1
THE FOUNDING FATHERS’ MISTAKE
A share in the sovereignty of the state, which is exercised by the citizens at large, in voting at elections is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law.
—ALEXANDER HAMILTON, 1784
After what George Washington called the “standing miracle” of his victory over British arms, the general retired to his Mount Vernon plantation, debilitated by bouts of smallpox, tuberculosis, malaria, and dysentery, and years of warfare. He suffered from aches and fevers and a “rheumatic complaint” so severe at times that he was “hardly able to raise my hand to my head, or turn myself in bed.” Yet in 1787, the fifty-five-year-old Washington, who had already outlived his father by seven years, decided to sacrifice his “love of retirement” and “a mind at ease.” He donned his best breeches and frock coat, powdered his hair, and pushed his body to serve his country once more, this time as the indispensable president of a Constitutional Convention in the sweltering Philadelphia summer.1
Washington journeyed three days to Philadelphia, where he had served in the First Continental Congress, to bolster the revolutionary principles that he feared the loose alliance of states under the existing Articles of Confederation could not sustain. “The fabric which took nine years (at the expense of much blood and treasure) to erect, now totters to the foundation, and without support must soon fall,” Washington lamented. “There are seeds of discontent in every part of this Union,” which demand “a more vigorous, and energetic government, than the one under which we now live—for the present, from experience, has been found too feeble, and inadequate to give that security which our liberties and property render absolutely essential.”2 Washington’s fellow Virginia delegate George Mason declared that only a new kind of revolution, written in ink not blood, could salvage America’s republic. “The revolt from Great Britain,” he said, “were nothing comparing to the great business now before us.”3
Violence and the threat of violence pushed Washington and other nationalists to tear down and then reconstruct their government anew. An insurrection known as Shays’s Rebellion, which ripped across Massachusetts in 1786, confirmed for Washington the combustible mix of popular unrest and feeble government that threatened the republic. Rural residents aggrieved by high state taxes and crushing debts turned to forms of democratic protest such as mass meetings, demonstrations, and petitions for tax reduction, debt relief, and paper currency. When these tactics failed, the protesters, known as Regulators, shut down the courts to prevent foreclosures. Authorities responded forcefully to what they viewed as lawless mob fury that perverted popular sovereignty. The legislature prohibited criticism of the government and any public gathering of twelve or more armed men. It suspended the writ of habeas corpus and empowered the governor to issue general search warrants. Eventually the governor of Massachusetts mustered militia forces, paid for with private funds, to crush the uprising.4 Inflamed by overwrought reports of the events in Massachusetts, Washington wrote that we must “have a government by which our lives, liberties, and properties will be secured, or let us know the worst at once.” Learning that other states had cut taxes, forgiven debts, and issued paper money to cheapen credit, Washington worried that “there are combustibles in every State which a spark might set fire to.”5
The Articles of Confederation had lodged the national government in a unicameral (one-house) Congress. The state legislatures appointed members of Congress, termed “delegates,” with a minimum of two delegates for the least populous and a maximum of seven delegates for the most populous states. State legislatures could recall and replace at will delegates who did not vote independently in Congress; states voted as a bloc with one vote per state, regardless of population. The government lacked an independent executive or judiciary, and critical powers of Congress turned on the consent of the states.
Only fifty-five of the seventy-four delegates that the states appointed to the Philadelphia Convention of 1787 attended even a single session, and only thirty-nine delegates eventually signed the document. These few men of privilege, talent, and erudition spurned their formal charge to amend the Articles of Confederation. According to Virginia governor and delegate Edmund Randolph, “The powers, by which alone the blessings of a general government can be accomplished cannot be interwoven in the confederation without a change of its very essence; or, in other words, that the confederation must be thrown aside.” As president of the convention, Washington stayed mostly silent during delegates’ debates, speaking only once at the end of the session on the number of inhabitants that each member of Congress should represent. Yet his presence alone validated the convention’s audacious enterprise, and the final product suited his preference for a strong national government.6
In just under four months, behind closed doors and sealed windows, a few dozen delegates drafted a radically new frame of government that was powerful enough to tame the unruly passions of the crowd and protect their interests as property and slave owners, dealers in public securities, and participants in commerce. Still, their public statements, private letters, and transcripts of the convention debates reveal something more altruistic in their motives than a self-serving grasp of power. The founders were genuinely committed to the ideas of the Enlightenment, an intellectual awakening that put reason above faith, challenged inbred authority, and supported popular sovereignty, and the rights of common people.
