The History of Revolutionary Ideas: American Revolution 2: The Constitution

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Hello, my name's David Runcman, and this is Past, Present Future, the History of Ideas podcast. Today it's part two of our episodes about the American Revolution in our series The History of Revolutionary Ideas. I'm talking today to Eric Nelson about the constitution. How did the arguments that we were talking about last time lead to a constitution like the one that America has, and what are its implications for America today?

Eric, we left this story in seventeen seventy six. I don't think we can tell the story of the war itself. We're gonna have to cut to the chase. If people don't know, the British lost.

But there is a really interesting question given the extraordinary intellectual journey that you described last time that the Patriots, the leading patriots went on. We only mentioned a few names, but we're talking about John Adams, we're talking about Alexander Hamilton, we're talking about Thomas Jefferson, you know, they all had very different views, but they're on this weird journey to Republicans.

And then they have to interpret it in different ways. Some of them, John Adams maybe in particular, but also Hamilton, much more uncomfortable with being Republicans. than some of the others. But having been on this journey, fighting this bloody war, this war which wasn't obvious it was going to be won, but it was one, what was then the thinking behind the initial set of arrangements When the question arose of how are we going to govern ourselves, the colonies, liberated colonies?

What was the thinking behind the initial arrangement before we get to the constitution, in the light of the arguments that we talked about last time? Arguments about the role of king, the role of parliament, the executive, the negative and all of that. What was the first stab and how was it justified?

It's a question that I have to probably divide into two because There were two very distinct dimensions to it. I mean, one is at the level of the individual colonies. That's to say, what would their governments be like?

And they were very different and you know, immediately on the declaration of independence, since they took themselves at that point, even right at the beginning of the war, to be independent, the question was how were they going to be Governed, what was their constitution gonna be like?

And then of course there was the enormously important but separate question of what about the what would become the federal level, although of course they didn't call it any such thing, but what about the coordinating power amongst the colonies? since this was supposed to be one new country. So the first thing to say is to remember that this is now a very different question.

So it doesn't follow that the position that you were defending, let's say in the context of the imperial crisis on the extent of the royal prerogative, the authority of parliament and so on. would just transfer to this new set of questions, because obviously it's very different set of questions. The first is a question, how should we understand the proper constitution of the empire? But now, if we're leaving the empire and now we're building new states,

What kind of state should we build? It's a different question. It doesn't follow that the views are just gonna apply in the second domain as well as they applied in the first. And indeed there are some people the most important case would be Franklin, actually. who were really high royalist in their constitutional views. in the seventeen sixties and seventies

in the context of the imperial crisis and kind of defending the royal prerogative, making this argument that Parliament has no jurisdiction, and so on and so forth. Of course Franklin also had led this movement in Pennsylvania at the beginning of the seventeen sixties to convert it into a royal colony, to take the power away from the Penn family and so on.

But Franklin, in the context of the new situation and thinking about the proper form of a constitution for his own colony, Pennsylvania, ends up defending a sort of picture of executive authority that couldn't be more different. So the Pennsylvania constitution is the most radical of the first batch, the sort of eight or so colonies that adopt new constitutions in the first year of the war.

because it creates just a single legislative chamber, no upper house, and an entirely subservient plural executive sort of committee. So very, very weak, totally under the control of this one legislative chamber. And uh most of the other colonies don't do anything quite like that. But in general, in that first year, which is the common sense year, there is clearly a great deal of of support for views that are very suspicious of anything that looks like monarchical and executive power.

And so the initial executives in these constitutions, with one interesting exception, which is South Carolina.

They're very weak and none of the executives created that first year other than South Carolina's has a veto. They're all firmly under the control of the various legislatures. Aaron Powell And can I ask, are these legislatures virtual representation legislatures or have we also moved to a stronger sense of the relationship between voting and an extended franchise and the ability of a legislature to represent the people as a whole.

There's no simple answer to that question because the idea of virtual representation doesn't go away, actually. People continue, lots of people, very interestingly, continue to be wedded to this idea. and in particular to the crucial implication of it, which is that an executive can't represent the people.

So do they want a more general franchise? Yes, they do, but some Americans at this point really maintain this very Whiggish view that ultimately the only thing capable of representing a people is an assembly. And this is one of the reasons you mustn't empower executives, because if the executive has prerogative powers, that is to say, the authority to act separate and apart from a legislature and check the legislature in various ways.

then we're not free because that means an alien power is controlling us because this figure is not capable of representing us. People still hold that view. A lot of people don't and this is gonna be one of the major issues as we move through the seventeen seventies into the seventeen eighties and these debates about constitutionalism. And as you go through the seventeen seventies, the wheel begins to turn. So by seventy seven you get the New York Constitution.

which has a popularly elected governor, chief magistrate, which of course makes him independent of the legislature, which is a crucial thing. It also gives him a veto. So it's uh for the first time since the South Carolina case and South Carolina got rid of its veto. in seventeen seventy eight, but still a very circumscribed executive because the veto could only be wielded by a council on which the governor sat.

