Draft Constitution for Virginia, Part V: Legitimacy

With the examples of Governors Berkeley and Dunmore in mind, the method behind some of Jefferson’s proposed alterations to the government of his home state become rather evident. In the absence of a royal authority responsible for appointing a chief executive, there were only so many options remaining. There existed, in the spring of 1776 when Jefferson was busy crafting his draft constitution, no federal government to speak of in what would become the United States of America. Pre-independence, the Continental Congress was more of a coordinating body for the combined efforts of the Thirteen Colonies to resist British repression than a national legislative entity. Leaving the choice of Virginia’s governor up to some nominal federal authority in place of the Crown was therefore not feasible. As an alternative, making his “Administrator” popularly elected would surely have crossed Jefferson’s mind. It certainly occurred to those among his contemporaries who determined to include just such a provision when drafting constitutions for their own states (as in the 1777 New York constitution, the 1777 Vermont constitution, and the 1780 constitution of Massachusetts). The legitimacy of a chief executive chosen directly by the people would have been very difficult to question indeed. By also limiting the relevant term in office to, say, one, two, or three years, it might further have been ensured that perhaps the single most powerful position within the state government was also one of the most directly invested in the passions and the concerns of the general population. Placing greater discretion as to how they were governed in the hands of his fellow Virginians was, as aforementioned, a prospect that seemed to appeal to Jefferson. That being said, creating a popularly-elected chief executive would not have solved the larger issue of competing legitimacies.

Granted, having an elected executive and an elected lower house was doubtless an appealing prospect in 1776. Stripping away the prerogatives traditionally associated with the British Crown and investing them in an individual chosen by the people themselves would surely have fulfilled the long-suffering hopes of the republican philosophers among the Founding Generation, and left it abundantly clear whose sovereignty was paramount in Virginia. What such a provision seemed ill-designed to do, however, was prevent any future recurrence of intractable conflict between the legislative and executive authorities. While disagreements between different branches of government, and the accordant impulse to seek compromise, is a fundamental aspect of how government functions in the modern United States, no such confidence existed at the dawn of the American Revolution that such conflicts could be resolved by anything other than force of arms. If the governor and the legislature of a state were to differ on some point of law or policy and both refused to retreat from their respective positions, each claiming that they possessed the legitimacy of the people’s confidence would likely fail to offer any obvious solution. If the sovereignty of the people of a state was the fundamental authority to which all government was beholden, there could presumably be no stronger position for either side to adopt. Law might perhaps award a veto to the chief executive, in keeping with the powers traditionally afforded the monarchy and its representatives, but experience had theretofore proven that such measures rarely quieted the cries of an aggrieved party who felt they were subject to the people’s will alone.

Shifting most of the responsibility traditionally afforded the executive to the popularly-elected legislature, while also making that executive responsible to said legislature, no doubt appeared to Jefferson an eminently satisfactory solution. So narrow was the remit of the Administrator he described in his draft constitution, and so alternately powerful the House of Representatives, that it seems highly unlikely any significant disagreements could have arisen between the two under such a system of government. By eliminating almost any possibility of their responsibilities overlapping, Jefferson seemed intent on effectively compartmentalizing the legislative and executive branches. The General Assembly, dominated by the lower house, was to be responsible for almost every major matter of state, from war, to monetary policy, to licensing, to pardons. Its members chosen by the voting public, there was to have been virtually no question of their legitimacy as the undisputed prime mover within the government of Virginia. The Administrator, meanwhile, was to be a pale shadow of the royal governor he was intended to replace. Beyond presumably serving as the chief representative of the state government in matters of diplomacy – a power nowhere mentioned in the draft constitution but rather inferred from it not being granted to any other body – the chief executive was to be responsible for appointing, “Officers civil and military,” excluding High Sheriffs and Coroners and subject to the veto of the Privy Council, the selection of county court judges, also requiring Privy council approval, and the appointment of judges to the General Court and the High Court of Chancery. Recalling that the Privy Council was itself to be appointed by the House of Representatives, it appears Jefferson intended to keep the chief executive of his home state on a very short leash.

Were this not enough to prevent any possible conflict from emerging between the legislative and executive branches of the government of Virginia – of the kind that had led to open conflict between some portion of the citizenry and their governor on more than one occasion – Jefferson delivered the final blow to the power and independence of his Administrator by making the office one that was appointed by a vote of the House of Representatives. Accordingly, in the unlikely event that the limited powers of the chief executive led them into conflict with the General Assembly and neither side professed a willingness to submit to the other, there could be no question as to which party possessed the confidence of the people. The Administrator that Jefferson proposed was therefore effectively the creature of the lower house; its members were solely responsible for filling the office, and could seemingly ignore the occupant they chose at their own discretion. In response, the Administrator would have had little recourse. Any legitimacy it possessed flowed through the medium of the House of Representatives. In effect, the barest shred of the sovereignty the people of Virginia delegated to the lower house by electing its members was thereafter to be reserved and delegated to the Administrator, for all it was worth. A chief executive thus limited in its authority would seem incapable of threatening either the rights of the general population or the prerogatives of the elected legislature. Consequently, any conflict between that office and the empowered lower house, on the off chance that it did arise, would have been easily resolved.

