Over the last year and a half, the President has repeatedly announced that, since Congress won’t act on this or that, he will have to, by decree, uh, executive order and regulation.
Challenges to the substance and even legitimacy of the Constitution comprise the biggest question overhanging our republic in this time of many questions. Some critics of our founding tells us that the Constitution is out of date. The Framers, they say, could not have anticipated the nation as it has developed. But in reading Madison’s 1787 convention notes, I am struck at how much the debates anticipated our later political history, particularly the successive party systems — and how much that dialogue speaks to us still today.
I am not talking just about what the Framers agreed on, but even more on where they disagreed. Four times, by my count, delegates threatened walkouts, each time over a conflict that shaped later events:
- The Senate and the First Party System: We all know about the small state v. large state divide and the vow of some small states not to join any arrangement in which neither house of Congress gave equal representation to the states. It was the same strong-central-government v. strong-states line that separated the Hamiltonian Federalists from the Jeffersonian Democratic-Republicans, the first party system. When Jefferson came to office in 1801, Federalists feared he would move in a radical anti-federalist (in the sense of the ratifying period) direction. He may have wanted to. Reality intervened and he couldn’t, confirming for decades the balance of national and local needs that the Framers had struck.
- Atlantic v. Interior and Jacksonianism: Largely forgotten now, the convention heatedly debated whether the 13 original states should receive special privileges, in particular trade and governing preferences that subsequent states would not share. Put another way, would the new country become a nation or an empire? The same question was at stake in the rise of Andrew Jackson to the presidency and for decades more in the nation’s ability to expand west without spawning devastating East-West divisions.
- Slavery and the Third Party System: During one of the convention’s big states/small states debates (almost a fight, by the tone of the notes), Madison suggested that the real division in the years ahead would be south v. north, slave v. free. Delegates from the north despised slavery, wanted the slave trade cut off immediately and denounced any apportionment of seats in the House of Representatives that included slaves in the count. The Virginians and even North Carolinians were flexible on some matters, particularly rapid ending of the slave trade, but the Georgians and South Carolinian were not. Faced with these states forming a potentially hostile country, perhaps allying with Spanish Florida, slavery’s foes opted for a flawed but viable union. In his 1854 speech in Peoria, Lincoln detailed how, once the new government took form, these Framers in their various official positions seized every opportunity to undermine slavery. The balance struck in Philadelphia was temporary. But, in a remarkable act of foresight and judgment, it allowed the nation to grow and strengthen until it could survive the upheavals that ending slavery would eventually bring.
- Trade regulation and the McKinley era: The New England states wanted the new government to have the power to regulate foreign trade, i.e. to be able to nurture domestic manufacturing. The southern states wanted no such national power, but relented once the compromises on slavery were struck. Policies to nurture the growth of manufacturing drove the third party systems, a system that started with McKinley’s election as president in 1896 and lasted until the Great Depression.
It was remarked in the debates that the new system might only last 150 years fully in tact, that is, until 1937, which today looks prescient. But here’s the point. Separation of powers, checks and balances, arrangements to defend the nation against “cabal and corruption” (as one delegate summarized the purpose of the electoral college): these speak to the enduring and mixed character of humanity… to containing hubris and ambition even while allowing decision and action… to making room for considered change while closing the door on wild and destabilizing swings in policy… in short to making it possible for a system of enduring liberty in the context of popular sovereignty to last far beyond the 225th anniversary the nation marked last year.
But in this age of the administrative state and government increasingly by decree, will that system survive?