The Selected Essays of Gore Vidal (51 page)

The father of the country was the father if not of the Constitution of the convention that met in May 1787, in Philadelphia. Washington had been troubled by the civil disorders in Massachusetts in particular and by the general weakness of the original Articles of Confederation in general. From Mount Vernon came the word; and it was heard—and obeyed—all around the states. Quick to respond was Washington's wartime aide Alexander Hamilton, who knew exactly what was needed in the way of a government. Hamilton arrived at Philadelphia with a scheme for a president and a senate and a supreme court to serve for life—while the state governors would be appointed by the federal government.

Although neither John Adams nor John Jay was present in the flesh at Philadelphia, Jay's handiwork, the constitution of New York State (written with Gouverneur Morris and R. J. Livingston), was on view as was that of John Adams, who wrote nearly all of the Massachusetts state constitution; these two charters along with that of Maryland were the basis of the convention's final draft, a curious document which in its separation of powers seemed to fulfill not only Montesquieu's cloudy theories of separation of powers but, more precisely, was a mirror image of the British tripartite arrangement of crown, bicameral legislature, and independent judiciary. Only the aged Franklin opted for a unicameral legislature. But the other Framers had a passion for England's House of Lords; and so gave us the Senate.

Lundberg discusses at some length just who the Framers were and where they came from and how much money they had. The state legislatures accredited seventy-four men to the convention. Fifty-five showed up that summer. About half drifted away. Finally, “no more than five men provided most of the discussion with some seven more playing fitful supporting roles.” Thirty-three Framers were lawyers (already the blight had set in); forty-four were present or past members of Congress; twenty-one were rated rich to very rich—Washington and the banker Robert Morris (soon to go to jail where Washington would visit him) were the richest; “another thirteen were affluent to very affluent” nineteen were slave owners; twenty-five had been to college (among those who had
not
matriculated were Washington, Hamilton, Robert Morris, George Mason—Hamilton was a Columbia dropout). Twenty-seven had been officers in the war; one was a twice-born Christian—the others tended to deism, an eighteenth-century euphemism for agnosticism or atheism.

All in all, Lundberg regards the Framers as “a gathering of routine politicians, eyes open for the main chance of a purely material nature…. What makes them different from latter-day politicians is that in an age of few distractions, many—at least twenty—were readers to varying extents in law, government, history and classics.”

Lundberg does not accept the traditional American view that a consortium of intellectual giants met at Philadelphia in order to answer once and for all the vexing questions of how men are to be governed. Certainly, a reading of the Federalist Papers bears out Lundberg. Although writers about the Constitution like to mention Locke, Hume, Montesquieu, and the other great savants of the Enlightenment as godfathers to the new nation, Montesquieu is quoted only four times in the Federalist Papers; while Hume is quoted just once (by Hamilton) in a passage of ringing banality. Locke is not mentioned. Fans of the Framers can argue that the spirit of Locke is ever-present; but then non-fans can argue that the prevailing spirit of the debate is that of the never mentioned but always felt Hobbes. There is one reference each to Grotius, Plato, and Polybius. There are three references to Plutarch (who wrote about great men) and three to Blackstone (who showed the way to greatness—or at least the higher solvency—to lawyers). God is mentioned three times (in the Thank God sense) by Madison, a clergyman's son who had studied theology. Jesus, the Old and New Testaments, abortion, and women's rights are not alluded to. The general tone is that of a meeting of the trust department of Sullivan and Cromwell.

Lundberg quotes Merrill Jensen as saying, “Far more research is needed before we can know, if ever, how many men actually voted for delegates to the state conventions [which chose the Framers]. An old guess that about 160,000 voted—that is, not more than a fourth or fifth of the total adult (white) male population—is probably as good as any. About 100,000 of these men voted for supporters of the Constitution and about 60,000 for its opponents.” It should be noted that the total population of the United States in 1787 was about 3,000,000, of which some 600,000 were black slaves. For census purposes, each slave would be counted as three fifths of a person within the First Republic.

The Framers feared monarchy and democracy. In order to prevent the man who would be king from assuming dictatorial powers and the people at large from seriously affecting the business of government, the Framers devised a series of checks and balances within a tripartite government that would, they hoped (none was very optimistic: they were practical men), keep the people and their passions away from government and the would-be dictator hedged 'round with prohibitions.

In the convention debates, Hamilton took on the romantic notion of the People: “The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to [the rich and wellborn] a distinct, permanent share in the government.” The practical old Tory Gouverneur Morris took the same view, though he expressed himself rather more serenely than the fierce young man on the make: “The rich will strive to establish their dominion and enslave the rest. They always did. They always will. The proper security against them is to form them into a separate interest.” Each was arguing for a Senate of lifetime appointees, to be chosen by the state legislatures from the best and the richest. It is curious that neither envisioned political parties as the more natural way of balancing economic interests.

Since Hamilton's dark view of the human estate was shared rather more than less by the Framers (“Give all power to the many, they will oppress the few. Give all power to the few, they will oppress the many”), the House of Representatives was intended to be the principal engine of the tripartite government. Like the British Parliament, the House was given (in Hamilton's words) “The exclusive privilege of originating money bills…. The same house will possess the sole right of instituting impeachments; the same house will be the umpire in all elections of the President….” And Hamilton's ultimate defense of the new Constitution (
Federalist Paper
No. 60) rested on the ingenious way that the two houses of Congress and the presidency were chosen: “The House of Representatives…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.”