Which was made up of the Supreme Court judges and other people, but he couldn't wield it himself. But nonetheless That's one move in that direction. And then the big move comes in seventeen eighty, seventeen seventy-nine into eighty when we get the Massachusetts Constitution. which is largely written by John Adams and which gives you a governor chief executive with a veto that he can wield on his own and a great deal of authority. And so as we're moving into the seventeen eighties

All of this is changing very rapidly and even the Pennsylvania constitution by seventeen ninety is repealed and replaced with a one m that looks much more like all the others. Was the Massachusetts governor directly elected? Yes. So John Adams was willing to in order to have a powerful executive, he was willing to also allow for direct election. Oh, uh but that's not a sort of despite. Interestingly, that was one of these things that's counterintuitive.

To us we sort of say, Oh, um, you know, popular election, that looks kind of democratic, not monarchical. But Actually, the people who were most in favor of executive power were also the ones uniformly who were most in favor of popular election of the chief magistrate because It was the only way of ensuring that the chief magistrate wouldn't be dependent on the legislature. The alternative is the legislature elects the chief magistrate.

And there are echoes of that in the Weimar Constitution, right? That argument plays out in the nineteen twenties. Exactly. And if the legislature is electing you, the legislature is controlling you. And so very interestingly, whether we're talking about Hamilton or Governor Morris or uh you know, some of these other people, James Wilson would be the most famous case. wanted this, this popular election of the chief magistrate as a way of empowering the chief magistrate.

So they went together. And there is also this idea that is developing in this period, which also required the overthrow of an enormous amount of historical ideological understanding of English history in the Whig tradition.

that actually that was the story of English liberty. That, unlike the Whigs who talked about this thing they called the ancient constitution, when they imagined that really back in the good old days, There was a free parliament and a very weak monarch who really had no prerogative powers.

And all of this is sort of undermined in the feudal period when you get absolutism and tyranny and then the Whig constitution, the Whig ancient constitution has to be reasserted over and over again in the petition of right and so on.

These guys, the ones who are really in favor of executive power in this way, and who had been exactly the same people who were arguing for the royal prerogative in a very strenuous way in the context of the imperial crisis, people like John Adams and Alexander Hamilton and James Wilbur. James Wilson on this point is an interesting partial exception. They're turning to the royalist historiography that rejected all of this.

that emerged in the sixteen eighties and afterwards and was then picked up by the Scottish Enlightenment historians like David Hume, and then with his historians had on Adam Smith, interestingly in the Wealth of Nations, which tell you first of all they say there was no such thing as the ancient constitution, that's nonsense. And feudalism wasn't a problem because of royal absolutism, it was a problem because of royal weakness.

anarchy. It was baronial tyranny. Feudalism was the few preying on the many, and the great departure that secured modern liberty was the alliance between the one and the many against the few. So the people and the king against the aristocracy. And so the king is the man of the people. He's the guardian and protector of the people's liberties.

And that was exactly the view that was explaining why popular election fit into this picture, right? Because the chief magistrate rightly understood is the people's man taming the few who might prey on them. We will come back to this at the end because among other things, that sounds very like a definition of twenty-first century populism, but we will come back to that.

The second part of your answer to my first question. So we've got these evolving constitutional arrangements in the former colonies, some of which empower strong legislatures, but some of which are moving towards

stronger executives popularly elected as the means to strength. But then there's the coordination question. What's the initial thinking behind how you coordinate these things? And if you are dealing with Now independent states that are primarily being run by their legislatures, how do you coordinate legislatures?

Well that was the big problem, and a lot of it was in the first instance sort of improvisation, because what you had was the Continental Congress, which was meeting technically the second Continental. And essentially this body then continues. and takes control of the war. And so it's sort of running things in this period. And it's actually, despite what's sometimes said, at that early period of the seventeen seventies, is actually enormously powerful.

because, you know, it's the only game in town. There's no national executive, there is no national judiciary, there's nothing. It's just this. And there aren't two chambers, right? It's just

Congress. And Congress is controlling the whole war effort. Now it's dependent on the states in all kinds of ways, but it is actually quite powerful in this early period, but its structure is kind of improvised and it's very clear right away that you need some kind of constitutional arrangement that's going to iron this out and impose an actual agreed structure on national decision making.

And the first attempt to do that were the Articles of Confederation, which were written very early by a committee chaired by John Dickinson. In seventeen seventy six,

But there are a couple of important facts about it that are necessary to keep in mind as you think about what happens later. The first is that it doesn't actually go into effect, the articles that is, don't go into effect, until seventeen eighty one, because it takes that long for it to be ratified by all the states, not least because Maryland holds out over debates about land rights. So actually it's not technically enforced.

until Yorktown, really years later, de facto a version of it is sort of adopted so that Congress can do its business. But for a while it's not technically enforced. and the powers that it gives to the national government, Congress in this case.

are quite limited in a number of famous respects. The most important one being that it has no taxing power, no ability to raise revenue in that way. And so it depends entirely on essentially voluntary contributions from the State. So the state are very powerful in the beginning. It also doesn't have, in the first instance, an executive power apart from Congress itself.

And that actually led to a lot of confusion about how to actually understand Congress, what to call it, because it wasn't really a legislature, it didn't pass laws in the ordinary sense. So it seemed more like an executive council because it was doing things. Essentially what it had done was it inherited what had been the royal prerogative. I mean, once you cut off the king, all the stuff that the crown used to do is now going to be done by Congress, is the idea.

