PUBLIUS: Today we’re joined by Professor Michael McConnell to learn about different influences on the Founding Fathers, which lead to the innovations in the Constitution. Who were the main political thinkers read by the Founders? What role did the English Common Law tradition play in their experience? MICHAEL MCCONNELL: Setting up a proper structure for government is the very first and most important aspect of creating a constitutional regime. The structures necessary in order to channel the public will, we need to know when elections are going to take place, we need to know who people are voting for. Without having a structure of democratic governance you can't even begin to have a republic, and the framers believed the division of power was the most important and effective way of hitting that middle ground between a government that was going to be powerful enough to be able to serve its ends, but not so powerful that it would be a danger to people's liberties. The operating theory which the framers took primarily from the Scottish Enlightenment, but also from historical experience, was that creating a division of power and checks and balances was the best way to accomplish that. The framers of the constitution differ among themselves just as we differ among ourselves. I think sometimes students today are inclined to think of them all as just dead white men wandering around in funny looking wigs and so forth, and they must all agree, but in fact their disagreements were quite profound. The constitution reflects sometimes compromise and sometimes a combination of views. Some of the principle views that you see in the constitutional debates at the founding included traditional Republicanism, which was the view that government is best when it is conducted by the people themselves with as little interference as possibly, but with the understanding that that kind of government is only going to be a good form when the people are virtuous, and so there needs to be a heavy emphasis upon the inculcation of public virtue. And by virtue what they really meant was voluntary self sacrifice for the common good. They didn't mean behaving yourself, they meant things like serving in the militias and undertaking heroic and courageous efforts for the common good. An alternative view that I think Hamilton and Madison, among others, tended to have came from the Scottish Enlightenment and the Scottish, and particularly figures like Adam Smith and David Hume, but also others. They believed that it's a mistake to assume that anybody is going to be over endowed with public virtue. In fact, David Hume said that it's best to presume that all men are knaves. And they taught that the best form of government is one in which you channel a self interest and ambition in ways that will approximate the common good that you set up ... This is where the idea of checks and balances really comes from, is that you understand that the players in the system are going to be self interested and ambitious, and you try to set things up so that their ambition will counter ambition, to use Madison's phrase from the Federalist. Factions will necessarily exist, but the solution to faction is to extend the sphere so there'll be a multiplicity of factions and they can control each other. You also see, I believe in at least some figures, the influence of Thomas Hobbes and his theory of government set forth in the Leviathan, in which the most important thing that government does is protects against both internal and foreign violence, and you need to have a government in which a lot of power is concentrated in a single figure, like the president, and in which sovereignty includes control over what Hobbes teaches is over the two most important things are the economy, which means regulation of the economy and taxation, but also the instruments of force, which would be the army and ... They didn't have a police force back then, but the forces of domestic law enforcement, and that when those things are not held firmly in the grip of the government you have either invasion or anarchy. So, you can see, I think, Alexander Hamilton to some extent seems to be influenced there, but many of the arguments between the Federalists and the Anti-Federalists had to do with whether the national government would in fact have control over those two areas. The Federalists insisted that the national government really had to have a potential for having control over those things that Hobbes said were essential to sovereignty. John Locke's views were prevalent at the time and revered at the time of the framing by many. Not only his theory of revolution, but also his understanding of natural rights. You can see in his description that the state of nature is one in which everyone owns themselves and they own the product of their labor and they are free to do whatever they want, so long as they don't interfere with the equal rights of others. This would be some kind of a Libertarian utopia, except for the fact that rights are uncertain. You have powerful people who beat up on others and take their stuff and enslave them. Locke says that there are actually three principle defects in the state of nature; One is the absence of an agreed upon law, a second is an absence of a fair and objective adjudicator in the case of conflict, and the third is the lack of somebody to enforce the results if there is an adjudication. Those three defects of the state of nature can be just directly translated into articles one, two, and three of the constitution, creating a lawmaker, a law enforcer, and