FReeper Book Club: The Debate over the Constitution, Brutus #4

Brutus, who was most likely Judge Robert Yates of New York, dissects the structure of both Houses of Congress and points out the dangers created by the deficiencies of the design as he perceives it. His words have a haunting quality because so many of the design flaws he has noted have born fruit over the centuries.

² There can be no free government where the people are not possessed of the power of making the laws by which they are governed, either in their own persons or by others substituted in their stead.

³ Experience has taught mankind that legislation by representatives is the most eligible, and the only practicable, mode in which the people of any country can exercise this right, either prudently or beneficially.

⁴ But then it is a matter of the highest importance in forming this representation that it be so constituted as to be capable of understanding the true interests of the society for which it acts, and so disposed as to pursue the good and happiness of the people as its ultimate end.

⁵ The object of every free government is the public good, and all lesser interests yield to it.

⁶ That of every tyrannical government is the happiness and aggrandizement of one or a few, and to this the public felicity and every other interest must submit.

⁸ The first is so constituted as to collect the views and wishes of the whole people in that of their rulers, while the latter is so framed as to separate the interests of the governors from that of the governed.

⁹ The principle of self love, therefore, that will influence the one to promote the good of the whole will prompt the other to follow its own private advantage.

¹⁰ The great art, therefore, in forming a good constitution appears to be this: so to frame it as that those to whom the power is committed shall be subject to the same feelings, and aim at the same objects, as the people do, who transfer to them their authority.

¹¹ There is no possible way to effect this but by an equal, full and fair representation; this, therefore, is the great desideratum in politics.

¹² However fair an appearance any government may make, though it may possess a thousand plausible articles and be decorated with ever so many ornaments, yet if it is deficient in this essential principle of a full and just representation of the people, it will be only like a painted sepulcher.

¹³ For without this it cannot be a free government; let the administration of it be good or ill, it still will be a government not according to the will of the people, but according to the will of a few.

¹⁴ To test this new Constitution then, by this principle, is of the last importance.

¹⁵ It is to bring it to the touchstone of national liberty, and I hope I shall be excused if in this paper I pursue the subject commenced in my last number, to wit, the necessity of an equal and full representation in the legislature.

¹⁶ In that, I showed that it was not equal because the smallest states are to send the same number of members to the Senate as the largest, and because the slaves, who afford neither aid [nor] defense to the government, are to increase the proportion of members.

¹⁷ To prove that it was not a just or adequate representation, it was urged that:

²¹ The small number which is to compose this legislature will not only expose it to the danger of that kind of corruption and undue influence which will arise from the gift of places of honor and emolument, or the more direct one of bribery, but it will also subject it to another kind of influence no less fatal to the liberties of the people, though it be not so flagrantly repugnant to the principles of rectitude.

²² It is not to be expected that a legislature will be found in any country that will not have some of its members who will pursue their private ends and for which they will sacrifice the public good.

²³ Men of this character are generally artful and designing, and frequently possess brilliant talents and abilities; they commonly act in concert and agree to share the spoils of their country among them; they will keep their object ever in view and follow it with constancy.

²⁴ To effect their purpose, they will assume any shape and – Proteus-like – mold themselves into any form.

²⁵ Where they find members’ proof against direct bribery or gifts of offices, they will endeavor to mislead their minds by specious and false reasoning, to impose upon their unsuspecting honesty by an affectation of zeal for the public good; they will form juntos and hold outdoor meetings; they will operate upon the good nature of their opponents by a thousand little attentions and tease them into compliance by the earnestness of solicitation.

²⁶ Those who are acquainted with the manner of conducting business in public assemblies know how prevalent art and address are in carrying a measure, even over men of the best intentions and of good understanding.

²⁷ The firmest security against this kind of improper and dangerous influence, as well as all other, is a strong and numerous representation; in such a house of assembly, so great a number must be gained over, before the private views of individuals could be gratified that there could be scarce a hope of success.

²⁸ But in the federal assembly, seventeen men are all that is necessary to pass a law.

