Historically Speaking: The Social Contract, Part 2
By Will Bellaimey with Elizabeth Gracen:
This is Part 2 of my conversation with Will Bellaimey, history teacher and creator of All the Presidents, Man podcast.
Will and I've been talking about the origins of the Constitution and how the decisions made at that time are still affecting the way our government functions today. In a moment of national crisis, where our institutions are being tested, it's helpful to look back at how and why they were created.
If you are just joining us and want to get caught up, please start Historically Speaking: The Social Contract, Part 1 here.
EG: Okay, so we’ve been talking about the Constitution of the United States. What would you say was the biggest change from how American government was working before?
WB: So in the Articles of Confederation, every state had one vote. So all of Virginia had one vote, and all of New Jersey had one vote. And at the time Virginia—one of the biggest states in the country—had hundreds of thousands of people, and New Jersey had a tenth that, but they had the same number of votes. If you're thinking of what's going on as a group of democracies that each come together to make a few very small decisions, maybe that's okay; but if you're going to start making really big decisions that before were in the hands of your state government in New York, eventually Washington, D.C., then big states feel that they deserve more power.
And then the person who walks in with a plan that really pushes us forward is James Madison. And James Madison once said that the most important thing to do in life is to have a plan. Because when you show up with a plan, everybody's point of debate starts with your plan. Either people are for it or against it, but it started with your idea.
EG. So what was the plan he showed up with in Philadelphia?
WB: Basically he walked into the convention and said, "No more of this equal state stuff. Everything's going to be based on population. So every group of 10,000 people in the country will have a representative. And if your state has 10,000 people, you'll have one representative. If your state that's 200,000 people, they'll have 20 representatives." He was from Virginia. They were going to get the most representatives. And that's why this plan is historically known as the Virginia Plan, because Virginia was like, “Yes. This is what we want."
It is on some level a profound change. Because when you start thinking of people as the fundamental building blocks of the social contract instead of thinking of states as the fundamental building blocks of the social contract, you're saying, "We are one country. We are one nation." Later, Lincoln would argue that we actually had already spiritually become one nation even before the revolution, but I think from a legal perspective, this is the clearest point where they're saying, "Okay, remember that contract that we had with each other? We're going to rip that one up. We just voted to do that, and now we're going to write a new contract."
EG. Wow, yeah that’s a big change. Did everybody in the room want to go along with the plan?
WB: Not at all, there are a bunch of people in that room who don't think it's good idea, specifically people from states that don't have that many people. It's like, "Wait. So what you're going to do," New Jersey says, "is right now we have equal votes, but after this plan of yours goes through, I'm going to have one 20th of the power of you? Why would I sign on to that?" And Madison could make all these arguments about how ultimately the Lockean values in which all people are created equal are better represented under this other system, but still, "Okay, but why should I sign up for that? It's not going to help New Jersey."
Perhaps it’s because I'm a big government person, but I think that the Virginia Plan is just more right. But it's certainly not a coincidence that Madison was from Virginia, nor is it a coincidence that Robert Livingston, who came up with the New Jersey Plan, was from New Jersey, a small state. And the New Jersey Plan was basically, "Why don't we just keep doing what we're doing?" Or it was like, "We can give more power to the central government, but within the central government let's still have equal power between the states." And Delaware and those other small states are all like, "We like that plan." And they really, really fight about this for several months in the summer. It's really hot, and this subject is the thing they almost walk out of the convention over, and it's really easy to imagine that they just walk out of the convention.
EG. How often now do Democrats and Republicans get in a room together, say that they're going to make a deal, and they can't make a deal? It’s amazing that they came up with a compromise at all.
WB: Yeah, it’s called the Great Compromise, but neither side thought the plan was great, but they did think it was great that they had a deal. And the compromise, as most people know, is that we have two houses. One house runs on the Virginia Plan: it's called the House of Representatives. The other house runs on the New Jersey Plan: it's called the Senate—which is why today we're all paying close attention to Susan Collins. She's from Maine. How many people live in Maine? We're paying close attention to Lisa Murkowski. Less than a million people live in Alaska. But she is equally powerful to Kamala Harris, who represents 40 million people. It's still sort of insane that that's how that part of this government works. On the other hand, you have the House of Representatives where California has 55 times as many people as Alaska, which has one. On some level the compromise still works in that it gives both visions a voice, but it really messes with our ability to get things done.
Rural areas are going to be better represented, over-represented in the Senate. Because if you're a very rural area, you probably don't have that many people, but you have equal representation in the Senate to big urban states. And so, since in the last 30 or 40 years, the Republicans have been a party that has generally run rural areas, the Democrats had been an urban party. The Democrats have, at various times, including right now, had control of the House of Representatives but not the Senate. And so one of the reasons why we can pass something through the House but not the Senate is because the Republicans are more likely to control the Senate. Until we change the makeup of the Senate itself, we will be continuing to give more and more bonuses, extra power to rural areas.
EG: And didn’t that same bonus help Trump get elected?