The framers could not by decree replace the Articles with their new Constitution. Their secret labors would bear fruit only upon ratification by at least three-quarters of the states. Learned but pragmatic in their politics, the framers understood that the states would decline to ratify a Constitution that empowered an aristocracy of wealth. As John Adams observed, “Men are not only ambitious, but their ambition is unbounded: they are not only avaricious, but their avarice is insatiable. The desires of kings, gentlemen and common people, all increase.… It is necessary to place checks upon them all.”7
The Philadelphia delegates created a government unique for its time. The Constitution, as amended in the first Congress by the Bill of Rights, balanced popular sovereignty and rights with the power and stability needed to protect property, secure public and private credit, attract foreign capital, regulate commerce, generate revenue, and protect the nation from enemies foreign and domestic. “Tis done. We have become a nation,” wrote Benjamin Rush, who would lead the movement for ratification in Pennsylvania.8
In defiance of precedent, America transitioned from one form of government to another, not by sword and musket but peaceably, by the ballot in state conventions. Thomas Jefferson, who eventually backed the Constitution despite misgivings, wrote that “we can surely boast of having set the world a beautiful example of a government reformed by reason alone, without bloodshed.”9 “Governments, in general, have been the result of force, of fraud, and accident,” wrote the influential framer James Wilson of Pennsylvania. “The United States exhibits to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they would wish that they and their posterity should live.”10
To check unbridled ambition, the Constitution distributed power among legislative, executive, and judicial branches of government. It further divided authority between the national and state governments, while simultaneously establishing federal laws and treaties as the supreme law of the land. Among other prerogatives, the Constitution authorized the national government to tax, regulate interstate and foreign commerce, coin money, regulate naturalization, and raise an army. It broadly empowered government “to provide for the common Defense and general Welfare of the United States” and “to make all Laws which shall be necessary and proper” for carrying out such enumerated powers. The Constitution endowed a single president with extraordinary power as both the nation’s chief executive and the commander in chief of its armed forces. Its Bill of Rights secured personal freedoms for the American people that a popular majority could not wash away. The Constitution could be amended only by a new convention called by two-thirds of the states or by the vote of two-thirds of both chambers of Congress, ratified by three-quarters of the states.
This fortified new government gained its authority from popular consent but not through direct democratic rule. The people would instead elect representatives within a republic to carry out the duties of state. A republic, said James Madison, is a “government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices … for a limited period, or during good behavior.”11 The founders may have loved the common people, but not well enough to entrust them with control over government. Drawing on the cautionary lessons of ancient Athens, they were firm in their belief that direct rule by a fickle and unreliable people begets corruption and chaos. An editorial in the Baltimore Federal Gazette warned, “There is a wide difference between power being derived from the people, and its being seated in the people. Disorder and tyranny, as in the ancient republics, must ensue from all power being seated in and exercised personally by all the people.”12
National elections under the Constitution were typically indirect. Voters directly elected only members of the House of Representatives for two-year terms. The state legislatures chose members of the Senate for six-year terms and decided how to select members of an Electoral College that by majority vote chose the president for four-year terms. The president, with the “advice and consent” of the Senate, appointed federal judges for life terms. The Constitution stayed silent on the procedures for choosing state and local officials. Although all the original states elected members of legislative bodies, most of them appointed rather than elected governors, judges, and presidential electors, all powerful positions that the political leadership wanted to insulate from the public.
Still, the vote was the pivot point of popular sovereignty in the new constitutional order, affording ordinary Americans a say in governing. “The people can in no way exercise sovereignty but by their suffrages, which are their own will.… The laws therefore which establish the right of suffrage are fundamental to this government,” wrote Pennsylvania Federalist Tench Coxe under the name “A Voter” in the Centennial of Liberty newspaper.13 Another commentator styled “An American Citizen” echoed Madison in claiming that popular consent anchored all constitutional powers, even if indirectly: “The people will remain, under the proposed constitution, the fountain of power and public honor. The President, the Senate, and House of Representatives, will be the channels through which the stream will flow—but it will flow from the people, and from them only. Every office, religious, civil and military, will be either their immediate gift, or it will come from them through the hands of their servants.”14
Despite the primacy of popular sovereignty in their new government, the framers did not inscribe a right to vote in the original Constitution or Bill of Rights. Among other enumerated rights, the right to vote remained conspicuously absent. At the Philadelphia convention, delegates left recommendations on voting rights to the Committee on Detail and devoted only about 1 percent of their time to debating the vote, a shockingly brief consideration given its importance for the new constitutional order.
