With Hamilton, Madison was the principal author of the Federalist Papers, which glossed over the battles in the Convention and passed silently over the objections the two of them had to the new Constitution (and with each other). Hamilton confessed his disappointment with the Constitution at the Convention, telling the delegates he would support it only because it was “better than nothing.”161 Madison too emerged from the Convention unhappy with the result. In a letter written on the same day that the delegates voted to adopt what has come down to us as Article II, Madison told Jefferson that “the plan . . . will neither effectually answer its national object, nor prevent the local mischiefs which everywhere excite disgust agst. the State Governments.”162 He had lost, and he knew it.
The Federalist Papers themselves seem to have had little effect on the ratification debates,163 which were rather the work of the politicians in each state. Of these, Madison was a tireless worker. He had pushed for the Convention, secured Washington’s presence in Philadelphia, and provided the impetus to replace the Articles of Confederation with an ambitious Virginia Plan. In the Continental Congress that followed the Convention, he successfully argued that the Constitution be sent to state conventions for ratification; and at the Virginia ratifying convention, he stood up to antifederalists such as Mason and Patrick Henry. If he is the Father of the Constitution, however, this is one of those cases, not unknown in delivery rooms, where the child bears little resemblance to the father.
In the end, democrats won the day. The rickety machinery they devised for the election of presidents was a sealed car speeding through the first decades of the republic, darkened in obscurity on departure, but emerging in sunlight on arrival to transform American politics. Presidential electors came to be chosen by popular vote, not by state legislatures, and the electors became the mere ciphers that Dickinson assumed they were in 1802. Presidential candidates with national appeal arose, so that elections were not kicked over to the House of Representatives.
The president became the principal symbol of American democracy and equality, and the most effective counterpoise to state governments. Not only was he democratically elected, he was the only person so elected by the entire country. Even before the advent of democracy presidents had discovered the power of executive orders, and Jefferson had found that his republican principles did not require him to leave the Louisiana Purchase on the table.164 Thereafter, in times of crisis, a Lincoln or Franklin Delano Roosevelt might emerge to defend or lead a unified county. With a legitimacy derived from both the Constitution and the democratic process, the president became the spokesman for the welfare of the nation as a whole. He might thus oppose the will of Congress, and in doing so strengthen the separation of powers.
Nevertheless, it is historically inaccurate to view the Constitution through a separationist prism. The delegates had sharply disagreed on the division of powers between the federal and state governments, and what they devised was a compromise between the highly decentralized Articles of Confederation and the Virginia Plan’s strong nationalism. They arrived at a method of choosing senators not to promote an abstract principle of separation of powers within the central government, but to give states a measure of control over the central government. As for the executive, states’-rights supporters were given a president selected by a method chosen by the states, and (or so they thought) the ultimate choice would be made by state delegations in the House of Representatives, with one vote per state. To adhere to the Framers’ understanding of the Constitution, the doctrine of separation of powers should thus be demoted from its position as a foundational principle of constitutional interpretation.
No great historic problem has ever been settled by means of a brilliant idea.
—SIR LEWIS NAMIER
In their debates, the Framers of the American Constitution looked to other models they might follow. A few spoke self-consciously of ancient Greece’s Amphictyonic Council, the Hellenistic Achaean League, Charlemagne’s Empire. That was largely window dressing, though, an ostentatious display of scholarship. Only one model seriously commanded their attention: that of Britain. Their debates were an extended commentary on the British constitution—which they admired, but which they rejected as unsuited for America.
To what did they object, when they looked to the government of Westminster? We wouldn’t think it a democracy. The franchise was severely limited, large cities went unrepresented in Parliament, many members of Parliament were appointed by a local aristocrat, and George III exercised a very strong influence over the government. But the absence of democracy wouldn’t have bothered very many of the delegates, and Britain wasn’t entirely undemocratic either. From the fourteenth century onward, a Dick (“Turn again”) Whittington could travel to London to seek his fortune, and there was a remarkable degree of mobility between the social classes.1 A Norfolk parson’s son might rise to command the Royal Navy and ascend to the peerage as Lord Nelson; a coal merchant’s son might become the arch-Tory Lord Chancellor, Lord Eldon. Through trade, a person might climb the social ladder with a freedom unknown in most of the rest of Europe. “England knows not democracy as a doctrine,” observed Lewis Namier, “but has always practiced it as a fine art.”2
Britain was the freest country in the world at the time of the American Revolution. Though he might dominate the government, George III ruled as a constitutional monarch, and knew that he governed through Parliament, even if the colonists might have forgotten it. Before the Revolution some Americans had argued that, in their quest for self-government, they might bypass Parliament entirely. “The British Empire is not a single state,” wrote Benjamin Franklin. “It comprehends many . . . We have the same King but not the same legislatures.”3 The government of an American province, thought Franklin, was constituted by George III and the local House of Assembly, and only it—not Parliament at Westminster—had the power to levy taxes.
What Franklin objected to was the doctrine of parliamentary sovereignty, under which the “King-in-Parliament”—King, House of Lords, and House of Commons—has supreme legal authority. Statutes passed by both houses of Parliament and to which the King assents are “absolute and without control,” as William Blackstone wrote in 1765, the same year in which the Stamp Act was passed.4 There was nothing new in this. Parliamentary sovereignty had been a well-established constitutional principle at least as far back as the Glorious Revolution of 1688; and earlier constitutional doctrines, in which a Charles I might rule without relying on Parliament, or in which the common law as interpreted by the courts trumped Parliament, were left behind by the 1689 Revolution Settlement. Nor was there anything novel in Parliament’s assertion of authority over America. As far back as 1696, Parliament had declared that colonial laws were invalid if inconsistent with Acts of Parliament.5 Britons had come to see Parliament as the safeguard of their liberties, and found the American appeal to royal government a puzzling throwback to the earlier, illiberal regime of Charles I. Before long, Americans, too, abandoned the idea of a direct connection to the King with a Declaration of Independence that labeled George III a tyrant.
George III exercised a powerful influence over the government’s policies. He had a broad right to select whomever he wanted to serve as prime minister, and through a system of patronage controlled the votes of many members of Parliament. He was not, however, the tyrant the Patriots took him to be. Ironically, he might have been one had he tried to rule over America directly, as Franklin proposed. The prime minister, Lord North, recognized this in answering charges by the Whig leader, Charles James Fox, that North’s ministry was Tory. “The aim of