Archive for December 27th, 2010

Ghosts of Constitutional Debates Past – Part II

In Ghosts of Constitutional Debates Past, I looked at some of the things that Centinel, aka Samuel Bryan, objected to in the Constitution, and how some of his projections about how power might migrate away from the original plan seemed to parallel the claims that the Progressives have made stick in order to distort the Framers’ initial plan.  The next few letters in the Library of America’s compilation of the debate likewise are from the anti-Constitutional party.  And they point out some of the things that they got very wrong.

One of Centinel’s worries was that the Constitution would create a permanent aristocracy.  But his concerns center not on the executive, but on the Senate.   Interestingly, Centinel’s analysis virtually places the Senate not in the legislative branch, but in the executive branch, since it has a role in approving treaties and confirming appointments.  The Vice President, of course part of the executive branch, is President of the Senate.  With a weak executive, Bryan is more concerned that we’ll see a hegemony of the Senate than of the Presidency.  He’s correct that Montesquieu prescribed a strict separation of the executive and legislative powers as a precondition of liberty.  But it’s the Presidency, with the help of a Congress that has delegated legislative power to the executive, and the complicity of favorable Supreme Court rulings, that has gotten there, not the Senate.

One of the recurring themes also was the preservation (or the alleged lack thereof) of the juries in civil cases.  Now, eventually this was rectified in the 7th Amendment (thank you, George Mason), but what’s interesting here is the rhetoric.  The anti-Constitutionalists assume that this was a deliberate act by the Convention, in order to help the higher courts usurp the lower courts, and to weaken liberties.   In fact, this point was debated in the Convention, in the context of a Bill of Rights.  But the reason that some opposed including it in the Constitution was that the laws varied from state to state, and that detailing which cases were appropriate for juries would be difficult.  (There are some civil cases that traditionally did come before judges rather than juries; in such cases “equity” law was said to apply.  I’m nowhere near an expert on what made a case an “equity” case as opposed to a jury case, and apparently the Conventioneers were similarly daunted by setting forth rules for the distinction.)

So, while Bryan and his cohort did get certain concerns correct, they missed others by a wide mark: it wasn’t the Senate that was the threat, and the fact that the Convention missed some elements didn’t imply a grand conspiracy to deprive people of their liberty.

UPDATE: After further reflection, the importance of juries in civil suits, which are  by definition property rather than criminal cases, reinforces the fact that property rights were seen (and ought to be seen) as identical with political rights.

I’d also point out that Centinel’s concern that the federal courts would inevitably trump the state courts in civil cases has also not borne out.  One instance is liability law, where the worse abuses have occurred in state courts (take asbestos, for instance), and the federal courts have been powerless to stop them.  The situation has only gotten better with the revisions of state law to make them more sensible.

No Comments