The delegates knew that every American state imposed economic requirements for voting. Most states required the ownership of real or personal property, which signified an enduring attachment to society and the financial independence needed to cast an uncorrupted vote. The prevailing wisdom denigrated individuals without property as dependents, lacking wills of their own and susceptible to corruption by demagogues or the wealthy few on whom their livelihoods rested. “Very few Men who have no Property,” noted John Adams succinctly, “have any Judgment of their own.”15
At Philadelphia, several delegates favored national property qualifications for voting that no state could annul. Some claimed that unlike the aristocratic, crowded states of Europe, America offered abundant land open to men of diligence and enterprise. Only the indolent and the profligate would forfeit the franchise. In an earlier pamphlet, Alexander Hamilton had written that disenfranchised men “are only under a conditional prohibition, which industry and good fortune may remove. They may, one day, accumulate a sufficient property to enable them to emerge out of their present state.”16
Some delegates warned of a time when America’s industries would spawn masses of corruptible, propertyless workers. “The time is not distant when this country will abound with mechanics and manufacturers, who will receive their bread from their employers,” said Gouverneur Morris of Pennsylvania. “Give the vote to people who have no property, and they will sell them to the rich.” Despite having doubts about overriding state discretion on suffrage, Madison agreed that “in future times,” people without property will either combine to threaten “the rights of property & the public liberty … or which is more probable, they will become the tools of opulence & ambition.”17
Others objected in principle to property qualifications that would bar from voting many patriotic and virtuous Americans. George Mason of Virginia said “that every man having evidence of attachment to & permanent common interest with the Society ought to share in all its rights & privileges” but provided no guidelines for sorting out such exemplars of virtue. In a convoluted disquisition, Benjamin Franklin generally opposed property qualifications that would “depress the virtue & public spirit of our common people; of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it.”18
Practical considerations halted debate on property qualifications short of a principled resolution. When specifying a property valuation responsive to the varying economic conditions of the states or fluctuations in the value of money, delegates struggled in vain for agreement. Wilson of Pennsylvania said, “It was difficult to form any uniform rule of qualifications for all the States.” Setting the bar for suffrage too high or too low would also jeopardize the Constitution’s ratification by the states. “The right of suffrage was a tender point,” observed Oliver Ellsworth of Connecticut, “and strongly guarded by most of the [State] Constitutions. The people will not readily subscribe to the Natl. Constitution, if it should subject them to be disfranchised.”19
That pragmatic and not philosophical restraints stayed the hands of delegates intent on limiting the vote to property holders was confirmed by the setting of suffrage requirements for unorganized western territories under federal control. Unlike the thirteen states, the western territories had no say in ratifying the federal Constitution and lacked preexisting suffrage rules. The Northwest Ordinance of 1787, adopted in the waning days of the Articles, untouched in the Philadelphia convention, and reaffirmed with marginal changes by the first federal Congress, restricted suffrage to adult males owning at least fifty acres of land.20
Delegates unanimously ratified the recommendation of the Committee on Detail (art. 1, sec. 2) that voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” No delegate proposed making suffrage a constitutional right, even for a select demographic of men or just white men of adult age. When the first Congress debated the Bill of Rights, no member proposed a guarantee of suffrage rights. Convention delegates did not address the question of votes for free African Americans, perhaps because they comprised a very small component of the population and some states had already limited voting to whites. None addressed voting for women. Men of the time viewed women, like children, as dependents who fell outside the political community. So too did they regard Native Americans as citizens of “domestic dependent nations.” Delegates did not broach the question of residency requirements or voting by non-naturalized immigrants (aliens), leaving resolution of these sensitive matters to the states.
In choosing not to decide on voting rights, the Philadelphia delegates made a choice, with profound, lasting consequences for American democracy. With voting qualifications left to the discretion of each state, Americans barred from voting by state property qualifications or other restrictions had no recourse to federal constitutional principles. They could appeal only to the lawmakers or the courts of their states. The Constitution’s silence on voting qualifications also severed voting rights from citizenship. Most U.S. citizens in the early republic could not vote, because of gender, age, residency, race, or economic restrictions. Yet in many states, noncitizens could vote if they met other suffrage requirements.
The lack of a constitutional right to vote and the varying qualifications of the states reinforced the established view of the time that the vote, however essential to a popular government, was not a natural right but a privilege conferred by government and subject to constitutional and statutory limitations. Still, by not setting any national economic standards for voting, the Constitution opened a path for states to ease their property or tax-paying requirements without constitutional restraints.
During the ten months of ratification debates in the states, both the Federalists, who backed the new government, and their Anti-Federalist challengers paid little heed to voting rights. Apparently Anti-Federalists who opposed the Constitution’s intrusions on states’ rights found it sufficient to leave voting qualifications to the states. The Anti-Federalists’ claim to represent the common people against the constitutional government’s “oligarchy,” “tyranny,” or “aristocracy” did not extend to a national guarantee of voting rights.
