FReeper Book Club: The Debate over the Constitution, Cato #7

Samuel Bryan’s Pennsylvania Minority Report was a 10,000 word behemoth that laid out the case for the anti-Federalists in a definitive manner. From now on, when the anti-Federalists speak, they will concentrate on specific issues rather than take a general approach.

Gov. George Clinton of New York, the likeliest candidate for Cato, now addresses perceived weaknesses in how the Constitution defines the process of holding elections. With Hamilton buried deep in his responses to Brutus, he doesn’t get around to answering Cato until a series of papers starting with Federalist #59 some seven weeks later.

² That the Senate and President are further improperly connected will appear if it is considered that their dependence on each other will prevent either from being a check upon the other; they must act in concert, and whether the power and influence of the one or the other is to prevail will depend on the character and abilities of the men who hold those offices at the time.

³ The Senate is vested with such a proportion of the Executive that it would be found necessary that they should be constantly sitting.

⁴ This circumstance did not escape the Convention, and they have provided for the event in the 2nd Article which declares that the Executive may on extraordinary occasions convene both Houses or either of them.

⁵ No occasion can exist for calling the Assembly without the Senate; the words or either of them must have been intended to apply only to the Senate.

⁶ Their wages are already provided for, and it will be therefore readily observed that the partition between a perpetuation of their sessions and a perpetuation of their offices in the progress of the government will be found to be but thin and feeble.

⁷ Besides, the Senate, who have the sole power to try all impeachments, in case of the impeachment of the President, are to determine as judges the propriety of the advice they gave him as senators.

¹⁰ Among the many evils that are incorporated in this new system of government is that of Congress having the power of making or altering the regulations prescribed by the different legislatures respecting the time, place and manner of holding elections for representatives, and the time and manner of choosing senators.

¹¹ If it is inquired in what manner this regulation may be exercised to your injury – the answer is easy.

¹² By the 1st Article the House of Representatives shall consist of members chosen every second year by the people of the several states who are qualified to vote for members of their several state assemblies; it can therefore readily be believed that the different state legislatures, provided such can exist after the adoption of this government, will continue those easy and convenient modes for the election of representatives for the National Legislature that are in use for the election of members of assembly for their own states; but the Congress have by the Constitution a power to make other regulations or alter those in practice prescribed by your own state legislature; hence instead of having the places of elections in the precincts and brought home almost to your own doors, Congress may establish a place or places at either the extremes, center, or outer parts of the states at a time and season too when it may be very inconvenient to attend, and by these means destroy the rights of election; but in opposition to this reasoning, it is asserted that it is a necessary power because the states might omit making rules for the purpose and thereby defeat the existence of that branch of the government; this is what logicians call argumentum absurdum, for the different states, if they will have any security at all in this government, will find it in the House of Representatives, and they therefore would not be very ready to eradicate a principle in which it dwells or involve their country in an instantaneous revolution.

¹³ Besides, if this was the apprehension of the Framers and the ground of that provision, why did not they extend this controlling power to the other duties of the several state legislatures?

¹⁴ To exemplify this, the states are to appoint senators and electors for choosing of a president, but the time is to be under the direction of Congress.

¹⁵ Now suppose they were to omit the appointment of senators and electors, though Congress was to appoint the time which might as well be apprehended as the omission of regulations for the election of members of the House of Representatives, provided they had that power; or suppose they were not to meet at all – of course the government cannot proceed in its exercise.

¹⁶ And from this motive or apprehension, Congress ought to have taken these duties entirely in their own hands and by a decisive declaration annihilated them, which they in fact have done by leaving them without the means of support or at least resting on their bounty.

¹⁷ To this, the advocates for this system oppose the common empty declamation that there is no danger that Congress will abuse this power, but such language, as relative to so important a subject, is mere vapor and sound without sense.

¹⁸ Is it not in their power, however, to make such regulations as may be inconvenient to you?

²⁰ It is a good rule in the construction of a contract to support that what may be done, will be; therefore, in considering this subject, you are to suppose that in the exercise of this government, a regulation of Congress will be made for holding an election for the whole state at Poughkeepsie, at New York, or perhaps at Fort Stanwix – who will then be the actual electors for the House of Representatives?

²³ And would not the government by this means have it in their power to put whom they pleased in the House of Representatives?

²⁴ You ought certainly to have as much or more distrust with respect to the exercise of these powers by Congress than Congress ought to have with respect to the exercise of those duties which ought to be entrusted to the several states, because over them Congress can have a legislative controlling power.

²⁵ Hitherto we have tied up our rulers in the exercise of their duties by positive restrictions; if the cord has been drawn too tight, loosen it to the necessary extent, but do not entirely unbind them.