But there were a lot of uncertainties about how this was all gonna work and a lot of improvisation and experimentation in terms of Congress then developing its own version of some kind of an executive with ministerial departments and things like this. But basically that's the first draft. That's what's in effect. And it becomes increasingly clear as you get into the seventeen eighties that this is not working. And it's not working in part because

As the wheel turns, we're back in the late seventeen sixties in the sense there's a successful war that's been won and it has to be paid for. I mean, presumably part of what's going on here as we move into the second half of the seventeen eighties are those fundamental questions. of who's gonna foot the bill. Yes, but also lots of other questions, and just the sheer sense that Congress under the Articles of Confederation was not able to serve the kind of national coordinating functions.

that you needed for this country to be functional. After all, as a newly independent country in a world of great power politics, with all that that entails, and the need for coherent and credible diplomacy, the need to be able to raise credit.

and take loans. I mean, who's gonna loan you money if y they don't have confidence you're gonna be able to repay it because you can't raise revenue? You know, so all of this is a bundle of concerns and they become more and more intense as the seventeen eighties go on and when you get to seventeen eighty seven, you get this really big event, which is known as Shays's Rebellion.

in western Massachusetts, which is an armed revolt driven by complicated local economic grievances, but an armed revolt and an army had to be raised uh to put it down, and Washington President Washington. led that effort. It was uh the the last time that an American president as commander in chief actually led soldiers in battle.

And this added to the sense that something was very wrong here, that that Congress just was not up to the job and that a much more powerful and coherent national government was needed and that's what sets in motion the complicated set of events. that will eventually lead to the convention in Philadelphia being called for the fall of seventeen eighty seven.

That phrase a more powerful national government nonetheless leaves a lot of the important questions open, versions of the questions which were argued out and semi resolved at the state level earlier on. Was the failure of the seventeen eighties a failure of Congress itself to be sufficiently powerful, or was it a failure because there wasn't a clearly delineated executive capable of taking the kind of executive action that was required.

Was it framed as a question about whether the weakness here was the legislature wasn't strong enough or there was an absence that had to be filled outside of the legislature in the form of a newly empowered executive? Or is that too crude and schematic? It's a great question and and you know, one of the things to say is when we get to this moment, as indeed in the previous moments, in the revolution itself, questions of the form what did the founders or the framers think of X?

Are almost always terrible questions. I mean, they're badly posed because the founders and the framers didn't think anything. They thought very many different things. I think it would be fair to say, though, that there was a great deal of consensus, both that the national government just per se needed more powers.

although exactly how many more and of what kind was very controversial, and that there should be some national executive, that the lack of some kind of equivalent at the national level of the sort of institutionalized executive at the state levels was lacking. But there the agreement I mean I think you can find people who disagree with one or both of the things I just said, but I'd say there was a great deal of agreement on those points. The question was

Well, what kind and and how? And there was enormous disagreement. Certainly there was enormous disagreement about exactly what powers to give to the federal government at all as against the state. But within the context of the national government there was enormous disagreement about the distribution of authority between the branches or among the branches, and particularly between the executive and the legislative.

And these were debates both about the form of the executive. So should it be one person or should it be a committee of some kind, a plural executive? If it were one person, should it be attached to something like a privy council with whom the executive would have to act and whose advice he would have to take? These were all live possibilities, or should it be a single person with no privy council?

So that's on the question of form. And then there'll be the question of powers, right? Should this figure have any prerogative powers, or what would have been regarded as prerogative powers in the case of the crown, should the executive have a veto? Should the executive have the appointment power? Should the executive have various kinds of power over foreign policy or war making, treaty making?

All of these were questions that were very much open, and unsurprisingly, the executive is the single most debated item.

at the Constitutional Convention, uh by far. An enormous amount of the Convention is taken up with this. Aaron Powell And as you say, people weren't committed to upholding the views that they had taken in the earlier crisis? But one of the things that you brought out very clearly last time was the extent to which those arguments were framed as arguments about what had gone wrong in Britain, or earlier in the seventeenth century, in England.

And one thing that had become clear was that I think from the point of view of the Patriots the King had been captured by Parliament. I mean, there are different ways of understanding what had happened there, but somehow whatever separation was meant to exist had collapsed. And Parliament had more or less turned the King I mean, I don't think everyone thought this, but turned the King into a kind of puppet. There were rival views as well.

But to what extent by the time we get to the convention and the question of the new federal constitution?

were these arguments still being run through different understandings of what had gone wrong on the other side of the Atlantic? And also that particular question about I guess'cause we didn't use this word last time, parliamentary corruption and the ways in which Parliaments, legislatures and the interests that are contained there have a tendency to kind of allow those interests to leak into the national interests, which is one definition of corrupt

Actually, I think to a surprising extent, the debates both in the convention itself and around it are obsessively focused on that question. and with people defending very much the same views that they had defended on these points in the imperial crisis previously, with exceptions, Franklin being the notable one, as I said.

Let's say there are kind of two basic ways of understanding what had gone wrong with the English Constitution. People in the British Atlantic could agree that the British Constitution had become corrupted. How had it become corrupt? Well, the Whig story, the sort of radical Whig, sometimes called the country story about how it had become corrupted, was through the astonishing rise of crown power.