This was disingenuous: the electoral franchise was already so limited in the various states that only the propertied few had a hand in electing the House of Representatives and the state legislatures. Nevertheless, this peculiar system of government was a success in that neither the mob nor the dictator could, legally at least, prevail. The turbulent “democratic” House would always be reined in by the appointed senators in combination with the indirectly elected president and his veto. The Constitution gave the oligarch, to use Madison's word, full possession of the government—the object of the exercise at Philadelphia. Property would be defended, as George Washington had insisted that it should be. Since Jefferson's teeth were set on edge by the word property, the euphemism “pursuit of happiness” had been substituted in the Declaration of Independence. Much pleased with this happy phrase, Jefferson recommended it highly to the Marquis de Lafayette when he was Rights of Man-ing it in France.

The wisest and shrewdest analysis of how the House of Representatives would evolve was not provided by the would-be aristo Hamilton but by the demure James Madison. In
Federalist Paper
No. 59, Madison tried to set at ease those who feared that popular gathering in whose horny hands had been placed the national purse. Madison allowed that as the nation increased its population, the House would increase its membership. But, said he with perfect candor and a degree of complacency, “The people can never err more than in supposing that by multiplying their representatives beyond a certain limit they strengthen the barrier against the government of the few. Experience will forever admonish them that…they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic” because “the greater the number composing [a legislative assembly] the fewer will be the men who will in fact direct their proceedings.” Until the present—and temporary—breakdown of the so-called lower House, this has proved to be the case.

By May 29, 1790, the Constitution had been ratified by all the states. The need for a bill of rights had been discussed at the end of the convention but nothing had been done. Rather than call a second convention, the Bill of Rights was proposed—and accepted—as ten amendments to the new Constitution. A principal mover for the Bill of Rights was George Mason of Virginia, who had said, just before he left Philadelphia, “This government will set out [commence] a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical [oppressive] aristocracy: it will most probably vibrate some years between the two, and then terminate in the one or the other.” The words in brackets were supplied by fellow Virginian—and notetaker—Madison. As the ancient Franklin observed brightly, sooner or later every republic becomes a tyranny. They liked reading history, the Framers.

But the wild card in the federal apparatus proved not to be the predictable Congress and the equally predictable presidency whose twistings and turnings any reader of Plutarch might have anticipated. The wild card was the Supreme Court.

Lundberg calls attention to the following language of Article III of the Constitution.

The Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations as the Congress shall make.”

The preceding twelve words [he continues] are emphasized because they are rarely alluded to in discussions about the Court. They bring out that, under the Constitution, the Supreme Court is subject to regulation by Congress, which may make exceptions among the types of cases heard, individually or by categories. Congress, in short, is explicitly empowered by the Constitution to regulate the Court, not
vice versa.

Certainly, the Court was never explicitly given the power to review acts of Congress. But all things evolve and it is the nature of every organism to expand and extend itself.

In 1800, the outgoing Federalist President John Adams made a last-minute appointment to office of one William Marbury. The incoming Republican President Jefferson ordered his secretary of state Madison to deny Marbury that office. Marbury based his right to office on Section 13 of Congress's Judiciary Act of 1789. Federalist Chief Justice John Marshall responded with marvelous cunning. In 1803 (
Marbury
v.
Madison
) he found unconstitutional Section 13, the work of Congress; therefore, the Court was unable to go forward and hear the case. The partisan Jefferson was happy. The equally partisan Marshall must have been secretly ecstatic: he had set a precedent. In passing, as it were, Marshall had established the right of the Supreme Court to review acts of Congress.

The notion of judicial review of the Executive or of Congress was not entirely novel. Hamilton had brought up the matter in 1787 (
Federalist Paper
No. 78). “In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and representations of the representative body.” But the other Framers did not accept, finally, Hamilton's view of the Court as a disinterested umpire with veto power over the legislative branch. Yet Hamilton had made his case most persuasively; and he has been much echoed by subsequent upholders of judicial review.

Hamilton believed that the judiciary could never be tyrannous because it lacked real power; he does admit that “some perplexity respecting the rights of the courts to pronounce legislative acts void because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts must be declared void.” Since this is true and since the Constitution that Hamilton is defending does
not
give judicial review to the Supreme Court, Hamilton does a most interesting dance about the subject. The Constitution is the “fundamental law” and derives from the people. If the legislative branch does something unconstitutional it acts against the people and so a disinterested court must protect the people from their own Congress and declare the act void.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

This is breathtaking, even for Hamilton. He has now asserted that a court of life appointees (chosen from the rich and wellborn) is more interested in the rights of the people than the House of Representatives, the only more or less democratically elected branch of the government. But Hamilton is speaking with the tongue of a prophet who knows which god he serves. The future in this, as in so much else, was what Hamilton had envisaged, constitutional or not. Characteristically, by 1802, he had dismissed the Constitution as “a frail and worthless fabric.”