a law interpreter. Montesquieu is another source of ideas. He is cited as often, I believe, as any other single source, other than the Bible, at the convention Montesquieu is mostly important for Federalism. Montesquieu believed that it is not possible to have a single unified comprehensive government over a large and diverse territory, that the only way to have republican government over such a large expanse was to divide power among provinces in a kind of confederation. This is where our notions of Federalism principally come from. That doesn't exhaust the sources of intellectual fermentation that came to the constitution, but that at least is a sketch of just how diverse their thinking was. PUBLIUS: You’ve just discussed some of the influences on our Founding Fathers. Can you tell us more about that? What key sources of ideas about government did our Founders bring with them to Philadelphia in the summer of 1787? How did these ideas impact the drafting of the Constitution? MICHAEL MCCONNELL: The most important source of ideas about government that the framers brought with them to Philadelphia came from British constitutional history and experience. They had until ten years before been subjects of the King and citizens of the British Empire, and they admired a lot about it. Just because we had a revolution against the King and against the Empire doesn't mean that they thought that everything in the British system should be rejected. They were quite discriminating. They imitated major features of the British constitution, and they deliberately rejected major features of the constitution. It's amazing how wise a lot of those choices appear, even in retrospect. I'm not saying that they were perfect and that every decision was right, but that they did use the British constitutional experience in a way which seems very compelling even today. What were some of the things that they borrowed? They borrowed the idea of having an executive which is separate from the parliament. They borrowed the idea of a parliament with two different branches, one of them quite dependent on the people and responsible to the people, and the other less so, and that was what we got with the house and the senate. They borrowed the idea of life tenured judged which, in the British system, came about in the 1702 act of succession. They were extremely attentive to the problems of how to govern a military, because 17th century Britain was ... It featured kings being able to abuse their authority over the military in order to oppress the people, and the constitutional framers spent a lot of their time discussing how to structure a military so that they ... What they wanted was a very small national standing army only authorized by the representatives of the people, only for short periods of time, and with the rules for the conduct of the armed fores all to be set by the representatives of the people, not by the executive. The executive would be the commander in chief, but that meant the deployment of the military when hostilities had begun, authorized by congress, but the rest of it would be democratically controlled. And more important than that, the bulk of the military power of the United States would be in the state level in the form of militias, which could then be brought in to national service, but only under specified circumstances. Another thing they borrowed was a lot of Federalism comes from the British system. The relationship between the colonies and the crown. Our supremacy clause is patterned on British imperial constitution. What were some of the things that they rejected? They greatly reduced the prerogatives of the king, assigning many of those to congress instead. They eliminated any hereditary feature to the government. They wanted a natural aristocracy, but they did not want a hereditary aristocracy. They greatly increased the suffrage. At that time, about one in ten white adult males were permitted to vote. In America, it was going to be something more like nine out of ten, so greatly increasing suffrage. Then, if you look at the amendments to the constitution, it's been by far the most important numerous of the amendments have been extensions of the vote to more and more people, to the point that we now have something like universal adult suffrage, which was unheard of before. Also, the Federalism that they created had some resemblance to the British Empire, but was very different from the internal governance of the United Kingdom itself. In Britain, the subordinate institutions, like the counties and shires, were simply administrative units of the national government. They were not independent governing units, they could not ... Their leadership was appointed from the center and were not competitive sources of independent authority the way the states were intended to be. So, that is something that looks manifestly different from the British experience. Britain also had no written constitution, so the very existence of a written constitution is a departure from British norms, and if you think of the Bill of Rights as part of the original constitution, even though it was brought about a couple of years thereafter, there was nothing comparable to that. The way Madison describes this is he says that in Britain all of the struggles for the freedoms of the people were conceived as struggles between the powers of the king and the powers of parliament, and he said that here, in this country, the constitution would be superior to the laws and the law superior to the prerogatives of the executive. So, he envisioned