So basically, someone of this description, kind of radical Whig, will look at the fact that, let's say, no English monarch had vetoed a bill for generations. and say, Well, that might look to you as though it's a reflection of royal weakness, as in they wouldn't dare any longer, or the power has become defunct or purely formal. But actually, it's that they never needed to. They didn't veto anything because they always got their way. Why did they get their way? Because they bought everybody.

they'd used the patronage power of the crown and the financial power of the ministry to just buy a parliamentary majority, which was then sort of supine, and did whatever they wanted. So this is a story that says the problem was rising crown power and the crown kind of gobbling up the legislature. The rival story, which was told by those people we tend to call problematically Tories, because we shouldn't

say Tory in the sense of what becomes the Conservative Party in Britain, but these are figures who argue the reverse. Probably the most famous one is David Hume, who argues that actually no.

It's entirely the other way around. So the reason that no monarch has vetoed a bill is that no modern monarch, no monarch since the Glorious Revolution, they thought, would dare to veto a bill, because the monarch has become incredibly weak All power has located itself in the House of Commons, and the great danger to the Constitution is the sort of subsuming of the executive through the ministry into the legislature.

And so there is no longer any constitutional balance and the the risk is that the monarch becomes a kind of cipher in very much the recognizable modern way, where the monarch sort of reigns but doesn't rule.

And to an extraordinary degree this is what they were debating in the Convention and around the Convention, which one of these is true. Because if you thought the first was true, you were gonna be very worried about executive power. and you were going to want to subject the executive to the legislature. If you thought the second, you were going to go the other way and you were going to want to empower the executive and your real worry was going to be tyrannical legislature.

And that's a pretty good way of mapping who was arguing what in the convention. And the real clash between those views also became a clash that is brought out into the open at really fascinating points in the debates in the convention about what the revolution was about, the American Revolution. You know, what were we doing? So probably the most famous moment, the one that I think is most revealing, is when the motion is first made, the proposal to create the president.

The motion is made by James Wilson, and Wilson makes the motion, and his motion is that the executive shall consist of a single person. And in Madison's notes, very famously, he says there was a pause here, right? As everyone was sort of absorbing this, and they were clearly stunned. Why were they stunned?

I think there's no question about why they were stunned. They were stunned because they had all just read John Adams's Defense of the Constitutions of Government of the United States, which had come out just in time. The first volume, for the convention, and we know everybody was reading it. And in it, Adams had defined monarchy. as the executive in a single person.

And so everyone is, you know, immediately thinks, whoa, you're proposing, following Adams, who was not there, Adams was in Europe, in Britain as ambassador, you're proposing a monarchy. And indeed right after the pause, one of the Virginia delegates, very important one, gets up, Edmund Randolph, and says,

this is horrible, you know, you you would create the fetus of monarchy, and we just fought a revolution to throw off the British crown. Why would we now make our own? And Wilson's response is interestingly recorded in another of the set of notes by a delegate named Rufus King, not in Madison. Says that Wilson says, no, the revolution was not against the King, but against Parliament. And it was not against.

a single person, or unitary power, as he calls it, but the corrupt multitude, that is, the multitude in Parliament that had usurped the royal prerogative. And so there you have it. You know, that's the debate. First of all, what went wrong in Britain itself? which then inflects your view of what the imperial crisis was about and what the revolution was about. And all of this is deeply influencing the shape of the debate. And at the risk of telescoping this too much.

As you describe it, one thing I think everyone will be aware is that America did end up with an executive in a single person. the presidency, the result of the convention, the constitution that was agreed and then was ultimately ratified by the states and defended famously in the Federalist Papers by Madison, as well as Hamilton and a little bit Jay. A very little bit, is the presidency that we know and love today. And it includes a veto power, it includes

circumscribed appointment powers. We've just been through a process in which the President has nominated various people, but the Senate has to sign off on it. Is it too crude to say that Wilson won. Maybe Adams didn't win, but Wilson won. all of these people left Philadelphia, including most of all Madison. Madison is known as the father of the Constitution in the United States. And it's very tempting to see the Constitution as his brainchild.

and he was a very important figure in the story of how it came to be. But he left Philadelphia dejected. in all kinds of ways. The major things that he wanted didn't get in, and we could talk about how. Madison actually had very little as he confessed to Washington and others in letters r on the eve of the convention, he sort of said, Look, I actually don't really have views on the executive. That's not what he was focused on.

he was focused on other things, chiefly the thing that he didn't get, which was the congressional negative. I mean, that's to say he wanted the federal government to have veto power over laws passed in the state. And he lost. And he thought that was a catastrophic problem. All of these people left disliking important parts of what was agreed on. I think it would be fair to say that people like Wilson and Adams and Hamilton got more of what they wanted.

than the hardcore Whigs, we might say, th those in the convention who were very suspicious of executive power, still had this kind of Whig idea that only an assembly can represent the people, wanted the president to be chosen by the legislature. Subject to the legislature, removable by the legislature, to have no veto, and so on. I think it's fair to say that the overall shape.

of what emerged was much more in line with what these people who'd been defending the royal prerogative in the imperial crisis wanted. It's important to realize they left disappointed on a number of scores. So first of all, a number of them wanted the president to be popularly elected. He wasn't. They had to settle for the Electoral College. So that was the kind of halfway house.

not popular election, but it also doesn't leave things in the hands of Congress so that the executive will be independent of Congress. they most of them, certainly people like Wilson and and Adams, wanted the president to have complete appointment power, that is to say, without any role of advice and consent for the Senate. They were very much worried the Senate

had been made far too powerful. They initially were very unhappy that the president's veto was qualified, meaning that it could be overturned by a two thirds majority of both houses. Interestingly, they came to make their peace with that idea because it begins to occur to them, particularly Wilson and Hamilton. Adams for the rest of his life thought that was a terrible mistake.

