Friday, 20 June 2014

Thoughts on Government, Part III: Recommendations

References aside, it remains to discuss the actual content of Thoughts on Government and the influence that it held over subsequent attempts at constitution-making in the United States. As mentioned in a previous post, Adams was asked for his recommendations as they specifically applied to the attempts undertaken by the various states in the 1770s to draft new governing charters. Consequently, many (though not all) of the early states constitutions follow the outline contained in Thoughts on Government fairly closely. It’s also worth noting how (or whether) Adams’ suggestions were translated into the Articles of Confederation and the Constitution. Though the Articles, the first governing charter of the United States, were written around the same time as the state constitutions and shortly after Thoughts on Government was published, they significantly deviate from Adams’ preferred formula. Conversely, the Constitution, written over a decade later in 1787 by men who had served in a variety of legislative roles and come to appreciate the naivety of their county’s early efforts at republican government, seems to hew much closer to Adams’ ideal arrangement in certain key respects.

This arrangement, Adams laid out in a fairly straightforward manner. After determining that a republic would be the preferred form of government, being based in virtue and most likely to preserve and promote the happiness of the people, he determined that a representative assembly should be the principal tool of legislation. This assembly, he argued, would, “depute power from the many to a few of the most wise and good,” yet should also be, “in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them.” At the same time, this assembly should not be the only body tasked with shaping or administering the laws. Single assemblies, Adams asserted in paragraph fourteen, are susceptible to the “vices, follies, and frailties of an individual; subjects to fits of humor, starts of passion, flights on enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgements.” Such a legislative body would also be liable to guard its own interests at the behest of the people’s and increase its own privileges over time, and would be poorly suited to wield either judicial power (being too numerous, clumsy and ill-suited) or executive power (lacking the needed confidentiality or decisiveness). Therefore, Adams wrote in paragraphs seventeen and eighteen, there should be a second house of the legislature whose purpose would be to hold the assembly to account and mediate between the interests of that popular branch and those of the executive. This second house, or council, would be elected by the assembly from among its own members, or its constituents, or both, be of a relatively limited number (Adams suggests twenty or thirty), and be able to exercise an independent judgement (and a veto) in matters of the law.

As to the executive power, Adams suggested in paragraph nineteen that the two houses of the legislature, the assembly and the council, should elect a governor by joint ballot. This person would himself be free to exercise his own judgement, act as commander-in-chief of all militias and armies, and possess the power to hand out pardons. The governor would also be able to veto any acts of the legislature, though he should be inclined to do so only when it is clear that a proposed law runs counter to the overall public good. Adams also proposed that joint ballots of both houses be held to elect the lieutenant-governor, secretary, treasurer, commissary, and attorney-general, and that, along with the election of the members of the legislative assembly, such votes should be held annually. Adams similarly argued in paragraph twenty-four that a rotation of offices would be prudent, provided that “the society has a sufficient number of suitable characters to supply the great number of vacancies which would be made by such a rotation.” While ultimately leaving it up to the states to decide for themselves, he suggested an interval of three years in office to be followed by three years of exclusion.  

In paragraphs twenty-seven through twenty-nine, Adams advocated for an independent judicial branch. Judges and justices, he wrote, should ideally be nominated and appointed by the governor with the advice and consent of the legislative council. They should also possess powers and responsibilities distinct from both the legislative or executive branches, and “be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention.” In order to prevent these legal officials from becoming beholden to private interests, Adams further recommended that they should hold their offices for life during good behavior, and that their salaries should be fixed by law.

Thoughts on Government contains a variety of other recommendations, having to do with militia laws, the elections of sheriffs and county officials, and the importance of liberal education, but those laid out above constitute the general framework that Adams endorsed. It is, I think, worth noting that at no point did he advise the inclusion of any kind of bill of rights. Such protections of individual liberties did find their way into many of the state constitutions written in the 1770s, though often in wildly differing forms, and its inclusion in the Constitution of 1787 was considered by many to be an absolute necessity. It’s possible that Adams did not believe it worth including in his essential blueprint because he felt a government structured along the lines he suggested would not be inclined to invade the rights of the people (being directly tied to them by their frequently elected representatives). Among other things this arguably demonstrates the naïveté of Adams and his compatriots. Never having had to create governments from scratch, the plans they ultimately decided upon were theoretically sound, but at times ill-equipped to handle the rigours of day-to-day administration, and ignorant of the tenacity of some of human nature’s darker aspects.