Most states of the new union eased the property qualifications of the preconstitutional era or supplemented them with tax-paying qualifications. Inflation simultaneously reduced the stringency of the property valuations needed for suffrage. Still, the right to vote remained dependent on an American’s place of residence. Of the sixteen states in the union as of 1800 (the original thirteen plus Vermont, Kentucky, and Tennessee), seven had property requirements (landed or personal property) for voting and six had tax-paying requirements or property requirements with a tax-paying alternative. Only three sparsely populated states with a paucity of voters—New Hampshire and the new states of Kentucky and Vermont—authorized voting without economic restrictions.21
Most states did not impose citizenship restrictions as of 1800, and only five states mandated white-only suffrage: Virginia, South Carolina, Georgia, Delaware, and Kentucky. A single state, New Jersey, extended voting to women, who like their male counterparts had to own real or personal property. Native Americans and slaves remained outside the political communities of all states.22
The idiosyncratic decision-making by the states resulted in a lack of any consistency among economic, racial, and citizenship requirements for voting. Of the five states with white-only voting, one had property requirements, three had mixed property and tax-paying qualifications, and one had no economic restrictions on voting. Only one of these racially restrictive states prohibited aliens from voting. Some states also had different suffrage requirements in voting for the lower and upper chambers of the legislatures and in voting for governor, when this position became elected rather than appointed. Within states, suffrage was often more tightly restricted for local than for state and national offices.23
Reliable political data for the early republic is hard to come by, and historians dispute the scope of the eligible electorate. Recent estimates indicate that by 1800 economic restrictions may have disenfranchised only about 20 percent of the adult white male population nationwide. However, citizenship, and state, county, and city residence requirements, which could run up to two years, further disenfranchised a substantial but unknown segment of white adult males. The actual turnout of voters nationwide markedly increased from 1788 to 1800, but likely remained below a third of the nation’s adult white male population.24
Despite their distrust of direct democracy and insistence on checking human avarice, America’s framers still optimistically hoped that the virtue of voters would sustain their new government. Constitutional checks and balances might forestall tyranny, but the framers looked for more from the nation’s restricted community of voters and their representatives. Even James Madison, the expositor of balanced power, pinned his aspirations for republican government on individual virtue. “No theoretical checks—no form of government can render us secure,” he wrote. “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” Tench Coxe noted, “Tis not possible for any nation on earth, to hold their strength and establishment, when the dignity of their government is lost, and this dignity will forever depend on the wisdom and firmness of the officers of government, aided and supported by the virtue and patriotism of their citizens.”25
For America’s framers, the ideal voter chose candidates in contemplative solitude, insulated from the passions of the crowd and the allure of self-serving wealth. A supporter of the Constitution warned voters not to act “without cool and serious reflection in the hour of stillness and composure at your own houses. Take care of the flame which may be kindled in your minds at taverns, places of parade and public meetings.”26 In 1795, Samuel Adams, one of the more radical founders, commented, “All elections ought to be free, and every elector who feels his own independence as he ought, will act his part according to his best and most enlightened judgment.” Yet the privacy of the vote was not generally protected in the early republic, as voters in most states voted by voice or eventually on paper ballots, preprinted and uniquely color-coded by the political parties.27
In turn, the ideal representative would similarly stop his ears to public clamor and act independently in the public interest. Madison pointed to the capacity of the Constitution “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”28 If members of a legislature should deliberate in public, John Adams wrote, “the time of the whole assembly shall be wasted, and all the public affairs delayed, for days and weeks, in deliberating and debating, affirming and denying, contradicting and proving.”29
In one stroke, Madison cut to the heart of his vision for America. The Constitution, he wrote, will endure unlike the failed Athenian democracy because of its “total exclusion of the people in their collective capacity.”30 A “Correspondent” in New York agreed that representatives are accountable only to the “free and independent exercise of their own judgment.” Thus, “the people! the people! is often the burden of the song to those who never gave any other evidence of their patriotism but a prostitution of every principle of honor at the shrine of popularity,” the writer noted. “If Legislators are to be considered as the guardians of the public liberty, the upright patriot must stem the popular impulse.”31
In formal recognition of the autonomous voter and representative, the Constitution replaced bloc-voting by states in the new bicameral Congress with voting by individual members. It was now every member for himself; senators and members of Congress from states with multiple members could split their votes without first reaching consensus. Jefferson wrote that among the Constitution’s worthy provisions, “I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states.”32
Leaders of the new republic rejected pleas to supplement the vote with such direct forms of democracy as recalling and replacing officials in the interim between elections, instructing them on policy, and subjecting them to public pressure. For most framers, public involvement with government began and ended with voting and elections. Voting provided an orderly and verifiable means of assessing the people’s will; other forms of popular engagement risked imposing minority views on the majority and subverting lawfully elected governments. The people truly exercised sovereignty, wrote Benjamin Rush in 1787, “only on the days of their election.” Once voting and counting is completed, sovereignty is “the property of their rulers.” A few years later, a Federalist writer declared, “the sovereignty of the people is delegated to those whom they have freely appointed to administer that constitution, and by them alone can be rightfully exercised, save at the stated periods of election, when the sovereignty is again at the disposal of the whole people.”33
Unlike the Articles, the Constitution did not authorize the states to recall and replace any national officeholder. Only their fellow legislators could expel members of either chamber of Congress, by a two-thirds vote for serious transgressions. Presidents and judges could be removed only through impeachment by a majority vote of the House and conviction by a two-thirds vote of the Senate. Notably, the voters would have at least an indirect say in impeaching and removing federal officials, because the framers placed these powers solely within political bodies, rather than the courts. Alexander Hamilton explained that impeachments broadly cover “the abuse or violation of some public trust” and are properly “denominated POLITICAL.”34