But Wilson and Hamilton recognized that actually in an interesting counterintuitive sort of way, you could argue that the fact that the veto was qualified made it stronger rather than weaker. Because if there was no recourse In the case of a veto, if it was just like the Royal Veto. it might suffer the same fate as the Royal Veto, which is would be so politically radioactive and dangerous to use that no one would use it and it would just sort of become a defunct power, go into abeyance.

Whereas if you made it really, really hard to overturn, but possible, you might embolden the executive to use it more to defend both the executive power and the liberties of the people and so on. And so they come around on that. But nobody gets everything that they want. And also the term of the president was a major issue. what should it be like? It's not much remembered these days that there was a formal proposal to make the President's term light.

And it was supported by four of the state delegations, including Virginia. And because it was supported in the particular way, I mean we know who voted which way in Virginia, we know that Madison voted in favor. which is something he then had to explain in later life. And we know that interestingly Washington, who was the presiding officer,

at the convention, which was very awkward because everybody sort of realized that if there was going to be an executive at this kind it was going to be he. Washington voted for the life term from the chair. But it was defeated. And then there was a question about, you know, how many years and whether it should be one term or more. And of course what they end up with is

four year terms, but the president would be eligible for reelection indefinitely. It was not until the twentieth century that there was a two term limit, although there was by convention because Washington left office after his second term. So all of these issues are in the mix, and people like Hamilton and Adams and Wilson are unhappy that they don't get much more along the lines of what they fully want. And so it's a mixed bag what you get in the end.

You said earlier that we shouldn't use the word federalist too early, but we can use it now. The Federalist Papers were the Federalist Papers. a party, the Federalists, is starting to emerge and this is going to be known as the federal government. And there's also an opposition, which is the anti federalists, as they came to be known.

And they were, among other things, I believe, associated with a version of virtual representation as one of their principles of government, the idea that you do need a strong legislature, but the legislature needs to be like the people that it represents and it therefore it needs to have in it a range of people maybe it's a broader conception than the eighteenth century Whiggish, English or British version, but it's gonna be a picture of the people.

And the federalist position is anti the anti federalist position. What is the notion of representation that you think I know it's too complicated to say triumphs,'cause as you say, everyone as always at these things, everyone thinks they lost. Everyone's pissed off.

But what is the version of representation that you think wins out against the anti federalist version? It's based on consent, it's based on authorization, it has a notion of the popular vote in it. But if you relate it back to those earlier arguments in the 1770s about representation. What is the one that comes out at the end of the 1780s as let's call it the dominant American model?

It's a really tough question in various ways. I mean the first thing to say, this language of federalist and antifederalist. I mean we're stuck with it and and so we use it and that's fine. But it's very misleading in all kinds of ways because it's essentially begging the question. I mean it's federalist terminology. The Federalists called themselves Federalists and their opponents anti federalists. And of course by this they mean that the only reasonable, plausible way of achieving a proper

form of national federal government is ours. But the anti-federalists were also federalists. I mean in the sense that virtually all of them were in favor of not just creating a federal government, but creating a federal government substantially stronger than the national government had been under the Articles of Confederation. So that's one problem. The other problem is that, you know, these people are objecting to the Constitution for

The people we're calling anti Federalists are basically the people who oppose the Constitution. The people who oppose the Constitution are essentially just the people who think on balance it would do more harm than good, whereas the people who are in favor of it are the people who think on balance it'll do more good than harm. But what exactly the goods and the harms are, they disagree about quite a lot. So some antifederalists.

It's not that many of them, but there are some Anti Federalists who think the Constitution is problematic because the Executive is too weak and the Senate is too strong. Most of them don't think that, but there are some. Some of them think the problem with the constitution is that the Senate is too strong. Some think the executive is too strong. Some think the problem is the courts will be too strong. You know, there's a great heterogeneity in their views.

And likewise there's a great heterogeneity in the views of those who take the view that on balance the Constitution is good enough. And that we should adopt it.

That's to say, they think that lots of things are wrong with it, and they're gonna disagree about exactly what those things are. So that's the first thing to say is just that it's perfectly fine to use the terms, but you know, we just have to have a little asterisk, you know, a reminder that this is a kind of convenience rather than a terminology that really reflects. something very deep about the debate that we're talking about.

But it is absolutely right that in a way the last great gap trisp of this kind of Whig virtual representation parliamentarian view is in the writings of a number of the most prominent anti federalists, the set of those who get into print to oppose the Constitution. Who object

to the constitution on these grounds on a number of points. You know, first of all, of course, the executive. That's to say if you think that only a legislature can represent the people, then surely you should not think that the executive should have the power To veto congressional bills or do any of the other things that the president is given the authority to do because he doesn't represent the people by definition.

So that's one. But as you say, they're also very worried about the size of the legislature. They think that Congress is too small relative to the size of the country, and that it therefore can't mirror the country in the relevant way. Some go further and say that it's essentially no federal legislature could be big enough and mirror the people in the relevant way, which is why you have to leave a great deal more authority to the state legislatures, which can.

