About the Author
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute that focuses on improving the systems of democracy and justice. He was director of speechwriting for President Bill Clinton from 1995 to 1999 and is the author of The Fight to Vote, My Fellow Americans, POTUS Speaks, and three other books. Waldman is a graduate of Columbia College and NYU School of Law. He comments widely in the media on law and policy.
Excerpt. © Reprinted by permission. All rights reserved.
The Fight to Vote 1
“The Consent of the Governed”
AT THE start of America’s drive toward democracy, many thought about representation and how to give power to the people. Surprisingly few thought about the vote.
On June 11, 1776, Philadelphia pulsed with revolution. In quick succession the Continental Congress appointed three committees to prepare for the expected final break with Great Britain. One panel would explore foreign alliances; another would set terms for a confederation of the newly independent states; and the Committee of Five would write the Declaration of Independence. As that document grew in importance over the years, its authors described how it was drafted. The story got better with each retelling. John Adams claimed he had chosen the thirty-three-year-old Thomas Jefferson, just as he had tapped George Washington to lead the Continental Army. “You should do it,” he remembered insisting.
“Oh! no,” Jefferson replied.
“Why will you not? You ought do it.”
“I will not.”
“What can be your reasons?”
“Reason first—You are a Virginian, and a Virginian ought to appear at the head of this business. Reason second—I am obnoxious, suspected, and unpopular.—You are much otherwise. Reason third—You can write ten times better than I can.”
Years later Jefferson would serenely deny such a conversation, claiming it was clear all along that he would write the Declaration. In any case, that Jefferson’s hand held the quill would have echoing consequences. Adams, after all, was a fussily conservative thinker, fearful of what he called the “leveling” tendencies of democracy. The Virginian did more than draft a bill of complaints against the British Crown. His draft began with a statement of principle that became an enduring American creed.
Working on a portable desk made to order by a local carpenter and attended by a fourteen-year-old slave boy, Bob Hemmings, Jefferson consulted the “declaration of rights” drafted for the new Virginia constitution. The Pennsylvania Gazette had printed it in full that week. That document, written by George Mason, began by declaring that “all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” It went on to proclaim that “all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”
Jefferson pared, pruned, and reshaped the words into the ringing preamble of America’s Declaration. “We hold these truths to be self-evident”—the last phrase Benjamin Franklin’s felicitous edit—“that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Jefferson’s opening salvo evoked the philosophy of natural rights. Historians recently have been scrutinizing the parchment again and have concluded that the passage ended not with a period but a comma, thus driving forward to the next point:
—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The “consent of the governed”—consent that must be won from “all men,” “created equal.” It was an idea both revolutionary and “intended to be an expression of the American mind,” as Jefferson put it. This ideal was far from reality at the time it was pronounced in 1776. Young America was anything but a democracy. But the fight to give life to those words was under way, even as Jefferson wrote. That creed would rebuke civic inequality from the beginning. Abolitionists declaimed the preamble in mass meetings in the 1830s. The first women’s rights convention, at Seneca Falls, New York, traced its language. Abraham Lincoln, decrying the spread of slavery in 1854, called that passage “the sheet anchor of American republicanism.” He paraphrased it at Gettysburg. Franklin Roosevelt borrowed it to decry “economic royalists” during the Depression. Dr. Martin Luther King Jr. cited it as “the true meaning of [our] creed.” Mostly these later Americans focused on its articulation of equality. Less clear, and the basis of two centuries of battle, is the connection between equal citizenship and a government that relies on and is responsible to the people. The power of that idea would impel a movement toward democracy that would take two centuries.
“No Will of Their Own”
At the time of the Revolution, America was a traditional, stratified society. A small cluster of wealthy men led the revolt: plantation owners like Washington, attorneys like Adams, and merchants like John Hancock. Americans paid deference. The sense of social hierarchy—and the idea that political power should flow from that rank—was palpable.