During the ratifying debates, Anti-Federalists awoke from their slumber on voting qualifications to assail the lack of a constitutional recall as a flagrant betrayal of local democratic control. In Massachusetts, state legislator Martin Kinsley warned that we “cannot recall our members; therefore, our federal ruler will be masters and not servants.”35 Luther Martin, a Philadelphia delegate who soured on the Constitution, complained that even if national legislators abused their powers to “totally annihilate their state governments, their states could not recall them, nor exercise any control over them.”36 A commentator styled Amicus said that he preferred to retain the recall “and give the new government unlimited powers to act in the public good,” than to abandon the recall and “give them limited powers.”37 The Federalists remained unmoved, agreeing with Hamilton that the recall would turn a legislator into “a slave to all the capricious humors among the people.”38
After ratification, the first Congress debated a proposed addition to the Bill of Rights that would guarantee the people’s right to issue binding instructions to their congressional representatives. This amendment, proposed by Anti-Federalist representative Thomas Tudor Tucker of South Carolina, did not specify the means for issuing instructions, although the power would most likely lodge in state legislatures. Pushing aside practicalities, Representative John Page of Virginia insisted that “under a democracy … the popular opinion ought to be collected and attended to” through instructions.39 Without instructions, legislators would heed popular voices as much as “the whistling of the wind,” said an Anti-Federalist writing under the pseudonym John DeWitt.40
Instruction was no minor matter for members of Congress. The House spent more time debating instruction than any other proposed Bill of Rights amendment, and the majority Federalists who deplored direct democracy spoke out in vehement opposition. Representative Thomas Hartley of Pennsylvania argued that instruction would upset the special relationship between voters and their representatives: “At least it ought to be supposed that they have the confidence of the people during the period for which they are elected; and if, by misconduct, they forfeit it, their constituents have the power to leave them out at the expiration of that time.” Echoing the common fear of the fickle crowd, he warned that instructions would subject members to the “many inconveniences and real evils [that] arise from the popular opinions on the moment.” He continued, “Happy is the government composed of men of firmness and wisdom to discover, and resist popular error.” James Madison questioned whether legislators should follow instructions “to violate the constitution” or “to patronize certain measures, and from circumstances known to him, but not to his constituents, he is convinced that they will endanger the public good.”41
Representative John Vining of Delaware fretted about potential instructions “to make paper money” and debase the coinage: “Every honest mind must shudder at the thought.” For Representative Michael J. Stone of Maryland, instruction “would change the Government entirely; instead of being a Government founded upon representation, it would be a democracy,” an epithet that he believed needed no explanation.42
Congress decisively rejected instruction, forty-two to ten in the House and fourteen to two in the Senate. These votes in Congress rippled across the states. The practice of local government’s instructing state legislators largely faded away in the early republic. Formal recourse for officials alleged to have violated the public trust was limited to rejection by the voters at election time.43
Most founders envisioned no place in their constitutional order for grassroots organizations like the Sons of Liberty, which had spurred resistance to the British Crown’s “taxation without representation,” or the Committees of Correspondence, which linked patriots together across the colonies. In the 1790s, Americans organized Democratic Societies roughly modeled on these revolutionary groups. The societies urged popular demands on a government that they claimed served the “benefit of the few to the exclusion and depression of the many.” The societies drew on techniques honed during the revolution: demonstrations, mass meetings, resolutions, petitions, and symbolic acts such as the erection of “liberty poles” and the burning of oppressive laws. “Patriotic vigilance alone can preserve what patriotic valor has won,” proclaimed a New York society.44
Although the First Amendment to the Constitution guaranteed rights of assembly and petition, most newspapers joined founders like Washington and Hamilton in their condemnation of the societies for organizing popular resistance to lawfully elected governments. In their view, political engagement through the authorized channels of voting and representation did not squelch popular sovereignty but rather preserved stability in a fragile republic threatened by enemies internal and external. Only elected officials, “the constituted organs of the people,” said Federalist Samuel Kendal, could properly express “the general will of the nation.” They abetted their arguments by charging the Democratic Societies with complicity in the anti-tax Whiskey Rebellion that swept across western Pennsylvania in 1794, and which Washington labeled “the first ripe fruit of the Democratic Societies.”45 In his writing on the Constitution, Madison had warned against collective action by the people. However, in the 1790s, when he and Jefferson were organizing an opposition to the Washington administration, both defended the Democratic Societies. Many of their allies declined to do so, and the societies largely disappeared in the aftermath of the Whiskey Rebellion.
Yet suppression of the Democratic Societies did not quell informal bottom-up, popular participation in politics. Local activists still held public debates, orations, festivals, parades, and protests. They delivered politically charged sermons in churches, issued pamphlets and broadsides, and sent petitions and proclamations to Congress and state legislatures. In these unofficial spheres of expression, women, children, noncitizens, adult men without property or tax bills, and African Americans who lacked the vote could still engage with politics, at least as petitioners if not decision-makers. The rapid growth of political parties in the early republic enduringly breached the wall of separation between elected governments and outside groups. The rise of parties also spurred the proliferation of an unabashedly partisan press that packaged together news and opinion to discredit the opposition and promote its favored party, candidates, and policies. Newspapers had a broad reach among the unusually literate American people.46
Leaders of the new republic resolved other issues beyond suffrage qualifications that affected the opportunities for voters to participate in politics and elect candidates of their choice. These included qualifications for holding public office, the geographic base for electing federal and state legislators, and the procedures for conducting elections and identifying their winners and losers.
Unlike their nondecision on suffrage qualifications, the Philadelphia delegates set constitutional requirements for holding federal office. They aimed to balance voter choice with protections against foreign intrigue and the election of public officials lacking in character and wisdom. After considerable debate, delegates required that members of the U.S. House must be at least twenty-five years of age, a resident of the state they represented (not a congressional district), and an American citizen for at least seven years. They imposed similar standards for holding a Senate seat but upped the age qualification to thirty years and the citizenship standard to nine years. The more stringent eligibility standards for president included an age of at least thirty-five years, fourteen years of consecutive residence in the United States, and “natural-born” citizenship, a phrase that delegates did not define.