So that is absolutely true, and it is a a kind of extraordinary resurgence in those texts. Of these seventeenth century arguments where they start saying things like, Well, a legislature are the sign and the people are the things signified. that language of signification, representation, you know, making a picture, standing in for in that particular kind of way. And that's absolutely right. But I think it's fair to say that that's not the view that wins.

Now, what view does win? Well, there it's much more ambiguous because clearly the um constitution as agreed to in Philadelphia depends on the view that institutions like the President, and indeed the Senate, which are not popularly elected in the first instance. although James Wilson also proposed that the Senate should be popularly elected, and again that wouldn't happen until much later. You had to think that these were institutions, the existence of which were compatible with

a free people in a free state, right? That's to say that giving these institutions authority was not to enslave people. So you had to think in a sense that these were representative institutions, that they could speak and act in the name of the people. The question, though, was why exactly? And some of these people, Wilson being the most famous, really develop this rather difficult view that representation is something that comes with voting, that someone can only represent me if I've voted.

for the person. Which of course for Wilson is why he wanted everybody to be popularly elected, from the president to the Senate all the way down. Very few people actually held that view, partly because it's quite problematic.

The problem obviously being a lot of people will not vote for the person who wins, right? Well, exactly. You know, I I live in Cambridge, Massachusetts. I get to vote for one of the four hundred and thirty five members of the House of Representatives, so I will at the end have voted for a maximum of one, because of course the guy I vote for might lose.

and two senators, and yet I have to be able to see all of these other people as representing me if they pass a law that my guy doesn't vote in favor of, and so on. So it's a problematic view. I think m most of them held the view which was much more straightforward than one that we talked about before, and was explicitly held by people like Adams and Hamilton, which is the old Royalist idea of representation, which is just that representation

is about authorization. Anyone authorized by a constitutional scheme to act and speak in the name of the people in a particular domain is a representative of the people. And so the president is the representative of the people because the people have agreed in some underlying sense To a constitutional scheme in which there is a president, and likewise for the Senate, likewise for judges, and everybody else who isn't elected.

And so this idea becomes very important for legitimating the kind of power that, for instance, the president is going to wield. That's to say, it has to be understood as representative power. that he is speaking and acting in our name. And that this was true even at a time when he was not popularly elected. And so that's the view, if there is one that triumphs, I think that's the one that triumphs.

There are so many aspects of this story that we are not going to talk about. We're not going to talk about the Bill of Rights. You've touched on the Supreme Court. We can't get into all of it. One of the reasons I wanted to focus on the question of the executive and the presidency is the obvious one, because we are living through a time in which the question of the President's powers

It's not just central to American politics, it's actually frankly central to world politics. From an ocean away, you can feel it. You can feel the weight of that question. And this earlier story is so fascinating in the light of what's happening now. And I'm going to come onto that in a second. But we also haven't talked about a phrase that's very often associated with this period and this constitution, which is the separation of powers.

One of the consequences of the way the arguments were ultimately cashed out is that you do get something I think which is new, which is the idea that the people as a whole can be represented in multiple ways. So it's not that what you will get is a single representative body, which is a version of the people and therefore it has their multiplicity in it. some of these representatives will be extremely unitary. The person of the President is a single human being.

The President represents the people, the Senate represents the people, the House of Representatives represents the people, in some senses the Supreme Court, though it's more tenuous. represents the people. This is all the same people. These aren't different people. It's not like the president represents

a subsection of the people. And there is, relatively speaking, some novelty in this idea. It's a very powerful idea. And of course it does then create within the system the possibility of real tensions between rival claims to represent the people as a whole, depending on maybe what you think is the basis or

the representation. And yet within that, within all of that, what really does stand out, and it connects back to our previous conversation, is the extent to which this executive is going to be justified as a representative in terms of an argument that was used to justify the representation of the king. It's a royalist argument.

and also will have powers that are greater than the powers of the British King. I mean I think this was widely recognised at the time, wasn't it, that in a sense what had been created here was a republic with a kind of monarch, in contrast to a monarchy across the Atlantic, which was in many ways more like a republic. And in the arc of this story, this extraordinary story that you've told, that's such a striking outcome

And presumably it struck people at the time. Some were happy with it, Adams, Hamilton, others. But is it wrong to think that it might have been weird for them too? I don't actually think. that the novelty here was the people, as it were, having multiple representatives or being represented in different capacities. Because I take it that that was the royalist conception all along, right? The king represents the people

But so does the House of Commons. I mean Royalists would be perfectly happy to acknowledge that the House of Commons represents the people. but only in its constitutionally authorized domain, like in the same way that I can be represented simultaneously by my lawyer, my my accountant, my agent, you know, whatever. being represented by multiple different people or bodies in different capacities, I think is part of this idea all along.

So, in relation to foreign affairs and the other d domains of the royal prerogative, we're represented by the king. When it comes to the levying of funds, we're represented by the House of Commons and so on. So I think that is present there. What's unusual is these two levels. And by unusual I don't mean there was nothing ever anything li you there's never anything like it before because in a sense.

all of this is emerging from complicated ideas about imperial authority and structure that date to the period before seventeen seventy six. But this idea that we're going to have a state executive legislature, judiciary, and so on. And then we're gonna have this other level where we're going to have a national executive legislature, judiciary, et cetera. They're both representing us in different ways and in different domains.