WB: Right, because the electoral college, which elects the president, is the combination of the number of senators and the number of representatives. So when people talk about why Hillary Clinton was able to win the popular vote but lose the election, it’s because you have this New Jersey Plan bonus. The day after the election, one of my students came in crying, and I was, of course, really upset too. And she was like, “Mr. Bellaimey, why did this happen?" And I think she wanted me to say something comforting. But I was like, "It's the New Jersey Plan. That's why.” If they had really fought it out in the convention and gotten the Virginia Plan done, none of this would be happening. And most people don't think there's any chance that Donald Trump will win the popular vote for his second term, but there's a pretty good chance that he'll win the electoral college.
EG. So the Great Compromise is especially great if you’re from a state with a small population.
WB: The other big bonus that some states ended up getting came from the other compromise, which was about slavery. And I was talking about this a little bit before. How do you count enslaved people? Obviously slave owners dehumanized African people who were brought over here for labor and routinely treated them as objects and as property; in fact, they wanted them to be literally considered property for years. However, for purposes of representation, the slaveholders wanted them to be counted as full humans so that they would get more power.
And then there’s the northern states that didn't have very many slaves, and pretty soon after the Constitution, would outlaw slavery. You know, later we think of them as the states that abolished slavery, and therefore recognized the humanity of African Americans, but at the time they were saying, "They're not humans. We're not going to count them for purposes of representation because we want the power."
So there's some real politicking going on with all these white guys in the room together, and ultimately the compromise that they come to is the Three-Fifths Compromise, where they say, "We're going to count three-fifths of all other persons.”
EG: And they use the phrase "all other persons" because they don't want the word "slave" to appear in the Constitution?
WB: I don't know if that speaks well of them, but it certainly speaks to the fact that they were aware of the moral implications. If they just thought it was totally fine, then they would have just put the word in there. They knew, on some level, that future generations would judge them for doing this, and even people like Jefferson, who refused to free his slaves when he had the chance, wrote often that the idea was monstrous, but at the convention nobody talks about banning slavery. I mean, their entire economic system that had made them wealthy and powerful was based on that.
EG: Did any of the founders call for a ban on slavery at the convention?
WB: Not really. Alexander Hamilton ultimately would advocate for manumission, which is people choosing to free their slaves on their own. At the convention they said, "There will be no laws passed banning the importation of slaves. We're going to allow the slave trade to continue until 1809."
None of this kind of stuff was being talked about in the convention. And ultimately this Three-Fifths Compromise gave a huge bonus to slave states. And many of the early elections that were close would have gone in a different direction if every slave state hadn't been given this pretty significant bonus in the electoral college, as well as in representation in the House and in the Senate. Slavery probably would have been banned a lot earlier if every slave state hadn't gotten an extra more than 50% bump.
EG: So, those are the two compromises everybody talks about, what else did they talk about all summer?
WB: I guess it'd be worth it to also just lay out some of the other principles that come out of this convention in terms of the system that they created. Most famously, we talk about the idea of separation of powers and checks and balances. Those two phrases sound really similar, and they are related, but constitutional scholars—or call them scientists—try to separate them to think about them in different ways. The idea of the separation of powers—which, by the way, none of these things were invented by Americans, they were thought about by Europeans for many years and even in the sense of a monarchy, there would be a separation of powers.
So for instance, in England, the money was in the hands of parliament, and parliament would disperse that money to the king, who would then spend that money to raise armies, to fight wars, to do all sorts of things, right? In the American system, we created a presidency that did not exist under the Articles of Confederation. So this is the other big shift from the Articles of Confederation: we create one person, and ultimately a whole group of advisers and later a whole bureaucracy, that is in charge of executing the laws.
EG: But the whole point of the revolution was that we didn’t want to have a king anymore, right?
WB: Well, at the convention, Hamilton advocated for a king, or at least advocated for a president who would serve for life. He thought that would bring stability—and boy, as you know, having elections every four years is rather unstable. But they had gotten burned pretty badly the last time they had a king, so that idea got nixed. But the president was given powers that would be later considered the powers of the sword, like the power to make war. But Congress was given the power to declare war, which is a more democratic view than the British view, which was basically Congress could cut off money for the king or make money for the king to stop a war, but it was ultimately up to the king when there should or should not be war, and so this is like a ship. Now over time, this whole division/separation of power has really eroded. Now the president in many cases basically does declare war, and we can talk more about that at some point. But the idea of separation of powers is that there's certain powers that really belong with one branch and with another.
The other big separation of powers question is who gets to decide what the constitution—this written document that lays out all of these systems but is ultimately based on words that we can't know exactly what they mean—who gets to decide what that means? The judicial branch that was created ultimately has really been given that power, although it's not perfectly laid out until a case called Marbury vs. Madison, which we can talk about later. But the idea being that Congress, who is making the laws, shouldn't also be deciding if their own laws follow the Constitution.
EG: What about checks and balances?