a constitutional order which was superior to even parliament at a time when the prevailing view of the British constitution was one of parliamentary supremacy. So, there are many ways in which they departed, just as there were many ways in which they borrowed from the British experience. PUBLIUS: Can you tell us more about the British experience? Specifically, how did the three different forms of power, legislative, executive, judicial, work? They didn’t match the three branches of government in the US Constitution. How did our Founders reconfigure them in our Constitutional design? MICHAEL MCCONNELL: Well the framers of the Constitution were of two minds about the legislature. On the one hand, as good Whig figures and anti-Royalists, who cut their teeth on opposition to the king, they wanted the legislature to be the principle policymaker for the new government. They believed that the legislature more directly represented the people and that its deliberative character made it the natural sort of focal point of policymaking, but they also had had experience in the state legislatures between independence and the calling of the Constitutional Convention, in which those legislatures were turbulent, they changed their minds all the time, they were not respectful of minority rights or property rights or individual liberties. And so they believed that the legislature needed to be structured in a way that had more checks and balances. And so they wanted longer terms for the legislature, they wanted the executive to have a veto, they wanted to have two branches of the legislature so that the two branches could check one another and they wanted to specify specifically what powers the legislature was going to be able to carry forward. One of the ways that they did all of this decision-making is that they looked at the British model and where governmental power lay then and there was a great deal of power still was with the crown at the time of the Constitutional Convention. And the founders carefully considered each of the royal prerogative powers and parceled them out between the king and Congress, interestingly giving a great deal of royal authority over such things as being able to declare war or grant patents to congress. So a lot of Congress's powers were ones that were exercised by the king under the royal government, but then they created a president, who would be able to control and check some of the abuses if the legislative branch went too far with this. So this is where the veto came from. And they also expected that the executive branch, the president would execute the laws in a way which would bring a more national perspective and might soften some of the excesses of legislative activity. So of all the institutions of government, the presidency was the hardest for the framers to figure out because they simply had no experience of a powerful national executive, other than a king and they did not want a king, but on the other hand, they did appreciate the importance of having a single executive to administer the laws with what they called "energy, secrecy, and dispatch." That is somebody can operate quickly and powerfully, not having to operate through a committee. And so they didn't quite know how to do that. It was ... There was a lot of backing and forthing about this. The original Virginia plan envisioned an extremely powerful president, one who would have powers over war and peace, that is to take us to war. That was unacceptable and so the convention, in early June, created a very weak president with very few powers. They didn't return to the question until after the middle of the summer and they began crafting a presidency with very substantial independent authority. But again, at the beginning, or at least at the end of July, the president did not have power over foreign relations. He was commander in chief of the Army, but the Senate was going to have authority over foreign affairs, sending ambassadors, determining foreign policy and the like. So it's really only toward the end of the convention that the powers over, some of the most important executive powers, foreign affairs were transferred to the president. One of the biggest conflicts that Parliament had had with the English king was over the king's practice of what they called "dispensing or suspending of the laws." This is where the king just simply refused to carry out or to enforce laws passed by Parliament. And this was the main reason why James II was driven out of the country and the first two provisions of the English bill of rights declare that the executive, the king, did not have the power to either suspend or dispense with the law. And our framers certainly wanted to carry through that reform. They believed that when a law was passed by Congress and signed by the president, that the president had an obligation to enforce it and this is reflected in the language of the Take Care Clause of Article Two, which says that the president shall take care that the law be faithfully executed. Now, that doesn't mean that every law is going to be enforced 100% of the time. You think of something as a homely example, like the speed limit on the highway. If every person who was speeding was pulled over, then, well most of us would be in jail most of the time. So there is and necessarily has to be prosecutorial discretion. And so when the Take Care Clause refers to faithfully executing the law, what that means is to deploy the resources of law enforcement to do the best job we can of reasonably and faithfully executing the law. It