The colonists inherited political ideas lauding Great Britain’s “balanced” system. That approach split power between the king (“the one”), the nobles (“the few,” found in the House of Lords), and the people (“the many,” represented in the House of Commons). Such a system of checks, balances, and limits would protect liberty—the right, above all else, to be left alone by a potentially tyrannical government. In England representation was visibly uneven in the eighteenth century. “Rotten boroughs” in the countryside elected members of Parliament from just one family’s estate. Old Sarum, a verdant but unpopulated mound in rural Salisbury, sent two men to Parliament. In effect some buildings had the right to vote, but not all people. Meanwhile the new industrial cities Manchester and Birmingham went without direct representation. The satirical painter William Hogarth parodied the state of British elections. Colorful images of bribery, drunkenness, and lechery—and a mayor passed out from eating too many oysters—spill across the canvas.
When the colonial agitators and pamphleteers of 1776 spoke of “consent of the governed,” they echoed the language of the British philosopher John Locke and his notion of the social contract: the idea that rulers and people must forge an agreement for government to be legitimate and that the people had the right to overthrow an unjust state. The colonists weren’t thinking about turning out incumbent officeholders, as we might today, but the much more disruptive task of overthrowing a regime. At first these arguments mostly referred not to individuals and the government but to the colonies and the mother country. Conflict first flared over the Stamp Act of 1765. The British had insisted that the colonists be satisfied with “virtual” representation in Parliament, just as most Englishmen were. Now the American colonists demanded direct representation in the halls of power. Repeated calls for representation and equal rights—calls directed by colonial Whig leaders toward England—in turn led some within the colonies to ask uncomfortable questions. Religious minorities such as Baptists and Catholics, debtors, and backwoods farmers began to direct similar demands at the governments closer to home.
Yet this debate about representation, these first forays toward the ideas of democracy, rarely revolved around voting itself.
In the colonies as in England, only white men with a defined amount of property could vote. The restriction dated to the Middle Ages. A British law enacted in 1430 limited voting to only those with a freehold estate producing an annual income of 40 shillings—enough to “furnish all the necessaries of life, and render the freeholder, if he pleased, an independent man.” Colonists solemnly rehashed the arguments for voting limits: only men with a stake in society could be trusted with the franchise. Not just African slaves but indentured servants, tenant farmers, women, children, indebted artisans—many found themselves dependent on someone else. William Blackstone was an English jurist whose influential lectures landed in Boston and Philadelphia bookstores just a few years before the Revolution. The property limit on voting, Blackstone explained, seeks “to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own.” Poor people would be “tempted to dispose” of their votes—literally, to sell them. “This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty.” Excluding the poor, he insisted, would actually foster greater equality among the remaining voters. His arguments echo in later claims that the poor are duped, easily induced to fraud, somehow shady—and the assertion that blocking their vote would actually help them. Even then this must have seemed something of a stretch. Palpable fears lingered not far below the surface. Give everyone a vote, and who knows what they will vote for?
Just how limited was the right to vote at the time of the American Revolution? Historians can’t quite agree. The thirteen colonies were independent of one another and had varying rules. Seven restricted voting to men who owned land with specific acreage or value, others to those with specific amounts of personal property. One summary suggests that “by and large the property clauses prohibited at least a quarter—and in some states possibly as many of half—of the white male adults from voting for representatives to their state legislatures.” In newly settled areas inland, cheap land meant wider ownership. There as many as 80 percent of white men could vote. But in established areas and cities that hugged the Atlantic coastline only 40 percent of white men could cast ballots. One historian claimed colonial Massachusetts was a “middle class democracy.” Yet women were prohibited from voting almost everywhere; in most colonies so were Catholics and free black men. And of course neither slaves nor Indians could vote. Of the 3 million people who lived in the thirteen colonies, only a fraction could cast ballots.
