Philadelphia Reflections

ARCHITECTURE OF GOVERNMENT: (1) ARTICLES OF STRUCTURE

Although an outstanding feature of the United States Constitution is its brevity, by contrast, the Articles of Confederation which it replaced contained scarcely anything at all. Stripped of boilerplate, the Articles amounted to an oath of perpetual allegiance between thirteen colonial tribes who banded together to fight a common enemy. The document began with a firm statement that the constituent states retained their right to write their own rules. No national rules could be made without the consent of every state. Moreover, since enforcement powers remained with the states, the states could ignore national rules at will, even if they had agreed to the rules. Once the Treaty of Paris concluded the Revolutionary War conferring an immense domain to the East of the Mississippi River, the thirteen states had to decide whether to remain united in a single nation or to parcel out the wilderness into thirteen pieces within a sort of Europe of North America. They tried to continue the Articles for four peacetime years, but their populations were too small for all the tasks. They could no more govern all that territory than they could individually defeat Great Britain in the recent war. Looking ahead for a moment, after another eighty years of immigration, the southern states would reopen that issue, but in 1787 such a demanding adventure seemed too daunting to everyone. While eight years of fighting a guerrilla war loosely bound together might have seemed the most they could do, George Washington now wanted a big nation he could be proud of, and meanwhile, Britain, France, and Spain were still making threatening gestures. It seemed plausible to consider what the new leadership forged in the Revolution could propose, maybe give it a try. George Washington certainly had the stature to step forward and say that the nation need not be bound by that silly wartime oath to make the Articles "perpetual" if the times required a different approach. And that was plainly the case. No one, not even Thomas Jefferson or Patrick Henry who privately disagreed, had the courage to confront the General.

Washington was in the embarrassing position of having made a great show of permanently withdrawing from public life, but he was willing to stage-manage his way around that issue. The greater problem was his inexperience in the design of governments; he had not even gone to college and was uncomfortable about it. His young Virginia neighbor James Madison had studied the matter seriously with Witherspoon at Princeton and was anxious to make a name for himself as the designer of a new government, basking in the protection of the great General. There was general agreement that the New England town meeting version of democracy, based on small towns in ancient Athens, was unsuitable without a better way to expand its size. Well before young Madison appeared on the scene, Great Britain had popularized the Roman Republic as a model, and it became practically a foregone conclusion the United States should be a republic. Local communities should identify some trusted representative to understand and represent their interests within a deliberative body collecting the best interests of the whole nation. Unfortunately, this had been vaguely the concept of the Continental Congress, in which actual governance was conducted through select committees of the Congress. It had really not worked very well, and Robert Morris as acting administrator in 1778 immediately replaced administrative committees with permanent departments of administration, which worked much better. The leaders of Revolutionary America were in rebellion against a heavy-handed King, so they intentionally avoided a chief of state who might get ideas resembling those of Julius Caesar. However, the contrasting experiences of Congressional committees and Morris's permanent departments emerged as fairly decisive after anti-monarchy feelings began to subside. Washington remained adamant he wanted no part of monarchy for himself or anyone else, however. The problem was resolved by recognizing that if a presidency were created, Washington would surely fill the office. It was more or less openly decided it was safe enough to put Washington in the job and let him figure out what to do with it. Unfortunately, Washington was not immortal, was succeeded by a tumultuous Presidency of John Adams, and the nearly disastrous tied election of 1800. While it could be argued that the vagueness of his powers and duties in the eventual Constitution was a necessary concession to the ambiguous requirements of the Presidency of a new nation, the flaws of the Constitution's address of Presidential succession were careless in the extreme. History is replete with hundreds of examples of wars and assassinations associated with the succession of chief executives. For thousands of years, many societies have even concluded that the obvious flaws of hereditary kingship were to be preferred to the chaos which regularly results from trusting the personal ambitions of candidates to sort matters out.

So it was almost a foregone conclusion the new government would have a congress based on the republican model and a president. It was also clear that the British common law was about as good a judicial model as could be devised by any convention, and it had the universal allegiance of the legal profession. To start a new nation it is necessary to have a comprehensive system of laws from the very first day; Congress could later review and modify the common law to suit American needs. What then remained to be decided was the method of appointing judges, a question to which there seems to be no perfect answer in any state or nation. The lawyers in a jurisdiction know well enough who of their number is fair and learned, but it does not always suit their clients to argue before a fair and learned judge; clients only want to win their case. The public might elect judges impartially, but the public is seldom in a position to know the candidates, so it abandons the elections to the politicians. The politicians have their own agendas, and it is unfortunately not considered necessary in some districts for a politician to be impartial or even honest. To become a judge you have to ask who has the power to appoint you. And then you have to ask, what does that person want in return? In some districts, the answer is $100,000 in a campaign contribution. A person who agrees to that condition is not necessarily a bad judge when in office, but if he wants a promotion to a higher judgeship he has to ask the same question: who has the power to promote me, and what does he want? The judicial appointment question seems to have no good answer, but many American lawyers have been persuaded that the British system of the Inns of Court is superior. That system can be roughly summarized as sending a likely youth to "Judge School" in early adolescence and intoning Judicial ethics at him for the rest of his life in a judicial cloister. It must be recalled, however, that Margaret Thatcher hated the Inns of the Court system for some reason, and did her best as Prime Minister to abolish it.

Under the circumstances, the Constitutional solution to appointing judges is the most appealing alternative we have. First of all, the appointment of state and local judges is a matter left to the individual states to decide. Justices of the United States Supreme Court are nominated by the President, appointed by a vote of the Senate to serve for a lifetime, subject only to impeachment proceedings for bad behavior. The Chief Justice (not the President or anyone else in the Executive Branch) is the chief administrator of Federal Courts, which essentially imitate the appointment process of the Supreme Court. It is remarkable how useful a lifetime appointment can be. Insulated from political pressures, federal judges can expect to serve under several different political parties. Except in a few rotten boroughs permanently under one-party control, a politician in power can expect to have any judge he offends, still be a judge after the politician leaves office, but the reverse is usually not the case. Although the rules are different, the effect of lifetime appointment is much the same as lifetime cloistering under the British system, with the exception that it does not apply to the barristers representing clients, as it does in England.

So now we have approximated the three branches of government before the Constitutional Convention has even convened: a republican-style congress, an independently elected executive, and a lifetime judiciary. The genius of the Convention was what they did with this set of expectations.

Originally published: Wednesday, October 17, 2012; most-recently modified: Monday, May 13, 2019