That is an idea that was uh very challenging to work out and one of the sort of novelties that they had to work out. But I think the basic idea of different agencies being representatives of the people in different capacities

Is one that's just continuous all the way through in this line of thought. Maybe what I'm trying to get at, I totally take that point. Maybe what I'm trying to get at is most versions of politics probably contain within them the idea that there can be, you know, once you've used the language of representation, multiple representatives of a single agent, the people being an agent.

But there's something about maybe I'm wrong about this, there's something about the formalization of this in a written constitutional document in a single moment. So it's not like they're drawing on different histories, different traditions. Some of these claims to represent come from a certain kind of deep basis in national tradition and others in another. Religion is stripped out of this story, although you know religion is everywhere in this story, but it's also stripped out of this story.

And that it sets up the possibility this formal multiple representation of a single people, and the people are just the same people in each case. It's not like they're different people, really, they are the same people in each case. And the claim to represent them is not just I represent them in this domain and I represent them in this domain. It's not just the legislature does legislative things and the executive does executive things.

What we know from the history of the American Republic is it also depends upon the ability of these various representatives to kind of make the case that we speak for the people. And something about that feels new. Or it's new both because it's worked, you know, it's been rel there was a civil war, okay. But it's been relatively stable. And the civil war was caused by the second of the points you made, not by the first.

it's been relatively stable. But my God, it injects into politics a kind of a rivalry to speak for the people, which is very, very potent and potentially, as we see literally today. quite potentially destabilised.

I think that's absolutely right. And the sort of structures that they develop, insofar as they're, as you say, written down all at once. That was first of all just I mean, we haven't talked about the writtenness of the Constitution as one of the very momentous developments in this story, as it certainly was, and they were very aware of it, that it was this act of deciding to put on paper an entire scheme of this kind and to set out how it was gonna function.

was an extraordinary thing to try to do, particularly in light of the British example, because of course the constitutional world they grew up in spectacularly lacked this. The unwrittenness of the Constitution was one of its essential features.

And the jockeying that you're talking about for the the claim of who's really representing the people gets going right away in exactly the way you spot. But one thing that I think is worth pointing out here is this idea of separation of powers, because This again is one of the ideas that get floated around in these discussions as well obviously the Constitution secures the separation of powers.

Yes, and no, there really is a sense in which it does not secure the separation of powers. And by design, so what do I mean? You might say the separation of powers is a solidly Whig idea. That's to say the legislature should do its thing, the executive should do its thing, the judiciary should do its thing, and there should be no encroachment. of the one on any of the others. That's very different from the idea of what becomes known as checks and balances.

Because in checks and balances, the powers aren't strictly separate, they're interlocking in some way, and mutually affecting. So the executive has a veto. Well, but the veto is not an executive power. That's a legislative power. So that involves the president in the legislative branch.

The Senate has the right to advise and consent in the appointment to executive offices that involves it in the executive and so on. So actually what you get is a structure again, much more like the structure of the seventeenth century English constitution than the eighteenth century one.

in which not only are these units separate, but they are interdependent in all kinds of ways, which of course invite the possibility that something can go really wrong when one or the other of them sort of goes on strike. and prevents, as it were, one of the other branches from being able to act.

in the way that it needs to. And so that turbocharges the process that you're talking about about sort of claiming the right to represent the people. Because what happens if the Senate just refuses to confirm offices to the executive branch? Or what if the president refuses to nominate them? Or what if Congress refuses to fund the government? and so on. These are questions that arise within the context of this.

kind of a structure, and so what the structure implicitly depends on is a kind of consensus, a kind of minimal consensus amongst the branches that each is going to do something short of exercising its full prerogative. In a particular domain and is going to sort of play ball with the others. When that stops happening, you get into really serious trouble.

I want to ask you one last question, which is going to be a question about President Trump, which is about how weird should we find it that this Republic has a kind of king? How weird should we find that? Never mind. How weird might they have found it? I think you've explained some of the ways in which actually for them it wasn't weird.

Only a kind of king, not an actual king, we have to be completely clear about that. But the echoes of monarchical power are reverberating through this story, and the presidency is a remarkably powerful office. The behaviour of Trump two point oh in his second term, some people are exhilarated by it, some people are horrified by it, but the shocks are reverberated. I think the word is for a lot of people shocking. Should it be if we think of this as a republic with a king?

And one of the questions is So it's shocking because it's certainly out of the norm of what has evolved over two centuries. There have been all sorts of different variations of the way in which people have tried to exercise presidential power, but certainly in the recent story, Trump looks like an outlier.

He looks less like an outlier when you plug it back into some of the things that we have been talking about, including the point that you made, the arguments that were drawing on Hume and Smith and others, the idea that a single person can represent the many against the few, the corrupt few. The the corrupt few may well be the entrenched powers in the legislature. It's money, power and the rest. And there is a kind of

deeper connection potentially between the one and the many, the oppressed many and so on. And that is a not the eighteenth century version, but the twenty first century version tends to be called populism.

But also Trump is exercising powers, there are real constitutional arguments going on now. They will reach a Supreme Court, which is a court that may well turn out to have itself been co opted by one of the other branches. We shall see. Anyway, we can't do it all now. But My question is should we be shocked in the sense that is it only an outlier because of the way in which this

story has evolved relatively more recently? Or is it actually an outlier even in the terms of these eighteenth century arguments, late eighteenth century arguments, about the need for a king-like executive which did, broadly speaking, triumph at the convention.