²⁹ It is probable it will seldom happen that more than twenty-five will be requisite to form a majority when it is considered what a number of places of honor and emolument will be in the gift of the Executive, the powerful influence that great and designing men have over the honest and unsuspecting by their art and address, their soothing manners and civilities, and their cringing flattery, joined with their affected patriotism; when these different species of influence are combined, it is scarcely to be hoped that a legislature, composed of so small a number as the one proposed by the new Constitution, will long resist their force.

³⁰ A farther objection against the feebleness of the representation is that it will not possess the confidence of the people.

³¹ The execution of the laws in a free government must rest on this confidence, and this must be founded on the good opinion they entertain of the framers of the laws.

³² Every government must be supported, either by the people having such an attachment to it as to be ready when called upon to support it, or by a force at the command of the government to compel obedience.

³³ The latter mode destroys every idea of a free government, for the same force that may be employed to compel obedience to good laws might, and probably would, be used to wrest from the people their constitutional liberties.

³⁴ Whether it is practicable to have a representation for the whole Union sufficiently numerous to obtain that confidence which is necessary for the purpose of internal taxation and other powers to which this proposed government extends is an important question.

³⁵ I am clearly of opinion it is not, and therefore I have stated this in my first number as one of the reasons against going into an entire consolidation of the states.

³⁶ One of the most capital errors in the system is that of extending the powers of the federal government to objects to which it is not adequate, which it cannot exercise without endangering public liberty, and which it is not necessary they should possess in order to preserve the Union and manage our national concerns; of this, however, I shall treat more fully in some future paper.

³⁷ But however this may be, certain it is that the representation in the legislature is not so formed as to give reasonable ground for public trust.

³⁸ In order for the people safely to repose themselves on their rulers, they should not only be of their own choice.

³⁹ But it is requisite they should be acquainted with their abilities to manage the public concerns with wisdom.

⁴⁰ They should be satisfied that those who represent them are men of integrity, who will pursue the good of the community with fidelity and will not be turned aside from their duty by private interest, or corrupted by undue influence, and that they will have such a zeal for the good of those whom they represent as to excite them to be diligent in their service; but it is impossible the people of the United States should have sufficient knowledge of their representatives when the numbers are so few, to acquire any rational satisfaction on either of these points.

⁴¹ The people of this state will have very little acquaintance with those who may be chosen to represent them; a great part of them will probably not know the characters of their own members, much less that of a majority of those who will compose the federal assembly; they will consist of men whose names they have never heard and whose talents and regard for the public good they are total strangers to; and they will have no persons so immediately of their choice so near them, of their neighbors, and of their own rank in life that they can feel themselves secure in trusting their interests in their hands.

⁴² The representatives of the people cannot, as they now do, after they have passed laws, mix with the people and explain to them the motives which induced the adoption of any measure, point out its utility, and remove objections or silence unreasonable clamors against it.

⁴³ The number will be so small that but a very few of the most sensible and respectable yeomanry of the country can ever have any knowledge of them; being so far removed from the people, their station will be elevated and important, and they will be considered as ambitious and designing.

⁴⁴ They will not be viewed by the people as part of themselves, but as a body distinct from them and having separate interests to pursue; the consequence will be that a perpetual jealousy will exist in the minds of the people against them; their conduct will be narrowly watched, their measures scrutinized, and their laws opposed, evaded, or reluctantly obeyed.

⁴⁵ This is natural and exactly corresponds with the conduct of individuals towards those in whose hands they entrust important concerns.

⁴⁶ If the person confided in be a neighbor with whom his employer is intimately acquainted, whose talents he knows are sufficient to manage the business with which he is charged, his honesty and fidelity unsuspected, and his friendship and zeal for the service of this principal unquestionable, he will commit his affairs into his hands with unreserved confidence and feel himself secure; all the transactions of the agent will meet with the most favorable construction, and the measures he takes will give satisfaction.

⁴⁷ But if the person employed be a stranger whom he has never seen and whose character for ability or fidelity he cannot fully learn, if he is constrained to choose him because it was not in his power to procure one more agreeable to his wishes, he will trust him with caution and be suspicious of all his conduct.