²⁶ I am no enemy to placing a reasonable confidence in them, but such an unbounded one as the advocates and Framers of this new system advise you to would be dangerous to your liberties; it has been the ruin of other governments and will be yours if you adopt with all its latitudinal powers – unlimited confidence in governors as well as individuals is frequently the parent of despotism.

²⁷ What facilitated the corrupt designs of Philip of Macedon and caused the ruin of Athens but the unbounded confidence in their statesmen and rulers?

²⁸ Such improper confidence Demosthenes was so well convinced had ruined his country that in his second Philippic oration he remarks “that there is one common bulwark with which men of prudence are naturally provided, the guard and security of all people, particularly of free states, against the assaults of tyrants. What is this? Distrust. Of this be mindful; to this adhere; preserve this carefully, and no calamity can affect you.”

²⁹ Montesquieu observes that “the course of government is attended with an insensible descent to evil, and there is no re-ascending to good without very great efforts.”

³⁰ The plain inference from this doctrine is that rulers in all governments will erect an interest separate from the ruled which will have a tendency to enslave them.

³¹ There is therefore no other way of interrupting this insensible descent and warding off the evil as long as possible than by establishing principles of distrust in your constituents and cultivating the sentiment among yourselves.

³² But let me inquire of you, my countrymen, whether the freedom and independence of elections is a point of magnitude?

³³ If it is, what kind of a spirit of amity, deference and concession is that which has put in the power of Congress at one stroke to prevent your interference in government and do away your liberties forever?

It is tempting for the modern critic, a beneficiary of two centuries of historical validation, to conclude that Cato was conjuring up phantom adversaries in this piece. After all, the subsequent behavior of the federal government with respect to the relations between the Senate and the Presidency has been anything but the cozy apologia that Cato anticipates. Something, therefore, happened to the system to differentiate the real one from the one Cato visualized.

His initial point addresses participation by the Legislative branch’s highest body in Executive functions (3). These are apparently a reference to the “advise and consent” provisions (Article II, Section II, paragraph 2) respecting foreign treaties and the nomination of non-elective members of the Executive branch. Beyond that, however, there is very little in modern political usage to justify this comment. There is, to be sure, a specific relationship delineated between Senate and President with regard to impeachment (7), but in practice this has been largely adversarial, not collegial, and has been a tiny minority of the actual day-to-day activity of either side.

⁷ Besides, the Senate, who have the sole power to try all impeachments, in case of the impeachment of the President, are to determine as judges the propriety of the advice they gave him as senators.

In practice it is not senatorial advice acted upon by the President that is ever the issue at hand, but rather actions by the President that are construed to be contrary to it. One can clearly see the logic behind Cato’s projection, and one can as clearly see that nothing appears to have come of it. As well, the Senate is not in the position to judge a President over matters of removal from office if it hasn’t been placed there by a majority impeachment vote of the House. What sort of Senate and House was Cato imagining that would behave in this manner?

It was the sort that was absent the dynamic tension of political party, because that was a development that came after the ratification of the Constitution. Faction was decried as inimical to the workings of democracy by most contemporary political observers – one would have to go as far back as Machiavelli to find a position supportive of faction within a republic. Yet it is precisely that division that prevents Cato’s dire vision of a winking Senate rubber-stamping every presidential decision, secure in the knowledge that such decisions were in reality its own. Cato’s idealization of the Senate, and indeed Hamilton’s original conception of it as well, offered no penalty for that sort of connivance. The penalty in practice, both then and now, is a loss of majority for the guilty party and the very real threat of a turnover to follow within the White House.

The key to this is faction. The split is already evident in Cato’s epistles against Hamilton and will evidence itself when Jefferson and Madison break off from Hamilton to form the Republican Party, decried as the “Democratic-Republican Party” by Federalists attempting to link it to the excesses in France. This will solidify to the hardness and longevity of granite when the Jeffersonian Republicans give way to the Democrats, and the Whigs give way to Lincoln’s Republican Party. The party nomenclature was evanescent, but the split became a permanent feature. However, it is written nowhere in the Constitution, and it is clearly not foremost in Cato’s mind when he attempts to characterize the future politics of America under the Constitution.

Yet it is only a Congress not subject to the internal stresses of faction that will find itself tempted to give the President anything he wants. Cato might be faulted for not recognizing the activities of faction inasmuch as he was himself an enthusiastic actor in them, but he can hardly be faulted for not anticipating the long term effects on the Constitution of its critical influence.

It is, however, at least a criticism based on the specifics of the new Constitution and not on a broad philosophical skepticism of its founding principles. As such a specific it may be examined by a reference to the span of history between it and now, and as such it must be regarded as logical, but unrealized.

A similarly specific issue is the control that Congress has over the time and place of elections (12). Cato proposes (14, 15) that Congress will, by virtue of its control over these, find election shenanigans an irresistible temptation and a means of preventing the election of opposition figures.