I've been thinking a lot about this as you might imagine. I mean you can count me as one of the people who are appalled rather than exhilarated. And so I thought a lot about how this relates to the sort of broader story I've been telling. And I think actually the answer is somewhat counterintuitive. I mean I think one of the sad results of this would be, and you can already see it a little bit.

trying to fight out the politics in the historiography. I mean that's to say to conclude from what we're seeing that it's more important than ever to sort of double down on the old school version of the American Revolution, which is it was a revolution royal absolutist tyranny is correct, you know, which it isn't. And I don't think that one has to have any patience for that story in order to oppose a great deal of what's been going on in our politics.

I also think it robs us of some resources for understanding some of the things that have been going wrong. So for instance, just to take one example, I mean there's so many. And this is from before uh you say Trump two point oh officially began, but uh one of the major developments of the last year was this case decided by the Supreme Court, Trump versus the United States.

which addressed the question of whether a president, a former president, could be prosecuted for crimes committed while in office because Trump had been indicted. And the court ruled 6-3 that actually presidents enjoy a very sweeping form of immunity.

from prosecution, not a blanket immunity, but when the alleged crimes coincide with official acts, that is to say, acts taken in the president's official capacity and particularly in those areas of his official capacity that are explicitly allocated by the Constitution, something say like the pardon power, where there's no review by the courts or and no review by Congress. that the president does have immunity.

And this ruling was, I think quite rightly, greeted with a great deal of unhappiness and disapproval. But one of the interesting things that a lot of the critics said, including Sonia Sotomayor, the justice who wrote the major dissent in the case, was basically this converts the president into a king and we fought the American Revolution in order not to have a king.

And of course if you see things that way, then what you miss if you're any kind of an originalist I mean I think there are great problems with originalism, but if you are any kind of an originalist, that is someone who thinks that the way to determine this question is to go back and see either what the text of the Constitution explicitly says and or what did the founders think about some question in constitutional law.

That story really robs you of some crucial resources because actually the debates in the convention about this issue, to the extent that it was debated at all, broadly speaking. holding presidents to account for crimes they might commit, which falls under the broad heading of impeachment, but also prosecution, subsequent prosecution for crimes.

It was actually the folks who were most enthusiastic about royal prerogative power and executive power who were most enthusiastic About making the president susceptible to prosecution, both impeachment and criminal prosecution. Why? Well, because they thought that the president who was emerging from the convention was in fact too weak.

in some important respects, rather than too strong. They went back to the original arguments, the royalist arguments, and say, Well, look, the thing about a hereditary monarch is you don't worry about the hereditary monarch betraying his subjects and acting for short term gain because he has his interests bound up in a very stable long run fashion with the well being of the realm as a whole, and of course he can't be bought. It's unthinkable.

But a temporary chief magistrate who merely serves a short term and has no hereditary interest in the long term prosperity of the state might be dangerously susceptible to first of all foreign interference and bribery, which was the thing they were most worried about, and various other sorts of malfeasance. And so actually this was more dangerous. than a hereditary monarch, and therefore it needs additional safeguards.

And one of those safeguards clearly was not just impeachment, but the potential of subsequent prosecution for crimes while in office, which I have no doubt at all that these people contemplated quite explicitly. So actually I think if you take seriously this set of arguments. you often see these sort of counterintuitive parts of the story that would give you resources to make the right kind of case against some of these abuses.

Not all of it is of this kind, right? These are not all constitutional questions. I mean, if you're talking about Trump two point oh, a huge amount of what's going on are really questions that arise in relation to authority that's been delegated. in various domains to the executive by Congress in areas which are undoubtedly beyond dispute areas in which Congress has the final say, areas like immigration and other things like that, where they've delegated

the authority to the president. And the argument is that the president is Abusing his delegated authority or failing to exercise it or whatever, as in the case when there was this kind of funding freeze, that is, These are funds allocated by Congress, and it's Congress's authority to allocate the funds. And the argument was, but the president is directed to actually distribute them.

pursuant to congressional legislation. So some of this, a lot of it is taking place at the statutory level, not at the constitutional level. But even the stuff that's taking place at the constitutional level, I think, is actually clarified. When we see this story more clearly rather than the other way around.

Coming up tomorrow we have a bonus episode to go with these two with Eric about the history of the American Revolution. To get it you'll need to sign up to PPF Plus, just click on the link in the show description or go to our website. ppfideas.com and you will be able to hear me trying to make sense of some of the extraordinary arguments that are swirling around Donald Trump almost as I speak.

On the question of whether or not it's possible to think of him as a kind of king. Why are people saying that? Where do these ideas come from? Do they have a connection with what we've been talking about in the past two episodes? And what the hell is wrong with the people who think like that?

You can also get a new edition of our free fortnightly newsletter. It's out tomorrow. It will have all sorts of bits of extra writing, information, clips and further reading to accompany our past four episodes. That is 1688, the Industrial Revolution, the Declaration of Independence, and the American Constitution. To get it, again, the link is there in our show description. It's all easily sign upable for on our website, ppfideas.com.

Next time in our regular slot, we start a new mini series within the bigger series, this one three episodes about the French Revolution. First up Lucia Rubinelli is going to be explaining to us the writer and the piece of writing that made the revolution happen. Abbe Cies What is the third estate? If you've never heard of it, don't worry, we'll explain how and why it changed the world. This has been Past Present Future, part of the Airwave Podcast Network.