⁴⁸ If, then, this government should not derive support from the good will of the people, it must be executed by force or not executed at all; either case would lead to the total destruction of liberty.

⁴⁹ The Convention seemed aware of this and have therefore provided for calling out the militia to execute the laws of the Union.

⁵⁰ If this system was so framed as to command that respect from the people which every good, free government will obtain, this provision was unnecessary – the people would support the civil magistrate.

⁵¹ This power is a novel one in free governments; these have depended for the execution of the laws on the posse comitatus and never raised an idea that the people would refuse to aid the civil magistrate in executing those laws they themselves had made.

⁵² I shall now dismiss the subject of the incompetency of the representation and proceed, as I promised, to show that, impotent as it is, the people have no security that they will enjoy the exercise of the right of electing this assembly, which at best can be considered but as the shadow of representation.

⁵³ By Section 4, Article I, the Congress are authorized at any time by law to make or alter regulations respecting the time, place and manner of holding elections for senators and representatives except as to the places of choosing senators.

⁵⁴ By this clause the right of election itself is in a great measure transferred from the people to their rulers.

⁵⁵ One would think that if anything was necessary to be made a fundamental article of the original compact, it would be that of fixing the branches of the legislature so as to put it out of its power to alter itself by modifying the election of its own members at will and pleasure.

⁵⁶ When a people once resign the privilege of a fair election, they clearly have none left worth contending for.

⁵⁷ It is clear that under this article the federal legislature may institute such rules respecting elections as to lead to the choice of one description of men.

⁵⁸ The weakness of the representation tends but too certainly to confer on the rich and well born all honors, but the power granted in this article may be so exercised as to secure it almost beyond a possibility of control.

⁵⁹ The proposed Congress may make the whole state one district and direct that the capital – the city of New York, for instance – shall be the place for holding the election; the consequence would be that none but men of the most elevated rank in society would attend, and they would as certainly choose men of their own class, as it is true what the Apostle Paul [says], that “no man ever yet hated his own flesh, but nourisheth and cherisheth it.”

⁶⁰ They may declare that those members who have the greatest number of votes shall be considered as duly elected; the consequence would be that the people, who are dispersed in the interior parts of the state, would give their votes for a variety of candidates, while any order or profession residing in populous places, by uniting their interests, might procure whom they pleased to be chosen, and by this means the representatives of the state may be elected by one tenth part of the people who actually vote.

⁶¹ This may be effected constitutionally and by one of those silent operations which frequently takes place without being noticed, but which often produces such changes as entirely to alter a government, subvert a free constitution, and rivet the chains on a free people before they perceive they are forged.

⁶² Had the power of regulating elections been left under the direction of the state legislatures, where the people are not only nominally but substantially represented, it would have been secure, but if it was taken out of their hands, it surely ought to have been fixed on such a basis as to have put it out of the power of the federal legislature to deprive the people of it by law.

⁶³ Provision should have been made for marking out the states into districts and for choosing by a majority of votes a person out of each of them of permanent property and residence in the district which he was to represent.

⁶⁴ If the people of America will submit to a Constitution that will vest in the hands of any body of men a right to deprive them by law of the privilege of a fair election, they will submit to almost anything.

⁶⁵ Reasoning with them will be in vain; they must be left until they are brought to reflection by feeling oppression; they will then have to wrest from their oppressors, by a strong hand, that which they now possess and which they may retain if they will exercise but a moderate share of prudence and firmness.

⁶⁶ I know it is said that the dangers apprehended from this clause are merely imaginary, that the proposed general legislature will be disposed to regulate elections upon proper principles, and to use their power with discretion, and to promote the public good.

⁶⁷ On this, I would observe that constitutions are not so necessary to regulate the conduct of good rulers as to restrain that of bad ones.

⁶⁸ Wise and good men will exercise power so as to promote the public happiness under any form of government.

⁶⁹ If we are to take it for granted that those who administer the government under this system will always pay proper attention to the rights and interests of the people, nothing more was necessary than to say who should be invested with the powers of government and leave them to exercise it at will and pleasure.

⁷⁰ Men are apt to be deceived both with respect to their own dispositions and those of others.