It bears mentioning that Jefferson was not the only member of the Founding Generation who determined upon weakening the executive branch when drafting a state constitution. As mentioned previously, British Enlightenment and republican philosophy combined with the events of the 1760s and 1770s to produce a culture of extreme suspicion towards centralized and unchecked authority in the American colonies. This manifested itself in a very tangible way when the political elite within each of the colonies set about the task of crafting independent governments. Numerous of the constitutions that resulted took power away from the chief executive and vested it instead in the elected legislature, while also rendering said executive subject to legislative appointment. This was the case in the first constitutions of Delaware (1776), Maryland (1776), New Jersey (1776), North Carolina (1776), and South Carolina (1776). The framers of each of these documents saw fit to delegate the appointment of a chief executive (be it a governor or president) to a joint ballot of the upper and lower houses of their respective legislatures. Georgia’s 1777 constitution (the first of ten between the 1770s and the 1980s) described a unicameral House of Assembly which was likewise tasked with selecting a governor, while the constitutions of Pennsylvania (1776) and New Hampshire (1776) both vested executive authority in a council that selected its own leadership (in both cases, a president). The specific mechanisms by which these states were to select a chief executive varied significantly in terms of who was doing the actual voting, a consequence of the manner by which their upper and lower legislative houses were formed (popularly elected, appointed, chosen via an electoral college, etc.). That being said, aside from the aforementioned constitutions of New York, Vermont, and Massachusetts, there seemed to be a rough consensus among the membership of the Founding Generation that executive authority, while a necessary component of a successful republican government, needed to be restrained by strong legislative oversight if it was to be made safe. As the text of his draft constitution for Virginia bears out, Jefferson seemed to be very much of this opinion himself. Where he differed from almost all of his contemporaries, however, was in the supreme confidence he seemed willing to place in the elected House of Representatives his plan of government described.

The fact that most of the other state constitutions made the appointment of a governor subject to a joint ballot of the upper and lower legislative houses indicates a desire to balance and harness two distinct sets of opinions in the selection of a chief executive. In cases when the lower house was popularly elected while the upper house was appointed by the former, the distinction between these opinions might fairly be described as interested versus disinterested – that is, directly beholden to the whims of the voting public versus beholden to a smaller, more knowledgeable, and more measured body. In other instances, wherein the upper house was also subject to popular election, the different perspectives manifested by the two legislative bodies could perhaps be described as economic or social in nature – middle class/upper class, merchant/planter, etc. Regardless of the nature of their divisions, however, the purpose of granting two bodies so characterized the responsibility of selecting a single head of state was to ensure that a variety of perspectives was brought to bear on the selection of what was undeniably an extremely important – and potentially dangerous – office.

As mentioned above, Pennsylvania and New Hampshire pursued slightly different arrangements than the majority of their sister states, in that they both granted executive authority to a body of councillors (Pennsylvania’s being popularly elected, New Hampshire’s being chosen by the lower house), from which a president was selected. Provisions such as these represented an aberration, relative to the other state constitutions adopted in the 1770s, though they still seemed to flow out the same conception of executive authority that defined much of the post-Revolutionary American experience. Leaving the selection of the President of New Hampshire to the executive council, which in turn was appointed by the popularly-elected lower house, created a layered system of accountability and discretion – the people chose their representatives, who chose the councillors, who chose the chief executive, and at each step the sovereignty of the people was transferred, and the political consensus distilled and refined. Pennsylvania, though it also made use of an executive council, left the selection of a singular president from among its ranks to a (stop me if you’ve heard this one) joint ballot of the council itself and the unicameral General Assembly. As with most other contemporary state constitutions, the logic behind this scheme was almost certainly concerned with balancing the perspectives and concerns of the two bodies so as to ensure that the choice they arrived upon was mutually satisfactory.

Jefferson, ever the radical, pursued none of these options in his draft constitution for Virginia. He did not attempt to divide responsibility for selecting his Administrator between different bodies of the General Assembly in the hope that the wide spectrum of opinion contained therein would result in the wisest possible choice. Nor did he determine to erect a system of layered accountability, whereby the selection of his home state’s chief executive was the end result of narrowing and moderating the body of electors until the individuals responsible for the final choice represented the refined, concentrated embodiment of the needs of the state itself. Rather, he quite simply assigned the task of appointing a chief executive to the members of the popularly-elected House of Representatives. This might perhaps seem to have been the lazy choice, as it involved the least complicated procedure and occurred within a single constituent body (instead of requiring the coordination of two or more such entities). It might also be fairly perceived as a particularly irresponsible choice. Recalling that in the 18^th century the notion of party politics was not looked upon favorably, and thus every member of the House of Representatives Jefferson outlined would have been at least a nominal independent, the prospect of allowing between 125 and 300 (as he defined its membership) people to decide amongst themselves which single person in the state of Virginia would act as their chief executive appears enormously daunting. When one also recalls that members of the lower house were to face election every single year, the possibility of the debate being defined by rank populism and insularity, if not utter chaos, seems positively immense. Nevertheless, it was the choice Jefferson made, and it says a great deal about how he perceived concepts like democracy, “the people,” republicanism, and executive power.