In any event, before the Revolution voting did not matter much. Royal appointees made the big decisions about taxes, appointments, and whether to take military action. Legislatures were a check on distant executive power, not the source of legitimate public authority. The sovereign was, well, sovereign. Elections were infrequent. In a brief ritualized moment of equality, members of the gentry would stoop to mingle with the public and seek support. Crowds would gather, eager to see the candidates and their families arrive by fancy coach. Office seekers would host fêtes for voters, with ample hard cider and food. Colonists called it “treating.” When young George Washington ran for office in Virginia in 1755, Daniel Okrent writes, “he attributed his defeat to his failure to provide enough alcohol for the voters. When he tried again two years later, Washington floated into office partly on the 144 gallons of rum, punch, hard cider and beer his election agent handed out—roughly half a gallon for every vote he received.” He gently chided his campaign agent, “My only fear is that you spent with too sparing a hand.” Politicians called it “swilling the planters with bumbo.” Another, younger Virginia office seeker was more fastidious. James Madison disdained “personal solicitation” of voters and “the corrupting influence of spirituous liquors, and other treats.” Madison lost. Voting was generally done viva voce (by voice). Sometimes it was done “by view,” with supporters lining up to stand behind candidates. Enthusiasts with clubs would drive off their opponents’ backers. Paying for votes was so common in one small colony, it became known as “Rhode Islandism.” Polling places across the colonies were scattered, sometimes a full day’s ride from where voters lived. Elections were marred by bribery and intimidation.
As a result few people voted, even when they had the right to do so. In a Connecticut gubernatorial election after Independence, only 5 percent of eligible voters turned out. One clergyman bemoaned the apathy. The “multitude,” he complained, “will not leave the plow to have a governor of their taste.” Of course poor people might be enraged or engaged for a brief time by a public issue. If they could not vote, they could engage in “mobbing”—burning an official in effigy, say, or enthusiastically rioting. The roughnecks organized by Sam Adams in his protests against British policy—throwing stones as they whooped “Liberty and Property!”—were making their voices heard (loudly) in a manner quite familiar to their countrymen.
That was America on the eve of the Revolution. A world of deference and disinterest, where a few great families were presumed to govern. In The Radicalism of the American Revolution, the historian Gordon S. Wood traces what happened next, how the ideas held by the colonists began to shift—rapidly, vertiginously. They thought they could replace monarchy with a republic, in which a few dispassionate men would hold power. Virtue would govern. They erected a new edifice of government that would enable those men to sift through society’s competing demands. The Constitution, with its checks and balances, its tentative nods to democracy and its multiple veto points, embodied their theories. The founders discovered they had set loose political and intellectual energies that quickly overwhelmed those dreams and ideas.
“The Influence and Control of the People”
In January 1776 word arrived: King George III had rejected the “olive branch petition” sent by the Continental Congress the previous summer, refusing even to read it, denouncing those in the colonies who “openly avow their revolt, hostility, and rebellion,” and vowing “the most decisive exertions” of military force to quell the uprising. The very day the Royal Address was printed in Philadelphia, Thomas Paine published Common Sense. Paine had arrived in the New World just two years before, escaping a failed marriage and a desultory career as a rope maker and tax collector in England. His pamphlet proved a sensation, a wild and widely bootlegged best seller with 150,000 copies in print. Paine argued for a break not just with Britain but with monarchy itself. “England since the conquest hath known some few good monarchs, but groaned beneath a much larger number of bad ones,” he wrote. The Americans cast off British rule in town meetings and colonial assemblies over the coming months. In December residents of Pittsfield, Massachusetts, demanded a new state government, organized on a different basis. “If the right of nominating to office is not invested in the people,” their statement read, “we are indifferent who assumes it whether any particular persons on this or on the other wide of the [wa]ter.” A month later the colony’s general court lauded the people for quickly establishing “a Form of Government” under the “Influence and Control of the People, and therefore more free and happy than was enjoyed by their Ancestors.”
On May 10, 1776, the Continental Congress urged each colony to form a new government. Five days later it went further, pushing colonists to act so that any trace of the king’s authority is “totally suppressed.” John Adams lauded the move as “an epocha...
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