⁷¹ Though this truth is proved by almost every page of the history of nations, to wit, that power, lodged in the hands of rulers to be used at discretion, is almost always exercised to the oppression of the people and the aggrandizement of themselves, yet most men think if it was lodged in their hands they would not employ it in this manner.

⁷² Thus when the prophet Elisha told Hazael, “I know the evil that thou wilt do unto the children of Israel; their strong holds wilt thou set on fire, and their young men, wilt thou slay with the sword, and wilt dash their children, and rip up their women with child”, Hazael had no idea that he ever should be guilty of such horrid cruelty and said to the prophet, “Is thy servant a dog that he should do this great thing.”

⁷³ Elisha answered, “The Lord hath shewed me that thou shalt be king of Syria.”

⁷⁴ The event proved that Hazael only wanted an opportunity to perpetrate these enormities without restraint, and he had a disposition to do them, though he himself knew it not.

At 52, Brutus states that the general structure of this piece centers around two points: the “incompetency of the representation” designed within the proposed Constitution, and the “impotence of the people” that results with respect to the people’s ability to “exercise the right of electing this assembly.”

By “incompetency”, Brutus does not intend to cast aspersions on the abilities of the individual members, although in time he will address potential difficulties surrounding their integrity. Rather he is stating that the plan as designed will lead to the formation of a political elite. It is not simple speculation about a future time, but a canny projection that the proposed Constitution would empower the members of a powerful elite that already existed, and as a member in good standing of that elite, Brutus, as Judge Yates, knew what he was talking about.

⁵ The object of every free government is the public good, and all lesser interests yield to it.

⁶ That of every tyrannical government is the happiness and aggrandizement of one or a few, and to this the public felicity and every other interest must submit.

These definitions are timeless, having outlasted even governments and entire social systems whose ostensible objective was the public good, and whose real actions benefitted only the few. This was Popper’s objection to Plato¹. It was Bakunin’s² and Djilas’³ objection to Marx.

And, he continues, the keys to this are a large enough number of representatives to afford frequent and direct contact with the people, and that such members would be drawn from members of those communities and not a separate ruling class. The proposed Constitution suffered from inadequacies in both areas (18, 19). As well, the small size of the House meant that it would more feasible to bribe or coerce individual members (20, 27), or form self-serving cabals within it. Brutus knew that sort of individual well enough to describe him.

²⁴ To effect their purpose, they will assume any shape and – Proteus-like – mold themselves into any form.

To be sure, there are politicians for whom that description would not cause so much as a single pang of conscience. It is those politicians he describes.

The House in the proposed Constitution would be small. But what of Brutus’ claim that:

²⁸ But in the federal assembly, seventeen men are all that is necessary to pass a law.

²⁹ It is probable it will seldom happen that more than twenty-five will be requisite to form a majority...

Here the skeptic might be justified in suspecting Brutus of a bit of exaggeration. In fact, the proposed plan would result in an initial House of some 65 members (Article I, Section 2), presumably what Brutus means by “federal assembly”, before a census and the resulting enumeration of the representatives. Seventeen representatives would constitute a bare majority of a bare quorum, an occurrence that is to say the least highly improbable, especially with respect to legislation of any controversy whatever. Twenty-five votes would constitute a majority of a House of some 49 sitting members out of the proposed 65. That is at least conceivable, but hardly the norm that Brutus pronounces at 29.

Exaggerated or not, Brutus’ point is cogent – the plan called for one representative for no fewer than 30,000 inhabitants, scarcely a number that would provide the sort of day-to-day contact his doctrine insisted upon. Today’s number is approximately one representative for every 650,000 inhabitants. Brutus’ point is made, and yet its obvious implication is still not entirely the case.

They do in fact still return to their districts for direct contact with their constituents in what are commonly termed “town hall” meetings, a practice more seated in tradition than codified in law, and clearly designed to ameliorate the inevitable – and accurate – accusations of elitism. Often when they do they get an earful, even from presumed supporters, enough so to encourage an untimely retirement in the case of legislation of sufficiently controversial nature. Thus far the old system continues to function, but Brutus would be the first to point out that there is no real reason, outside the threat of a popular insurrection, why it should to continue to do so.