means that we don't use prosecutorial discretion as a policy instrument when the president may disagree with the law passed by Congress. Now, unfortunately, this happens from time to time. Richard Nixon, for example, used prosecutorial discretion in the civil rights area to frustrate part of Title XI of the Civil Rights Act of 1964 and the courts called him on that. And I think there are also good reasons why the Supreme Court is a better decision maker with respect to questions of constitutionality and so there is, I think this is going to be an enduring source of friction between the executive and the other branches, as to exactly how far presidents can go in enforcing the Constitution simply on their own authority. So in our system, we don't, unlike some European countries, have a constitutional court that is charged with enforcing the Constitution. We just have courts and what they're charged with is resolving cases or controversies. Those are actual legal disputes between real people, involving real things. Now, the Constitution may well be an issue in one of those cases or controversies and when the court is deciding them, they may have to interpret the Constitution and sometimes they're going to have to say that a statute or an act of the executive branch is inconsistent with the court's reading of the Constitution and the superior law is going to prevail in that case or controversy. That's the court's authority and what that means, as a practical matter, is that there are a large number of constitutional questions that won't come before the court and some of them can never come before the court because they're never going to present themselves in the form of an actual case or controversy between real people who are affected by it. And so a lot of constitutional law is actually resolved by the legislative and executive branches, sometimes in conflict with one another. For example, the reach of the spending power is a constitutional question and it's been debated heavily. It was one of the most important questions during the sort of Henry Clay versus Andrew Jackson period of American politics. Henry Clay took the view that the Congress should have high tariffs and do a lot of spending on internal improvements and Andrew Jackson and his party favored low tariffs and said it was not constitutional for Congress to spend on many of those projects. All of that was argued in constitutional terms, but none of it could ever get to court because you don't have two people, real people with a case or controversy arising over that. I think there are basically two ways of seeing the role of a court in a democratic society. You can have a strictly legal view of the court or you can have a more policy or a philosophical role for the court. In the one, the court is simply a court of law. It interprets statutes according to their intended meaning, it interprets the Constitution according to its understood meaning, they exercise as little personal discretion as possible. Their job is to enforce rules that have been set down by others. The alternative way of thinking about a court is that it's really more like the House of Lords, that is it's an aristocratic body that decides questions on the basis of its own views and conscience and often, in ways which are different from those of the common people. So you have issues like issues that the Constitution does not appear to address, like abortion or same-sex marriage or punitive damages or grandparent rights. And the court takes it upon itself to overrule the decisions of the representatives of the people, based upon a more abstract philosophical or moral principles. Those are two very different things. I think the court, in the more legalistic sense, is entirely consistent with democracy. I think the court in the second sense is actually an aristocratic limitation or check upon democracy. PUBLIUS: To wrap up, now. We’ve discussed Constitutional design. One thing we haven’t touched on yet - what does the Constitution say about the mechanics of the democratic process? MICHAEL MCCONNELL: One of the oddities of the US constitution is how little it has about the mechanics of the democratic process itself. There are some rules. We know, for example, that the states are going to decide for themselves how to do districts, how to conduct elections, what the voter qualifications are going to be, subject to congress' ability to pass supervening legislation regarding the governance of federal elections. But that's not a lot. That doesn't tell us how districts are going to be formed, doesn't tell us ... We do know a very important thing, which is how often elections are going to be, and that itself is a huge advance, right? The fact that we hold regular elections rather than allowing governments just to stay in power forever is a huge advance for democracy. But a lot went unspecified. I think if we were to wrote a constitution today we would be almost certain to include provisions about things like candidate selection, are we going to have a primary system or not. Probably we would be interested in constitutionally specifying single member districts and first past the post elections, and our presidential elections would probably would not be governed by the electoral college. I don't know that for sure, but I doubt that would pass today if we were to be starting from scratch. So, a lot of what we call the Law of Democracy when we teach this is law schools, is the product of long standing practice and of judicial innovation rather than actual interpretation of the constitution.