WB: Well, those are specific ways in which one branch is able to limit the power of another. So the president, for instance, gets to choose who's going to be on the Supreme Court, but the Senate has to approve that. So we're treated to the cabinet hearings where, theoretically, if the senators decided that person shouldn't be on the court, they could stop the president from doing it. When George W. Bush tried to put his own personal lawyer, Harriet Miers, on the Supreme Court, who had never been a judge before, the Republicans who controlled the Senate were like, "No, you can't do that." So that's an example of a check and balance in action.
Another classic example is if Congress passes a law that they view to be constitutional, and then the Supreme Court says, "No, that's not unconstitutional," then the law is void, right? That's ultimately called the power of judicial review. It's an important power because it's a limit on what Congress can do. So I think if you take those three concepts: federalism, which is the division of power between states and national government that creates weird differences between Utah and Colorado; separation of powers, which is the idea that we have these three different branches of government, each of them has its own sphere of influence, and they really shouldn't encroach on each others; checks and balances, which says that we're going to give each of them a power that specifically helps stop the other ones when they go too far, those three concepts basically make up the system that we ended up with out of that convention.
EG: All, right, so that’s the system we have now. Did people like it at the time?
WB: Well, basically when they finally exited that locked room, they did the 18th-century equivalent of a press conference and said, "So, we know you sent us in there to do this one thing, but we decided to do something else. We wrote a whole new plan, and we think you're really going to like it because we're really powerful and you like a lot of us, especially this guy George Washington. We really like him, and by the way we have a very special job that we created for him.” Then they ask the country to vote, and this is called the ratification period. The ratification is the debate over whether this a good constitution or not? If it fails to pass, then we would have stayed with the Articles of Confederation. It was actually a real fight, which is pretty impressive because most of the most famous and powerful people at the time were in favor of it. There were a few like Lee and maybe Jefferson who spoke out against it, but most of them spoke out for it, and yet it almost didn't pass in a number of states.
EG: What did the people in favor of the Constitution call themselves?
WB: In a brilliant and purposely confusing method of branding, they called themselves the Federalists. This is confusing, because if you remember, federalism is the separation of powers between state and national. So what they're saying, basically, is like, "It's a compromise between state and national," which is true but that was also kind of true of the old system. Maybe the better name would have been "Centralists" or "Nationalists" or "Power-Hungry Elites"? But by calling themselves that, they left the other side with the name Anti-Federalists, which doesn't even make any sense. And I honestly think that they just got the better hashtag, maybe, from the beginning, and that was it.
EG: So did the Anti-Federalists stand a chance?
WB: Well, a few things that the Anti-Federalists were saying, people generally agreed with. One was, there's no real protection of individual rights under this document. Yes, you have limits on the executive toward the legislative and the legislative toward the judicial, but do you have any limits on the executive toward me? The legislative toward me? What if I want to speak my mind against this thing? Are they going to be able to throw me in jail? And so a number of states said, "We will only pass the Constitution if you add a bill of rights." And there was a debate about that, and Madison said, "You don't need a bill of rights. We already . . . It'll be fine." And they said, "No, we don't believe that." And also, in addition to the first eight amendments, they added two more amendments, the Ninth and Tenth, which are considered part of the Bill of Rights. These address another concerns of the Anti-Federalists, which were: if we list certain rights and certain powers in this written constitution, will future governments basically claim that if it's not listed in there, then we can do whatever we want to? The Ninth Amendment says the people have other rights that are not listed here, and it's kind of like a weird, mystical back door, where it says, "I know we wrote it out, but we know that there's certain things that aren't covered here."
EG: Does that include the right to privacy?
WB: Exactly, when Roe vs. Wade comes around, we're talking about abortion rights—the Founding Fathers didn't write that in. But the Ninth Amendment gives credence to the idea that even if the Founding Fathers didn't write it in (and, boy, the phrase "Founding Fathers"—we should do a whole Freudian psychoanalysis about why we keep saying that all the time), but the Ninth Amendment suggests that the founders, these dudes who wrote the Constitution, also got—or at least the people who forced them to pass these amendments got—that there were going to be imperfections, and it needed to be flexible.
That's the Ninth Amendment. The Tenth Amendment says if it's not listed in the Constitution, power goes to the states. And that is really confusing, because another part of the Constitution, called the Elastic Clause, said that the government can do anything that's necessary and proper to carry out its other roles, which many people viewed as a blank check to fudge more power into the federal government. But the Anti-Federalists were scared enough of a tyrannical government that they managed to put that limit in there, which at times has helped to limit the growth of the federal government, for better and worse.
EG: So actually, it sounds like the Anti-Federalists got a lot of what they wanted in the end.
WB: Some of their concerns didn't get fixed. They were concerned that the president would become a tyrannical monarch. They had some points. They weren't able to prevent that from happening. They were concerned that, over time, the federal government would become more powerful than the states every single year. That's pretty much been true. The Federalists won. But the Anti-Federalists managed to get the Bill of Rights passed, and that would be the number one thing that would prevent some of their concerns.
To Be Continued . . .
Will Bellaimey teaches US Government and Politics at Flintridge Prep School outside Los Angeles where he is also the director of the Los Angeles Museum of Geography, which is staffed entirely by seventh graders. His podcast, All The Presidents, Man is available here.