Are twenty-first-century Americans more democratic than the Founding Fathers and would the U.S. profit by adopting New Hampshire´s Constitution?
Are twenty-first-century Americans more democratic than the Founding Fathers and would the U.S. profit by adopting New Hampshire´s Constitution?
It would seem pretty straightforward to conclude that 21st century Americans are more democratic than were the framers of the Constitution. After all, only a relatively small minority of Americans were eligible to vote when the country first came into being. To start off, no women were allowed to vote. Of course, slaves were not allowed to vote either, and neither were native-Americans which were not even considered a part of the commonwealth and therefore were not considered citizens. And even among white men voting was severely restricted to those who owned property. Nevertheless, the particular historical circumstances of the framers of the Constitution should be taken into account when reaching that conclusion.
First, it must be acknowledged that the Founding Fathers lived in a vastly different era than our own. The economic, social and political factors that defined the time when the Founding Fathers lived reflected a very different reality. When independence from Great Britain was achieved the former thirteen colonies comprised a society made up mostly of small farmers, with merchant in the north and slave owning in the south economic elites. In fact, most of the Founding Fathers were slave and plantation owners.
The economic imperatives of the slave owning model of agrarian production overrode the moral objections to slave owning when it came to framing the new Constitution. If there had been no compromise regarding the preservation of slave owning by the southern states there would probably not have been a Constitution as we know it and neither would a United States of America have existed.
It is very revealing that to reach a compromise the framers of the constitution reached an agreement over how much each slave should count in terms of population, since the most important part of representation lay with the population of each state. This agreement, called the Three-Fifths Agreement, stated that five slaves would count as much as three persons for the purpose of electing the members of the House of Representatives. Although northern states were opposed to this solution they went along because the alternative would most likely have been the failure of the Constitutional Convention. But many in the north did not object because they were pro-property proponents, no matter what form the property took, whether land, stocks and bonds or slaves.
So even among northerners there was a strong current of opinion that would not have countenanced the enfranchisement of slaves –after all, they were property- such that at the time of the founding of the United States voting rights for slaves was something that no national figures or significant segments of the population were prepared to grant or probably even countenance.
Another aspect of the differences in democratic outlook had to do with the various safety valves or barriers to pure democratic representation as would be the case if only voting mattered when constituting the federal government. Of course, the citizens enfranchised to vote as noted earlier were only a minority of the population. Added to that was the provision whereby the President of the United States was not elected directly by the people. Voters elected delegates from each state and these delegates were the ones who actually elected the President.
When it came to Congress, at first the state legislatures elected senators of the United States, not the people of each state. Moreover, Senators were elected in staggered fashion, that is, only one third of the Senate was elected in any one national election. This method of election of the Senate insured that popular passions of the moment would not carry all before it, including common sense and fairness, because the Senate was necessary to pass laws or impeach the President or members of the Supreme Court. If enough Senators, even in a minority, opposed such measures they would not carry the day no matter how popular they may have been. This result was mostly assured because two thirds of Senators did not have to face the electorate every two years, as opposed to members of the House of Representatives all of whom had to stand for reelection every two years. This time lag in the election of two thirds of the Senate gave Senators the necessary margin to wait out a popular storm that threatened to do more harm than good.
So yes, by and large it is difficult to argue that the framers of the Constitution were more democratic than 21st century Americans; after all, who in their right mind would today deny the vote to African-Americans, women or Native-Americans?
Would the U.S. be more democratic and hence better off adopting New Hampshire´s Constitution?
There are both advantages and disadvantages to New Hampshire´s Constitution in the way it elects its executive and legislative branches of government as compared to the U.S. Constitution´s.
There is one obvious way in which the election of the President of the United States presents a democratic deficiency. Unlike other modern democracies the President of the United States is not elected directly by popular vote. Rather, voters elect delegates to the Electoral College whose members then proceed to elect the President. While it is true that most of the time the popular vote and the Electoral College coincide in electing the same candidate for President, it is not always the case.
This is a serious drawback because it gives the lie to a fundamental precept of democracy, to wit, one man (or woman) one vote, and whoever gets the most votes gets elected.
This situation was dramatically exemplified in the 2000 presidential election between Al Gore and George W. Bush. Even though Gore won the popular vote by some 500,000 votes, Bush won the election on the strength of the support he garnered in the Electoral College. Simply put, the candidate with the most popular votes lost the election, a seemingly aberrant outcome in a democracy. On this score, it seems, the United States would definitely be better off adopting a direct method of election via the popular vote to elect its President.
Nevertheless, precisely after the outcome of the 2000 election Hillary Clinton, a figure of national stature, proposed to change the method of electing the President such that he or she would be elected directly by popular vote. The result of that proposal was a deafening silence.
On the other hand, New Hampshire´s Constitution has, it seems, a couple of big drawbacks compared to the U.S. Constitution. In the first place, it limits office terms, both for Governor and for representatives to the legislature, to two years. It may be that in a small state such as New Hampshire two years is enough for its elected representatives to tackle the problems their state is faced with, although even that is debatable. But in the context of the incomparably larger United States two year terms for the President would not at all be enough for whoever got elected to register a significant change or in the President´s capacity to confront successfully the gigantic, and time consuming, challenges that the U.S. as a whole has to manage. The executive has to have enough time to give a general direction to the country, propose laws and be able to implement them. Two years would definitely not be enough time for the executive branch of government to do that successfully.
Although both at the state level, in the case of New Hampshire, and at the federal level representatives are elected every two years, that is not the case with the U.S. Senate. To adopt at the federal level two year terms for Senators would also be a drawback. In the course of time the wisdom of the Founding Fathers when it came to determining the election of only one third of the Senate every election cycle, and having Senators´ terms last for six years, was borne out. This is because the Senate acted as a bulwark against popular movements that, notwithstanding having majority support among the population, are not beneficial to the constitutional order and the intent of the Founding Fathers. On the contrary, sometimes popular sentiment goes against the better interests of the Republic.
This was the case in the 19th century when all that stood between a popular President and a majority sentiment to emasculate the Supreme Court was the Senate, or a few members of it, a reality that prevented the Supreme Court from becoming subservient to the executive, thus preserving a basic tenet of the Constitution, which is the separation of powers through equal branches of government.
So even though the New Hampshire Constitution may be more democratic on the whole than the U.S. Constitution, the trade off in favor of a more democratic U.S. Constitution a la New Hampshire Constitution might not be worth it in terms of the lost capacity and ability to operate and function effectively and efficiently in a much greater setting such as is the whole of the U.S.
References
Lowi, T. J., Ginsberg, B., & Shepsle, K. J. (2015). American government power and purpose. New York, NY: W.W. Norton.
