The Once and Future King. F. H. BuckleyЧитать онлайн книгу.
a danger of majoritarian oppression, but this is less likely in an extended republic.
The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d place, that in case they shd have such an interest, they may not be so apt to unite in the pursuit of it. 34
That gives us two methods of dealing with the problems of democracy—filtration and extended republics—and as political scientist E. E. Schattschneider noted, this might seem like one method too many.35 If democracy is not to be feared in an extended republic, why should presidents and senators be filtered through appointment by elected representatives, and not directly elected by the people? This was a point that supporters of democracy would grasp in time, but Madison was not yet one of them.36 Instead, he thought the two strategies would reinforce each other, and that both were necessary.
The Virginia Plan incorporated Madison’s filtration principle: the idea that superior men will reach the exalted seats of power when the upper legislative ranks are appointed by lower bodies, and not by the people. While providing for a formal separation of powers between the branches, the plan proposed that the legislature appoint the executive. The “first” or lower house, today’s House of Representatives, would be popularly elected, and would be “the grand depository of the democratic principle of the government,” according to George Mason. “It was, so to speak, to be our House of Commons.”37 The second or higher branch, our Senate, would be coequal in power, but its members would be selected by the first branch, from a list of nominees provided by the state legislatures. Together, the two branches would elect the president, called the “national executive.” This was spelled out in the plan’s Resolution Seven:
Resolved that a National Executive be instituted; to be chosen by the National Legislature for the term of ___ years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. 38
Had the Virginia Plan been adopted, America would have had an essentially parliamentary system. The crucial power would lie in the House of Representatives, which would appoint the members of the Senate, and which, together with the Senate, would appoint the president. A powerful lower house could be expected to appoint a president subservient to its wishes, not one likely to defy it.
Resolution Seven also would have limited the president to a single term. That might have seemed an uncontroversial fetter on the office, since term limits were a feature of the Virginia Constitution (which Madison, along with Mason, had drafted); and governors are still term-limited in Virginia. However, the restriction expressed a concern about presidential power, even beyond the filtration principle.
When compared to the Constitution that the delegates finally adopted, the Virginia Plan would have limited the president’s power in yet another way. The Constitution grants the president the power to veto bills for any or no reason, subject to an override by a two-thirds vote of Congress. In Resolution Eight of the Virginia Plan, however, the presidential veto power was shared with a quasi-judicial Council of Revision.
Resolved, that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ of the members of each branch. 39
The idea of a president sharing his veto power with members of the Supreme Court will seem strange to us.40 It made sense to Madison, because he did not have a thick conception of executive power or of a separation of powers in which the president might routinely oppose the will of Congress. He did think the veto might be employed to strike down the debtor relief schemes he feared, “those unwise & unjust measures which constituted so great a portion of our calamities.”41 Nevertheless, the structure of the Virginia Plan would not lead one to expect this to happen very frequently, for the reasons Madison gave in his Vices essay. Pro-debtor factions would be weaker in an extended republic than in state governments, and the appointed Senate would wisely constrain immoderate measures from the House in an application of Madison’s filtration theory.
If Madison wanted judges on the Council of Revision, it was because he saw the veto more as a judicial than a political act, to be employed when the legislature overstepped its constitutional bounds. Maryland’s Luther Martin recognized that the courts would rule on the constitutionality of legislation,42 but the doctrine of judicial review lay in the future, and what Madison saw in its place was the Council of Revision.
Madison’s Council of Revision was not adopted. Instead, the delegates compromised on a full veto power, exercisable in any case of political disagreement, but one that a supermajority in Congress could override. Nevertheless, the president’s veto power was understood in constitutional terms for much of the nineteenth century. Madison gave an example of this in his last act before leaving the presidency, vetoing legislation for internal improvements because he thought the federal government’s commerce power did not include the power to build roads and canals.43 Similarly, near the end of the century, Grover Cleveland vetoed a farm relief bill for which he said he could find no warrant in the Constitution.44
In sum, the Virginia Plan would have created a chief executive very different from the one we know today. Appointed by Congress, the president would be its creature, charged with doing its will but seemingly with little discretion about how to do so. He would have a veto over legislative acts, but this would be shared with members of the bench, and for the most part limited to passing on the constitutionality of bills. The crucial power would be vested in the House of Representatives, Mason’s “House of Commons,” which would appoint the members of the Senate, and which, with the Senate, would appoint the president, who would thus be doubly insulated from the people. If anything, Madison’s president would have lacked the power of a modern prime minister, who typically dominates his party and Parliament.
The fear of executive misbehavior led some delegates to propose an extraordinary variation on the office: a three-man presidency. The Virginia Plan contemplated a single president, but Edmund Randolph argued that a troika could better represent what were then the three sections of the country: New England, the middle states, and the South. Besides, said Randolph, a single executive is “the foetus of monarchy.”45 Madison opposed the idea, and the Convention voted it down, but George Mason agreed with Randolph, as did another ten delegates.46 At the end of the Convention Mason and Randolph refused to sign the Constitution, in part because they feared the power it vested in the executive.
WHY DID THEY WANT PARLIAMENTARY GOVERNMENT?
Presidential government is taken for granted by Americans. Why then were the Framers so taken with parliamentary government? The simplest answer is that this was the system they knew best. They had lived under a form of it during the colonial period, with royal governors and elected assemblies, and saw it from afar in Britain. And while they might have abhorred government from Westminster before the American Revolution, once it was over they fell over themselves in praise of the government of Westminster.
Conservatives such as Hamilton, Dickinson, and South Carolina’s Charles Pinckney confessed their admiration of Britain’s constitutional monarchy,47 and even their opponents saw the virtues of the British system. “There is a natural inclination in mankind to Kingly Government,” observed Franklin.48 Only a republican system of government would do for the United States, said Randolph; otherwise, he said, he might well be prepared to adopt the British system in America.49 North Carolina’s