and authority interact within a society and government.

 

The most challenging question about sovereignty and authority is the question of where authority comes from. The American Revolution was fueled by the idea that sovereignty rested within the individual states, whose constitutions governed the relationship between their populations and their ruling authorities. Today, sovereignty rests far more with the federal government rather than with the states. At the time of the writing of our constitution, a fundamental shift in sovereignty was taking place between the federal government and the states. Joseph Ellis captures this conflict in his book The Quartet describing the way that Washington, Madison, Hamilton, and John Jay bent the idea of sovereignty to give rise to the sovereign federal government that we eventually came to understand today.

 

“The knotty question of sovereignty – did it reside in the states or in the federal government?-was the central issue requiring a clear resolution. If the federal veto proved impossible, an alternative argument, an artful finesse, might be that sovereignty was located in “the people,” a somewhat ambiguous formulation that bent the shape of the new constitution in a national direction.”

 

Ellis explains the way that our national focus on the individual, the liberties of the individual, and the notions of sovereignty came together to create a new idea of how governments and individuals should relate to each other. Sovereignty was believed to rest with the people, and people had natural human rights and authority which they could then divest in the government. This is not an obvious thought and idea, and even today, we have retreated from this view. We often now see the Federal Government as the ultimate authority of the land, not the people. Our rights and freedoms flow from the Federal Government which decides what we can and cannot do and which guarantees us certain rights in writing. Power and authority seem like they are strait-forward concepts, but Ellis’s writing on sovereignty at the nation’s founding and our complex shifting views of sovereignty demonstrate that it is more complex than it first appears.

The Whole

The United States is an interesting place. We have become an incredibly wealthy nation and have done things to advance things like technology, living standards, and scientific knowledge in ways that have improved the entire globe. The achievements of the United States have come while we have simultaneously adopted a narrative of individuality and individual success. It is our freedom, our pursuit of capitalism and greatness, and our individual desires to achieve and become great that have pushed our country to what it is today.

 

At least, that is the story we tell ourselves. While this narrative has taken hold, we have also had countless people who have advocated not for just individual freedom and success, but for national unity and for a cohesive vision of our society. Individuals who have been willing to sacrifice their own self-interest for the welfare of others has also been part of our American story, but it is often forgotten or at least not celebrated in the way that ruthless capitalism is (think about all the books written about Steve Jobs). Forgetting the connections between us all, the degree to which some people do everything they can for others, and the importance of becoming one people across the country is not new.

 

In his book The Quartet, Joseph Ellis takes a critical look at the actions of four of our founding fathers to bring about the adoption of our current constitution following the Articles of Confederation. In my last post, I wrote about John Jay, a relatively unknown founding father, and someone who made decisions across his political career to drive forward the national interest rather than a personal or state interest. An example of his nation-first mindset is given in The Quartet surrounding the question of Vermont Statehood. The state of New York at one point included what is now Vermont, and most New Yorkers did not want to allow Vermont to become its own state. Jay, however, recognized that Vermont statehood would be good for the United States as a whole, even if it was not in the immediate interest of New York. “Despite pressure from the New York legislature,” Ellis writes, “he would not budge from his conviction that the whole needed to take precedence over the parts, the first clear expression of his national orientation.”

 

I don’t have a prescription for the perfect balance between individualism and group centered thought, but I think the United States would do well to better recognize our interdependence and to encourage more actions that made personal sacrifices for the good of national unity. There have been studies recently that demonstrate that greater income inequality, particularly between an extremely wealthy few and the masses can lead to political instability, which could be damaging for the country as a whole. At the same time, encouraging individual success and achievement is of crucial importance. As Tyler Cowen describes in his book The Complacent Class, achieving economic growth should be a top priority, as increased GDP will lead to increased living standards and compounding returns on development and advancement. Encouraging wealth building potential can help with GDP growth, but on its own and without recognition of the value of social cohesion, instability can erupt and dismantle economic progress and development. The policy implications and solutions are difficult to think through, but on an individual level I think we can all do more to better respect the whole and discount our own personal interests.

John Jay and America’s Founding

When I picked up The Quartet by Joseph Ellis I was not surprised that the book focused on George Washington, Alexander Hamilton, and James Madison, three giants in the world of American history. I was surprised, however, with the fourth member of the quartet that Ellis suggested had the greatest impact on American nationhood and the shaping of our Constitution, John Jay. Ellis describes Jay as the man who, “almost singlehandedly wrote the New York constitution,” and as an eloquent leader who learned the value of a strong executive and a strong central government for maintaining cohesion and unity within a political boundary. His political experience leading New York and serving as president to the Continental Congress shaped his views on early governance in America and allied Jay with Washington, Hamilton, and Madison who believed and advocated for a new government to replace the Articles of Confederation which served as a compact to unite the newly independent states following the Revolutionary War.

 

Jay’s alignment with Washington, Hamilton, and Madison furthered the cause for a new American government thanks to his ability to win allies and influence people. Ellis describes Jay by writing, “Permanently poised, always the calm center of the storm, when a controversial issue arose, he always seemed to have thought it through more clearly and deeply than anyone else, so that his opinion had a matter-of-fact quality that made dissent seem impolite.” Ellis also describes the how his commitment to an effective central government arose, writing about his time as the leader of the provisional government of New York and of the New York constitution (that he wrote) which vested an expansive authority within the executive branch:

 

“Jay was also showing his true colors as a conservative revolutionary, a rare hybrid  that simultaneously embraced American independence and endorsed political structures that filtered popular opinion through several layers of institutionalized deliberation before it became the law of the land.”