²³ And would not the government by this means have it in their power to put whom they pleased in the House of Representatives?

It is ironic that an America that has seen an entertaining variety of election fraud, vote purchase, reapportionment swindling and outright theft of public office, has not seen this ploy by Congress to perpetuate a congenial membership. Again, the reason for it is first, the institutional stress in play by virtue of the contention for power of rival parties, and second, the simple anticipation, not by Cato, but by Hamilton of all people in Federalist #32, that the American people would not stand for it.

Cato appears to concede Hamilton’s point that the current government is dangerously ineffectual, but feels he goes too far in the other direction.

²⁵ Hitherto we have tied up our rulers in the exercise of their duties by positive restrictions; if the cord has been drawn too tight, loosen it to the necessary extent, but do not entirely unbind them.

But Hamilton is very clear on the topic. He insists in Federalist #33 that no restriction of the powers of government within those areas assigned to its responsibility is prudent or even logical. Cato trumpets the danger of such an absolutist doctrine.

²⁹ Montesquieu observes that “the course of government is attended with an insensible descent to evil, and there is no re-ascending to good without very great efforts.”

³⁰ The plain inference from this doctrine is that rulers in all governments will erect an interest separate from the ruled which will have a tendency to enslave them.

His counsel is one of distrust (28, 31). There is, to be fair, a proportion of trust within the new Constitution, especially one in which the enumerated powers do not bump up against the limitations resident in a bill of rights. What guard, asks Cato, have we against a hostile government using unlimited power granted it to perpetuate itself against the will of the people? None, Hamilton would answer, because none is needed – control of the government is not to be found by limiting its powers, but by limiting its roles. Is this sufficient, Cato counters, based on the demonstrable proposition that such a government will inevitably prove abusive?

³³ …what kind of a spirit of amity, deference and concession is that which has put in the power of Congress at one stroke to prevent your interference in government and do away your liberties forever?

It is, to be sure, a profoundly distrustful piece. Cato’s examples are easily dismissible as historical might-have-beens, but his principles far less so. Perhaps even that dismissal might be a bit premature. After all, a Congress might indeed find impeachment in the House answered by a failure to remove from office in a suitably complicit Senate, as the case of the Clinton impeachment for perjury demonstrated. Pacé Hamilton, the American people at large did indeed stand for it. One cannot dismiss Cato’s distrust as easily as his examples after all.

A morning-crowd BTT. Precisely what Cato predicted is not so important as why he predicted it. The checks and balanced built into the Constitution allow one branch of the federal government to control another, but when all three branches act in complicity to expand that government's overall authority, the only recourse is to the people.

It is, after all, much easier to elect a politician manipulatively trumpeting a smaller government - Clinton, for example - or perhaps even believing quite sincerely that a smaller government is desirable - Reagan, for example - than it is actually to accomplish that. Reducing government is, IMHO, the single most difficult political challenge to face the American system, and so far we aren't managing it very well. Should we fail, it will simply grow until it falls apart - the Chinese Imperial government, for example. Living under it in the meantime might not be all that pleasant.

From Federalist 47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

“I am no enemy to placing a reasonable confidence in them, but such an unbounded one as the advocates and Framers of this new system advise you to would be dangerous to your liberties; it has been the ruin of other governments and will be yours if you adopt with all its latitudinal powers – unlimited confidence in governors as well as individuals is frequently the parent of despotism. “

I believe this guy had a crystal ball.

Loud Mime's contribution:

"From Federalist 47:
'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.'"

Very good.

Consider the blatant actions of this Administration to work to "accumulate" powers in the "same (Progressive) hands" and the implications of those actions for future generations.

One other implication of such action is the "hordes" of bureaucrats who accompany each elected/appointed official and who will remain in their positions long after the said officials are gone from office.

In a discussion with a Cabinet official's office during the Reagan term, the official commented that such bureaucrats work like termites to undermine and to thwart the actions of those who, like Reagan, wish to limit the size and scope of government by a return to Constitutional principles.

The Founders never envisioned such unelected and unappointed persons to possess such power to oppress "the People."

Comments?

I recall reading that then President Clinton changed some government positions from “Executive appointments” to standard full-time employment, thereby removing any possibility of change within these offices as a new party gained the Executive position.

This increased the liberals/bureaucratic hold on our government.

As the people increased their reliance on government hand-outs and power-grabs (instead of self-reliance), they will not accept government cutbacks with graciousness or understanding. They believe in having government provide to them - - and voted for more of this two years ago. They truly believe this is owed to them.

Sorry to say this, but I believe that the changes necessary to restore our republic will have some forms of violence attached. I pray that if this becomes true, it is minimal.

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