enacting laws was intended to be hard -- 3/19/14

Today's selection -- from The Years of Lyndon Johnson: Master of the Senate by Robert A. Caro. People often lament the difficulty of enacting new legislation or changing existing legislation -- and there are often calls for congressional reform. But the framers of the U.S. Constitution very specifically designed the process to make it hard for change to be enacted, especially when "the emotions of men in the mass ran high and fast." The component of the government designed to impede and stifle legislation was the Senate:

"The Framers ... feared not only the people's rulers but the people themselves, the people in their numbers, the people in their passions, what the Founding Father Edmund Randolph called 'the turbulence and follies of democracy.'

"The Framers of the Constitution feared the people's power because they were, many of them, members of what in America constituted an aristocracy, an aristocracy of the educated, the well-born, and the well-to-do, and they mistrusted those who were not educated or well-born or well-to-do. More specifically, they feared the people's power because, possessing, and esteeming, property, they wanted the rights of property protected against those who did not possess it. In the notes he made for a speech in the Constitutional Convention, James Madison wrote of the 'real or supposed difference of interests' between 'the rich and poor' -- 'those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings' -- and of the fact that over the ages to come the latter would come to outnumber the former. 'According to the equal laws of suffrage, the power will slide into the hands of the latter,' he noted. ... But the Framers feared the people's power also because they hated tyranny, and they knew there could be a tyranny of the people as well as the tyranny of a King, particularly in a system designed so that, in many ways, the majority ruled. 'Liberty may be endangered by the abuses of liberty as well as by the abuses of power,' Madison wrote. These abuses were more likely because the emotions of men in the mass ran high and fast, they were 'liable to err ... from fickleness and passion,' and 'the major interest might under sudden impulses be tempted to commit injustice on the minority.'

"So the Framers wanted to check and restrain not only the people's rulers, but the people; they wanted to erect what Madison called 'a necessary fence' against the majority will. To create such a fence, they decided that the Congress would have not one house but two, and that while the lower house would be designed to reflect the popular will, that would not be the purpose of the upper house. How, Madison asked, is 'the future danger' -- the danger of 'a leveling spirit' -- 'to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.' This body, Madison said, was to be the Senate. Summarizing in the Constitutional Convention the ends that would be served by this proposed upper house of Congress, Madison said they were 'first to protect the people against their rulers; secondly to protect the people against the transient impressions into which they themselves might be led.'

"'The use of the Senate,' Madison said, 'is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.' It should, he said, be 'an anchor against popular fluctuations.' He drew for parallels on classical history, which, he said, 'informs us of no long-lived republic which had not a Senate.' In two of the three 'long-lived' republics of antiquity, Sparta and Rome, and probably in the third -- Carthage (about whose governmental institutions less was known) -- senators served for life. 'These examples ... when compared with the fugitive and turbulent existence of other ancient republics, [are] very instructive proofs of the necessity of some institution that will blend stability with liberty.' Thomas Jefferson had been in Paris during the Convention, serving as minister to France. When he returned, he asked George Washington over breakfast why the President had agreed to a two-house Congress. According to a story that may be apocryphal, Washington replied with his own question: 'Why did you pour your tea into that saucer?' And when Jefferson answered, 'To cool it,' Washington said, 'Just so. We pour House legislation into the senatorial saucer to cool it.' The resolution providing for a two-house Congress was agreed to by the Constitutional Convention with almost no debate or dissent.

Second floor Senate chambers in Congress Hall used 1790 thru 1800

"And to ensure that the Senate could protect the people against themselves, the Framers armored the Senate against the people. ... Each state, the Framers decided, would be represented by only two senators; the first Senate of the United States consisted of just twenty-six men. Another was the method by which senators would be elected. When one of the Framers, James Wilson of Pennsylvania, suggested that they be elected by the people, not a single member of the Convention rose to support him. 'The people should have as little to do as may be about the government,' Roger Sherman declared. 'They lack information and are constantly liable to be misled.' After Elbridge Gerry said that 'The evils we experience flow from an excess of democracy,'the Framers took steps to guard against such an excess. There would, they decided, be a 'filtration' or 'refinement' of the people's will before it reached the Senate: senators would be elected not by the people but by the legislatures of their respective states -- a drastic filtration since in 1787 the franchise was so narrow that the legislatures themselves were elected by only a small percentage of the citizenry.

"Senators would also be armored against the popular will by the length of their terms, the Framers decided. Frequent elections mean frequent changes in the membership of a body, and, Madison said, from a 'change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.' What good is the rule of law if 'no man . . . can guess what the [law] will be tomorrow?' Guarding against 'mutable policy,' he pointed out, requires 'the necessity of some stable institution in the government.' Edmund Randolph, as usual, was more blunt. 'The object of this second branch is to control the democratic branch,' he said. 'If it not be a firm body, the other branch being more numerous and coming immediately from the people, will overwhelm it.' Senators, he said, should "hold their offices for a term sufficient to insure their independency.' The term sufficient, the Framers decided, would be six years. Senators would hold office three times as long as the members of the 'democratic branch.' They would hold office longer than the President held office. And around the Senate as a whole there would be an additional, even stronger, layer of armor. Elections for senators would be held every two years, but only for a third of the senators. The other two-thirds would not be required to submit their record to the voters (or, to be more accurate, to their legislatures) at that time. This last piece of armor made the Senate a 'stable institution' indeed."


Robert A. Caro


Master Of The Senate: The Years of Lyndon Johnson


Alfred A. Knopf


Copyright 2002 by Robert A. Caro


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