Though the eleven states constitutions that were written after Thoughts on Government was published in the spring of 1776 largely followed the pattern Adams laid out, because there was really no one traditional or time-tested blueprint to abide by the occasional eccentric addition or alteration was not uncommon. Some varied the way that certain officers of the government were to be elected. The Constitution of North Carolina, for example, followed Adams’ program very closely, changed only to allow the voters to elect senators directly instead of the assembly. Maryland’s constitution followed a similar tack, but called for the election of state senators by specific electors, to be selected by the voters every five years. New Jersey’s 1776 constitution, written in haste, also adhered to the assembly/council/governor arrangement, but allowed Supreme Court justices to be elected jointly by the assembly and council for seven year terms, and all other judicial officials for five year terms. Others added offices or administrative bodies to Adams’ ideal composition. Delaware did so, adding to its executive branch a Privy Council of four members, elected by and from the assembly and council, whose purpose was to advise the Governor and consent to his decisions. Virginia’s charter called for a similar body, with eight members instead of four, to be elected either from the assembly, council, or the general public.

Perhaps the most radically different of the 1770s constitutions was Pennsylvania’s. Drafted by a body of legislators and scholars, including one Benjamin Franklin, it allowed all men twenty-one and older who had paid taxes to vote (thus abandoning the traditional property qualification that prevailed in most states for decades after the Revolution), and outlined a unicameral legislature, a twelve-member Supreme Executive Council that elected its own President, and a judiciary appointed for seven year terms and removable at any time. In addition, the Pennsylvania constitution called for a Council of Censors, to be elected every seven years and tasked with holding the government to account, censuring government actions or legislation deemed to have violated the constitution, and calling conventions for the purpose of drafting amendments. While it’s difficult to determine why exactly the Keystone State’s constitution differed so aggressively from those of its counterparts, it may have had something to do with the traditions of government that had been established under the earlier colonial regime. After all, by 1776, Pennsylvania already possessed an established history of stable, democratic rule, and it’s entirely likely that Pennsylvanians preferred to follow their own lights than the advice of a well-intentioned Boston lawyer.     

Even the Constitution of Massachusetts, which Adams played a large part in drafting in 1779, differed somewhat from the plan that Thoughts on Government laid out. Though government in Massachusetts was divided into three independent branches, with a bicameral legislature and annual elections for major offices, it also allowed the election of Senators and the Governor by all qualified voters. This admission to democratic government seems uncharacteristic of Adams, though it was actually quite typical of the era. The 1770s were a volatile decade in the history of the United States, and there is a definite sense when reading documents from that time that the American Founders were “working without a net,” and were distinctly aware of the fact. They had few blueprints to draw on, few practical examples to follow, and reams and reams of theories and concepts to puzzle over, dissect and reassemble in new and different ways.  The state constitutions written during this era are a prime example of this process; though they tended to hold fast to a handful of basic principles, so much else was left on the table, to be determined by each state as their needs dictated. And Adams seemed aware of this, too. In paragraph twenty-three, he wrote:

 “This mode of constituting the great offices of state will answer very well for the present; but if by experiment it should be found inconvenient, the legislature may, at its leisure, devise other methods of creating them…or make any other alterations which the society shall find productive of its ease, its safety, its freedom, or, in one word, its happiness.”

As the Framers of the later United States Constitution would tacitly admit by their inclusion of a robust amending formula, stable governments were born out of sound principles, but they lived and died in the hearts and minds of their citizens. And in the 1770s the hearts and minds of Americans were distinctly undecided as to what, other than the essentials, constituted good republican government. John Adams had his ideas on this topic, and put them forward in Thoughts on Government, but even he (stubborn and often obstinate man that he was) was willing to admit that there was no one way forward.

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