As discussed previously, Jefferson’s personal ideology, ever-changeable though it was, seemed always to have a definite populist bent to it. Among the Founding Generation, there were few who more strongly championed the rights of the American people, or who advocated more eloquently for their inclusion in the mechanisms of government. Granted, his high-minded idealism and passion for the prerogatives of the average citizen faded somewhat in his later years, worn down by decades of practical experience in government and the cynicism such things often breed. The Jefferson of 1776, however, was still a young man of 33, brimming with optimism and ready, in an almost literal sense, to change the world.  It should not come as a galloping shock, then, that this Jefferson was prepared to overturn centuries of precedent, both British and American, by trusting the popularly-elected representatives of his beloved Virginia to choose their own chief executive. As mentioned above, the Sage of Monticello often seemed particularly concerned with the democratic accountability of government in America, on the state and national level alike. The forms of government he accordingly tended to favor were those that were the most responsive to the needs, concerns, and aspirations of the general population. Consequently it is not difficult to understand why, when crafting what he believed would be the first independent government of Virginia, he settled on empowering the single most democratic branch of that government.

This he did in what might seem in retrospect to be a reckless fashion, vesting enormous power in a body of men whose chief concerns – as a consequence of the manner of their election – would seem inevitably to devolve upon whatever would allow them to maintain their positions. All other branches of government under the framework he described – though independent of one another in keeping with the best principles of republican philosophy – were to be subordinate to this functionally unstable lower house, rendering any potentially paralysing administrative deadlock wholly moot. Forced to wonder, once again, why Jefferson determined upon including a singular chief executive in his frame of government at all, one might consequently be forgiven for speculating that he intended the presence of an extremely weak and ineffective Administrator to serve as a kind of living monument to Virginia’s (if not America’s) fundamental disdain for unrestrained executive authority. This was almost certainly not the case, though it would seem a fairly accurate reflection of Jefferson’s feelings on the nature of political power, and the evils he and his countrymen had suffered at the hands of monarchs and governors who claimed their prerogatives from a power above and beyond the people. In Jefferson’s Virginia, no such power was to be acknowledged. The people were to be the ultimate authority in the constitution he devised; the House of Representatives was to directly reflect their will, and the legitimacy of almost every important office and decision was to flow outward from it.

On a final note before moving on, those of you who have been paying attention no doubt noticed that I described Georgia’s 1777 constitution as having granted the power to appoint a governor to the state’s unicameral legislature. Because said legislature was in turn elected by the duly enfranchised people of Georgia (all white males 21 and over who possessed £10 worth of property or were “of any mechanic trade,” and who had lived in the state for at least six months), it might perhaps appear that the arrangement Jefferson proposed in his draft constitution was in fact not unique among Virginia’s sister states. This is true, in essence, but with a few important caveats. Because Georgia’s first post-independence state legislature was unicameral while the General Assembly Jefferson proposed was to be bicameral, the significance of his choice to grant the House of Representatives executive appointment power still stands. Georgia possessed no upper house with which to share the responsibility of choosing a governor. Settling on a unicameral structure was most definitely an important choice in itself, and one which was doubtless subject to the same kind of complex considerations this discussion has hopefully begun to illuminate. But the fact of it meant that when it came time for the framers of Georgia’s constitution to determine how their governor was to be chosen, their options were accordingly more limited. In short, they chose a unicameral legislature, and they chose to make the chief executive directly responsible to that legislature, but they did not reject the joint ballot model that had been embraced by so many of their contemporaries. Rather, it was simply not an option given the decisions they had made already.

This may sound like a tremendously pedantic thing to insist upon, but the fact that Jefferson had the option to support the joint ballot model for selecting a chief executive and instead chose to grant said power to the lower house alone sets the constitution he drafted for Virginia apart from that of Georgia in a very important way. By dividing the General Assembly into an upper and lower house, Jefferson evidently endorsed the utility of bicameralism. The Senate that he described was accordingly vested with legislative responsibility coequal with of the House of Representatives, save for the latter’s sole power to draft “bills for levying money.” Granted, the Senate’s members were also to be appointed by the lower house, but Jefferson at least seemed to believe there was a role to be played by an upper house whose perspective on most legislative issues was worth taking account of. By then disregarding this same body’s input in the selection of Virginia’s chief executive, Jefferson was effectively making a statement about the importance that he attached to the various responsibilities and powers his home state’s government was to possess. An appointed, and thus somewhat distant, Senate had a role to play in the making of Virginia’s laws and the debates that resulted, yet it could not help to decide how to spend the people’s money or take part in the selection of their head of state. Jefferson, it seemed, considered these prerogatives too important to vest in a body that wasn’t directly responsible to the voting public. Georgia may have followed suit in terms of how certain elements of its government functioned, but the decisions that were made along the way and the logic that guided them were different. This is important to take account of, and consequently sets the two documents (Georgia’s 1777 constitution and Jefferson’s draft for Virginia) apart in spite of whatever outward similarities they may possess.