 

What I learned about John Jay while reading The Quartet served as a reminder to me of just how little I truly knew about our nation’s founding. It is commonplace for people to refer back to great moments of importance in human history, such as  the World Wars, the American Revolution, or any other point in time that had a great impact on the future of a country, society, or on humanity as a whole and ascribe a certain meaning to that time. What happens when we do this, however, is that we make assumptions and leave out key actors and perspectives. Jay had a first row seat to the founding of America and played a huge role in shaping the direction of New York and of our current Constitution, yet his name and the lessons he learned are largely unknown to most American’s. Jay’s story has lessons of political deal-making and influence, of learning from experience and translating personal lessons into movements to benefit the whole of society. Ellis does an excellent job in his book helping us better understood this forgotten giant of the American Revolution.

Conflicting Views of the Continental Army

The American Founding Fathers and the citizens of the American Colonies had a lot of conflicting views about government and governance at the time of the American Revolution. Post war, the states existed as effectively autonomous sovereign nations tied together by shared yet distinct histories. During the war, the citizens needed an army capable of defeating the British, but also feared the power that a strong standing army would hold. Throughout the revolution and post-war period, the states understood that they would need to pay the army and pay for the support they received, but no one wanted to have a central authority collect monies to pay the soldiers and mercenaries who fought against the British. Joseph Ellis captures the conflict in his book The Quartet and writes,

 

“The unspoken and unattractive truth was that the marginal status of the Continental Army was reassuring for the vast majority of Americans, since a robust and professional army on the British model contradict the very values it was supposedly fighting for. It had to be just strong enough to win the war, or perhaps more accurately not lose it, but not so strong as to threaten the republican goals the war was ultimately about.”

 

The Continental Army at points was barely holding together with minimal supplies and food. Robert Morris, a private citizen, stepped in and paid the soldiers and army himself, from his own private funds, and was viewed as a war profiteer. The Colonies sought independence, but fears of a strong standing army and a history of abuses by a central authority created fear among the colonies that hampered their efforts to build a robust force to bring them the independence they desired.

 

The conflict within the mindset of the colonies is a phenomenon we still see happening within American politics today. Foreign policy and healthcare are two arenas where similar conflicts still emerge and are quite visible. We want stability, positive outcomes, and assurances that we will not be bothered with inconveniences, but we are barely willing to pay for it. We expect our government to be farsighted and to operate perfectly, but we refuse to fund it fully and look for any abuse of power and any misuse of money as an example of why we cannot trust and cannot fully fund our government. Healthcare eats an enormous amount of total spending (governmental, private, and individual) in our country, but we don’t seem to actually work toward the things that make us healthier. The government spends less that 1% of total budget on foreign affairs, but people assume we spend much more. In both of these areas, spending more directly to assist health and foreign aid would reduce the problems that arise later on and become our excuses and examples of why we cannot trust government. From our founding through today it seems that our distrust of government has been less in line with reality, and more in line with our fears and the stories we tell ourselves about what we need and what values we should try to live up to as a nation.

Slavery in the Constitution

The United States Constitution directly addresses slavery by apportioning slaves as counting as three fifths of a person for census counting purposes. The clauses containing slavery are some of the most disappointing aspects of our democracy, and are often viewed as a black eye on an otherwise shining document. People often say that slavery was misunderstood at the time of our nation’s founding and often try to justify slavery’s inclusion in the constitution by saying that it was commonplace at the time and not something we should judge our founding fathers against.

 

The reality is much more complicated. Many people, including many of our founding fathers understood that slavery was abhorrent and against the principles upon which the nation was founded. For example the Wikipedia page for Gouverneur Morris, the man who actually penned the constitution includes this quote from 1787, “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? … The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.”

 

At the time of the American Revolution, the economy of the Southern Colonies was dependent on slavery, and throughout history we have seen mankind fail to live up to ideals and moral principles in the face of economic threat. I believe it is fair to argue that ending slavery would have taken a king or absolute ruler given the economic incentives of the South. Joseph Ellis addresses this in his book The Quartet by writing about the decisions made around slavery during our nation’s founding. The following quote from Ellis describes a failed draft of a constitution drafted after the revolutionary war, before the adoption of the Articles of Confederation:

 

“Slavery was too volatile a subject to be addressed directly;  indeed, there was an unspoken policy of silence surrounding the topic based on the broadly shared sense that it, more than any other issue, possessed the potential to destroy the political consensus that had formed around independence.”

 

To tie the nation together and lay the ground for a United States that could grow and govern itself through democratic means, the founding fathers could not abolish slavery. A professor of mine once described slavery as a scaffolding built around the principles of the Constitution for construction purposes. After completion, slavery could be removed without damaging the foundation and simultaneously enhancing the beauty of the finished project. I think it is important to accept that slavery was understood to be evil and that South allowed economic interests to trump human morality. I think it is ok to address our founding fathers and be critical of the inclusion of slavery in the Constitution while at the same time understanding that it was in many ways necessary for building the nation we live in today. This is a tough thing to look at directly, but the lesson we can learn is that we are often held short of our moral best by economic and personal self-interest, and we should be honest with ourselves about the times we act in our self-interest and not in the interest of the group so that we can avoid the perils that the South made at the time of our founding.