Compromises In the Constitution

This page is still in preparation, and should not be regarded as finished or complete until this message is removed.

The authors of the US Constitution are now revered as intellectual and political giants, and it is unquestionably true that many of them were unusually brilliant as well as superbly well-educated, in particular familiar with the classics of political theory, whether from Greek and Roman antiquity or from the much more recent Enlightenment. They were not, however, the demigods that American school textbooks often portray, but people, motivated by the same sorts of political, religious, economic, social and personal considerations that underlie human action everywhere. Some of the decisions they made were thus the result of compromises, some of them of an institutional and technical nature, others distinctly moral in character.

Among the institutional compromises, can be included those having to do with the necessity in a democracy of

• regular renewal of elected officials as against the need for institutional stability and continuity
  The most striking mechanism for balancing these two needs is the very short terms in office of Representatives, compared to the longer terms in office and staggered elections of Senators
• States vs Federal Government
The authors of the Constitution were delegates from states, and they were aware of the importance of maintaining a high degree of autonomy for the respective governments of the federated states. In their eyes, the most effective means of achieving their somewhat contradictory goals of creating an efficient (and therefore necessarily powerful) federal government while at the same time preserving a large area of government authority for the states was undoubtedly the mechanism of the "enumerated powers", which was intended to establish an exhaustive list of the areas of authority of the federal government, leaving all other areas for the states.
• Population vs states
A democracy, even in the eighteenth century, when political views had not developed in the way they have today, must make room for the voice of the people. The Declaration of Independence, in 1776, had held that the main objective of government is to protect the rights of the people, and that the people have a natural right to revolution if their government does not fulfill this function. Nevertheless, the role of the people, especially those who were not property-owners, was limited in 1788. The only component of the federal government that is chosen directly by the people (of each state) is the members of the House of Representatives. To the founders' credit, they did try to insure that the House of Representatives would be an accurate reflection of the people's will by setting a very short term of office.
• Nature of the executive + Election
  The authors of the Constitution had several possible options to choose from; for example, under the previous organization of United States government, executive power was assigned to a sort of committee, which was itself more or less an appendage of the legislative. Giving executive authority to a single individual was a far more efficient mechanism, but not an easy decision for the Constitutional Convention: they remembered that the war for independence had been fought in order to escape from what they considered to be the tyranny of a king; they were thus reluctant to repeat the errors of the past. However, they finally concluded that the benefits of the arrangement outweighed the dangers.
  One of the most difficult tasks the authors confronted was finding a mechanism for choosing the President. Some authors believe that the Electoral College was almost more the result of fatigue on the part of the members of the Convention than of a carefully thought-out deliberation. (see Robert Dahl. How Democratic is the American Constitution? 2003.)
• Bill of Rights
The "Bill of Rights", i.e., the first ten amendments to the Constitution, which specify certain rights which are explicitly protected from interference or infringement by the federal government, was another bone of contention. The authors of the Constitution decided not to include an explicit Bill of Rights, as they apparently believed that the structure of the government they had created would be sufficient in itself to insure against violations of individual rights. However, during the public debates and discussion about whether or not the proposed Constitution should be ratified, one of the most telling arguments against it was that it did not provide specific protections for individual rights. The authors conceded that a list of rights could do no harm, and it was agreed that the first action of the new Congress would be to propose amendments that would guarantee personal rights and liberties. The Bill of Rights as it now exists was ratified in 1791, only two years after the new government took office.

The compromises of a moral nature involve the attitude adopted toward human beings, and particularly people on the margins of society, people who today would be said to be members of minorities.*

• Representation of the population (who should be counted?)
  Representation of the states in the House of Representatives is proportional to population. This apparently simple idea created a difficulty: who should be counted in the population? Nothing akin to universal suffrage even entered the minds of the authors of the Constitution, who assumed that only white male property-owners would vote. The population, however, included large numbers of people who did not fit that description: women, Black slaves, "Indians", servants, agricultural laborers, and so on. It seems to have been assumed that all free (i.e., non-slaves) people would be counted, but it was explicitly decided that two major categories of people would be excluded from the census for purposes of representation.
  One was "Indians", who, though they lived within the boundaries of states, typically had a special legal status, and in particular, did not not pay taxes. On the grounds that they did not pay taxes, it was concluded that they should not artificially inflate the population of the states where they happened to be located.
  The other large group was slaves. Two contradictory positions evolved: the delegates from the northern states, where slavery was a statistically comparatively minor phenomenon (though it had not yet been abolished in any state), argued that slave-owners considered their slaves to be property, and that property should not be part of the census. The plantation-owners from the southern states held that slaves were human and should thus be counted, and furthermore, threatened not to join the Constitution if their slaves were not counted. The compromise that was finally reached was that the population used for calculating representation would be equal to the number of free people in each state, plus three-fifths of the number of what the Constitution called "other persons" (i.e., slaves). This was a significant victory for the states in which slavery was a major economic phenomenon, since it increased theis numbers of representatives in Congress, and also, therefore, theis numbers of electors in the Electoral College. (It is perhaps worth insisting again that this so-called "3/5 rule" did not mean that slaves were partially represented in Congress: only their owners could vote, and they of course voted in their own interests, not in the interests of their slaves.)
• Humans as Property
  The question of human property also led to other compromises. The southern delegates were concerned that the slave population would not be able to reproduce itself if the importation of slaves was not allowed (this is in fact what happened in the other slave-societies in the Americas: the slave populations usually died of over-work and the institution itself disappeared when importation came to an end). Since it was obvious to all that the international slave trade was a moral evil, it was decided that the importation of slaves would be allowed (or more precisely, would not be prohibited) till 1808.
  The other major compromise, in the most moral sense of the term, was the "fugitive slave clause", which provided that slaves who escaped from slavery must be returned to their legal masters, even if they escaped to a state in which slavery had been abolished. Thus, although the word "slave" does not appear at all in the Constitution, the institution was protected. This is perhaps one of the most shocking examples of the difficulties that the US has always encountered in reconciling the ideals of liberty and equality, as they were so eloquently defended in the Declaration of Independence, and the practical operations of everyday life. Racism is probably no more prevalent in the US than in other countries, but it stands out as a glaring contradiction with what many Americans consider to be the reason for the existence of the US: personal freedom.

__________

* Interestingly enough, one of the issues that worried the authors of the Constitution was their desire to insure that the minority would be protected from the oppression and tyranny of the majority; however, the minority they had in mind was very different from the racial, linguistic and gender minorities of today: the authors of the Constitution were concerned about protecting the property rights of the wealthy from the depredations of the proletarian majority. One of the reasons for the glacially slow pace of change in the membership in the Senate was to prevent economic and social revolutions from being imposed at the ballot-box. [back to text].