The framers immunized the Constitution’s office-holding qualifications from irresponsible or corrupt interference by either state legislatures or Congress. In Federalist no. 60, Hamilton asserted that “the qualifications of the persons who may … be chosen … are defined and fixed in the Constitution, and are unalterable by the legislature.” The U.S. Supreme Court has agreed, ruling that the constitutional requirements for holding federal office cannot be altered, supplemented, or diminished by state or federal law, but only by constitutional amendment.47
Beyond citizenship and age, the Constitution’s rules for federal office-holding were less onerous than most qualifications for holding state offices. In addition to barring women—and in some states African Americans—from office-holding, states had economic requirements for office-holding in 1800 that were at least as restrictive as their suffrage qualifications and typically much more so. Marylanders, for example, could vote for members of the state’s General Assembly if they owned fifty acres of land or property worth thirty pounds but could serve in the assembly only if they had real or personal property valued at more than five hundred pounds. In New Jersey people worth fifty pounds could vote for members of the state legislature, but only those worth five hundred pounds could serve in the lower chamber, and only those worth one thousand pounds could serve in the upper chamber. Residents of South Carolina could vote for state representatives and senators if they possessed an estate of fifty acres or paid at least three shillings in taxes. However, they could serve in the state house only if they possessed “an estate of five hundred acres of land and ten negroes, or a real estate of the value of one hundred and fifty pounds.” They could serve in the state senate only if they had reached the age of thirty and amassed an estate worth three hundred pounds.48
The Constitution specified no racial, gender, economic, or religious impediments for office-holding. The issues of office-holding by women or racial minorities never reached the floor of the convention. Apparently, the delegates saw no danger that voters, state legislators, or electors would elevate such manifestly unfit people to federal office.
The disconnect between qualifications for voting and office-holding led to three great paradoxes of American constitutional government. Although noncitizens could vote and hold state or local office in many states, voters could only elect U.S. citizens to federal offices. States could impose any manner of restrictions on voting or office-holding, but federal office-holding qualifications could be tightened or loosened only through a constitutional amendment. Yet citizens barred from voting by property, tax-paying, racial, gender, registration, or literacy restrictions in their states could still constitutionally hold any elected federal office, if they met the residency, citizenship, and age requirements, and for president the special condition of “natural-born” citizenship. Under the Constitution, any American-born citizen, boy or girl, black or white, could grow up to be president of the United States, even if they could not vote or hold office in their home state.
Deference to the states also meant that legislatures could adopt two-tiered qualifications for voting, one for presidential electors and another for the state legislature and the U.S. House of Representatives. States could set different suffrage requirements for selecting their lower and upper legislative chambers and for their local offices.
The Constitution only partly determined how votes translated into representation. State legislatures would select members of the U.S. Senate, and electors from each state would select by majority vote the president of the United States. Each state could decide how to select members of the Electoral College, the U.S. House of Representatives, state legislatures, and local governing bodies. State legislatures in the early republic typically appointed members of the Electoral College, but some states elected members, winner-take-all, proportionally statewide, or winner-take-all within congressional districts.
Decisions made by each state on the geographic bases for Congress and state and local legislatures set the context for the choices open to voters and the impact of their votes. States differed among themselves on electing members of Congress at-large or in districts and on the apportionment of legislative districts at every level of government. The early Americans who qualified for the vote, like the inhabitants of George Orwell’s Animal Farm, were all equal, but some were more equal than others.
The deference to the states on setting the rules for legislative elections began in Philadelphia in 1787. The convention’s Committee on Detail recommended that each state should prescribe “the times and places and manner of holding the elections” for the U.S. House and Senate, but that Congress should retain the authority to “alter” state provisions. Delegates Charles Pinckney and John Rutledge proposed an amendment that would leave the regulation and administration of elections strictly to the state governments. Madison objected to this diminution of federal authority. Among “many other points,” the controlling authority could decide “whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district.” Madison insisted that Congress must retain power over the conduct of elections to avoid corrupt manipulation by the states. Gouverneur Morris of Pennsylvania argued that “the States might make false returns and then make no provisions for new elections.”49
Swayed by these reservations, delegates rejected the Pinckney-Rutledge amendment and authorized Congress to “make” as well as “alter” provisions for the administration of elections. According to article 1, section 4, clause 1, the “Elections Clause” of the Constitution, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.”
At the state ratifying conventions, Anti-Federalists fought to retain sole state control over elections and keep Congress from setting rules that would purportedly favor wealthy Americans. Federalists responded by reiterating arguments made in the convention and citing the many checks on congressional discretion, such as the setting of fixed terms for U.S. representatives and the guarantee to every state of a “Republican form of government.” Several states ratified the Constitution after adopting resolutions of understanding that Congress would intervene in the regulation of elections solely under dire circumstances.