It is that possibility of a popular revolt that gives Brutus his next line of objection: the means that the proposed Constitution appears to permit to the federal government in enforcing its will upon a characteristically unruly people.

⁴⁹ The Convention seemed aware of this and have therefore provided for calling out the militia to execute the laws of the Union.

⁵¹ This power is a novel one in free governments; these have depended for the execution of the laws on the posse comitatus and never raised an idea that the people would refuse to aid the civil magistrate in executing those laws they themselves had made.

This usage appears confusing to the modern reader, and so it must be pointed out that the posse comitatus referred to was not the law enacted in 1878 to prevent the federal government from the use of the army for law enforcement, but the provision in British Common Law for a body of citizens to do so by deputizing under proper authority.

This potential for the President to send armed troops into communities for insufficient reason was a legitimate issue, enough so to be dealt with formally by the 1807 Insurrection Act, the first attempt to circumscribe the ability of the President from employing armed troops within the United States and the basis for the later Reconstruction-era Posse Comitatus Act. Earlier, Brutus explained why that sort of activity was potentially corrosive to a free society.

Even now the federal government is exquisitely aware of the potentially explosive implications of using federal troops to maintain civic order, a right still jealously guarded by the states some two centuries after Brutus sounded his clarion call. As in the case of Hurricane Katrina, the modern complaint is more likely to resound over the failure of the federal government to step into this role. That is not a complaint for which Brutus was likely to show any particular sympathy.

Last is a short disquisition on his fear that the abilities accorded the federal government in Article I, Section 4, to set or alter “regulations respecting the time, place, and manner of holding elections” for representatives – senators are excepted – will be subject to abuse. His suggestion that they might make the entire state of New York a single district (59), thereby ensuring that the state would be represented by wealthy elitists, no doubt makes the upstate critics of modern Manhattan hegemonists smile. Brutus continues:

In point of fact, however, such provisions are a matter left to the states and to this day differ between them. Thirty-six of the fifty leave it a matter for the state legislatures, five to an independent or bipartisan commission, two to such a commission under approval of the legislature, and the remaining seven have only a single representative and hence no districts at all. There is, to be sure, sufficient room for unscrupulous political maneuvering in the form of gerrymandering, but that is as far as the political elites described by Brutus have dared to go, apparently aware that popular insurrection is no more far-fetched in the 21st Century than it was for Brutus in the 18th.

Brutus closes by apparently undercutting his own case for disapproval of the Constitution by uttering a higher truth.

⁶⁷ …I would observe that constitutions are not so necessary to regulate the conduct of good rulers as to restrain that of bad ones.

There are, in fact, no good rulers, and any President who considers himself a ruler will find himself pulled up very short indeed. That the first task of such a President will be to find ways to circumvent the Constitution even now serves to celebrate the latter’s strength and to identify a tyrant. When the smoke clears, only one of the two will remain standing. When that ceases to be the Constitution, America will be gone.

¹ The Open Society and Its Enemies, Karl Popper, 1945
² On The International Workingmen’s Association and Karl Marx, Mikhail Bakunin, 1872
³ The New Class: An Analysis of the Communist System, Milovan Djilas, 1957

At 5 and 6, Brutus defines the difference between a tyrannous government and a free government, a definition that has stood the test of time. Is the present United States government tyrannous or free, and why?

Tyrannical without a doubt! and for the reasons Brutus stated i.e. "That (the object) of every tyrannical government is the happiness and aggrandizement of one or a few, and to this the public felicity and every other interest must submit.

How can anyone believe this to be a FREE country when we all labor under a tax system that claims and apriory right to the fruits our labor and the enforcement agency of which can destroy anyone it chooses at any time with a mere allegation?

I note just one of many many examples of why we can no longer believe ourselves to be a FREE people.

At 21 through 29, Brutus brings up the point that a small representation permits ease of bribery. Was the decision to limit the House of Representatives to 435 members a mistake? Would an increase in the size of the House change the dynamic of corruption for the better or worse?

