the principle of separation of powers, but rather to expand congressional power.
Among historians, a developing historical literature examines the family resemblances in ideology, culture, customs, and architecture among countries on either side of the Atlantic.10 This book is in that tradition, since it discusses constitution making in three similar North Atlantic countries, each of which looked over its shoulder to see what the others were doing. In recent years, however, American constitutional scholars have shown little attention to or understanding of the parliamentary governments of Britain and Canada. This is not surprising. Like them, we are all patriots first and philosophers second. That is just as it should be, and Americans will rightfully resist an argument that their country should adopt the parliamentary regimes of other countries (a constitutional impossibility, in any event). However, one need not look to other countries for models on how to resist Crown government, since the Framers wanted a form of congressional government, and would have been shocked by the rise of George Mason’s elective monarchy. Fidelity to their intentions and to the form of government they wished for America would further the cause of freedom.
We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one.
—GEORGE MASON
The delegates who met in Philadelphia in the summer of 1787 drafted Article II of the Constitution, which as amended governs modern presidential elections. What they had in mind was a different form of government than our present one, with a weaker separation of powers between the executive and legislative branches and with very different ideas about presidential elections. If one examines what the delegates said, as Lincoln did in his 1860 Cooper Union speech, one quickly discovers that separationism was not the principal theme of the Philadelphia Convention, and that the delegates very nearly adopted a system not unlike the parliamentary regimes of Great Britain and Canada.
The delegates were divided between coalitions of nationalists and states’-rights supporters, and what they finally agreed on was a compromise, with something for everyone. As the nationalists had wanted, the new Constitution would be much more centralized than the Articles of Confederation that had governed the country from 1781 to 1789. The states’-rights delegates won most of the other points, however, and the Constitution would be much more decentralized than the nationalists had proposed. States would appoint senators, who would serve at the heart of the federal government, the better to resist its encroachments on states’ rights; state legislatures would determine the method by which the president would be appointed, and in the republic’s early years most states simply picked presidential electors themselves. The delegates also expected that the choice of president would generally fall to the House of Representatives, with each state delegation getting one vote. Such a system could and did give rise to sectional conflict, with states disagreeing among themselves over slavery and tariffs. What one wouldn’t have expected to see was the deadlock within the federal system apparent today. People today might support the principle of separation of powers for a variety of reasons, but fidelity to the intentions of the Framers isn’t one of them.
Getting the history right matters to originalists who take the intent of the delegates as the touchstone of constitutional interpretation.1 When confronted with a constitutional problem, a growing number of federal judges have begun to look for guidance from the Framers. Their Constitution should be our Constitution, they say. Originalism remains controversial, however, and among those who reject it, some assert that it is impossible to derive a single (or even any) meaning from the Framers’ deliberations, given the fractious nature of the debates, the sharp conflicts among the various coalitions, and the many times the delegates changed their minds. It is at times indeed difficult to say what they meant. But it is not impossible, as I show here; and sometimes it’s not difficult at all.
Besides, the debates are so fascinating—so much the leading documents of American government—that they more than repay the effort to study them. They have the high drama of an extended argument among an extraordinary group of politically astute and educated leaders who did not know what the outcome of the debate would be. Would a unified country emerge from the Convention? Would the country fall apart, divided into separate sections, or even return to Britain? Would the American Revolution itself be undone? There are other documents from the Founding era—the Federalist Papers, the debates in state conventions held to ratify the new Constitution—but these are very much of secondary interest. The Federalist Papers were seldom read outside of New York; the principal essays were written by two people, James Madison and Alexander Hamilton, who had not gotten the constitution they wanted but who accepted it as better than nothing. Nor do the ratifying conventions provide great guidance. What the Framers had proposed at their Convention was a take-it-or-leave-it constitution that the ratifying conventions could only adopt or reject, without amendments. And since rejecting it would be so devastating, that was not on the cards.
THE CONVENTION
The delegates who gathered in Philadelphia were, in the popular imagination, a set of brilliant political philosophers who produced what a hundred years later Gladstone called “the most wonderful work ever struck off by the brain and purpose of man.”2 For the British prime minister, the delegates were supreme political theorists who produced a compelling system of government to rival that of Westminster. While taking a rather more sober view of things, many modern accounts of the Philadelphia Convention emphasize the high theory of republican government. But theorists among the delegates, people such as Madison and Hamilton, were few in number; and when the Convention was over both men left Philadelphia less than happy with the result. It was better than the alternative of the Articles of Confederation, but was nevertheless a missed opportunity.
The Constitution was more the work of lesser-known men who possessed a larger fund of practical wisdom and, compared to Madison, a much greater ability to compromise. And compromise was what was needed, for there was nothing like a consensus about the form the government would take. In particular, there was no agreement about the scope of executive power. Pennsylvania’s James Wilson remarked, “This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide.”3
The delegates sought to create something entirely new, a charter for a republican government to be formed from states loosely united under the Articles of Confederation. For models they had nothing wholly serviceable. They prized the virtues they saw in the ancient world, but saw a hodgepodge of confusing institutions when they examined the constitutions of republican Greece and Rome. They admired the constitution of Great Britain, with which they were more familiar, but had fought a revolution to replace it; and most thought it ill-suited for what they called the genius of America. They had the Articles of Confederation, which provided for what passed as a central government; but these had proved unsatisfactory, and the purpose of the Convention was to correct their defects. Finally, they had the constitutions of the states, most of which were reformed during the Revolution; but they were of limited assistance in designing a constitution for a compound republic composed of all the states.
What nearly all of the delegates did know was that they had come to the end of the line with the Articles of Confederation. These had created a “firm league of friendship” among sovereign, free, and independent states, with the thinnest of central governments. Congress could not levy taxes directly on the people, nor could it compel the states to pay their share of national expenses. It could issue paper currency—which rapidly proved almost worthless, giving us the expression “not worth a Continental.” Europe today is more of a country than America was under the Articles.
At