Such resolutions had no force in law, and the first Congress rejected a constitutional amendment that would have sharply restricted any federal intervention in the conduct of elections. Nonetheless, Congress only sparingly exercised this authority. In 1792, Congress set the first Wednesday in December as the uniform date across the nation for balloting by electors for the president and vice president. It would not intervene again in the conduct of elections until the 1840s, and its most significant involvement did not come until well into the twentieth century.50
While the Constitution dictated the apportionment of congressional seats among the states, it let the states apportion congressional, state, and local legislative seats within their boundaries. Congressional seats would be allocated to states in proportion to total population as gauged each decade by a mandatory federal census, with two loopholes. Apportionment rules excluded “Indians not taxed” and counted slaves as “three-fifths of other persons.” This “three-fifths clause” ended a standoff between southerners, who wanted to count slaves fully to pad their congressional and Electoral College representation, and northerners, who did not want to count slaves at all. Every state, regardless of population, would have at least one member of Congress. A state’s representation in the Electoral College turned on its allocation of House seats, with the number of electors equal to its number of House seats plus its two senators. This system guaranteed that every state would have at least three electoral votes. It boosted the electoral strength of slaveholding states, because slaves, under the three-fifths rule, counted at least partially in their allocation of electoral votes but as nonvoters would not have counted at all under a popular voting system for electing the president.
Each state chose the method for electing its congressional delegation and state and local legislatures, with its decision-making having a profound influence on the political power of various economic, demographic, and geographically defined groups within each state. For Congress, the states had to decide first whether to elect members in distinct geographic districts or at-large by all voters in the state. Proponents of at-large elections argued that voters statewide would elect the best men the state had to offer. A district system, they said, would deprive voters of the widest range of choice and splinter Congress into factions responsive to local rather than state or national interests. A 1791 editorial in the Philadelphia Federal Gazette warned that “it is to be dreaded that the Representatives of the respective States, in Congress, will too often be influenced by local views, and will consult the partial interests of their own districts, in preference to the general advantage of the Union.”51
Backers of district elections countered that the wealthy few would control at-large elections, whereas district winners would represent the state’s diverse interests. District voters would choose among well-known local candidates, accountable to small constituencies, rather than strangers intent on exploiting office for selfish ends. A commentator from Philadelphia asked, “How would you like that six or eight men, whom you know not, and perhaps living in Philadelphia … should be elected to represent you in Congress, and afterwards proceed to tax you to pay themselves?”52
These disputes produced no consensus in the republic’s early years. The original states with more than one representative were about evenly divided between at-large and district elections for Congress. States with district elections had to decide whether to base representation on population or geography. America’s revolutionaries had rejected Britain’s self-serving notion of “virtual representation,” which posited that the British Parliament could represent the people of its North American colonies. Although population-based apportionment seemed to fit best with the ideal of direct representation, the British tradition of representation by geographic communities, which could speak with a single voice for a common interest, still held sway in many states and fit the model of apportioning two senators to each state regardless of population.53
After the nation’s first census in 1790, most states with district-based congressional elections established at least roughly equal populations for each district. However, some states still upheld geographic representation through, for example, requirements that counties not be split in drawing congressional districts. Some states established in urban areas multimember districts that elected more than one representative.
States confronted again the push and pull of geographic- versus population-based representation in drawing districts for their legislative seats. Seven of the original thirteen states apportioned their state senate seats equally by county, county groupings, or towns, regardless of population. In Georgia, for example, Wilkes County, with 8,095 nonslave inhabitants, and Camden County, with 782 nonslaves, each elected the same number of senators, for a ratio of more than 10 to 1. The Rhode Island town of Newport, with 6,739 inhabitants, and the town of James Town, with 501 inhabitants, each elected the same number of senators, for a ratio of about 13 to 1. The remaining states either apportioned districts according to taxable inhabitants or had mixed systems of apportionment.54
Even for their lower houses, supposedly “the people’s house,” states still vacillated between population and geographic representation. The result was a hodgepodge of apportionment rules, some of them nearly indecipherable. A few states based House districts on geographic units irrespective of population, but most states had mixed population and geographic representation.55
The Constitution’s deference to the states led as well to disparities in the issues of election versus appointment of public officials and in the frequency and timing of elections. Although all states elected members of their state legislatures, fewer than half elected their governors, and none elected state judges. Six of the original thirteen states elected members of their upper legislative chamber annually, whereas South Carolina held such elections every two years; Delaware, New York, and Virginia every three years; and Maryland held its indirect election of state senators by electors every five years. Some states had no fixed election day. Other states held elections on different months and days: Massachusetts on the first Monday in April, Maryland on the first Monday in October, and Pennsylvania and New Jersey on the second Tuesday of October. Virginia had different dates for electing state officials, members of Congress, and presidential electors. To participate in each election, voters had to journey three times to their county courthouse.56
States differed too in the nomination of candidates, in voting by ballot or voice, and in the number and location of polling places. In some states, candidates self-nominated by declaring their intention to run for office. In others, coteries of prominent men, county conventions, open meetings, or caucuses of officeholders nominated candidates. Most states relied on paper ballots, although prior to the widespread use of preprinted party ballots by the 1830s, voters often had to write down the names of their chosen candidates. Voters in Maryland and Virginia and in parts of other states announced their choices openly by voice, shouting out the names of their preferred candidates for all to hear.