I'm not sure at this point that it would make any real difference whether the house has 435, 8700 (the rough number it would be if we had stayed with the original 1 per 30,000 requirement), or 87,000. If the people continue their refusal to pay attention to what their representatives do on their behalf it would make no difference whatever.

At 25, Brutus lays out the tools of how corrupt politicians can seduce the electorate or well-meaning men. But do those tools work the other way, and how?

Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them.

Joseph Story, Commentaries on the Constitution, 1833

“The object and practice of liberty lies in the limitation of governmental power.”

General Douglas MacArthur

“Government is the great fiction, through which everybody endeavors to live at the expense of everybody else.”

Frederic Bastiat

“Just because you do not take an interest in politics doesn't mean politics won't take an interest in you.”

Pericles (430 B.C.)

“Necessity is the plea of every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”,/i>

William Pitt

At 32 and 33, Brutus points out that people will either follow the law because they believe in it or because they are coerced, and that coercion marks the end of free government and liberty. Apply his points to current events.

"... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one MAKES them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. ......just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted -- and you create a nation of law-breakers -- and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."

p.411, Ayn Rand, ATLAS SHRUGGED, Signet Books, NY, 1957

At 36, Brutus points out the danger of the federal government taking on responsibilities it cannot attempt and has no business attempting. Apply his point to current events.

Ill bet that two thirds to three quarters of everything the federal government currently does is outside the bounds of the Constitution.

"Liberty and security in government depend not on the limits, which the rulers may please to assign to the exercise of their own powers, but on the boundaries, within which their powers are circumscribed by the constitution. With us, the powers of magistrates, call them by whatever name you please, are the grants of the people . . . The supreme power is in them; and in them, even when a constitution is formed, and government is in operation, the supreme power still remains. A portion of their authority they, indeed, delegate; but they delegate that portion in whatever manner, in whatever measure, for whatever time, to whatever persons, and on whatever conditions they choose to fix."

U.S. Supreme Court Justice James Wilson (Lectures, 1790-1791)

36 One of the most capital errors in the system is that of extending the powers of the federal government to objects to which it is not adequate, which it cannot exercise without endangering public liberty, and which it is not necessary they should possess in order to preserve the Union and manage our national concerns; of this, however, I shall treat more fully in some future paper.

There is too much in this thread to absorb easily. However, this one quotation summarizes the entire potential problem, and perfectly describes the political morass of hopelessness being experienced by the average citizen today, apparently powerless to change it.

I don’t see any reason to repeat the conversation about increasing the number of representatives, since we seem to be a very small minority in that regard. I don’t know if there is anything in English common law that addresses the issue of holding elections at places where it is impossible for citizens to go to vote. I suspect that there is. The Bible addresses the issue of government making a pest of itself to the detriment of the people. Joseph and Mary were put out to the point of bearing Jesus in a stable because of the Roman census. So the issue of government arrogance in forcing people to travel is an old one, and familiar to the founders of The United States of America.

Brutus missed the opportunity to give a name to gerrymandering, as you pointed out. This mechanism of legislative self-perpetuation is just as insidious as moving the location of the election, yet it is much less understood. I don’t know the history of this either, and it’s worth an investigation to understand why they didn’t just move the elections when they wanted to exclude undesirable voters.

But, he really messed up when he stated, “The object of every free government is the public good, and all lesser interests yield to it.”

No, it isn’t. The object of a free government is to do what the constitution authorizes it to do. The public good has been a subject of contentious debate since Plato, and very rarely is there a truly “right” answer. That flawed premise, that some kind of romantic and profound uber-mensch can be found to be the next philosopher-king, inevitably leads to death and destruction.

I'm having trouble with this:

No, it isn’t. The object of a free government is to do what the constitution authorizes it to do.

Considering the fact that the foundation of this essay was the protest of a constitution, I'm having trouble squaring this sentence.

You are quite welcome and I thank you for the kind words!

Frankly, I don’t understand why these particular threads are not among the most widely attended on FR.

You would think that supposed conservatives would be very much interested in the finer points of our history.

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