New England states had but one polling place per town, which was their unit of local government rather than a county. Most other states divided counties into voting districts and townships, with separate polling locations. Delaware, however, restricted voting to the single county courthouse until 1811, and Virginia until 1830. The importance of polling place numbers and locations cannot be overstated. The greater the number and diversity of polling locations, the greater the opportunity to vote in elections, particularly for people of lesser means. Commenting on the expansion of polling locations in New Jersey after 1788, the pioneering scholar of early American voting Chilton Williamson wrote, the “bringing of the poll closer to the voters was, possibly, as important an event as the prior abandonment of the freehold qualification for voting.” Decisions about the number and location of polling places remain consequential and controversial today.57
The states had diverse practices for identifying eligible voters, resolving election disputes, and certifying results. Although the state governments held the final authority on voter qualifications, polling place responsibilities fell on many hundreds of localities (today more than ten thousand). In New England, town selectmen primarily oversaw elections; in New York and Pennsylvania, locally elected judges and election inspectors; and in most southern states, the county sheriff.
Local officials typically had the authority to open and close the polls, judge whether individuals were qualified to vote, and certify the final tally. Pennsylvania relied on state-level property and tax rolls for verifying the eligibility of voters, but in most states local governments maintained such records and inconsistently enforced suffrage qualifications. Contemporary newspapers are filled with allegations of how election officials either countenanced illegal voting or conversely barred legal voters from the polls. However, few such allegations had enough credibility to invoke a formally contested election, at least for members of the U.S. House, which kept track of such disputes. Only one contest led to the vacating of an election during the first five sessions of Congress.58
The one uniform practice across states was winner-take-all elections. Massachusetts and New Hampshire had majority vote requirements, but in other states a plurality of the vote—what became known as the “First Past the Post” system of elections—sufficed. No state authorized any form of proportional representation. A candidate had to win an election by plurality or majority vote to gain a public office, then, as today.
The enlightened thinking that had guided the founding of America’s functioning, if imperfect, democracy had international reach. The push for popular sovereignty, human rights, and the reasoned reconstruction of government rocked a European continent encumbered by hereditary privilege. Democratic ideals little penetrated Czarist Russia, the cobwebbed kingdoms of central and eastern Europe, or the reactionary Bourbon dynasty in Spain. Nonetheless, like the United States in the late eighteenth century, France, England, and the Netherlands all grappled with issues of voting and representation.
Even in these nations, however, the tide of democratic reform soon receded, leaving the United States in the early nineteenth century as the exemplar of a functioning constitutional democracy, with voting rights that extended beyond a small, entrenched elite. Unlike other societies, America lacked feudal traditions, a hereditary monarch and aristocrats, or a nationally established church. Its expanding western settlements helped diffuse the social conflict that wracked more crowded lands. It had fought a successful revolution to break free from an external imperial power and establish a government responsible to its people. Thousands of ocean miles shielded the fledgling nation from the foreign intervention that had first upheld and then dismantled democracy in Holland. America stood as a beacon to the world.
Yet circumstances alone do not drive history. Democracy emerged in Britain’s former American colonies only through the energy and creativity of the framers and their critics who insisted on a Bill of Rights. As Shakespeare wrote, “Tis in ourselves that we are thus or thus.”59 Beyond self-interest, constitutional-era debates addressed high principles, respected competing perspectives, and typically ended in compromises that sealed in place a lasting frame of government. With ratification by all the states the framers could credibly claim that the Constitution represented the will of the people, not just a bargain between rulers and subjects.
These worthies were still men of their time, committed to a restricted political community of independent, adult men that ruled out any universal right to vote. In a federal system, with many Americans loyal to states and communities, the framers were content to leave voting qualifications and the conduct of elections to the states. Like most revolutionaries and reformers in Europe, American leaders opposed grassroots popular engagement with government and believed that the direct and indirect election of public officials served the new republic well. The contentious issue of slavery also shaped representation. Southern slave states rejected the popular election of the president because their slaves would count for nothing in the popular tally. Instead, they accepted selection by the electors chosen in each state, with slaves accounting for three-fifths of a person in apportioning each state’s representation in Congress and the Electoral College.
Framers of the Constitution could have tightened elite rule by following the model of the Northwest Ordinance and stipulating property-holding requirements for voting and office-holding. They could have inserted into the Constitution racial and gender qualifications. Given the constraint of ratification by the states, certain concessions to rule by popular consent in the interests of social stability seemed preferable to stifling dissent with repression.
The early onset of democracy in the United States has been both a blessing and a curse. The United States possesses the world’s most deeply rooted democratic traditions and has enjoyed stable politics and the peaceful transfer of power since the Civil War. Beyond voting rights, the American constitutional tradition includes elements essential to a functioning democracy: a free and independent press; rights of assembly, petition, and speech; civilian control of the military; and checks and balances on rogue power.
Still, American democracy remains tethered to such precedents as state discretion over the conduct of elections, local administration of elections, political gerrymandering of districts, and indirect election of the president, all of which hinder democratic practice. Most critically, the United States has yet to overcome the founding fathers’ ambivalence about voting and to guarantee a constitutional right to vote and hold public office, a step that would enable all citizens to participate fully in a representative government of their own choosing.